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CIVIL APPELLATE JURISDICTION Civil Appeal No. 3838 of 1988. From the Judgment and Order dated 22.6.1987 of the Tamil Nadu High Court in W.A. No. 555 of 1984. T.S. Tulsi, Additional Solicitor General, B.K. Prasad, K. Srivastava, P. Parmeshwaran for the Appellants. T.M. Sampath and K.V. Sreekumar for the Respondents. The Judgment of the Court was delivered by VERMA, J. This matter brings to the fore once again the ineptitude with which litigation is companyducted quite often on behalf of the Government of India and State Governments even when important issues having lasting and wide repercussions are involved. The point in this case relates to the validity of a policy of the railway administration and is likely to affect the staff pattern in several units. Inspite of this fact, to support validity of the impugned policy the required materials were number produced in the High Court and to overcome the adverse decision several opportunities given by us to produce the entire relevant record were number availed. The learned Additional Solicitor General informed us after several adjournments that better performance is number possible. We, therefore, companycluded the hearing and proceed to decide on the available materials. It is indeed fortunate for the appellants that our companyclusion is in their favour. The railway administration with its companyntrywide network can help to improve this situation by a genuine effort in this direction and thereby companytribute also to saving of needless expense and time. We, therefore, direct that a companyy of this judgment be sent to the Chairman, Railway Board, Ministry of Railways, Government of India. In view of the situation indicated above, we are mentioning only those facts which are necessary for deciding this matter and which are accepted by both the sides. It is number unlikely that there may be more material in the available records of the appellants to support our companyclusion. Briefly stated the companytroversy in this matter relates only to the employees working in the Inspection Wing of the Production Control Organization for short P.C.O. of the Integral Coach Factory, Perambur. The grievance of these employees in the Inspection Wing is to the implementation of the circular dated 8.6.1982 of the General Managers Office Personnel Branch Fur. , Madras of the Integral Coach Factory issued in supersession of the earlier circulars on the subject with the Railway Boards approval to treat the Progress Wing alone of the P.C.O. as a separate cadre. The grievance of the employees in the Inspection Wing is that there is numberreasonable basis for this classification of the Progress Wing of the P.C.O. separately denying the same benefit to those in the Inspection Wing. In short, the employees of the Inspection Wing of the P.C.O. also want to be in a separate cadre like those in the Progress Wing and absorbed perma nently in the P.C.O. without the risk of being reverted to the shop floor from which they had been taken and where their lien companytinues. A brief history of the Production Control Organization in the Integral Coach Factory, Perambur, may number be given. The P.C.O. of the Integral Coach Factory was companystituted to ensure quality companytrol of the production in the factory. It companyprises of four wings which include the Progress and Inspection Wings. It appears that the policy for manning the different wings of the P.C.O. remained nebulous for quite long and several changes therein were made from time to time to accommodate the staffs point of view. To begin with, persons from different trades in the shop floor were taken on deputation for the different wings of the P.C.O. For the Progress Wing of the P.C.O., there was also some direct recruitment, but the same was stopped after some time probably in the year 1958 and it was decided that the posts in the Progress Wing be filled by taking persons on deputation from the shop floor. On 22.4.1963, the Railway Board laid down uniform policy for the P.C.Os. in all units of the Indian Railways according to which all the posts in the C.Os. were made ex-cadre and every employee posted in the C.O. was to be from a trade in shop floor. The employees transferred from the shop floor to the P.C.O. were to retain their lien in the shop floor and deemed to be on temporary transfer. This gave rise to some practical difficulty and the permanently absorbed staff in the P.C.O. were given option to revert to the shop floor. The staff directly recruited in the P.C.O. were to be allotted a trade and given the option for getting absorbed in the shop floor On 13.10.1964, a modification was made which is companytained in the G.M. P s letter No. PB S M/6/ATC which refers to the Railway Boards letter No. E NG 59SR 6-22 dated 22.4. 1963. This was the first stage, as described by the learned Additional Solicitor General, for the employees in the P.C.O. of the Integral Coach Factory, Perambur. At the next stage. this policy was further modified for the Inspection Wing by a circular dated 13.8.1965 of the Office of the GM PB Shell of the Integral Coach Factory. This was a half-way measure implemented straightaway in the Inspection Wing, but companyld number be implemented in the other three wings, namely, Progress, Planning and Time Study, because of certain practical difficulties therein. According to this modification, the Inspection Wing was to form a separate ex-cadre unit and the employees in the Inspection Wing were given proforma position in the cadre posts in their trade and companyld be reverted to their parent cadre in the shop floor in the position which they occupied in the shop floor. This again met with difficulty in implementation giving rise to circular dated 29.9.1967 of the Office of the General Manager Personnel Branch Staff of the Integral Coach Factory. Option was given to the staff in the Progress, Planning and Time Study Wings of the P.C.O. to get absorbed and interpolated in the shop floor leaving the Inspection Wing separate. This circular dated 29.9. 1967 was struck down by the Madras High CoUrt vide its order dated 22.8. 1975 in a petition filed by employees of the shop floor on the ground that the General Manager of the Integral Coach Factory had numberpower to act inconsistently with the Railway Boards circular and the remedy is to modify the Railway Boards circular dated 22.4.1963. Accordingly, the procedure laid down in the order dated 29.9. 1967 was cancelled and all posts in the P.C.O. were declared excadre by a circular dated 28.8. 1977 of the General Managers Office Personnel Branch Fur. of the Integral Coach Factory. A modification m the earlier proposal was made by this order. All employees were to be allotted a trade and given option either to go to the shop floor or remain permanently in the P.C.O. However, this too companyld number be implemented on account of the protest of the staff and the unions representing them. At the next stage, a proposal was made by the Integral CoaCh Factory to the Railway Board which is companytained in the letter dated 1.3. 1982 from the Chief Personnel Officer, Integral Coach Factory to the Joint director, Establishment, Railway Board. This was in pursuance to the suggestion of the staff itself that the Progress Wing alone be treated as separate cadre in the P.C.O. and number the remaining wings. Reasons in support of the proposal were also given therein. The Railway Board companyveyed its approval to this proposal in its letter No. E NG 1-81 PM 1/259 CA dated 20.3. 1982. This led to the issuance of the order dated 8.6.1982 by General Manager, Integral Coach Factory, stating that in accordance with the Railway Boards approval, the Progress Wing alone of the C.O. would be a separate cadre and number the remaining wings. As a result of this decision, the Inspection Wing is number treated as a separate cadre unlike the Progress Wing. This is the basis of the grievance of the employees of the Inspection Wing which led to the filing of the writ petition giving rise to this appeal. Writ Petition No. 4468 of 1982 filed in the Madras High Court by the respondents was allowed by the learned Single Judge on 7.4.1984. Thereafter, another step was taken by the railway administration which may be mentioned. The Integral Coach Factory issued a circular on 21.9.1984 companyveying Railway Boards decision companytained in the letter dated 13.9.1984 regarding the staffing pattern of the P.C.Os. in the workshops including the Integral Coach Factory. According to this decision, all posts in the P.C.O. except the Progress Wing companytinued to be ex-cadre posts and the tenure of these posts was directed to be strictly adhered to. The existing position regarding en-cadering of the posts in the C.O. in all wings of Southern Railway and Progress Wing of Integral Coach Factory was allowed to be companytinued. In short, it was a reversion to the initial stage companytained in the order dated 22.4.1963 of the Railway Board except for the Progress Wing. The writ appeal of the railway administration was thereafter dismissed by the High Court on 22.6.1987. The further facts are number material for deciding the point in companytroversy. In short, the employees of the Inspection Wing which include the respondents, companytend that they are entitled to be treated similarly as the employees of the Progress Wing, whose companytinuance in the P.C.O. without the risk of reversion to the shop floor is assured by the adoption of this policy. This companytention of the respondents has been accepted by the High Court. The acceptance of the respondents claim results in striking down the Railways policy to this extent of number treating the Inspection Wing also as a separate cadre like the Progress Wing. It also affects the prospects of those in the shop floor who are denied the chance of being taken in the Inspection Wing of the P.C.O. because of the companytinuance permanently of those already there retaining their lien in the shop floor. It is admitted that the service companyditions in the P.C.O. are better than those of the companyresponding posts in the shop floor. This is the reason for those in the P.C.O. number wanting to revert to the shop floor and the keenness of persons from the shop floor to go to the P.C.O. Some employees working in the shop floor have preferred S.L.P. Civil No. 9774 of 1990 arising out of a companynected matter and have supported the stand of the railway administration taken in Civil Appeal No. 3838 of 1988. It is companymon ground before us that the Inspection Wing of the P.C.O. performs the function of inspecting the quality of the products of the Integral Coach Factory and thereby ensures quality companytrol of the products. The Progress, Planning and Time Study Wings of the P.C.O. are involved in the manufacture of these products and companye at the stage relating to manufacture of the products. There is thus an intelligible differentia between the function of the Inspection Wing on one side and the remaining wings of the P.C.O. on the other. The background indicated earlier leading to the decision by the Railway Board that the Progress Wing alone would be treated as a permanent cadre in the Integral Coach Factory and number the others, was reached on the basis of experience over a long period and was in companysonance with the opinion of the Staff Council representing the views of the staff of the Integral Coach Factory. It appears that companytinuity in Progress Wing and rotation in the Inspection Wing was companysidered desirable for better efficiency. The Railway Board being companypetent to effect necessary changes in the staff pattern of the various units under its companytrol for the purpose of streamlining the Organisation and improving their efficiency, took this decision for this purpose which is companysistent with the view of the staff Council representing the interest of the entire staff in the P.C.O. It does appear that the railway administration did want at one time to treat all units in the P.C.O. as separate permanent cadres but practical difficulty in the implementation of that policy and opposition by the staff impelled it to give up the same. Even here we find that while those already in the Inspection Wing want to remain there permanently, the others who are in the shop floor and would be denied the prospect of being taken in the Inspection Wing of the P.C.O. if the respondents companytention is upheld, are opposed to this view. The decision of the Railway Board, therefore, takes into account all points of view and makes an attempt to reconcile the companyflicting interests while ensuring improvement in the efficiency of the unit. If as a matter of policy the Railway Board approved the proposal made by the management of the Integral Coach Factory to treat the Progress Wing alone of the P.C.O. as a separate cadre and number so the remaining wings including the Inspection Wing, the same cannot be faulted unless it is held to be discriminatory or arbitrary. In view of the nature of functions performed by the four different wings of the P.C.O., we are unable to agree with the High Courts view that the Inspection Wing and the Progress Wing of the P.C.O. must be classified together and treated as separate cadres. It is significant that even at some of the earlier stages, Inspection Wing was treated differently as a matter of policy. The work of the Inspection Wing, as indicated earlier on the basis of undisputed facts before us, is to inspect the quality of the manufactured products to ensure quality companytrol, while the Progress Wing is companycerned with the stage prior to manufacture of the products. For the efficiency of the Inspection Wing which performs the duty of exercising vigilance over the production for the sake of ensuring quality of the products, it is number unreasonable to think that a periodic rotation of its personnel would be companyducive to efficient functioning of the Inspection Wing. The permanency of personnel in the Inspection Wing can promote lethargy in them and may also tend to create vested interests. The possibility of change therein makes the existing personnel more vigilant to avoid any lapse which companyld be discovered by the replacement. The highest possible standards of vigilance by them is achieved by the possibility of reversion to the shop floor against their will if the required degree of efficiency and standard in performance of the duty is number maintained. The work of the Inspection Wing being at the end point with numberfurther scrutiny thereafter, rotation of its personnel is likely to promote the efficiency of the unit. This factor is sufficient to provide a reasonable basis for classification of the Inspection Wing differently from the Progress Wing and there is numberground to companyplain of discrimination, if according to the Railway Boards policy, the Inspection Wing is number treated as a separate cadre like the Progress Wing. The power of the railway administration to formulate such a policy provided it is number discriminatory being rightly number challenged, this companyclusion alone is sufficient to uphold the action of the railway administration. The companytrary view taken by the High Court cannot, therefore, be sustained. We find that the companypetence of the Railway Board to change the staff pattern of the P.C.O. in the Kharagpur Railway Workshop of South Eastern Railway, was challenged before the Central Administrative Tribunal. The decision there was companytained in a Memorandum of 1979 declaring that the posts in the P.C.O. in the Kharagpur Railway Workshop would be treated as ex-cadre differently from the policy in Integral Coach Factory. The Tribunal rejected the challenge based on discrimination between two units and a special leave petition filed in this Court was dismissed. This Court in S.K. Chakraborthy and Ors. v. Union of India Ors., 1988 Supp. 1 S.C.R. 425 upheld the authority of the Railway Board to adopt such a policy to bring about the necessary changes in the staff pattern for improving the efficiency of the administration of units under its companytrol and for the purpose of streamlining the Organisation provided there was numberdiscrimination. Consequently, the appeal is allowed and the impugned judgment of the High Court is set aside resulting in the dismissal of the Writ Petition filed in the High Court. No companyts. A companyy of this judgment be sent to the Chairman, Railway Board as directed. |
C. Shah, C.J. By the deed dated 4th January, 1961 one Harnam Singh made a gift of agriculture land measuring 76 acres 3 bigh as in favour of the appellant in appeal. Wazir Singh, respondent to this appeal claming that he was adopted on July 11, 1947 by Harnam Singh according to Hindu rites and ceremonies challenged the gift of the land which he asserted belonged to the Hindu Joint family of Harnam Singh and himself. The suit filed by Wazir Singh was dismissed by the Trial Court. The Court held that Wazir Singh was appointed as heir under the customary law of the Punjab and that he was number adopted according to Hindu riles and ceremonies on that account Wazir Singh was number companypetent to challenge the alienation of the gift by Harnam Singh. On appeal, the District Court upheld the claim of Wazir Singh that he was adopted by Harnam Singh according to the Hindu rites and ceremonies and the property which was gifted was part of the companyarcenary property and on that account the gift was void. The High Court of Punjab companyfirmed the decree passed by the District Court. With certificate granted by the High Court, this appeal has been preferred by the appellant. Two companytentions are raised in support of appeal In reaching his companyclusion that the adoption of Wazir Singh was according to Hindu rites and ceremonies, the District Judge misread documentary evidence and ignored the pleadings of the party. That in any case by virtue of Section 30 of the Hindu Succession Act 1956 it was number open to Wazir Singh to challenge the gift made by his adoptive father Harnam Singh. The deed of adoption which is executed by Harnam Singh in 1947 states that After my death it is necessary that I should have a son to perform any ritual ceremonies The name of a sonless person vanishes from the mortal world. I have brought up Wazir son of Mangal, a minor aged 16 years, as a son since his childhood, for the last ten years. Wazirs marriage was also arranged by me and Wazir aforesaid is also looking after me as natural son. I have adopted Wazir aforesaid, minor son of Mangal, as my son in the presence of the Panchayat, after performing the religious ceremonies Wazir will be the owner of my property of every kind as my natural son. The recitals in the deed of adoption companyroborate the case of Wazir Singh that he was adopted according to Hindu rites and ceremonies in the presence of the Panchayat, and that he was treated as an adopted son. The recitals in the deed are supported by the witnesses examined in the Court of First Insurance on behalf of Wazir Singh. Mr. Bishan Narain companytended that the District Judge misread the written statement filed by the appellant in the Court of first instance and assumed that numberplea was raised that the adoption was merely a customary adoption. Granting that a companytention was raised that Harnam Singh did number adopt Wazir Singh according to the Hindu rites and ceremonies, the companyclusion of the District Judge on appreciation of evidence that the ceremonies of adoption according to Hindu rites were performed, was binding upon the High Court in second appeal. It is companyceded, and in our judgment rightly, that a Hindu governed by the customary law in the Punjab is number disentitled to make a formal adoption according to Hindu rites and ceremonies. Harnam Singh companyld make a customary adoption, he companyld also make a formal adoption according to Hindu rites and ceremonies. In the present case, the District Judge has found that there was a formal adoption of Wazir Singh according to Hindu riles and ceremonies. That finding was binding upon the High Court sitting in Second appeal. The first companytention must, therefore, fail. Section 30 of the Hindu Succession Act provides Any Hindu may dispose of by will or by will or other testamentary any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus. Explanation The interest of a male Hindu in a Mitakshara companyarcenary property or the interest of a member of a tarwad, tavashi, illom, kutumba or kavaru in the property of the tarwad, tavashi, illom, kutumba or kavaru shall, numberwithstanding anything companytained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this Sub-section. Mr. Bishan Narain companytended that Section 30 applied only to disposition by will or other testamentary instruments but also to instruments inter vivos. On the plain terms of Section 30 it is impossible to read Section 30 as applying to disposition inter vivos. Mr. Bishan Narain relied upon Section 13 of the Hindu Adoptions and Maintenance Act of 1964 which reads Subject to any agreement to the companytrary, an adoption does number deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will. But by virtue of his adoption in 1947, Wazir Singh acquired the status of a companyarcener. A gift of companyarcener property by a member is void. There is numberhing in Section 13 of the Hindu Adoptions and Maintenance Act 1956 which detracts from that rule. |
BRIJESH KUMAR, J. This appeal is preferred against the judgment and order dated 17.5.2002 passed by the Madhya Pradesh High Court dismissing the appeal of the appellants against their companyviction and sentences of imprisonment for life under Section 302/149 as well as six months rigorous imprisonment under Section 323/149 of the Indian Penal Code. In all seven persons have been companyvicted by the Sessions Judge out of which Shankariya and Malkhe died during the pendency of the appeal in the High Court. The remaining five accused persons who have been companyvicted are Munna, Shridhar, Motilal, Sarman and Gopal out of these persons Shridhar and Motilal are appellants before us in this appeal. The prosecution case is that on 12.3.1983 at about 7.00 p.m. deceased Hakimsingh and PW-1 Rajendrasingh on way to their field passed through the house of Shankariya who is said to have accosted Hakimsingh asking him as to why he had been visiting the wife of his brother Ramcharan. Hakimsingh protested, upon which Shankariya and Malkhe with lathis, accused Sarman assaulted with farsa. Gopal and Motilal are said to have given lathi blows on the head of Hakimsingh. PW 1 Rajendrasingh tried to intervene at which he was also assaulted by Shankariya and Gopal. The alarm of Rajendrasingh attracted PW 4 Mahaveersingh, PW3 Sagarsingh, PW5 Raghurajsingh and PW 6 Dildarsingh to the spot. PW 1 Rajendrasingh lodged the report of the incident upon which a usual investigation was companyducted by the police of P.S.Veerpur. The weapons of the assault namely, lathi and farsa etc. are also said to have been recovered during the companyrse of investigation. On companypletion of the investigation the police filed the charge-sheet. Rajendrasingh and Hakimsingh were sent for medical examination. PW-8 Dr.K.K.Singh found two injuries on the person on Rajendrasingh one of which was a lacerated wound on the forehead and the other a bruise on the left hand. On the person of Hakimsingh he numbered nine injuries most of which were lacerated wounds and quite a number of them on the head. Hakimsingh however, later died on 21.3.1983 in J.A.Group of Hospitals, Gwalior. The post-mortem examination was companyducted on his body and as many as ten injuries were numbered on his person including stitched wounds. The injuries were on the face, head and other parts of the body. The prosecution, to prove its case, has examined PW 1- Rajendrasingh, PW 3- Sagarsingh, PW 4 Mahaveersingh and PW 5 Raghurajsingh as eye-witnesses. PW 6 Dildarsingh is also one of those who is said to have rushed to the spot at the time of the incident. PW 8 Dr.K.K.Singh examined the injuries of Rajendrasingh and Hakimsingh and PW 7 Dr.V.K.Divan companyducted the post-mortem examination on the deadbody of Hakimsingh. The other former witnesses and the investigating officers were also examined. The defence of the accused persons was that they have been falsely implicated in the case. According to them, the companyplainant party wanted to grab the property and land of the appellants. It also appeared that a cross report was lodged by late Shankariya, accused at the same police station. According to them, late Shankariya, accused Munna and Sarman had received injuries. The learned companynsel for the appellants has mainly emphasized that the present appellants namely, Shridhar and Motilal were number present at the spot. He further submitted that the prosecution case as initially taken up has number been pursued as to how the incident occurred and the story of Hakimsingh having illicit relations with the wife of the brother of Shankariya has been given up at the stage of the evidence. We feel that it would number be necessary to go into that aspect of the matter in view of the fact that a fight had taken place at the time and date as indicated by the prosecution is number in dispute. A cross report has also been lodged and it was the case of the accused persons that Munna and Sarman had received injuries. It is true at the evidence stage the prosecution story was slightly changed as to how the dispute had started. As it was stated at the end that a quarrel took place as cattle of late Shankariya had entered into their fields. But as observed above in the facts and circumstances of this case the question as to how the fight started numbermore remains important since admittedly the incident occurred resulting in injuries to Hakimsingh and Rajendrasingh as a result of which later on Hakimsingh died. Cause of fight therefore, is number a point to be much companycentrated upon. The other relevant question which may arise for companysideration is as to which of the party was aggressor and further if there was any right of private defence available to the accused persons. The Trial Court as well as the High Court has companysidered this aspect of the matter and has companye to the companyclusion that it would number be possible to hold that Hakimsingh and Rajendrasingh would be aggressors or they picked up a fight empty handed. As a matter of fact numbersuch arguments have been advanced on behalf of the appellants before us to dislodge the findings arrived at by the two companyrts. The main stress on behalf of the appellants has been that they were number present at the spot. Arguments have mainly been advanced only in that direction. It is submitted that so far the appellant Shridhar is companycerned he has number been assigned any role of assault to Hakimsingh or the injured Rajendrasingh. One of the eye-witnesses has also number named him as an accused person at the spot at the time of the incident. It is submitted that it makes his presence doubtful. The submission in regard to Motilal is that he is said to have given a lathi blow on the neck of the deceased Hakimsingh. But there is numberblunt weapon injury on the neck of Hakimsingh. Therefore, it is submitted that his presence is also number made out at the relevant time of the incident. We have scrutinized the submissions made by the learned companynsel for the appellants and we numberice that a role has been assigned to each of the accused persons but Shridhar. It is said that Shankariya and Malkhe started assaulting Hakimsingh. The FIR also indicates the role played by different accused persons but so far accused Shridhar is companycerned numberrole has been assigned to him for assault either to Hakimsingh or to Rajendrasingh. The other accused persons, namely, Sarman who has been stated to have given farsa blow whereas Motilal and Gopal are said to have given lathi blows to Hakimsingh. It is also to be numbericed that one of the eyewitnesses has also number named Shridhar as one of the accused in his statement in the Court. This circumstance makes the presence of Shridhar doubtful more so as a member of an unlawful assembly. Otherwise there was numbergood reason as to why numberrole would have been assigned to him in the FIR or in the statements of the prosecution witnesses and one of them having number named him altogether. Learned companynsel appearing for the State has, however, drawn our attention to the fact that the lathi which is said to have been recovered from Shridhar was blood stained. The submission is this circumstance companynects very much with the incident. But a perusal of the report of the chemical examiner does number indicate that the weapons, namely, lathi etc. were stained with human blood. Therefore, numberaid can be taken from this circumstance too. Therefore, we dont companysider it prudent to infer companyclusively that Shridhar was one of the members of the unlawful assembly. A doubt has also arisen, as indicated earlier, due to the fact that one of the eye-witnesses does number name at all in his statement before the Court. So far the appellant-Motilal is companycerned his case stands on a different footing. He has been assigned a role of assault on Hakimsingh by his lathi. This has been maintained through out in the FIR as well as in the statements of all the witnesses. The learned companynsel for the appellants has vehemently urged that there is numberinjury by any blunt weapon on the neck of the deceased Hakimsingh and the role which has been assigned to Motilal is that he had given a blow on the neck. The injury report of Hakimsingh shows that he has received a number of injuries on the front and back side of the head which have also been caused by a blunt weapon. It is difficult in a criminal case to go by exactly tallying the injuries blow by blow. Quite often injuries may tally but it is equally possible that at times a blow aimed at a particular part of the body may hit the other neighbouring part of the body and number exactly the part where the blow is aimed at. It is a case where Hakimsingh was being assaulted by lathis and farsa by a number of persons which blow of which accused may land on which part of the body cannot be stated with exactitude. Not much would turn upon it. Such a discrepancy as indicated and mentioned above cannot said to be glaring or so diverse to the manner of assault that numbermally it may number be possible to explain it. The evidence on the point of assault by Motilal is companycerned, it is also described in the FIR. The FIR was lodged promptly within two hours of the incident. Therefore, we are unable to accept the submission made on behalf of the appellant-Motilal that his presence is also number established because of the fact that numberblunt weapon injury was found on the neck of the dead-body of Hakimsingh. In view of the discussion held above, we extend the benefit of doubt to Shridhar. |
P. Mathur, J. This appeal, by special leave, has been preferred against the judgment and order dated 19.6.2000 of the Bombay High Court by which the Letters Patent Appeal filed by ANZ Grindlays Bank Limited hereinafter referred to as the Bank was dismissed and the order dated 29.2.2000, passed by the learned single Judge dismissing the writ petition filed by the Bank, was affirmed. The present appeal has been filed by ANZ Grindlays Bank Limited and the respondents arrayed in the appeal are 1 Union of India, 2 All India Grindlays Bank Employees Federation, and 3 All India Grindlays Bank Employees Association. During the pendency of the appeal in this Court the entire share capital of ANZ Grindlays Bank Limited has been acquired by Standard Chartered Bank Limited and companysequently an application I.A. No. 3 of 2000 has been moved to change the name of the appellant from ANZ Grindlays Bank Limited to Standard Chartered Grindlays Bank Limited, which has been allowed. The Bank has branches all over the companyntry and employs approximately 1666 personnel companymonly known as Award Staff in its branches offices in India. The All India Grindlays Bank Employees Association third respondent is recognized by the Bank and it represents majority workmen of the Bank all over the companyntry. The All India Grindlays Bank Employees Federation second respondent represents the minority workmen of the Bank. The terms and companyditions of the employment of the workmen of the appellant Bank, popularly known as Award Staff, are governed by Shastri Award as modified by Desai Award and the bipartite settlements entered into between the Indian Banks Association and the Unions and Federations representing the workmen in the banking industry. Apart from these industry wise bipartite settlements, the appellant-Bank also entered into in-house bilateral settlement with second and third respondents and these settlements are usually signed after every three years in respect of certain allowances and benefits and other terms and companyditions of employment. The third respondent the All India Grindlays Bank Employees Association for short the Association represents over 66 of the workmen of the appellant-Bank. The Grindlays Bank Employees Union, Calcutta, an affiliate of the second respondent All India Grindlays Bank Employees Federation for short the Federation represents nearly 13 of the workmen of the Bank and the balance, who are number members of either of these unions are represented by the second respondent the All India Grindlays Bank Employees Federation. The case of the appellant is that the Federation second respondent is in the habit of backing out from signing the settlement at the last minute after having agreed to the terms thereof. Since 1993 several settlements were entered into between the Bank, the Association third respondent and also Grindlays Bank Employees Union, Calcutta. However, on account of the recalcitrant attitude of the Federation second respondent , in the settlement entered into under Section 18 1 of the Industrial Disputes Act, 1947 for short the Act a clause had to be incorporated for voluntary acceptance of the terms and companyditions of such settlements by number-members of the Association third respondent with a view to extend the benefit of such settlements to such of the number-members of the Association, who are willing to accept the settlement. A strike numberice dated 14.3.1996 was issued to the management of the Bank by the Federation second respondent . Discussions were held with all the parties and finally a settlement was arrived at between the appellant-Bank and the Association third respondent , which was signed on 18.8.1996. The Federation second respondent , however, backed out and refused to sign the settlement. The Federation then informed the Conciliation Officer Central on 19.8.1996 that it had number signed the settlement and that the signing of the settlement by the Bank with the Association third respondent amounted to unfair labour practice. On 6.12.1997 Grindlays Bank Employees Union, Calcutta, a companystituent of the Federation second respondent representing 13 of the workmen of the Bank accepted the terms of the settlement dated 18.8.1996 by signing a separate settlement dated 6.12.1997. The settlement dated 18.8.1996 companytained the following clause - DURATION This settlement will companye into force with effect from August 18, 1996 and on various dates as specified under different items companytained in the settlement. The same shall be binding on the parties until December 31, 1998. After December 31, 1998 and except in the case of exgratia system payments all other terms and companyditions thereof shall companytinue to be binding on the parties until the settlement is terminated by either party giving to the other statutory numberice as prescribed in law for the time being in force. It is agreed that since the settlement shall be binding between the parties to this settlement under Section 18 1 of the Industrial Disputes Act, 1947, it will also be binding on the affiliated units of All India Grindlays Bank Employees Association and hence on their members and thus the members shall automatically be entitled to the benefits of this settlement and subject to the obligations under this settlement. However, any other workmen who is number a member of any Union affiliated to All India Grindlays Bank Employees Association shall also be bound by the terms and companyditions of this settlement and companysequently entitled to the benefits flowing out of this settlement if he she accepts this settlement by signing a receipt and the format of the settlement enclosed with this settlement, which will be made available to such employees. The benefits arising out of this settlement will be given effect to by September 10, 1996. The settlement itself companytained a format in which the receipt had to be given and the same is as under - To The Manager ANZ Grindlays Bank Limited. Sir, The terms and companyditions of the settlement dated August 18, 1996 between the Management of ANZ Grindlays Bank and their workmen represented by All India Grindlays Bank Employees Association in respect of the various demands have been perused by me. I accept the settlement and the same will be binding on me. I undertake to receive the benefits in terms of the companyditions set out in the settlement. I, therefore, request you to release the benefits accruing to me under the same. This may be companystrued as my receipt towards payment receipt of grant under the subject settlement. Sd - SIGNATURE As a result of signing of the settlement by the Association third respondent and the Calcutta Union, almost 99 of the Award Staff signed the settlement and only 29 persons remained, who did number sign the settlement and were objecting to the same. However, according to the Federation second respondent 60 persons have number signed the settlement and are objecting to the same. Nearly three years thereafter the Association third respondent submitted a fresh charter of demands and after holding discussions and negotiations a fresh settlement was signed on 10.3.1999 by the Association and Calcutta Unit of Grindlays Bank Employees Union. At the instance of All India Grindlays Bank Employees Federation second respondent the Central Government, by order dated 29.12.1997, made a reference under Section 10 1 of the Act for adjudication by the Industrial Tribunal. After issuance of a companyrigendum on 17.12.1998, the reference reads as under - Whether the terms of bipartite settlement dated 18.8.1996, between the management of ANZ Grindlays Bank Limited, and All Indian Grindlays Bank Employees Association which bound withholding of benefits of settlement to workmen who are number members of All India Grindlays Bank Employees Association until the individual gives acceptance of the settlement in the given format is legal and justified? If number, to what relief are the workmen entitled to? Feeling aggrieved by the aforesaid reference made by the Central Government the ANZ Grindlays Bank filed a writ petition under Article 226 of the Constitution before the Bombay High Court for quashing and setting aside the same. The writ petition was dismissed by a learned single Judge and the appeal preferred against the said decision before the Division Bench also failed. The present appeal has been filed by the Bank challenging the aforesaid orders. Mr. Gaurab Banerji, learned senior companynsel for the appellant- Bank, has submitted that the reference made by the Central Government is wholly redundant and it does number show what is the precise demand of the Federation second respondent and how the decision of the reference by the Industrial Tribunal if answered in favour of the second respondent, would give any benefit to the said respondent. The language in which the reference has been companyched clearly shows that the Federation second respondent merely wants a declaratory relief which by itself would be wholly ineffective and will give numberbenefit to the Federation. The settlement arrived at between the Bank and the Association third respondent was under Section 18 1 of the Act and companysequently it did number bind those who are number parties to the settlement like the Federation second respondent and thus the rights, if any, of the Federation were number affected in any manner by the settlement. Learned companynsel has also submitted that the Central Government had on two previous occasions refused to make a reference and there being numberchange in circumstance there was numberoccasion for reviewing the decision taken earlier and in making the reference on 29.12.1997. It has been further companytended by Mr. Banerji that the settlement made on 18.8.1996 had already worked itself out and benefits had been given to the employees in terms thereof. The said settlement had been superseded by another settlement on 10.3.1999. If the settlement arrived at on 18.8.1996 is held to be illegal or unjustified, it will result in causing serious injury to the appellant Bank as it will be impossible to recover back the benefits which had already been given to the employees in terms of the settlement. It may be mentioned at the very outset that the appellant-Bank had entered into the settlement dated 18.8.1996 with the Association third respondent and members of the Grindlays Bank Employees Union, Calcutta, after holding discussions and negotiations. The settlement had number been entered into either before a companyciliation officer or labour companyrt or industrial tribunal. In view of Section 18 1 of the Act the settlement was binding only upon the parties thereto. Section 18 of the Act reads as under - Persons on whom settlements and awards are binding.-- 1 A settlement arrived at by agreement between the employer and workman otherwise than in the companyrse of companyciliation proceeding shall be binding on the parties to the agreement. Subject to the provisions of sub-section 3 , an arbitration award which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration. A settlement arrived at in the companyrse of companyciliation proceedings under this Act or an arbitration award in a case where a numberification has been issued under sub-section 3-A of Section 10-A or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on-- a all parties to the industrial dispute b all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, records the opinion that they were so summoned without proper cause c where a party referred to in clause a or clause b is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates d where a party referred to in clause a or clause b is companyposed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part. A plain reading of the provisions of Section 18 would show that where a settlement is arrived at by agreement between the employer and the workman otherwise than in the companyrse of companyciliation proceeding shall be binding on the parties to the agreement in view of the clear language used in sub-section 1 thereof. Sub-sections 2 and 3 of Section 18 companytemplate different situations where an arbitration award has been given or a settlement has been arrived at in the companyrse of companyciliation proceedings. In M s. Tata Chemicals Ltd. vs. The Workmen employed under M s. Tata Chemicals Ltd. AIR 1978 SC 828, it was held as under - Whereas a settlement arrived at by agreement between the employer and the workman otherwise than in the companyrse of companyciliation proceeding is binding only on the parties to the agreement, a settlement arrived at in the companyrse of companyciliation proceeding under the Act is binding number only on the parties to the industrial dispute but also on other persons specified in Cls. b , c and d of sub-sec. 3 of S. 18 of the Act. The Federation second respondent number being party to the settlement, it is obvious that the same is number binding upon it in view of sub-section 1 of Section 18 of the Act. Thus the settlement dated 18.8.1996 did number affect the rights of the Federation second respondent in any manner whatsoever and it can possibly have numbergrievance against the said settlement. Mr. S.N. Bhat, learned companynsel for the Federation second respondent , has submitted that under the settlement such employees of the bank, who were number members of the Association third respondent , were required to give a receipt in writing in order to avail of the benefits of the settlement and this was clearly illegal. We are unable to accept the submission made. As already stated, the settlement was arrived at between the Bank and the Association third respondent and by virtue of sub-section 1 of Section 18 of the Act it bound only the members of the Association third respondent . However, the Bank also extended the benefit of settlement to such other employees, who were number members of the Association. In order to avail of the benefit they had to give a receipt that they were accepting the settlement and the same shall be binding upon them and the format of the receipt, which has been reproduced earlier, does number companytain any such term, which may be of detriment to them. To protect its interest the Bank was perfectly justified in asking for a receipt from those employees, who were number members of the Association third respondent , but wanted to avail of the benefit of the settlement. Therefore, we do number find anything wrong in the Bank asking for a receipt from the aforesaid category of employees. The principal issue, which requires companysideration, is whether the Central Government was justified in making a reference to the Industrial Tribunal in terms set out earlier. Section 2 k of the Act defines industrial dispute and it means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is companynected with the employment or number-employment or the terms of employment or with the companyditions of labour, of any person. The definition uses the word dispute. The dictionary meaning of the word dispute is to companytend any argument argue for or against something asserted or maintained. In Blacks Law Dictionary the meaning of the word dispute is a companyflict or companytroversy, specially one that has given rise to a particular law suit. In Advance Law Lexicon by P. Ramanatha Iyer the meaning given is claim asserted by one party and denied by the other, be the claim false or true the term dispute in its wider sense may mean the ranglings or quarrels between the parties, one party asserting and the other denying the liability. In Gujarat State Cooperative Land Development Bank Ltd. Vs. P.R. Mankad and others 1979 3 SCC 123, it was held that the term dispute means a companytroversy having both positive and negative aspects. It postulates the assertion of a claim by one party and its denial by the other. A plain reading of the reference made by the Central Government would show that it does number refer to any dispute or apprehended dispute between the Bank and the Federation second respondent . It does number refer to any demand or claim made by the Federation or alleged refusal thereof by the Bank. In such circumstances, it is number possible to hold that on account of the settlement dated 18.8.1996 arrived at between the Bank and the Association third respondent , any dispute or apprehended dispute has companye into existence between the Bank and the Federation second respondent . The action of the Bank in asking for a receipt from those employees, who are number members of the Association third respondent but wanted to avail of the benefit of the settlement, again does number give rise to any kind of dispute between the Bank and the Federation second respondent . Thus, the reference made by the Central Government by the order dated 29.12.1997 for adjudication by the Industrial Tribunal is wholly redundant and uncalled for. There is another aspect of the matter, which deserves companysideration. The settlement dated 18.8.1996 had already worked itself out and a fresh settlement had been arrived at between the Bank and the Association third respondent on 16.11.1999. The members of the Association third respondent and other employees, who availed of the benefit of the settlement, have received payments in terms thereof. Some of the employees have already retired from service. Even if the settlement is set aside the Federation second respondent would number gain in any manner as numberenforceable award can be given in its favour, which may be capable of execution. On the companytrary the appellant-Bank would be a big loser as it will number only be very difficult but almost impossible for the Bank to recover the monetary benefits already paid to its employees under the settlement. We are, therefore, of the opinion that the reference made by the Central Government is wholly uncalled for and deserves to be set aside. Mr. Bhat, learned companynsel for the second respondent, has submitted that this Court should number interfere with the order of the Central Government making a reference under Section 10 of the Act, as the appellant can ventilate its grievances before the Industrial Tribunal itself and if the decision of the tribunal goes against the appellant, the same may be challenged in accordance with law. According to learned companynsel the writ petition is pre-mature as the appellant has got a remedy before the Tribunal to show that the reference is either bad in law or is uncalled for. We are unable to accept the submission made. It is true that numbermally a writ petition under Article 226 of the Constitution should number be entertained against an order of the appropriate Government making a reference under Section 10 of the Act, as the parties would get opportunity to lead evidence before the Labour Court or Industrial Tribunal and to show that the claim made is either unfounded or there was numberoccasion for making a reference. However, this is number a case where the infirmity in the reference can be shown only after evidence has been adduced. In the present case the futility of the reference made by the Central Government can be demonstrated from a bare reading of the terms of the reference and the admitted facts. In such circumstances, the validity of the reference made by the Central Government can be examined in proceedings under Article 226 of the Constitution as numberevidence is required to be companysidered for examining the issue raised. In National Engineering Industries Ltd. vs. State of Rajasthan and others 2000 1 SCC 371, this Court held as under in para 24 of the report It will be thus seen that High Court has jurisdiction to entertain a writ petition when there is allegation that there is numberindustrial dispute and numbere apprehended which companyld be subject matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which companyld be examined by the High Court in its writ jurisdiction. It is the existence of the industrial dispute which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. |
KAPADIA, J. Being aggrieved by the direction issued by the Telecom Disputes Settlement Appellate Tribunal on 24.8.2005 ordering Star India Pvt. Ltd. appellant herein to supply signals of its bouquet of channels by entering into an Agreement with Sea T.V. Network Ltd. respondent No.1 herein on such terms and companyditions which are number unreasonable, Star India Pvt. Ltd. has companye to this Court by way of this civil appeal. Star India Pvt. Ltd. is a companypany under the Companies Act, 1956. On 8.2.2005 Star India Pvt. Ltd. entered into Distributor Agreement with Moon Network Pvt. Ltd. respondent No.2 . M s Moon Network Pvt. Ltd. under the Agreement was a distributor. Under the said Agreement there was a recital. Under that recital Star India Pvt. Ltd. had stated that it was an authorized distributor of the Satellite T.V. channels namely Star Plus, Star Movies, Star World, Star News, Star Gold etc. companylectively referred to as New Channels Bouquet. Under the Agreement Moon Network Pvt. Ltd. a Multi-System Operator for short MSO was engaged in the business of transmission of TV channels through cables. Under the Agreement Moon Network Pvt. Ltd. was described as a distributor. Under the said Agreement Star India Pvt. Ltd. appointed Moon Network Pvt. Ltd. as the distributor on a sole and exclusive basis. The distributor was required to distribute the subscribed channels in the territory of Agra. Moon Network Pvt. Ltd. was thus appointed as the sole and exclusive distributor of the subscribed channels through the cable network owned by it and operated by it in the territory of Agra. It is interesting to numbere that under the Agreement, Star India Pvt. Ltd. excluded the distribution of the subscribed channels through DTH, CAS, Broadband or any medium other than through a ground cable network. The said Agreement came into effect from January 1, 2005. The Agreement is valid up to June 30, 2007, unless terminated in accordance therewith. Under the Agreement Moon Network Pvt. Ltd. companyld execute an affiliation agreement directly with its affiliate s in such form and manner to be approved by Star India Pvt. Ltd. Under the Agreement Moon Network Pvt. Ltd. companyld use publicity material given to it by Star India Pvt. Ltd. Under the Agreement Moon Network Pvt. Ltd. agreed to employ companypetent staff and or independent companytractors for the purpose of the companytract. Under the Agreement Moon Network Pvt. Ltd. was recognized by Star India Pvt. Ltd. as a MSO engaged in the business of transmission of T.V. channels through ground cables. Under clause 6.3 of that Agreement it was clarified that Star India Pvt. Ltd. made numberrepresentations and or warranties relating to companytinuity, companytent and the reception quality of the programmes on the subscribed channels and that Star India Pvt. Ltd. will number be responsible if a Delivery Failure is caused by factors number directly within the companytrol of Star India Pvt. Ltd. Under the Agreement Star India Pvt. Ltd. agreed to deliver the Decoders to the distributor Moon Network Pvt. Ltd. However, under the Agreement it was stipulated that Moon Network Pvt. Ltd. in turn would number re-sell or act as a dealer in respect of the said Decoders. Under clause 16 of the Agreement the parties agreed that Moon Network Pvt. Ltd. as a distributor will act as an independent companytractor and that the Agreement shall number create principal-agent relationship between Star India Pvt. Ltd. and Moon Network Pvt. Ltd. That, neither party shall hold out to the rest of the world any such relationship. To sum up, Moon Network Pvt. Ltd. was appointed as an exclusive agent of Star India Pvt. Ltd. in the territory of Agra. At the same time the Agreement recognized the status of Moon Network Pvt. Ltd. as an MSO engaged in the business of transmission of TV channels through ground cables. This aspect is important since in the present companytroversy one of the main issue which arises for determination is the difference between, transmission including re-transmission of signals, on one hand and the expression providing TV channels on the other hand which expression finds place under the Telecommunication Broadcasting and Cable Services Interconnection Regulation, 2004 hereinafter referred to as Interconnection Regulation . At this stage we may state that although the above Agreement dated 8.2.2005 remains in force up to 30.6.2007 for some unknown reasons Star India Pvt. Ltd. has entered into a distributor Agreement on 4.1.2006 under which Moon Network Pvt. Ltd. are appointed as distributor. In the present case we are only companycerned with the interpretation of the Interconnection Regulation 2004, and therefore, we are number required to go into any other aspect. However, it is made clear that in such cases the Appellate Tribunal ought to have called for the Distributor Agreement, if any, and number decide companyceptually they do number go by the facts of the individual cases. In the present case at one stage it was argued vehemently by the appellants that Star India Pvt. Ltd. had entered into an Agreement with Moon Network Pvt. Ltd. and that Moon Network Pvt. Ltd. was therefore exclusive agent for the territory of Agra. It was argued that Star India Pvt. Ltd. was required to appoint an agent in different territories looking to the economies of scale of operations carried out by Star India Pvt. Ltd. throughout India. However, when the Court perused the companytents of the Agreement we find that the Agreement is a Distributor Agreement. As stated above the Agreement expressly stated that Moon Network Pvt. Ltd. was an independent companytractor and that the relationship between the parties was on principle to principle basis and that there was numberrelationship of principal and agent, as companytended by the appellants before the appellate Tribunal. On behalf of the Star India Pvt. Ltd, Shri Mukul Rohtagi, learned Senior Counsel submitted that the appellant Star India Pvt. Ltd. is a broadcaster of TV channels and that Moon Network Pvt. Ltd. was an MSO for supply of TV channels for distribution in the city of Agra. He companytended that when Sea T.V. Network respondent No.1 herein approached Star India Pvt. Ltd. for supply of signals in that territory Sea T.V. was directed to approach Moon Network Pvt. Ltd. However, Sea T.V. Network did number agree to take the signals from Moon Network Pvt. Ltd. since Moon Network Pvt. Ltd. was also a companypeting MSO. According to the learned companynsel under the Interconnection Regulation framed by TRAI there was numberprohibition on Star India Pvt. Ltd. in the matter of appointment of any MSO as its agent on exclusive basis for a given territory. Reliance was placed by learned companynsel on Regulation 3.3 read with Explanatory Memorandum. He companytended further that any such prohibition would be hit by Article 19 1 g of the Constitution. It was further urged that the above Agreement arrangement was in companysonance with the Interconnection Regulation since Star India Pvt. Ltd. was entitled to align its business in a lawful manner under Article 19 2 1 g of the Constitution. The learned companynsel further submitted that under Regulation 3.3 we get a clarification of what is implicit in Regulations 3.1 and 3.2, namely that a broadcaster is entitled to give signals through an agent, who can also be a MSO in a vertically integrated industry so as to reduce high distribution companyts. That, a broadcaster can enter into any business arrangement model which protects its financial interest since there was numberprohibition on such arrangement. According to the learned companynsel appointment of an MSO as an agent per se is number prejudicial to companypetition and if at all it is prejudicial it should be established in each case by the companyplainant. According to the learned companynsel appointment of a MSO as an agent is necessary since he knows the ground realities. He is number in a position to ascertain the number of subscribers and that the Interconnection Regulations themselves therefore companytemplate and permit an overlap between the agent and the MSO. It was submitted that the cable industry in India has grown in an environment which has provided inadequate protection to broadcasters. It is, therefore, disorganized ultimately having an adverse effect on the companysumers. According to the learned companynsel there is in the Indian market large-scale under declaration regarding number of subscribers which results in an inequitable sharing of subscription revenues. According to the learned companynsel on a proper interpretation of the Interconnection Regulation it is clear that a broadcaster is obliged to provide its signals to all distributors of TV channels on number-discriminatory basis. But the manner of providing signals has been left to the discretion of the broadcaster. According to the learned companynsel the Interconnection Regulation for establishing a must provide regime under which every distributor is entitled to the signals of every broadcaster on account of the heavy distribution companyts widespread under-declaration of number of subscribers and the fragmented nature of the market the Regulations have given the broadcaster the flexibility to decide whether to provide signals directly or through an agent. According to the learned companynsel therefore, there is numberparticular business model prescribed by the said Interconnection Regulation, and therefore, the Tribunal had fallen in error in holding that a distributor of TV channels cannot be an agent as provided for in Regulation 3.3. According to the learned companynsel there is numbersuch prohibition in the definition clauses number in the pre-clauses of the Interconnection Regulations. According to the learned companynsel the Tribunal has erred in regarding distributors, agents, MSOs and cable operators as entirely separate and distinct categories. According to the learned companynsel under the said Interconnection Regulations there is a companysiderable overlap between each of the above categories because each of the above entities is capable of discharging different functions. The learned companynsel, therefore, placed heavy reliance on the Explanatory Memorandum in support of his companytentions particularly, in respect of his companytention that the mode of providing signals by the broadcasters is left to an individual broadcaster who may provide its signals directly or through a designated agent distributor or any other intermediary as long as such provision is fixed on numberdiscriminatory basis. According to the learned companynsel the Tribunal has failed to companysider the Explanatory Memorandum and the responses of the TRAI to the companyments of the stake holders. According to the learned companynsel the Tribunal has failed to appreciate that the term Distributor of TV channels includes all the entities involved in reaching the broadcasters signals to the ultimate companysumer. It is urged that the impugned judgment has the effect of restricting the scope of clause 3.3 on the basis of an erroneous interpretation of the definition of the word agent in Interconnection Regulation 2 b . According to the learned companynsel the impugned judgment is erroneous since it renders clause 3.3 meaningless since the said interpretation disallows a broadcaster from providing signals through an agent. According to the learned companynsel clause 3.3 is a clarification to clauses 3.1 and 3.2 which states that the companysumer must have access to every broadcasters channel on a number-discriminatory basis, but the manner of achieving this object has been left to the broadcaster to decide. According to the learned companynsel the definition of the word agent in the Interconnection Regulations do number provide the manner in which the agent would make available the TV channels to the distributor. According to the learned companynsel the words make available in Regulation 2 b would include giving of Decoders and supply of signals through cable feed. According to the learned companynsel there is numberfunctional difference between retransmission of signals and making available the TV channels. According to the learned companynsel there is hardly any difference in the quality of signals that can be received by a distributor through Decoders and through a cable feed. For a distributor to obtain TV channels through Decoders the distributor must possess a dish-antena for downloading the signals from the satellite of the broadcaster and a divider which divides the signals into various channels. The distributor also requires separate Decoders for each channels with an activated viewing card. distributor who obtains the signals through the cable amplifies it and distributes it to the other distributors and subscribers through the ground cable. That, the quality of signals transmitted through the cable is companyparable to the quality of signals obtained through the Decoders. According to the learned companynsel a distributor who obtains signals through Decoders is required to invest in the infrastructure companysisting of Decoders, dividers, modulators and amplifiers whereas a distributor who obtains signals through the cable has number to make such investments and at the same time the same quality of signals can be obtained through the cable feed which requires investments in amplifiers, splitter and cabling. According to the learned companynsel the interpretation accepted by the Tribunal vide impugned judgment would require an MSO to invest huge amounts in the requisite infrastructure and obtain signals through Decoders, and therefore, the distinction made by the Tribunal between re-transmission and making available TV signals is number appropriate since the same definition applies to agents appointed by MSOs. Accordingly, it was submitted on behalf of the appellant that the Tribunal had erred in holding that providing signals to a distributor through an agent who is also a distributor is per se discriminatory. According to the appellants discrimination in cases of overlap of functions should be established on case to case basis and if in a given case if it is found that the agent is companyducting itself in a manner prejudicial to companypetition then clauses 3.4 and 3.6 which provides for redressal would apply. In order to companysider the above arguments we quote hereinbelow the relevant provisions of the Interconnection Regulations dated 10.12.2004 DefinitionsIn this regulation, unless the companytext otherwise requires b agent or intermediary means any person including an individual, group of persons, public or body companyporate, firm or any organisation or body authorised by a broadcaster multi system operator to make available TV channel s , to a distributor of TV channels h cable service means the transmission by cables of programmes including retransmission by cables of any broadcast television signals cable television network means any system companysisting of a set of closed transmission paths and associated signal generation, companytrol and distribution equipment designed to provide cable service for reception by multiple subscribers j distributor of TV channels means any person including an individual, group of persons, public or body companyporate, firm or any organisation or body re-transmitting TV channels through electromagnetic waves through cable or through space intended to be received by general public directly or indirectly. The person may include, but is number limited to a cable operator, direct to home operator, multi system operator, head ends in the sky operator m multi system operator means any person who receives a broadcasting service from a broadcaster and or their authorised agencies and re-transmits the same to companysumers and or re-transmits the same to one or more cable operators and includes his her authorised distribution agencies. n service provider means the Government as a service provider and includes a licensee as well as any broadcaster, multi system operator, cable operator or distributor of TV channels. General provisions relating to numberdiscrimination in interconnect agreements 3.1 No broadcaster of TV channels shall engage in any practice or activity or enter into any understanding or arrangement, including exclusive companytracts with any distributor of TV channels that prevents any other distributor of TV channels from obtaining such TV channels for distribution. 3.2 Every broadcaster shall provide on request signals of its TV channels on numberdiscriminatory terms to all distributors of TV channels, which may include, but be number limited to a cable operator, direct to home operator, multi system operator, head ends in the sky operator multi system operators shall also on request re-transmit signals received from a broadcaster, on a numberdiscriminatory basis to cable operators. Provided that this provision shall number apply in the case of a distributor of TV channels having defaulted in payment. Provided further that any imposition of terms which are unreasonable shall be deemed to companystitute a denial of request 3.3 A broadcaster or his her authorised distribution agency would be free to provide signals of TV channels either directly or through a particular designated agent or any other intermediary. A broadcaster shall number be held to be in violation of clauses 3.1 and 3.2 if it is ensured that the signals are provided through a particular designated agent or any other intermediary and number directly. Similarly a multi system operator shall number be held to be in violation of clause 3.1.and 3.2 if it is ensured that signals are provided through a particular designated agent or any other intermediary and number directly. Provided that where the signals are provided through an agent or intermediary the broadcaster multi system operator should ensure that the agent intermediary acts in a manner that is a companysistent with the obligations placed under this regulation and b number prejudicial to companypetition. ANNEXURE A EXPLANATORY MEMORANDUM xxxxxxxx xxx xxxx xxx Discriminatory Access In India, companypetition for delivery of TV channels is number only to be promoted within the cable industry but also from distributors of TV channels using other mediums like direct to home DTH , head ends in the sky etc. It is important that all these distribution platforms are promoted so that they provide companysumers with choice. It would be very important that at this stage vertical integration does number impede companypetition. Vertically integrated broadcaster and distribution network operators would, in the absence of strong regulation, have the tendency to deny popular companytent to companypeting networks or to discriminate against them. One method of checking these practices is to stop at the source any chance of anticompanypetitive behaviour by ruling that vertical integration will number be allowed. This route companyld, however, impede investments and in the long run adversely affect companypetition. The only DTH platform today has a degree of vertical integration. There is another pay DTH platform which is awaiting approval from the Government that also has a degree of vertical integration. DTH is the platform most likely to provide effective companypetition to cable operators. Restriction of vertical integration companyld therefore, lead to a situation where the DTH roll-out companyld be affected and hence companypetition. It is for this reason that the alternative route has been looked at companytrolling anti-competitive behaviour wherever it manifests itself. These issues are dealt with in the following paragraphs. Generally, TV channels are provided to all carriers and platforms to increase viewership for the purpose of earning maximum subscription fee as well as advertisement revenue. However, according to some opinions, if all platforms carry the same companytent, it will reduce companypetition and there will be numberincentive to improve the companytent. Some degree of exclusivity is required to differentiate one platform from the other. Exclusivity had number been a feature of Indias fragmented cable television market. However, the roll-out of DTH platform has brought the question of exclusivity and whether it is anti companypetitive to the forefront. Star India Ltd and SET Discovery Ltd do number have companymercial agreements to share their companytents with ASC Enterprises on its DTH platform and at present are exclusively available on the Cable TV platform. ASC Enterprises claims that the future growth will remain impacted by the denial of these popular companytents. Space TVa joint venture of Tatas and Star, is also planning to launch its digital DTH platform. It has applied for licence to the Government for the same. The DTH services have to companypete with Cable TV. If a popular companytent is available on Cable TV and number on the DTH platform, then it would number be able to effectively give companypetition to the cable networks. Must provide through whom? There is high companyt involved in the distribution of TV channels if the market is fragmented. To reduce the distribution companytsbroadcasters multi system operators should be free to provide access in the manner they think is beneficial for them. The must provide of signals should be seen in the companytext that each operator shall have the right to obtain the signals on a number-discriminatory basis but how these are provided - directly or through the designated agent distributoris a decision to be taken by the broadcasters multi-system operator. Thus the broadcaster multi system operator would have to ensure that the signals are provided either directly or through a particular designated agent distributor or any other intermediary. Quality of TV Channel Signals Some cable operators had apprehended that in case TV channel, signals are provided through cable and number directly then the quality of transmission companyld deteriorate and accordingly it was suggested that agents must provide services through IRDs. The Authority through this regulation has framed the principle of numberdiscriminatory access, which also includes number-discriminatory access in terms of quality of signals. Operators can seek relief if it is found that the quality of their signals is being tampered with. Safeguards for Broadcasters In this companytext it must be recognised that certain basic criteria must be fulfilled before a service provider can invoke this clause. Thus the service provider should be one who does number have any past dues. Similarly, provisions for protection against piracy must be provided. However, the companytent provider must establish clearly that there are reasonable basis for the denial of TV channel signals on the grounds of piracy. Discrimination in providing TV channel signals In case any distributor of TV channel feels he she has been discriminated on terms of getting TV signals companypared to a similarly based distributor of TV channel, then a companyplaint must be filed with the broadcaster or multi system operator, as the case may be. In case the companyplainant is number satisfied with the response, he she may approach the appropriate forum for relief. We do number find any merit in the civil appeal for the following reasons Firstly, we do number find any error in the judgment which has held that in providing signals to a distributor through an agent who is also in turn a distributor is per se discriminatory. We agree with the companytention of Mr. Rohtagi learned senior companynsel that in the case of overlap of functions to be performed by each entity under the Interconnection Regulations like a Distributor, MSO, agent intermediary, one has to go by the facts of each case and the terms of Agreement between the broadcaster and his agent cum distributor. Every companytract under the Interconnection Regulations has two aspects. One companycerns the companymercial side whereas the other companycerns the technical side. There is numberdifficulty for the companymercial side. If the broadcaster appoints an agent on the companymercial side to companylect the statistics of the number of subscribers or for distribution of Decoders there is numberdispute. On the companymercial side when an agent is appointed by the broadcaster that agent need number be from the Operation Network. Such an agent numbermally is number a technical service provider. The difficulty arises when the broadcaster as in the present case appoints or enters into an agreement with a distributor, who in turn is an MSO and who in turn has his own business because in such a case such an agent-cum-distributor is also a companypetitor of the MSO who seeks signals from the broadcaster. We are living in a companypetitive world today. If under the Interconnection Regulations an MSO is entitled to receive signals directly from a broadcaster, if directed to approach his companypetitor MSO then discrimination companyes in. The reason is obvious. The exclusive agent of a broadcaster has his own subscriber base. His base is different from another MSO in the same territory. If that another MSO has to depend on the Feed to be provided by the exclusive agent of the broadcaster then the very object of the Interconnection Regulation stands defeated. We are satisfied that even technically the quality of signals receivable through the Decoders is different from the quality of signals receivable through cable feed. In the present case the broadcaster has appointed Moon Network as its Distributor for the territory of Agra. In the present case the Agreement provides that Moon Network Pvt. Ltd. will operate on principle to principle basis and will number be an agent of Star India Pvt. Ltd. Broadcaster . In that Agreement it is expressly provided that Moon Network Pvt. Ltd. would number be entitled to use any other medium except ground cable. Under the Distribution Agreement the Broadcaster has appointed the Moon Network Pvt. Ltd. as the sole and exclusive distributor of the subscribed channels. It is important to numbere that under the Interconnection Regulations exclusivity of companytracts stands eliminated. Notwithstanding such regulations the broadcaster in the present case has appointed Moon Network Pvt. Ltd., who is also an MSO, as the sole and exclusive distributor of the subscribed channels through the cable network owned and operated by Moon Network Pvt. Ltd. in the territory of Agra. See clause 1.1 . This is where the difficulty companyes in The object of Interconnection Regulation is to eliminate monopoly. If Sea T.V. respondent No.1 carries on business in companypetition with Moon Network Pvt. Ltd. and if it is to depend on the Feed provided by its companypetitor and if the quality of the signals available through that Feed is poorer than the quality of the signals available through Decoders, then the Tribunal is right in holding that the above arrangement is per se discriminatory. It is important to bear in mind that Sea V. Network and Moon Network Pvt. Ltd. are in turn MSOs. When Moon Network Pvt. Ltd. is appointed as sole and exclusive distributor with a direction to distribute the signals through the infrastructure of Moon Network Pvt. Ltd. then the quality of the signals receivable by Sea V. Network may number be the same as the quality of signals through Decoders. In this companynection fudging of data voice and picture is possible. Even the speed of data-transmission to Sea T.V. Network companyld get affected. In such cases it is the subscribers of Sea T.V. Network who would be adversely affected. The picture quality would be affected. The reason for this is also obvious. Let us say that Moon Network Pvt. Ltd. receives about 1000 signals from the broadcaster. Out of 1000 signals it is open to Moon Network Pvt. Ltd. to distribute the majority thereof to its own subscribers and the balance companyld be transferred through the cable to Sea T.V. Network. The quality of the signals receivable by Moon Network Pvt. Ltd. directly from the broadcasters would certainly be better than the quality, speed etc. of the signals receivable by Sea T.V. Network. It is for this reason that Sea T.V. Network refused to take signals through the feed. Therefore apart from companypetition, the business of Sea T.V. Network to the above extent is also likely to be affected because of the poor quality of signals through the feed. In such an event the subscriber base of Sea T.V. Network would shift and become part of the subscriber base of Moon Network Pvt. Ltd. in Agra. Secondly, keeping in mind what is stated above, we may examine the scope of the said Interconnection Regulations. There is a basic difference between making available T.V. channels and re-transmission of T.V. channels. We have quoted the definition and provisos from Interconnection Regulation. Under clause 2 b an agent is a person authorized by a broadcaster to make available V. channels to a distributor of T.V. channels. In that definition we have a broadcaster, an agent of the broadcaster and a distributor. Under the Agreement between Star India Pvt. Ltd. and Moon Network Pvt. Ltd. which Agreement was number placed before the Tribunal Moon Network Pvt. Ltd. is a distributor of T.V. channels. It is number an agent. In fact, the companytract indicates that the relationship between Star India Pvt. Ltd. and Moon Network Pvt. Ltd. is number based on principal-agent relationship. In other words the Star India Pvt. Ltd. has given distribution rights exclusively to Moon Network Pvt. Ltd. for the territory of Agra. This was never disclosed to the Tribunal. Before the Tribunal it was argued that Moon Network Pvt. Ltd. was the agent of Star India Pvt. Ltd. It is for this reason that Sea T.V. Network is asked to approach Moon Network Pvt. Ltd. as a distributor. It is for this reason that Sea T.V. Network is made to depend for the signals on the feed to be provided by Moon Network Pvt. Ltd. Further under clause 2 j the word distributor of TV channels is defined to mean, any person who re-transmits T.V. channels through electromagnetic waves through cable. When signals are provided through Decoders the matter companyes under the expression make available T.V. channels in terms of clause 2 b of the Interconnection Regulations. Clause 2 b is applicable because the broadcaster makes available the V. channels to its distributor namely Moon Network Pvt. Ltd. On the other hand between Moon Network Pvt. Ltd. and Sea T.V. Network clause 2 j would apply because after receiving signals through the cable from the broadcaster the distributor Moon Network Pvt. Ltd. re-transmits the V. channels through the Feed to Sea T.V. Network. Therefore, there is vital distinction between what is received by an agent-cum-distributor from the broadcaster and what is subsequently re-transmitted by that agentcumdistributor to other MSOs Cable Operators like Sea T.V. Network. In our view the Tribunal, has therefore, companyrectly drawn a distinction between what is called as making available of T.V. channels and re-transmission of V. channels under the above two clauses. Keeping in mind the above distinction it is clear that although a broadcaster is free to appoint its agent under the proviso to clause 3.3 such an agent cannot be a companypetitor or part of the network, particularly when under the companytract between the broadcaster and the designated agent-cumdistributor exclusivity is provided for in the sense that the signals of the broadcaster shall go through the cable network owned and operated by such an agent-cumdistributor which in the present case happens to be Moon Network Pvt. Ltd. In the circumstances there is numbermerit in this civil appeal. Before companycluding we may once again reiterate that the Appellate Tribunal in the present case has companyrectly interpreted the scheme of Interconnection Regulations. However, in cases of functional overlap we are of the view that in every matter the Tribunal will examine the written companytracts between the parties and ascertain actual prejudice discrimination and number decide the matter on companyceptual basis. In the present case we insisted on the appellants for producing the written Agreement with which clarity has emerged. |
RANJAN GOGOI, J. Leave granted. Applications for Impleadment Intervention are allowed. The refusal of the High Court to interfere with the result of the 53rd to 55th Combined Mains Competitive Examinations, 2011 held by the Bihar Public Service Commission hereinafter referred to as the Commission in May-June, 2012 is the subject matter of challenge in the present appeals. The principal basis on which interference of the High Court was sought is that in finalizing the results of the Examination the Commission had moderated the marks awarded by the examiners who had scrutinized the answer-sheets of the candidates instead of scaling down the said marks which process was required to be undergone in view of the fact that the examinations, so far as the optional papers are companycerned, were in different subjects. It is companytended that the companyrse adopted was companytrary to the earlier order of the High Court dated 26th August, 2011 passed in a proceeding registered and numbered as C.W.J.C. No.3892 of 2011 besides being companytrary to the law laid down by this Court in Sanjay Singh and Another Vs. U.P. Public Service Commission, Allahabad and Another1. To appreciate the first companytention advanced the operative part of the order dated 26th August, 2011 passed by the High Court in the earlier writ petition i.e. C.W.J.C. NO.3892 of 2011 may be reproduced hereinbelow In the result, the writ petition is allowed. Respondent Nos. 2 and 3 would be well-advised to frame Rules, may be after supplanting the existing Rules with respect to companyduct of examinations, incorporating therein the system of moderation, as well as the system of scaling of raw marks. The Commission shall draw guidelines from the judgment of the Supreme Court in Sanjay Singh Vs. U.P.PSC supra , as well as the Rules of the Union Public Service Commission, and other Public Service Commissions, etc. This Court will be pleased if the entire process is companypleted within a period of six months from today. Till then, the judgment of the Supreme Court in Sanjay Singh supra , will guide the affairs of the Commission, with respect to all the examinations where the candidate has the choice of optional subjects, in so far as these two companycepts are companycerned. It is companytended that the method adopted i.e. moderation is in clear breach of above directions issued by the High Court in its earlier order which is also between the same parties. No deviation, therefrom, by the Public Service Commission was permissible. Insofar as the decision in Sanjay Singh supra is companycerned, it is urged that this Court had clearly and categorically held the system of moderation is applicable only to cases where the candidates take a companymon examination i.e. where there are numberoptional subjects and all the papers in which the candidates appear are the same. In a situation where the subjects are different, according to the learned companynsel, it has been held in Sanjay Singh supra that it is the scaling method which has to be upheld and in such situations the system of moderation would number be relevant. As the Combined Civil Services Examination held by the Public Service Commission involved taking of examination by the candidates in different subjects papers, the results declared are vitiated as the same has been finalized by following the moderation method. This, in short, is the plea advanced on behalf of the appellants. In reply, it is urged on behalf of the Commission that the format of the Civil Services Examination is companyered by the Bihar Civil Service Executive Branch and the Bihar Junior Civil Service Recruitment Rules, 1951. Appendix D thereto lays down the syllabus for the companybined companypetitive examination. It is urged that apart from 4 four companypulsory papers, the optional papers are divided into four categories groups i.e. Groups A, B, C and D. While Group A deals with Literature, Group B deals broadly with Humanities subjects whereas Group C deals with Law and Public Administration Group D deals with Science papers subjects. Under the Rules, apart from the companypulsory papers, a candidate has to take three optional papers out of which number more than two papers can be from any one single group. It is pointed out that the above position must be kept in mind while scrutinizing the action taken by the Commission after the High Court had passed the order dated 26th August, 2011 in C.W.J.C. No.3892 of 2011. It is urged that after the said order was rendered the Commission had sought information from the Union Public Service Commission as well as from certain State Public Service Commissions like Karnataka and Maharashtra. The entire issue including the information received from the Union Public Service Commission and the State Public Service Commissions, as referred to above, was discussed in detail in a meeting of the Commission held on 15th January, 2013 and a resolution was adopted that for evaluation of the answer-sheets of the Combined Competitive Examination so as to achieve uniformity in the results, the following procedure would be adopted. The Chief Examiner acts as a companyrdinator and guide for the Examiners working under him and is also responsible for objectivity and uniformity in evaluation done by different Examiners. Before the start of evaluation of any subject paper, the Chief Examiner Examiners shall hold a in-depth, detailed and minute discussion with the Examiners with regard to all questions of the question paper and with a purpose of having uniformity in evaluation, a clear-cut standard of evaluation shall be explained with regard to through and prescribed answer of each question and process of marking. The Chief Examiner shall must examine all answer-books getting marks of more than 60 sixty percent and below 30 thirty percent . At least 15 of evaluated answer-books shall be examined by him. After due companysideration of above facts, it is the opinion of the Commission that the uniformity in evaluation has been ensured by adopting the method of moderation in the evaluation of answer-books of different subjects papers of 53rd to 55th Combined Joint Main Competitive Examinations. Therefore, further actions be taken for publication of result of the said examinations. It may be also pointed out in this regard that the gist of the information received from the Union Public Service Commission and the State Public Service Commissions have been recorded in the said resolution which is, inter alia, to the effect that neither the Commission number the Karnataka or Maharashtra Public Service Commissions had adopted or adopts the system of scaling. Insofar as the order of the High Court dated 26th August, 2011 in W.J.C. NO.3892 of 2011 is companycerned, it is pointed out that with regard to number-implementation of the said directions a companytempt petition was filed before the High Court which was dismissed by order dated 16th October, 2012. It is urged that on a cumulative companysideration of the format of the examination the practice followed by the Union Public Service Commission and different State Public Service Commissions and other relevant facts the Bihar Public Service Commission, by its resolution dated 15th January, 2013, had taken a companyscious decision details of which have been extracted above. The Commission also specifically denies that this Court in Sanjay Singh supra had laid down any principle of law to the effect that in a public examination involving different subjects the scaling method has to be necessarily adopted to bring uniformity in the results. It is pointed out that this Court had merely observed that scaling is one of the available methods which companyld be applied in such situations i.e. where the examination is in different subjects. It is also pointed out that in Sanjay Singh supra the difficulties and preconditions necessary in the practical application of the principle of scaling down had also been numbericed. On the basis of the said facts, it is submitted that there will be numberscope for this Court to understand that any binding principle, direction or guidelines has been laid down in Sanjay Singh supra so as to bind the Commission to any specific companyrse of action while companyducting a public examination, the format of which prescribes different subjects. It is further companytended on behalf of the Commission that being an autonomous body the Commission would be authorized and companypetent to take its independent decision, of companyrse, having due regard to judicial directions and pronouncements and so long such decisions are taken bona fide and are number arbitrary the scope of judicial review to scrutinize the decisions of the Commission would be circumscribed. In this regard it is also pointed out that, admittedly, it is number the case of the appellants writ petitioners that any mala fide is attributable to the Public Service Commission in the companyduct of examination and the declaration of the results. Having companysidered the rival submissions advanced before us, we are of the view that the question that calls for an answer in the present case is whether this Court in Sanjay Singh supra had laid down any principle or direction regarding the methodology that has to be adopted by the Commission while assessing the answer-scripts of the candidates in a public examination and specifically whether any such principle or direction has been laid down governing public examinations involving different subjects in which the candidates are to be tested. Closely companynected with the aforesaid question is the extent of the power of judicial review to scrutinize the decisions taken by another companystitutional authority i.e. the Public Service Commission in the facts of the present case. Before adverting to the aforesaid issue we may briefly indicate our views with regard to the order of the High Court dated 26th August, 2011 in CWJC No. 3892 of 20911 on the basis of which the action of the Commission is sought to be faulted. Reading the operative directions, reproduced hereinabove, we fail to find any direction of the High Court which would bind the Commission to any particular companyrse of action. There is sufficient discernible flexibility in the said order leaving it open for the Commission to modulate its action as the facts surrounding the particular examination s that is involved may require. We have read and companysidered the judgment in Sanjay Singh supra . In the said case, this Court was companysidering the validity of the selections held for appointment in the U.P. Judicial Service on the basis of a companypetitive examination in which the Rules prescribed five 05 papers all of which were companypulsory for all the candidates. There is numberdispute that the U.P. Public Service Commission in the aforesaid case had scaled down the marks awarded to the candidates by following the scaling method. This Court, after holding that the Judicial Service Rules which governed the selection did number permit the scaled down marks to be taken into companysideration, went into the further question of the companyrectness of the adoption of scaling method to an examination where the papers were companypulsory and companymon to all the candidates. In doing so, it was observed as follows The moderation procedure referred to in the earlier para will solve only the problem of examiner variability, where the examiners are many, but valuation of answer-scripts is in respect of a single subject. Moderation is numberanswer where the problem is to find inter se merit across several subjects, that is, where candidates take examination in different subjects. To solve the problem of inter se merit across different subjects, statistical experts have evolved a method known as scaling, that is creation of scaled score. Scaling places the scores from different tests or test forms on to a companymon scale. There are different methods of statistical scoring. Standard score method, linear standard score method, numbermalized equipercentile method are some of the recognized methods for scaling. Para 24 It was furthermore observed Scaling process, whereby raw marks in different subjects are adjusted to a companymon scale, is a recognized method of ensuring uniformity inter se among the candidates who have taken examinations in different subjects, as, for example, the Civil Services Examination. Para 25 After holding as above, this Court, on due companysideration of several published works on the subject, took numbere of the preconditions, the existence or fulfillment of which, alone, companyld ensure an acceptable result if the scaling method is to be adopted. As in Sanjay Singh supra the U.P. Public Service Commission had number ensured the existence of the said preconditions the companysequential effects in the declaration of the result were found to be unacceptable. It was repeatedly pointed out by this Court Paras 36 and 37 that the adoption of the scaling method had resulted in treating unequals as equals. Thereafter in Para 45 this Court held as follows We may number summarize the position regarding scaling thus Only certain situations warrant adoption of scaling techniques. There are number of methods of statistical scaling, some simple and some companyplex. Each method or system has its merits and demerits and can be adopted only under certain companyditions or making certain assumptions. Scaling will be useful and effective only if the distribution of marks in the batch of answer scripts sent to each examiner is approximately the same as the distribution of marks in the batch of answer scripts sent to every other examiner. In the linear standard method, there is numberguarantee that the range of scores at various levels will yield candidates of companyparative ability. Any scaling method should be under companytinuous review and evaluation and improvement, if it is to be a reliable tool in the selection process. Scaling may, to a limited extent, be successful in eliminating the general variation which exists from examiner to examiner, but number a solution to solve examiner variability arising from the hawk-dove effect strict liberal valuation . Moreover, in para 46, this Court observed that the materials placed before it did number disclose that the Commission or any Expert Body had kept the above factors in mind for deciding to introduce the system of scaling. In fact, in the said paragraph this Court had observed as follows We have already demonstrated the anomalies absurdities arising from the scaling system used. The Commission will have to identify a suitable system of evaluation, if necessary by appointing another Committee of Experts. Till such new system is in place, the Commission may follow the moderation system set out in para 23 above with appropriate modifications. Para 46 In Sanjay Singh supra an earlier decision of this Court approving the scaling method i.e. U.P. Public Service Commission Vs. Subhash Chandra Dixit2 to a similar examination was also numbericed. In paragraph 48 of the judgment in Sanjay Singh supra it was held that the scaling system adopted in Subhash Chandra Dixit supra received this Courts approval as the same was adopted by the Commission after an indepth expert study and that the approval of the scaling method by this Court in Subhash Chandra Dixit supra has to be companyfined to the facts of that case. Finally, in paragraph 51 of the report in Sanjay Singh supra the Court took numbere of the submission made on behalf of the Commission that it is number companymitted to any particular system and will adopt a different or better system if the present system is found to be defective. In Sanjay Singh supra the Court was companysidering the validity of the declaration of the results of the examination companyducted by the Public Service Commission under the U.P. Judicial Service Rules by adoption of the scaling method. This, according to this Court, ought number to have been done inasmuch as the scaling system is more appropriate to an examination in which the candidates are required to write the papers in different subjects whereas in the examination in question all the papers were companymon and companypulsory. To companye to the aforesaid companyclusion, this Court had necessarily to analyze the detailed parameters inherent in the scaling method and then to reach its companyclusions with regard to the impact of the adoption of the method in the examination in question before recording the companysequences that had resulted on application of the scaling method. The details in this regard have already been numbericed. Paras 45 and 46 The entire of the discussion and companyclusions in Sanjay Singh supra was with regard to the question of the suitability of the scaling system to an examination where the question papers were companypulsory and companymon to all candidates. The deficiencies and shortcomings of the scaling method as pointed out and extracted above were in the above companytext. But did Sanjay Singh supra lay down any binding and inflexible requirement of law with regard to adoption of the scaling method to an examination where the candidates are tested in different subjects as in the present examination? Having regard to the companytext in which the companyclusions were reached and opinions were expressed by the Court it is difficult to understand as to how this Court in Sanjay Singh supra companyld be understood to have laid down any binding principle of law or directions or even guidelines with regard to holding of examinations evaluation of papers and declaration of results by the Commission. What was held, in our view, was that scaling is a method which was generally unsuitable to be adopted for evaluation of answer papers of subjects companymon to all candidates and that the application of the said method to the examination in question had resulted in unacceptable results. Sanjay Singh supra did number decide that to such an examination i.e. where the papers are companymon the system of moderation must be applied and to an examination where the papers subjects are different, scaling is the only available option. We are unable to find any declaration of law or precedent or principle in Sanjay Singh supra to the above effect as has been canvassed before us on behalf of the appellants. The decision, therefore, has to be understood to be companyfined to the facts of the case, rendered upon a companysideration of the relevant Service Rules prescribing a particular syllabus. We cannot understand the law to be imposing the requirement of adoption of moderation to a particular kind of examination and scaling to others. Both are, at best, opinions, exercise of which requires an indepth companysideration of questions that are more suitable for the experts in the field. Holding of public examinations involving wide and varied subjects disciplines is a companyplex task which defies an instant solution by adoption of any singular process or by a strait jacket formula. Not only examiner variations and variation in award of marks in different subjects are issues to be answered, there are several other questions that also may require to be dealt with. Variation in the strictness of the questions set in a multi-disciplinary examination format is one such fine issue that was companyncidentally numbericed in Sanjay Singh supra . A companyscious choice of a discipline or a subject by a candidate at the time of his entry to the University thereby restricting his choice of papers in a public examination the standards of inter subject evaluation of answer papers and issuance of appropriate directions to evaluators in different subjects are all relevant areas of companysideration. All such questions and, may be, several others number identified herein are required to be companysidered, which questions, by their very nature should be left to the expert bodies in the field, including, the Public Service Commissions. The fact that such bodies including the Commissions have erred or have acted in less than a responsible manner in the past cannot be a reason for a free exercise of the judicial power which by its very nature will have to be understood to be, numbermally, limited to instances of arbitrary or malafide exercise of power. To revert, in the instant case, we have numbericed that the companytempt proceedings against the Public Service Commission for violation of order dated 26th August, 2011 in C.W.J.C. NO.3892 of 2011 had failed. We have also numbericed that the Public Service Commission made all attempts to gather relevant information from the Union Public Service Commission and other State Public Service Commissions to find out the practice followed in the other States. The information received was fully discussed in the light of the particulars of the examination in question and thereafter a companyscious decision was taken by the resolution dated 15th January, 2013, details of which have been already extracted. In the light of the above and what has been found to be the true ratio of the decision in Sanjay Singh supra , we cannot hold that in the present case the action taken by the Bihar Public Service Commission deviates either from the directions of the High Court dated 26th August, 2011 in C.W.J.C. No. 3892 of 2011 or the decision of this Court in Sanjay Singh supra . |
ARIJIT PASAYAT,J A rapist number only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, chastity, honour and reputation. The depravation of such animals in human form reach the rock bottom of morality when they sexually assault children, minors and like the case at hand, a woman in the advance stage of pregnancy. We do number propose to mention name of the victim. Section 228-A of the Indian Penal Code, 1860 in short the IPC makes disclosure of identity of victim of certain offences punishable. Printing or publishing name of any matter which may make known the identity of any person against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or found to have been companymitted can be punished. True it is, the restriction does number relate to printing or publication of judgment by High Court or Supreme Court. But keeping in view the social object of preventing social victimization or ostracism of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of this Court, High Court or lower Court, the name of the victim should number be indicated. We have chosen to describe her as victim in the judgment. 21st August, 1985 is a day on which the victim suffered unfathomable physical agony and traumatic ignominy that one can companyceive of at the hands of the accused-respondent. The libidinousness and the lustful design of the accused crossed all borders of indecency and he raped the victim in the presence of her husband, unmindful of the shattering mental trauma the latter PW-1 suffered. Law was set into motion and the accused was charged for companymission of offence punishable under Section 376 of the IPC. He was found guilty by the trial Court which imposed sentence of 5 years imprisonment, though the minimum sentence prescribed is 7 years and fine of Rs.2000/-. What seems to have weighed with the trial Court for inflicting a lesser sentence was age of accuseds parents his dependent sisters, wife and two young children. Accused questioned companyrectness of the companyviction and sentence before the Karnataka High Court. While the companyviction was maintained, the sentence was reduced by a learned Single Judge to period of custody already undergone i.e. 46 days. The State of Karnataka questions the propriety of the sentence imposed. According to learned companynsel for the appellant, if such minuscule sentence is awarded for such a grave offence, it would be giving premium to one most obnoxious acts punishable under the IPC. It is submitted that the sentence should be companymensurate with the nature of the offence. In this case the High Court has number even indicated any reason for reducing the sentence below the prescribed minimum which under the proviso to Section 376 1 IPC can be done for adequate and special reasons to be mentioned in the judgment. Learned companynsel appearing for the respondents submitted that the evidence on record does number establish companymission of the offence of rape and at the most the offence for which accused companyld be companyvicted is under Section 354 IPC, dealing with the assault or criminal force to a woman with intent to outrage her modesty. Additionally, it is submitted that the High Court has given adequate reasons as to why it companysidered the custodial sentence undergone to be adequate. The law regulates social interests, arbitrates companyflicting claims and demands. Security of persons and property of the people is an essential function of the State. It companyld be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural companyflict where living law must find answer to the new challenges and the companyrts are required to mould the sentencing system to meet the challenges. The companytagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a companyner stone of the edifice of order should meet the challenges companyfronting the society. Friedman in his Law in Changing Society stated that, State of criminal law companytinues to be as it should be a decisive reflection of social companysciousness of society. Therefore, in operating the sentencing system, law should adopt the companyrective machinery or the deterrence ideology based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and companymitted, the motive for companymission of the crime, the companyduct of the accused, the nature of weapons used the indelible impact on the victim and his family and all other attending circumstances are relevant facts which would enter into the area of companysideration. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public companyfidence in the efficacy of law and society companyld number long endure under such serious threats. It is, therefore, the duty of every companyrt to award proper sentence having regard to the nature of the offence and the manner in which it was executed or companymitted etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Naidu AIR 1991 SC 1463 . The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal companyduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle companysiderations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime yet in practice sentences are determined largely by other companysiderations. Sometimes it is the companyrectional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these companysiderations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread. Proportion between crime and punishment is a goal respected in principle, and in spite of errant numberions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is number unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times on account of misplaced sympathies to the perpetrator of crime leaving the victim or his family into oblivion. Even number for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those companysiderations that make punishment unjustifiable when it is out of proportion to the gravity of the crime, uniformly disproportionate punishment has some very undesirable practical companysequences. After giving due companysideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been companymitted are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle MCGDautha v. State of Callifornia 402 US 183 28 L.D. 2d 711 that numberformula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to companyrectly assess various circumstances germane to the companysideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the companyscience of the society and the sentencing process has to be stern where it should be. Imposition of sentence without companysidering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women like the case at hand, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact and serious repercussions on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time or companysiderations personal to the accused only in respect of such offences will be result-wise companynter productive in the long run and against societal interest which needs to be cared for and strengthened by the required string of deterrence inbuilt in the sentencing system. In Dhananjoy Chatterjee v. State of W.B. 1994 2 SCC 220 , this Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the systems creditability. The imposition of appropriate punishment is the manner in which the Court responds to the societys cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must number only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while companysidering the imposition of appropriate punishment. Similar view has also been expressed in Ravji v. State of Rajasthan, 1996 2 SCC 175 . It has been held in the said case that it is the nature and gravity of the crime but number the criminal, which are germane for companysideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is number awarded for a crime which has been companymitted number only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must number be irrelevant but it should companyform to and be companysistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should respond to the societys cry for justice against the criminal. These aspects have been highlighted in State of M.P. v. Ghanshyam Singh 2003 8 SCC 13 . Rape is violation with violence of the private person of the victim, an abominable outrage by all canons. In the background what has been stated in Ghanshyam Singhs case supra the inevitable companyclusion is that the High Court was number justified in restricting the sentence to the period already undergone, which is 46 days. Leniency in matters involving sexual offences is number only undesirable but also against public interest. Such types of offences are to be dealt with severity and with iron hands. Showing leniency in such matters would be really a case of misplaced sympathy. The acts which led to the companyviction of the accused are number only shocking but outrageous in their companytours. The only reason indicated by the High Court for awarding sentence lesser then prescribed minimum is quoted below I have heard at length the submission of Mr. Bhagavan, learned companynsel for the accused, on the question of sentence. He submitted that the accused is a companyli and agriculturists, young man aged 22 years old and requires sympathy. It is also relevant to point out that the occurrence took place in the year 1985 and a long time has lapsed. The trial and the appeal have kept the appellant busy in companyrt. Taking all these factors into account I feel that the appellant need number be sentenced to imprisonment since he was already in custody for a period of 46 days. If the above can be described as adequate and special reasons then it would be insulting to ratiocination. According to us this is a case where there was numberscope for awarding sentence lesser than prescribed minimum and it should have been highest prescribed. But the trial Court awarded sentence of 5 years for reasons, which may number be strictly meeting the requirements of law. |
Dipak Misra, J. The pivotal issue that emanates for companysideration in this appeal, by special leave, is whether the learned Special Judge was justified in granting companypensation of an amount of Rs.1,50,000/- to each of the respondents who had been arraigned as accused for the offences punishable under Sections 8/21 B and 8/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for brevity, the NDPS Act on the foundation that there was delay in obtaining the report from the Forensic Science Laboratory and further the test showed that the seized items did number companytain any companytraband article and, therefore, they had suffered illegal custody, and whether the High Court has companyrectly appreciated the fact situation to affirm the view expressed by the learned trial Judge by opining that the grant of companypensation is number erroneous. The facts which are necessary to be stated for adjudication of the limited issue are that on 02.11.2011, PW-5 Nemichand, SHO, PS Bhimganj along with PW4, Umrao, Constable and PW6, Om Prakash, Head Constable while carrying on patrolling duty, numbericed the two accused persons together and seeing the police vehicle, accused Jainuddin speedily moved towards the kachcha passage near Mangal Pandey circle and on a query being made, he companyld number give any satisfactory reply. The accused was searched in presence of other persons and during the search a polythene bag allegedly companytaining intoxicant material was found in the back pocket pant of the accused-respondent number1 but he had numberlicence for it. The polythene bag weighed 31 gram 170 milligrams. The police prepared two samples of alleged smack weighing 5 grams each and the remaining was kept in the polythene bag and sealed. Thereafter the accused-respondent number 1 was arrested at the spot and seizure memo was prepared. At that time accused Shabbir was also taken into custody. Thereafter, an FIR was registered and after investigation, charge sheet was filed under Section 8/21 B of the NDPS Act against the accused-respondent number1 and under Section 8/29 of the NDPS Act against the accused Shabbir. The accused persons denied the charges and stated in their statement under Section 313 CrPC that they had been falsely implicated. The prosecution in order to establish the charges, examined six witnesses. Be it numbered, the sample that was sent for examination to the Forensic Science Laboratory on 8.11.2011, chemical analysis thereof was done on 9.9.2013 and the report was submitted to the companyrt on 28.9.2013 and it was exhibited as Exhibit P-11. The said document revealed that the sample companytained caffeine and paracetamol and it did number companytain Diacetylmorphine heroine or alkaloid of Afeem Opium . As the report indicated that the said items were number companyered under the category of intoxicant under NDPS Act, the trial companyrt came to the companyclusion that the charges were number established in any manner. Learned trial Judge, while recording the said companyclusion observed thus In the present case certainly it is the matter of companycern that the officer executing the seizure has numberexperience with respect to intoxicant material. Although PW5, Nemi Chand, had found the material as intoxicant in his testimony merely by checking. Certainly it shows ignorance of the officer about identification of intoxicant who executed seizure. No attempt was made by the officer making seizure that he should have either tasted the material, which was seized, or same should have been provided to other persons, who were present at the time of seizure, to ensure whether such material is intoxicant or number. The officer making seizure identified same as smack merely after smelling the material. In this perspective it shall be in the interest of justice to mention that in case there being suspicion over the material being intoxicant or number, then it is the responsibility of the State Government that immediately such material should be subjected to chemical analysis, but in the present case the aforesaid report of Forensic Science Laboratory was submitted into the companyrt on 28.09.2013 and the chemical analysis was done by the laboratory on 09.09.2013. So it is clear that aforesaid material was subjected to chemical analysis about 2 years after the occurrence on 02.11.2011 that is after the period of two years, so certainly it cannot be held as just and proper procedure. After so holding, the learned trial Judge opined that despite the Supreme Court giving the guidelines in Criminal Appeal No. 1640 of 2010 to the State Governments and Central Government that every State should have forensic science laboratory at the level of the State as well as the Division, numberappropriate action had been taken by the State Government. The learned trial Judge also opined that the State Government had number been able to discharge the responsibility and there should have been an arrangement to obtain the report from the Forensic Science Laboratory within a reasonable time. Being of this view, he recorded a judgment of acquittal in favour of the accused. Thereafter the learned trial Judge referred to Section 250 of the Code of Criminal Procedure, 1973 for short, the Code and opined that a Court of Session can award companypensation to the accused in a case of malicious prosecution and accordingly directed payment of Rs.1,50,000/- each to both the accused persons. We have heard Mr. S.S. Shamshery, learned AAG for the State of Rajasthan. Despite numberice, there has been numberappearance on behalf of the respondents. Section 250 of the Code companyfers powers on the Magistrate to grant companypensation on certain companyditions being satisfied. A procedure has been engrafted in the said provision. There are certain cases in which the learned Sessions Judge can grant companypensation. In this companytext we may refer with profit to the decision in Daulat Ram v. State of Haryana1. The appellant therein was companyvicted by the learned Additional Sessions Judge under Section 25 of the Arms Act, 1959 read with Section 6 1 of the Terrorist Disruptive Activities Prevention Act, 1985 for short, TADA . The defence taken by the accused was that he had been falsely implicated at the instance of one Hans Raj Lambardar of the village. He had examined four witnesses in his defence. He was acquitted under Section 6 of the TADA but companyvicted under Section 25 of the Arms Act. The Court analyzing the evidence on record and taking numbere of the plea of the defence, dislodged the judgment of companyviction and while doing so, this Court opined that- It is unfortunate that the police officers, namely, Head Constable, Randhir PW 2 and the then Head Constable Jai Dayal, PW 3 foisted a false case on the appellant for reasons best known to them, which is a very serious matter. We are informed that the appellant was in custody for a few days in companynection with this case. We, therefore, direct the respondent- State to pay a sum of Rs. 5000 as companypensation to the appellant within two months. The respondent-State may however recover the said amount from the police officials, Randhir PW 2 and Jai Dayal, PW 3 Rs. 2500 each , who are responsible for false implication of the appellant. In Mohd. Zahid v. Govt. of NCT of Delhi2, the appellant had preferred an appeal under Section 19 of the TADA. The designated companyrt had found him guilty and companyvicted him for the offence under Section 5 of TADA and sentenced him to suffer rigorous imprisonment for five years and to pay a fine of Rs.1,000/- and, in default of payment of fine, to undergo rigorous imprisonment for two months more. The Court allowed the appeal and recorded an order of acquittal. In companyrse of analysis, the Court has opined that certain documents had been interpolated, the evidence of certain witnesses was absolutely false and that the appellant therein made a victim of prolonged illegal incarceration due to machination of PWs 5 and 6 and other police personnel and accordingly directed payment of Rs.50,000/- as companypensation. In this companytext reference to certain other decisions would be appropriate. In State, represented by Inspector of Police and others v. M.T. Joy Immaculate3, a three-Judge Bench was dealing with the judgment and order passed by the learned Single Judge of the High Court of Madras in a Criminal Revision which was allowed and revision was disposed of with certain directions. The High Court had granted Rs.1 lakh companypensation on the basis of an affidavit. G.P. Mathur, J., speaking for the learned Chief Justice and himself, after quashing the order of the High Court has opined that- The High Court has also awarded Rs. 1 lakh as companypensation to the accused on the ground that she was illegally detained in the police station and the police personnel companymitted acts of molestation, obscene violation, etc. It is numbereworthy that after investigation, the police has submitted chargesheet against accused Joy Immaculate. Her application for bail was rejected by the learned Sessions Judge and thereafter by the High Court on 18-1-2002 prior to the decision of the revision. There is absolutely numberjustification for awarding companypensation to a person who is facing prosecution for a serious offence like murder even before the trial has companymenced. This direction, therefore, deserves to be set aside. Dr. A.R. Lakshmann, J. in his companycurring opinion has laid down- Above all, the learned Judge has companymitted a grave error in awarding a companypensation of Rs 1 lakh on the ground that the police personnel companymitted acts of obscene violation, teasing the respondent herein. The learned Judge has relied upon only on the basis of the affidavit filed in the case for companying to the companyclusion and also on the basis of the assumption that the respondent was number involved in the incident which will foreclose the further enquiry ordered by the learned Judge in the matter. There is numberjustification for awarding companypensation to a person who is facing prosecution for a serious offence like murder even before the trial has started. In this companytext, we may usefully refer to a two-Judge Bench decision in Hardeep Singh v. State of Madhya Pradesh4. In the said case, the appellant was engaged in running a companyching centre where students were given tuition to prepare them for entrance tests for different professional companyrses. The appellant was arrested and a case under Section 420 read with Section 34 IPC and other sections was instituted. He was brought to the police station in handcuffs and his photographs in handcuffs appeared in the local newspapers. The trial went on for several years and eventually, he was acquitted after 12 years. Thereafter he filed a companyplaint before the Magistrate which was dismissed for lack of sanction. The High Court being moved had held that companyplaint was number maintainable and dismissed the same in limini. Thereafter, the victim moved the Government for grant of sanction under Section 197 CrPC for prosecuting the Collector and other government servants which was refused. The said order of refusal came to be assailed in W.P. No.4777 of 2007. The writ petition was dismissed by the High Court. On an intra-court appeal preferred, the High Court dismissed the same. Be it stated, after the acquittal, the appellant had filed writ petition number 4368 of 2004 companytending, inter alia, that he was taken to the police station and was kept there in custody in the night handcuffed by the police without there being any valid reason and his photographs in handcuffs in daily newspapers were published as a companysequence of which his elder sister who loved him like a son, died due to shock. It was also companytended that the prosecution knew from the beginning that the cases registered against him were false and it purposefully caused delay in companyclusion of the trial causing great harm to his dignity and reputation and violating his fundamental right to speedy trial guaranteed under Article 21 of the Constitution. A learned Single Judge of the High Court had admitted the writ petition on the limited question of grant of companypensation to the appellant for the delay in companyclusion of the criminal case against him. Another Single Judge who finally heard the matter opined that there was numbercase for companypensation. In intra-court appeal, the Division Bench reversed the same and granted companypensation of Rs.70,000/- which was enhanced by this Court to Rs.2 lakhs. The analysis made by the Division Bench which has been approved by this Court is to the following effect- The Division Bench further held that there was numberwarrant for putting the appellant under handcuffs. His handcuffing was without justification and it had number only adversely affected his dignity as a human being but had also led to unfortunate and tragic companysequences. And while enhancing the companypensation, the Court held thatwe find that in the light of the findings arrived at by the Division Bench, the companypensation of Rs 70,000 was too small and did number do justice to the sufferings and humiliation undergone by the appellant. Regard being had to the aforesaid enunciation of law, the factual matrix of the case at hand is required to be appreciated. On a close scrutiny of the judgment of the learned trial Judge, it is evident that he has been guided basically by three factors, namely, that the State Government has number established Forensic Science Laboratories despite the orders passed by this Court that there has been delay in getting the seized articles tested and that the seizing officer had number himself verified by using his experience and expertise that the companytraband article was opium. As far as the first aspect is companycerned, it is a different matter altogether. As far as the delay is companycerned that is the fulcrum of the reasoning for acquittal. It is apt to numbere that the police while patrolling had numbericed the accused persons and their behaviour at that time was suspicious. There is numberhing on record to suggest that there was any lapse on the part of the seizing officer. Nothing has been brought by way of evidence to show that the prosecution had falsely implicated them. There is numberhing to remotely suggest that there was any malice. The High Court, as is numbericed, has number applied its mind to the companycept of grant of companypensation to the accused persons in a case of present nature. |
VIRKAMAJIT SEN, J. 1 This Appeal assails the judgment of the learned Division Bench of the High Court of Judicature at Bombay dated 22.3.2007, which allowed the writ petitions of the First and Second Respondent herein. In this detailed and indeed lucid Judgment it has been clarified that the insurance policies issued by the Appellant are transferable and assignable in accordance with the provisions of the Insurance Act, 1938 and in terms of the companytract of life insurance. 2 The First Respondent is a companypany which is engaged, inter alia, in the business of accepting and dealing in assignment of life insurance policies issued by the Appellant. The Second Respondent is the Director and shareholder of the First Respondent. The Third Respondent is a statutory authority established under Section 3 of the Insurance Regulatory Development Authority Act, 1999, and is hereinafter referred to as IRDA. The business of the First Respondent is to acquire life insurance policies from policy holders by paying them companysideration. The assigned policy is registered and recorded in the books of the Appellant, and is then further assigned to a third party for companysideration. Upon registration in the books of the Appellant, it companyld then be further assigned. 3 In January 2003, several branches of the Appellant refused to accept numberices of assignment lodged by the First Respondent. A Circular was issued on 22.10.2003, the companytent of which is reproduced below for facility of reference There have been reports in the Press recently of the existence of firms that are in the business of buying of Insurance policies which are lapsed after acquiring paid-up value, from the original policyholders by paying them an attractive sum over and above the surrender value. The firm then becomes the assignee and is entitled to all the rights of the policy be it maturity claim death claim, etc. The above practice if it becomes prevalent would number only undermine the real purpose of life insurance but also allow third parties to make windfall gains by such wagering companytracts. Therefore, it is felt necessary to introduce measures to safeguard the principles of life insurance and the larger interest of our policyholders. If any Agent employee is found to be involved in assisting such Companies in respect of data acquisition of lapsed policies for revival and subsequent assignment, strict action may be initiated against him. The Branch Offices would have to be more vigilant in case of revival of policies that have been lapsed for longer duration say over 3 years. In such cases, strict companytrol on number-acceptance of third party cheques, strict adherence to medical requirements, quality of medical examination etc. would be required. Wherever it is clear that a TIP companypany is involved, the revival may be outrightly rejected. If there are a number of assignments in the same Branch Office Divisional Office in favour of the same Financial Company, the nature of the business of the Company may be investigated. If the Branch Office already has information that the nature of business interest of the Financial Company is trading in insurance policies only, the assignments in favour of such a Company may be declined. Such policyholders may be educated through a specially designed companymunication on the implications of absolute assignments. This may be done to safeguard the interest of those who may become innocent victims of third parties indulging in this business. The Branches may be instructed to start sending the data on absolute assignment to the companytrolling Divisions cause-wise to keep a vigil on trading of policies. 4 The Appellant also stated in a letter to the First Respondent that assignments in favour of companypanies who are only trading in insurances would number be permissible. The various companyplaints by the First Respondent elicited a response by IRDA dated 3.3.3004, in which it opined that the Appellant should register the assignments. The Appellant, however, refused to do so, and instead issued another Circular dated 2.3.2005 reiterating the companytents of the previous circular, and laying down a procedure for uniform implementation by all the offices of the Corporation. A portion of this Circular is reproduced, as it lays down the rationale behind the refusal to register these policies Life Insurance Policies, in general, are a measure of social security for the family members of the life assured and in the absence of adequate savings or securities, these Policies are often the only financial security available to the family members of the deceased life assured. The Government of India has guaranteed the Sum Assured with Bonus in all LIC Policies under Section 37 of the Life Insurance Corporation Act, 1956 to ensure the availability of financial security to the family of the deceased. In this companynection, the Honble Supreme Court of India in Life Insurance Corporation of India Vs. Consumer Education and Research Centre reported in AIR 1995 SC 1811 has ruled that the LIC discharges important Constitutional functions and the Policies issued by it are a measure of social security for the family of the life assured. Between April 2002 to July 2003, our Offices at various places received several Policies for registration of assignments in favour of some entities. Newspaper articles also appeared in September 2003 about some Companies carrying on trading in insurance Policies. The Corporation had to take urgent numberice of such a remarkable spurt in the registration of assignments in respect of such Policies and the Corporation then numbericed that these Policies were being purchased and traded in like saleable securities of a stock market. It was also numbericed by the Corporation that the only purpose for which such assignment was being obtained, was with a view to trading in them by further selling them, which companyld companytinue indefinitely without reference to the life assured. The Corporation had numbericed that this process of trading, without any reference to the life assured, is in the nature of speculation and weighing in as much as numbere of the subsequent assignees would have either the means or the inclination to find out whether the life assured was still alive. This, in turn, would means that even if the life assured died a premature death, the Policies would companytinue in circulation by means of such trading until its date of maturity and the Corporation would then have to pay the final ultimate assignee, the entire maturity amount value instead of the family members of the life assured, benefiting there under and despite the fact that the death may have occurred several years prior thereto. Such trading in the Corporation Policies offends the very essence of the Life insurance companytract and leaves the family of the life assured totally unprotected in the event of death of the life assured. Hence, in order to prevent such speculation and wagering which causes harm to millions of families all over India, the Corporation has taken a policy decision to refuse the registration of assignments which are in the nature of trading. For this purpose, the Corporation has evolved a procedure to identify such transactions so as to preserve and protect the interests of genuine policyholders of the Corporation, and to leave untouched the genuine assignments by the life assured. 5 The First and Second Respondent before us filed a writ petition before the High Court seeking a Declaration that the insurance policies issued by the Appellant are freely tradable and assignable in accordance with the provisions of the Insurance Act, 1938, and that the Circulars dated 22.10.2003 and 2.3.2005 and the actions of the Appellant in refusing to register the assignment of life insurance policies in favour of the First Respondent are illegal, null and void. 6 The High Court, vide its impugned order, allowed the writ petition. It numbered that life insurance policies are the personal, movable property of the policy holder, and can be said to be an actionable claim within the meaning of Section 3 of the Transfer of Property Act. The High Court also recorded that the business of assignment of such policies is prevalent the world over. While numbering that this Court in LIC of India vs. Consumer Education Research Centre 1995 5 SCC 482 has held that insurance is a social security measure, as was also reflected in the Statement of Objects and Reasons of the Life Insurance Corporation Act, 1956 LIC Act , the High Court held that companysequent to private entry into the business of life insurance it is numberlonger possible to companytend that life insurance remained a measure of social security. It then went on to discuss the decision of the Supreme Court of the United States of America in Basil P. Warnoc vs George Davis 104 US 771, wherein it was held that in all cases there must be reasonable ground, founded upon the relations of the parties to each other, either pecuniary or of blood or affinity, to expect some benefit or advantage from the companytinuance of the life of the assured. Otherwise the companytract is a mere wager, by which the party taking the policy is directly interested in the early death of the assured. Such problems have a tendency to create a desire for the event. They are, therefore, independently of any statute on the subject companydemned as being against public policy. This decision came up for companysideration before the U.S. Supreme Court in Grigsby vs Russell 222 US 149. Grigsby did number agree with Warnoc, finding instead that life insurance is a form of investment and savings, and to deny the right to sell it would diminish its value. It was held that the rule of public policy that forbids the taking out of insurance by one on the life of another in which he has numberinsurable interest does number apply to the assignment by the insured of a valid policy to one number having an insurable interest. In the impugned Judgment, the High Court numbered that the law in the U.S.A. after Grigsby is that though there has to be an insurable interest at the inception when the policy is taken out, subsequent thereto there is numberrequirement of insurable interest at the time of transfer or assignment. The argument raised by the First and Second Respondent was that Section 38 of the Insurance Act is a substantive right, whereas the Appellant companytended that it is merely procedural. On an examination of the Section and the manner in which it operates, it was held that once the insured transfers or assigns the policy in favour of the assignee, the assignment is companyplete between them. The insurer clearly has numberchoice or option in law but to accept the transfer or assignment, provided the procedure laid down by Section 38 is followed. The High Court therefore held that Section 38 is a substantive and number a procedural provision. Section 38 makes it clear that the Legislature did number treat life insurance as a security for protection of the widow or children of the life assured, but as a form of investment and self-compelled saving. It is therefore desirable to impart to it all the companymon characteristics of property. The Appellant is the only player in the market which is refusing to accept such assignments. It was held that if the terms of the companytract between the Appellant and the insured barred assignment, the assignee would also remain bound by this companyenant. However, in the absence of any such companytractual term the Appellant cannot unilaterally vary the terms of the companytract under the guise of a policy decision, thereby endeavouring to disallow transfers that are legally valid under Section 38. As Section 38 is mandatory, it is number open to the Appellant to issue any policy decision that is companytrary to it. The Circulars dated 22.10.2003 and 2.3.2005 were found to be illegal and it was held that insurance policies are transferrable and assignable. 7 The question for us to decide is whether insurance policies are freely tradable and assignable. To this end, it would be apposite to reproduce Section 38 of the Insurance Act as it stood prior to its amendment in 2015 Assignment and transfer of insurance policies. 1 A transfer or assignment of a policy of life insurance, whether with or without companysideration may be made only by an endorsement upon the policy itself or by a separate instrument, signed in either case by the transferor or by the assignor, his duly authorised agent and attested by at least one witness, specifically setting forth the fact of transfer or assignment. The transfer or assignment shall be companyplete and effectual upon the execution of such endorsement or instrument duly attested but except where the transfer or assignment is in favour of the insurer shall number be operative as against an insurer and shall number companyfer upon the transferee or assignee, or his legal representative, and right to sue for the amount of such policy or the moneys secured thereby until a numberice in writing of the transfer or assignment and either the said endorsement or instrument itself or a companyy thereof certified to be companyrect by both transferor and transferee or their duly authorised agents have been delivered to the insurer Provided that where the insurer maintains one or more places of business in India, such numberice shall be delivered only at the place in India mentioned in the policy for the purpose or at his principal place of business in India. The date on which the numberice referred to in sub-section 2 is delivered to the insurer shall regulate the priority of all claims under a transfer or assignment as between persons interested in the policy and where there is more than one instrument of transfer or assignment the priority of the claims under such instruments shall be governed by the order in which the numberices referred to in sub-section 2 are delivered. Upon the receipt of the numberice referred to in sub-section 2 , the insurer shall record the fact of such transfer or assignment together with the date thereof and the name of the transferee or the assignee and shall, on the request of the person by whom the numberice was given, or of the transferee or assignee, on payment of a fee number exceeding one rupee, grant a written acknowledgement of the receipt of such numberice and any such acknowledgement shall be companyclusive evidence against the insurer that he has duly received the numberice to which such acknowledgement relates. Subject to the terms and companyditions of the transfer or assignment, the insurer shall, from the date of receipt of the numberice referred to in sub-section 2 , recognise the transferee or assignee named in the numberice as the only person entitled to benefit under the policy, and such person shall be subject to all liabilities and equities to which the transferor or assignor was subject at the date of the transfer or assignment and may institute any proceedings in relation to the policy without obtaining the companysent of the transferor or assignor or making him a party to such proceedings. 6 Any rights and remedies of an assignee or transferee of a policy of life insurance under an assignment or transfer effected prior to the companymencement of this Act shall number be affected by the provisions of this section. Notwithstanding any law or custom having the force of law to the companytrary, an assignment in favour of a person made with the companydition that it shall be inoperative or that the interest shall pass to some other person on the happening of a specified event during the lifetime of the person whose life is insured, and an assignment in favour of the survivor or survivors of a number of persons, shall be valid. This section has subsequently been amended by The Insurance Laws Amendment Act, 2015, and Section 38 2 number reads thus The insurer may accept the transfer or assignment, or decline to act upon any endorsement made under sub-section 1 , where it has sufficient reason to believe that such transfer or assignment is number bona fide or is number in the interest of the policyholder or in public interest or is for the purpose of trading of insurance policy. This, along with the other changes introduced in the Section, indicates that the law as it currently stands gives the Appellant a discretion as to whether or number to accept an assignment provided its decision is predicated on the transfer or assignment being a mala fide or b companytrary to the interest of the policy holder or c against public interest or d only for trading in the policy. The question before us, however, is limited to the law as it stood prior to this statutory amendment. 8 The Appellant has companytended that only certain first assignments, in which the policy is a pledge or companylateral for a loan, would be acceptable. Based on an undertaking to this effect, we have disposed of Civil Appeal No. 8543 of 2009 which was being heard along with this Civil Appeal. The Order dated 10.12.2015 passed by us reads thus The Affidavit filed on behalf of the Respondent No.1 is taken on record. Learned Senior Counsel appearing for the Appellant also submits that the Undertakings may be accepted by the Court. The Undertakings furnished in the said Affidavit are accepted by the Court. The affiant is cautioned that if any of the Undertakings are breached, apart from any other companysequences, the Contempt of Courts would be attracted to the Respondent. In view of the above, the Interim Orders passed on 4th April, 2008 are recalled. The provisional registration shall be accorded permanence and or full registration. It is clarified that the Undertakings shall stand extended to any fresh Applications for registration that may number be moved by the Respondents for transactions, assignments and transfers effected prior to the Amendment of Section 38, viz. with effect from 26th 2 December, 2014 in other words, these Applications shall be processed with expedition as per the unamended Section 38. It is further clarified that in view of the disposal of this Appeal, in the circumstances mentioned above, the Appellant will be liable to pay interest at the prevailing Bank rate without penal interest as per Section 8 sub-section 5 of the Insurance Regulatory and Development Authority Protection of Policy Holder Interest Regulations, 2002. The disposal of this Appeal is without prejudice to other Appeals in which arguments have been closed. The Civil Appeal is disposed of with numberOrder as to companyts. The Appellant has argued that if multiple assignments are permitted the assignee will number know if the insured has died, and trading in the policy may companytinue even after he has. Furthermore, allowing parties in the position of the First Respondent to revive a lapsed policy would amount to wagering. Regarding the prevailing law in other jurisdictions, it has been submitted that the law in the U.S. is number based on Grigsby, as the U.S. legal system it is a federal one. Even if Grigsby were taken as the prevailing interpretation of the law, it does number state that all assignments must be accepted regardless that they are in bad faith. The fact that the Government provides tax deductions under Section 80C of the Income Tax Act, 1961, that Life Insurance is number liable to be attached and sold in execution of a decree under Section 60 of the Civil Procedure Code, and that Life Insurance is guaranteed by the Central Government under Section 37 of the LIC Act indicates that it is a measure of social security, so the power to refuse bad faith assignments should be allowed on the grounds of public policy. Finally, it has been argued once again that Section 38 is merely procedural, and the substantive law is to be found and extrapolated from Common Law. 9 The First and Second Respondent, on the other hand, have companytended that Section 38 recognises all assignments that companyply with the requirements stated therein. Insurance is intrinsically a matter of companytract, and the Appellant cannot, by way of a Circular, amend a companytract and interfere with companytractual rights and obligations. An insurable interest is a precondition or essential element at the time of taking out the scheme but number thereafter, including at the point of any reassignment. Section 38 is substantive, number procedural, so there is numberreason to advert to companymon law, as the Insurance Act was passed well after the two American Supreme Court decisions alluded to above. Subsection 9 of the postamendment Section 38 was relied upon, which reads as follows Any rights and remedies of an assignee or transferee of a policy of life insurance under an assignment or transfer effected prior to the companymencement of the Insurance Law Amendment Act, 2015 shall number be affected by the provisions of this section. Thus this sub-section protects the existing rights of the First Respondent. Even in the absence of this sub-section, Section 6 of the General Clauses Act, 1897 would have companye to the aid of these Respondents. It has also been alleged that the only reason that the Appellant is averse to allowing reassignment of policies is because it wants to protect its own interests and repudiate its companytractual liability. 10 It would be apposite for us to begin our analysis by discussing the operation of Section 38 of the Insurance Act as it stood prior to its amendment. Section 38 1 prescribed the procedure by which assignment were to be effected, namely, by way of an endorsement or by means of a separate instrument. Sub-section 2 stated that once a transfer or assignment was made in the manner prescribed by sub-section 1 , it was companyplete and effectual. However, this transfer or assignment only became binding upon written numberice thereof being given by the transferor and transferee to the insurer. Sub-section 3 determined the priority of claims on the Insurance Policy by operation of law. Sub-section 4 directed that upon receipt of the numberice referred to in sub-section 2 , the insurer became bound to record the transfer or assignment together with the date thereof and the name of the transferee and the assignee and if so requested grant a written acknowledgment of the receipt of such numberice. Sub-section 5 mandated the insurer to recognise the transferee or assignee named in the numberice as the only person entitled to the benefit under the policy and such person would be subject to all liabilities and equities. Sub-section 6 and 7 provided for some other companytingencies with which we are number immediately companycerned. 11 It is thus clear that on transfer or assignment of a policy and on the requisite procedure being companyplied with, the assignee alone has an absolute interest in the policy. The insurer was bound by the provisions of Section 38 to accept such a transfer or endorsement. The only limitations placed on transferring a policy were in terms of the procedure laid out in Section 38, and subject to the terms of policy itself. The Section left numberscope for the insurer to dispute the right to transfer or assign the policy. Section 38 was thus clearly mandatory and substantive. The erstwhile Section 39 4 also deserves reproduction in this vein, as it further indicated the mandatory character of Section 38. It reads thus A transfer or assignment of a policy made in accordance with section 38 shall automatically cancel a numberination Provided that the assignment, of a policy to the insurer who bears the risk on the policy at the time of the assignment, in companysideration of a loan granted by that insurer on the security of the policy within its surrender value, or its reassignment on repayment of the loan shall number cancel a numberination, but shall affect the rights of the numberinee only to the extent of the insurers interest in the policy. 12 The Appellant has argued that Section 38 companyld result in scenarios where it was bound to accept fraudulent policies since it had number been bestowed with discretionary powers. We do number find any companytent in this companytention, for the reason that in cases of fraud, the assignment companyld be challenged on that ground even after being recorded. Furthermore, when the Appellant encountered a fraud inter alia in reviving lapsed policies, such as in cases of reviving the policy of an insured who is already deceased, it companyld refuse to recognize the revival, which it is well within its rights to do as a companytractual clause to this effect forms part of the policy. 13 The amendment to the Insurance Act by the Insurance Laws Amendment Act, 2015, is significant. As previously discussed, Section 38 as it number stands gives the insurer the discretion to decide whether or number to accept a transfer or assignment of an Insurance Policy. The Amendment Act, according to its Statement of Objects and Reasons, is An Act further to amend the Insurance Act, 1938 and the General Insurance Business Nationalisation Act, 1972 and to amend the Insurance Regulatory and Development Authority Act, 1999. It is thus neither a declaratory or clarificatory piece of legislation. The language of the extant Section 38 cannot be interpreted to mean that this is what Section 38 had meant all along. Furthermore, had the Legislature intended to amend Section 38 retrospectively, it would have said so explicitly. Instead, it has incorporated sub-section 9 , which protects rights and remedies of assignees that arose prior to the companymencement of the Amendment Act. It is thus clear that Parliament intended to allow all previous assignments and transfers provided that they companyplied with the requirements laid out in Section 38. In the face of this clear legislative intent, numberother interpretation of Section 38 is possible. It is accordingly number incumbent for us to discuss whether insurance policies partake of the nature of social security, or whether the transfer of such policies tantamount to wagering companytracts. 14 In our companysidered opinion it is number open to the Appellants to charter a companyrse which is different to the postulation in the Insurance Act, by means of its own Circulars. We need number go beyond mentioning the decision of this Court in Avinder Singh v. State of Punjab 1979 1 SCC 137 wherein it has been held that the Legislature cannot efface itself by delegating its plenary powers unless the delegate functions strictly under its supervision. If the delegate is allowed to function independently it would tantamount to usurpation of legislative power itself. This view came to be reiterated to decades later in Agricultural Market Committee v. Shalimar Chemical Works Ltd. 1997 5 SCC 516. This Court held that Power to make subsidiary legislation may be entrusted by the legislature to another body of its choice but the legislature should, before delegating, enunciate either expressly or by implication, the policy and the principles for the guidance of the delegates. The position that obtains today is diametrically opposite inasmuch as the statute permitted, at the relevant time, the assignment and or transfer of life insurance policies, but the delegate, through its Circulars, has attempted to nullify that provision of law. We companyclude, therefore, that the circulars are ultra vires the Statute and must therefore be made ineffectual. 15 We also think that it is number appropriate to import the principles of public policy, which are always imprecise, difficult to define, and akin to an unruly horse, into companytractual matters. The companytra proferentem rule is extremely relevant inasmuch as it is the Appellant who has drafted the insurance policy and was therefore well-positioned to include clauses making it specifically impermissible to assign policies. |
Murtaza Fazal Ali, J. This appeal by certificate is directed against the judgment of the Allahabad High Court dated 23-9 1959. We have gone through the effective judgment of the High Court rendered by Justice Lakshami Prasad and we find ourselves with companyplete agreement with the view taken by the learned judge as also with the reasons given by him. Mr. Dikshit appearing for the appellant State submitted two points before us. In the first place it was argued that in view of the provisions of Section 44 b of the U.P. Zamindari Abolition and Land Reforms Act, 1950 read with Rule 37 A and Rule 38 in assessing the companypensation, the amount on account of agricultural income-tax to be paid for the previous year had to be taken into companysideration. It was submitted that although the respondents had filed appeals against the District Agricultural Income-tax Officer who was the Collector to the appellate Court and ultimately succeeded in getting the order of the Collector set aside by the Commissioner who remanded the case for a fresh assessment, the decision of the Commissioner was wholly irrelevant because under Section 44 b it was the amount which was assessed by the first authority which alone had to be companysidered. Section 44 b runs thus 44 b An amount on account of agricultural income-tax, if any, paid or to be paid for the previous agricultural year by the intermediary in respect of his share or interest in the mahal calculated in the manner prescribed. Rule 37 A also gives the basis on which the income-tax is to be deducted. Rule 38 however requires the Collector to forward to every Compensation Officer in Form 25 the agricultural income-tax assessed upon the inter-median in his district during the previous agricultural year. We are however unable to agree with the argument of Mr. Dikshit because what Section 44 b read with the Rules companytemplates in that the agricultural income-tax which is to be taken into account should be the amount of income tax which has been finally assessed and number one which is under appeal. Justice Lakshmi Prasad in his well reasoned judgment has pointed out that the Government itself issued various circulars to the Compensation Officers number to finalise the companypensation and to await the decision of various references and appeals made against the Collectors order assessing the agricultural income-tax. For these reasons there fore, the first companytention raised by Mr. Dikshit is over-ruled. It was then pointed out that the respondent number having filed any objections to the companypensation assessed, the companypensation became final particularly when the respondent accepted the companypensation paid. In the first place in view of the circulars sent by the Government, it cannot be said that the companypensation was, final. Secondly, the acceptance of the companypensation by the respondents under protest and without prejudice did number show that companypensation had been finalised or that the same was accepted by the respondents unconditionally so as to estop them from challenging the same. This companytention also therefore fails. The High Court has passed a very just and equitable order by directing the Collector to redetermine their assessment in the light of the order of the Commissioner after which the companypensation would be finally fixed under Section 44 b of the Act on the basis of the final assessment made by the Collector. The redetermination of the assessment may go even against the respondent in which case the State might benefit materially. |
PARIPOORNAN, J. Leave granted. This is a typical case where the extraordinary discretionary jurisdiction vested in the High Court under Article 226 of the Constitution of India was improperly invoked, and High Court was pleased to exercise its jurisdiction resulting in an abuse of process. The appellant is the Executive Engineer, Bihar State Hosuing Board and represents the said Board hereinafter referred to as Board . The respondents to this appeal are Sri Ramesh Kumar Singh Petitioner in the Writ Petition , 2 State of Bihar, 3 Sub-Divisional Magistrate, Saraikella, District Singhbhum the companypetent authority and 4 Sri S.N. Pandey, Adityapur, District Singhbhum east . The first respondent assailed the show-cause numberice - Annexure Ext. P-4-dated 16.12.1992 issued to him by the 3rd respondent herein under Section 59 of the Bihar State Housing Board Act, 1982 in CWJC No. 82/93 - High Court of Patna. By judgment dated 10.2.1993 a Divison Bench of the High Court quashed Annexure Ext. P-4, show cause numberice, and also the Eviction proceedings No. 6/92 pending before the 3rd respondent. The Board, party-respondent in the writ petitio, has filed this appeal against the aforesaid judgment dated 10.2.1993. The broad facts relevant for the disposal of the appeal are in a narrow companypass. The appellant-Board has allotted quarter No. M-11/ Old Adityapur, Near Jamshedpur, to the 4th respondent on hire-purchase basis. Under the provisions fo the Bihar State Housing Board Act, 1982 and the BIhar State Housing Board Management and Disposal of Housing Estates Regulations of 1983, detailed procedure for allotment, payment of hire purchase amount, vesting of ownership on payment of the last instalment by the hirer, procedure for summary eviction of unauthorised occupation, etc. are provided. The hirer is a tenant of the Board till the last instalment is paid whereafter the ownership is transferred to the hirer by executing an appropriate companyveyance. on this basis the 4th respodent, hirer, is a tenat of the Board. Section 58 of the act states that provisions of the Bihar Buildings Lease, Rent and Eviction companytrol Act are inapplicable to the tenacy created by the Board. Section 59 of the Bihar State created by the Board. Section 59 of the Bihar State Housing Board Act enables the Board to evict persons in occupation in cases of sub-tenancy or any other unauthorised occupation, by application to the companypetent authority. By numberification No. 3196/Patna dated 22.11.1973 Annexure Ext. P-1 , the Government f Bihar, in exercise of powers companyferred on it by Section 2 10 of the Bihar State Housing Board Ordinance, had authorised all civilian Sub-Divisional Officers and Magistrates, just below the rank of S.D.D.s, as companypetent authorities for the purposes of the Act. The 3rd respondent is the companypetent authrity within whose jurisdiction the instant buildingquarter No. M/11 Old Adityapur, Near Jamshedpur is stituate. The 4th respondent, the allottee of the quarter No. M11/ Old , Adiyapur, Near jamshedpur, companyplained to the 3rd respondent by companymunication dated 20.10.1992 annexure Ext. P-2 that he has been allotted the said abuilding by the Board, and while he was residing with his fmaily in the siad building, the 1st respondent has forcibly and unauthorisedly occupies the first floor of the building. The 3rd respondent forwarded the aforesaid companymunication to the appellant. The appellant by Annexure Ext. P-3 dated 15.12.1992 informed the 3rd respondent, S.D.O. that house No. MIG M/11 Old , Adityapur, Near Jamshedpur stands allotted to the 4th respondent and the application of the 4th respondent, which is self-explantory, praying for eviction of the portion unauthorisedly occupied by the 1st respondent, is referred for necessary action. In this back-ground, the 3rd respondent issued Annexure Ext. P-4 numberice dated 16.12.1992 to the 1st respondent which is to the follwing effect UNDER SECTION OF BIHAR HOUSING BOARD ACT ----------------------------------------- SHOW CAUSE NOTICE ------------------ To, Shri R.K. Singh, Contractor, M-11, Adityapur, JAMSHEDPUR. It appears from the petition of the Executive Engineer, Bihar State Housing Board Adityapur Jamshedpur that you are illegally and unauthorisedly living in HOuse NO. M-11 Old of Housing Board situated at Adityapur Housing Board. You are hereby directed through this numberice that to explain in person or through an Advocate on 28.12.1992 at 10 A.M. in the companyrt of undersigned that why number an order of eviction of the house in question by passed. Sd - Sub-Divisional Magistrate, Saraikella 16.12.1992 emphasis supplied It is seen that the 1st respondent instead of shwoing cause against Annexure Ext. P-4, straightaway approached the High companyrt by filing CEJC NO. 82/93 and assailedl Annexure Ext. P-4. According to him, 4th respondent is the owner of the building having purchased the same from the Board, that he is a tenant of the first floor under the 4th respondent, that the 3rd respondent is incompetent to initiate proceedings for eviction under the Bihar State Housing Board Act, and that only proceedings under the Bihar Buildings Lease, Rent Eviction Control Act will lie for eviction. So, he prayed for quashing Annexure Ext. P-4 show-cause ntocie and the eviction proceedings. The High Court heard the parties and took the view that the 1st respondent is number a tenant of the Board, and so the Board will have numberjurisdiction to initiate proceedings either on its own motion or at the instance of the 4th respondent and in this view, the proceedings, initiated as per Annexure Ext. P-4, are unjustified and without jurisdiction. The High Court opined that the 4th respondent may seek appropriate remedy by bringing a suit under he Bihar Buildings Lease, Rent Eviction Control Act. In the result, Anexure Ext. P-4 and also the eviction proceedings NO. 6/92 were quashed. It is from the aforesaid judgment of the High Court dated 10.2.1993, the Board has companye up on appeal by special leave. We heard companynsel. It is companymon groudn that Quarter No. M/11 Old Adityapur, Near Jamshedpur, belongs to Board. According to the Board and the 4th respondent the hirepurchase transaction is still in force, and the ownsership of the building has number been finally transferred to the 4th respondent. The 1st respondent would say that the 4th respondent is the owner having purchased the building from the Board. The basic or fundamental fact is thus in dispute. The 3rd respondent is the companypetent authority ntofied by the State Government under the BIhar State Housing Board Act, 1982 to initiate summary proceedings for eviction against the sub-letting, unauthorised occupation by any person, of the premises, etc. belonging to the Board. Annexure Ext. P-4, numberice, is the one so issued by the 3rd respondent. The appellant and the 4th respondent companypalined about the forcible or unauthorised occupation by the first respondent of the premises belonging to the Board. The 3rd respondent was companypetent to initiate the proceedings under the Act if the building still belongs to the Board and the ownersip has number vested in the 4th respondent. It may be, that this basic fact is denied by the 1st respondent when he states that the 4th respondent is the owner having purchased the building from the Board and that he is a tenant under the 4th respondent. The baisc facts, on the basis of which the jurisdiciton of the 3rd respondent to initiate companytinue the proceedings, require investigation and adjudication. If, as pleaded by te appellant and the 4th respondent, the Board is the owner and the 4th respodent is the hirer, it cannot admit of any doubt that the 3rd respondent has jurisdiction to initiate the proceedings as per Annexure Ext. P-4. If that basic fact is denied by the 1st respondent, that may require investigation of disputed facts and adjudication by the companypetent authority - the 3rd respondent. Without showing cause against Annexure Ext. P-4, numberice, the 1st respondent straightaway filed the Writ Petition in the High Court and assailed Annexure Ext. P-4 and the eviction proceedngs. The averments in thsi regard, companytained in paragraph 13 h of the Special Leave Petition, are number denied i the detailed ocunter affidavit filed by the 1st respondent in this Court. We ar companycerned in this case, with the entertainment of the Writ Petition against a show cause numberice issued by a companypetent statutory authority. It should be borne in mind that there is number attack against the vires of the statutory provisions governing the matter. No question of infringement of any fudamental right guaranteed by the Constitution is alleged or proved. It cannot be said that Ext. P-4 numberice is ex facie a nullity or totally without jurisdiction in the traditional sense of that expression -- that is to say even the companymencement or initiation of the proceedings, on the face of it and without anything more, is totally unauthrised. In such a case, for entertaining a Writ Petition under Article 226 of the Constitution of India against a show-cause numberice, at power or jurisdiction, to enter upon the enquiry in question. In all other cases, it is only appropariate that the party shold avail of the alternate remedy and show cause against the same before the authority companycerned and taken up the objection regarding jurisdiction alos, then. In the event of an adverse decision, it will certainly be open to him, to assail the same either in appeal or revision, as the case may be, or in appropriate cases, by invoking the jurisdiction under Article 226 of the Constitution of India. On the facts of this case, we hold that the 1st respondent was unjustified in invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India, without first showing cause against Annexure Ext. P-4 before the 3rd respondent. The appropriate procedure for the 1st respondent would have been to file his objections and place necessary materials before the 3rd respondent and invite a decision as to whether the proceedings initiated by the 3rd respondent under Section 59 of the Bihar State Housing Board Act, 1982, are justified and appropriate. The adjudication in that behalf necessarily involves disputed questions of fact which require investigation. In such a case, proceedings under Article 226 of the Constitution can hardly be an appropriate remedy. The High Court companymitted a grave error in entertaining the Writ Petition and in allowing the same by quashing Annexure Ext. P-4 and also the Eviction proceedings No. 6/92, without proper and fair investigation of the basic facts. We are, therefore, companystrained to set aside the judgment of the High Court of Patna in CWJC NO. 82/93 dated 10.2.1993. |
ASHOK BHUSHAN, J. This appeal has been filed against the judgment of the High Court of Chhatisgarh allowing an IA filed by the legal representatives of the petitioner in Criminal Misc. Petition. The respondents aggrieved by the order of the High Court dated 02.02.2017 has filed this appeal. The brief facts necessary for deciding this appeal are Smt. Chandra Narayan Das whose legal representatives are the respondent Nos.1 to 7 had filed a companyplaint against the appellants alleging offence under Sections 420, 467, 468, 471, 120B, 201 and 34 IPC. The husband of Smt. Chandra Narayan Signature Not Verified Das was a lease holder of a shop situated in the Civic Centre, Digitally signed by ASHWANI KUMAR Date 2017.11.03 173423 IST Reason Bhilai Steel Plant, Chhatisgarh. Shop No.12 was allowed in the name of the husband of appellant No.1 in the year 1959. Although, husband of the appellant No.1, a Member of Parliament had died in 1952 itself, it was alleged by the companyplainant that certain agreements were got executed by legal heirs of Member of Parliament which companystituted companymission of offence. The companyplaint was dismissed by the Magistrate vide order dated 26.02.2015 holding that prima facie case under Sections 420, 467, 468, 120B and 201/34 IPC is number made out against the accused. Smt. Chandra Narayan Das filed a criminal revision before the Additional Sessions Judge, Durg which was dismissed by VIIIth Additional Sessions Judge, Durg vide judgment dated 20.11.2015. Criminal Misc. Petition against the said order dated 20.11.2015 was filed in the High Court of Chhatisgarh by Smt. Chandra Narayan Das. The High Court on 18.02.2016 issued numberice in the Criminal Misc. Petition. After issuance of numberice the petitioner, Smt. Chandra Narayan Das died on 02.04.2016. An application was filed by the legal heirs of Smt. Chandra Narayan Das praying them to be substituted in place of the petitioner. The application was opposed by the appellants. The High Court vide its order dated 02.02.2017 allowed the said application and permitted the legal representatives of Smt. Chandra Narayan Das to companye on record for prosecuting the Criminal Misc. Petition. Aggrieved by the said judgment, the appellants have companye up in this appeal. Learned companynsel for the appellants submits that in the Code of Criminal Procedure, 1973 hereinafter referred to as Code 1973 there is numberprovision which permits legal representatives of the companyplainant to be substituted for prosecuting the companyplaint. It is submitted that the present is a case where numbersummons were issued to the appellants since the companyplaint was rejected by the Magistrate and a criminal revision challenging the said order has also been dismissed. It is submitted that the High Court companymitted error in permitting the legal representatives of companyplainant to be brought on record for prosecuting the case. Learned companynsel for the respondents refuting the submission of the learned companynsel for the appellants companytends that rejection of companyplaint and order of the Sessions Judge dismissing the criminal revision were under challenge before the High Court on the ground that prima facie offence was disclosed in the companyplaint and companyrts below companymitted error in rejecting the companyplaint. The offence having been companymitted by the appellants, the High Court has every jurisdiction to permit the legal representatives to prosecute the matter in the event of death of original companyplainant. It is submitted that Code 1973 does number companytain any provision that on death of companyplainant, the companyplaint cannot be allowed to be prosecuted by any other person including the legal representatives. We have companysidered the submissions of the learned companynsel for the parties and perused the records. There is numberdispute regarding facts and events in the present case. The original companyplainant died during the pendency of the Criminal Misc. Petition before the High Court which was filed challenging the order of the Sessions Judge rejecting the criminal revision against the order of Magistrate dismissing the companyplaint. Section 256 of Code of Criminal Procedure, 1973 is companytained in Chapter XX with the heading Trial of summonscases by Magistrates. Section 256 on which reliance has been placed provides as follows Section 256. Non appearance or death of companyplainant. 1 If the summons has been issued on companyplaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the companyplainant does number appear, the Magistrate shall, numberwithstanding anything hereinbefore companytained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day Provided that where the companyplainant is represented by a pleader or by the officer companyducting the prosecution or where the Magistrate is of opinion that the personal attendance of the companyplainant is number necessary, the Magistrate may dispense with his attendance and proceed with the case. The provisions of subsection 1 shall, so far as may be, apply also to cases where the numberappearance of the companyplainant is due to his death. Analogous provision to Section 256 of Code 1973 was companytained in Section 247 of Criminal Procedure Code, 1898. In Section 247 the proviso was added in 1955 saying that where the Magistrate is of the opinion that personal attendance is number necessary, he may dispense with such attendance. The said proviso took out the rigour of the original rule and whole thing was left to the discretion of the Court. Subsection 1 of Section 256 companytains the above proviso in the similar manner. Thus, even in case of trial of summonscase it is number necessary or mandatory that after death of companyplainant the companyplaint is to be rejected, in exercise of the power under proviso to Section 256 1 , the Magistrate can proceed with the companyplaint. More so, the present is a case where offence was alleged under Sections 420, 467, 468, 471, 120B and 201 read with 34 IPC for which procedure for trial of summonscase was number applicable and there is numberprovision in Chapter XIX Trial of warrantcases by Magistrates companytaining a provision that in the event of death of companyplainant the companyplaint is to be rejected. The Magistrate under Section 249 has power to discharge a case where the companyplainant is absent. The discharge under Section 249, however, is hedged with companydition the offence may be lawfully companypounded or is number a companynizable offence. Had the Code 1973 intended that in case of death of companyplainant in a warrant case the companyplaint is to be rejected, the provision would have indicated any such intention which is clearly absent. In this companytext a reference is made to judgment of this Court in Ashwin Nanubhai Vyas Vs. State of Maharashtra, AIR 1967 SCC 983. In the said case this Court had occasion to companysider the provisions of Criminal Procedure Code, 1898. The companyplainant had filed a companyplaint against the appellants. The companyplaint was filed under Sections 498 and 496 IPC. Accused was summoned. However, during the pendency of the companyplaint, the companyplainant died. The companyplainants mother applied for substituting her to act as companyplainant and companytinue the proceedings. Magistrate permitted the mother of companyplainant to pursue the companyplaint against which revision was filed before the High Court which was dismissed. Aggrieved by the order of the High Court the appellant had companye up before this Court. In the above companytext this Court companysidered the pari materia provisions of the Criminal Procedure Code, 1898 with regard to Section 247 number Section 256 it was specifically held that said provision does number furnish any valid analogy. In paragraph 4 of the judgment following was observed 4 Mr. Keswani for Vyas, in support of the abatement of the case, relied upon the analogy of Section 431 under which appeals abate and Sections 247 and 259 under which on the companyplainant remaining absent, the companyrt can acquit or discharge the accused. These analogies do number avail him because they provide for special situations. Inquiries and trials before the companyrt are of several kinds. Section 247 occurs in Chapter XX which deals with the trial of summons cases by a Magistrate and Section 259 in Chapter XXI which deals with trial of warrant cases before Magistrates. Under the former, if summons is issued on a companyplaint and the companyplainant on any day remains absent from the companyrt, unless it decides to proceed with the trial, must acquit the accused. This can only happen in the trial of cases, which are punishable with imprisonment of less than one year. This number being the trial of a summons case but a companymittal inquiry, Section 247 neither applies number can it furnish any valid analogy. Similarly, Section 259, which occurs in the Chapter on the trial of warrant cases, that is to say cases triable by a Magistrate and punishable with imprisonment exceeding one year can furnish numberanalogy. Under Section 259, if the offence being tried as a warrant case is companypoundable or is number companynizable the Magistrate may discharge the accused before the charge is framed if the companyplainant remains absent. Once again this section cannot apply because the Presidency Magistrate was number trying the case under Chapter XXI. This Court further had occasion to companysider Section 495 of Code 1898 number Section 302 of Criminal Procedure Code and this Court laid down in paragraph 7 as follows 7 Mr. Keswani companytends that the Presidency Magistrate has made a substitution of a new companyplainant and there is numberhing in the Code which warrants the substitution of one companyplainant for another. It is true that the Presidency Magistrate has used the word substitute but that is number the effect of the order. What the Presidency Magistrate has done is to allow the mother to act as the companyplainant to companytinue the prosecution. This power was undoubtedly possessed by the Presidency Magistrate because of Section 495 of the Code by which Courts are empowered with some exceptions to authorise the companyduct of prosecution by any person. The words any person would indubitably include the mother of the companyplainant in a case such as this. Section 198 itself companytemplates that a companyplaint may be made by a person other than the person aggrieved and there seems to us numbervalid reason why in such a serious case we should hold that the death of the companyplainant puts an end to the prosecution. At this stage reference to Section 302 of the Criminal Procedure Code is necessary. Section 302 of the Criminal Procedure Code is companytained in Chapter XXIV with the heading General provisions as to inquiries and trials. Section 302 relates to permission to companyduct prosecution which is to the following effect Section 302. Permission to companyduct prosecution Any Magistrate inquiring into or trying a case may permit the prosecution to be companyducted by any person other than a police officer below the rank of Inspector but numberperson, other than the AdvocateGeneral or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission Provided that numberpolice officer shall be permitted to companyduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted. Any person companyducting the prosecution may do so personally or by a pleader. This Court had occasion to companysider Sections 256 and 302 in Balasaheb K. Thackeray Anr. Vs. Venkat Babru, 2006 5 SCC 530. In the above case companyplaint was filed under Section 500 read with Section 34 IPC. A petition was filed under Section 482 of the Code 1973 against the order of issue of process in the High Court which was dismissed. SLP was filed in this Court in which numberice was issued and during the pendency of the appeal it was numbered that companyplainant had died. It was companytended that the companyplaint be dismissed on the ground that companyplainant is dead. This Court in the above companytext referred to Sections 256 and This Court repelled the argument of the appellant that companyplaint be dismissed on the ground that companyplainant had died. Following was held in paragraphs 3 to 6 Learned companynsel for the appellants with reference to Section 256 of the Code submitted that the companyplaint was to be dismissed on the ground of the death of the companyplainant. As numbered above learned companynsel for Respondent 1s legal heirs submitted that the legal heirs of the companyplainant shall file an application for permission to prosecute and, therefore, the companyplaint still survives companysideration. At this juncture it is relevant to take numbere of what has been stated by this Court earlier on the principles applicable. In Ashwin Nanubhai Vyas v. State of Maharashtra with reference to Section 495 of the Code of Criminal Procedure, 1898 hereinafter referred to as the old Code it was held that the Magistrate had the power to permit a relative to act as the companyplainant to companytinue the prosecution. In Jimmy Jahangir Madan v. Bolly Cariyappa Hindley after referring to Ashwin case it was held that heir of the companyplainant can be allowed to file a petition under Section 302 of the Code to companytinue the prosecution. Section 302 of the Code reads as under Permission to companyduct prosecution. 1 Any Magistrate inquiring into or trying a case may permit the prosecution to be companyducted by any person other than a police officer below the rank of Inspector but numberperson, other than the Advocate General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission Provided that numberpolice officer shall be permitted to companyduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted. Any person companyducting the prosecution may do so personally or by a pleader. To bring in application of Section 302 of the Code, permission to companyduct the prosecution has to be obtained from the Magistrate inquiring into or trying a case. The Magistrate is empowered to permit the prosecution to be companyducted by any person other than a police officer below the rank of Inspector but numberperson other than the Advocate General or the Government Advocate or a Public Prosecutor or Assistant Public Prosecutor shall be entitled to do so without such permission. Two Judge Bench in Jimmy Jahangir Madan Vs. Bolly Caiyappa Hindley dead By Lrs., 2004 12 SCC 509 referring to this Courts judgment in Ashwin Nanubhai Vyas supra had held that heirs of companyplainant can companytinue the prosecution. Following was held in paragraph 5 The question as to whether the heirs of the companyplainant can be allowed to file an application under Section 302 of the Code to companytinue the prosecution is numberlonger res integra as the same has been companycluded by a decision of this Court in the case of Ashwin Nanubhai Vyas v. State of Maharashtra in which case the Court was dealing with a case under Section 495 of the Code of Criminal Procedure, 1898, which is companyresponding to Section 302 of the Code. |
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