Ranjit Singh Vs. State of Punjab

Ranjit Singh Vs. State of Punjab

[Criminal Appeal No.510 of 2007]

SUDHANSU JYOTI MUKHOPADHAYA, J.

1. This appeal is directed against the judgment and order dated 17th January, 2007 passed by the Division Bench of the Punjab and Haryana High Court at Chandigarh in Criminal Appeal No. 303-DB of 2006. By its impugned judgment the Division Bench while acquitting one of the accused-Baldev Kaur, mother-in-law of the deceased, of the charges framed against her, affirmed the sentence awarded by the Additional Session Judge, Barnala against the appellant under Section 304-B, 498-A IPC. The accused-appellant-Ranjit Singh has been sentenced to undergo RI for life under Section 304-B IPC and further sentenced to undergo RI for two years with a fine of Rs.2,000/-, in default thereof to go RI for a further period of six months under Section 498-A IPC.

2. The facts necessary for disposal of the present appeal are as follows:- The informant Bahadur Singh got recorded his statement on 30th May, 1996 to ASI Gurcharan Singh, Police Station Tapa to the effect that he had performed marriage of his daughter Jaswinder Kaur with Ranjit Singh @ Makhan, son of Raghbir Singh, resident of Roorki Kalan in the month of January, 1996. He gave 14 tolas gold, Rs.55,000/- cash, one scooter, fridge, cooler, sofa set, bed, almirah, etc. as dowry. In total he spent 1.5 lakh in the said marriage and fulfilled all the demands so raised by Raghbir Singh, father-in-law of his daughter.

After about 7 days of marriage, his daughter came to her parents house, she complained about the demand of money as “Shagun”, upon which he handed over a sum of Rs.8,000/- to her daughter which she handed over to her husband-Ranjit Singh (appellant herein). The complainant Bahadur Singh in his statement further narrated as to how and when his daughter again came to them after 20 days of marriage and told about the demand made by her in-laws and pursuant thereto he again purchased articles worth Rs.1500/- and sent to her daughter’s matrimonial house at Roorki Kalan. The complainant further stated that even thereafter also demands were made by her daughter’s in- laws asking for articles of good quality as the earlier purchased articles were not upto their satisfaction.

The complainant, Bahadur Singh further mentioned the episode of 29th May, 1998 when his wife Gurmail Kaur went to her daughter’s matrimonial house at Village Roorki Kalan where her daughter narrated her about the harassment made by her in-laws on account of demand of a car. She further informed her mother that she apprehended that she might be killed by her-in-laws and requested to take her alongwith her. However, his wife consoled her daughter and went back to her house at village Kale Ka. On 30th May, 1996, at about 3.30P.M., they came to know about the death of their daughter Jaswinder Kaur and on reaching village Roorki Kalan they found their daughter Jaswinder Kaur lying on a cot in the courtyard of her in-laws house with injuries on her person. The complainant suspected that Raghbir Singh, father-in-law, Baldev Kaur, mother-in-law, Raj Kaur, sister-in-law and Ranjit Singh, husband of his daughter murdered her.

3. On the basis of the statement, FIR No. 60 dated 30th May, 1996 (Ex.PE) for an offence under Section 304-B/34 IPC was registered at Police Station Tapa, District Sangrur.

4. The Police Office Gurcharan Singh, ASI (PW-6) reached the spot and prepared inquest report (Ex.PC) of the dead body of Jaswinder Kaur. He took the dead body to Civil Hospital, Barnala for post-mortem examination where Dr. Bhalinder Singh(PW-2) conducted the post-mortem examination and by report (Ex.PA), he noticed as many as six injuries on the dead body and opined that the cause of death was due to asphyxia by throttling.

5. Gurcharan Singh, ASI(PW-6) recorded the statement of the witnesses under Section 161 Cr.P.C. The accused were arrested and thereafter on completion of usual formalities of investigation, final report under Section 173 Cr.P.C. was filed against Raghbir Singh, Baldev Kaur and Ranjit Singh for trial. In the absence of any evidence against Raj Kaur, sister-in- law of the deceased, her case was dropped.

6. After commitment of the case, the Trial Court framed charges against the accused-appellant for commission of an offence punishable under Section 302 IPC with the alternative charges under Section 304-B read with Section 34 IPC and under Section 498-A as well.

7. The prosecution in all, examined as many as six witnesses viz. Gurjant Singh, son of Pritam Singh as PW-1, Dr. Bhalinder Singh as PW-2, Dev Raj, Draftsman as PW-4, Bahadur Singh, Gurmail Kaur, father and mother of the deceased as PW-4 and PW-5 respectively and Gurcharan Singh as PW-6.

8. The accused denied the prosecution allegations. Their stand was that the deceased, in a disturbed mental state committed suicide by hanging herself. On behalf of the defence as many as five witnesses were examined. Rajinder Singh, constable as DW-1, Jagtar Singh @ Avtar Singh as DW-2, Gurcharan Singh son of Harchand as DW-3, Major Singh, son of Sukhdev Singh as DW-4 and DSP Darshan Singh as DW-5.

9. The Trial Court on conclusion of its trial, vide its judgment dated 26.11.1998 convicted and sentenced the accused Baldev Kaur, mother-in-law, Ranjit Singh, husband and Raghbir Singh, father-in-law for commiting an offence under Section 304-B IPC. Pursuant to an order passed in criminal appeal No. 563-DB of 1998 filed by the accused in the High Court of Punjab and Haryana, the Division Bench by its order dated 1st February, 2006 set aside the conviction and sentence recorded by the Trial Court, remanded back the case to the Trial Court with direction to proceed with the trials from the stage of Section 235Cr.P.C. and to pass order afresh in accordance with law. Separate Criminal Appeal as well as revision petition preferred by the State of Punjab and the complainant were dismissed by the same order, for having become infructuous.

10. Pursuant to the direction of the High Court, the matter was again taken up by the Trial Court and during the re-hearing of the case before the Trial Court, accused Raghbir Singh was reported to have died on 19th April, 2003 and thereby the proceedings were abated against him by order dated 25th March, 2006.

11. Thereafter, on appreciation of evidence led by the prosecution, the Trial Court held both Baldev Kaur, mother-in-law and Ranjit Singh, husband, guilty of offence under Section 304-B read with Section 34 and Section 498- A IPC and sentenced as noticed earlier. On appeal, the Division Bench of the High Court by impugned judgment acquitted Baldev Kaur, mother-in-law but affirmed the judgment passed by the Trial Court so far as it relates to appellant-Rajnit Singh, husband of the deceased.

12. Learned counsel appearing on behalf of the appellant assailed the judgment mainly on the ground that in the FIR, no specific allegation about the demand of dowry or harassment or cruelty was made against the appellant, Ranjit Singh, husband of the deceased. Even during the trial, the demand for dowry was not attributed to the appellant. Neither the Trial Court nor the High Court considered the defence evidence which appellant produced to rebut the presumption. Further, learned counsel appearing on behalf of the appellant submitted that Section 113-B of the Evidence Act is not applicable in the present case. Baldev Kaur, mother-in-law of the deceased has been acquitted considering the same evidence as is available in the case of Ranjit Singh,husband and the same cannot be relied upon to hold the appellant guilty. It was also alleged that the prosecution witnesses made major improvements in their evidence and Trial Court failed to notice the defence evidence which is more probable.

13. Gurjant Singh,PW-1 stated that the deceased Jaswinder Kaur, daughter of his sister was married to Ranjit Singh at Kaleke in January, 1996. On the date of occurrence i.e. 30th May, 1996 he had gone to visit at the house of accused Ranjit Singh where all family members including Jaswinder Kaur were present there. They were openly threatening Jaswinder Kaur since she had not brought maruti car in dowry. They started abusing her followed by Baldev Kaur, mother-in-law who took her into a room by holding her from her neck. Ranjit singh, husband caught hold of her legs and Raghbir Singh , father-in-law exhorted them to kill her by pressing her neck and similar exhortation was also given by Raj Kaur, sister-in-law and in his presence all of them strangulated her to death. On behalf of the appellant it was contended that Gurjant Singh(PW-1) is a maternal uncle of the deceased and, therefore, his statement was not worthy of any credence as he would not allow anybody to commit such crime in his presence. If he would have present there at that time, he must have intervened to save his niece or raised an alarm which he admitted that he did not do so.

14. Bahadur Singh(PW-4) is the father of the deceased, Jaswinder Kaur. He stated that on 30th May, 1996 at about 3.30P.m., he received information of his daughter’s death at her -in-law’s house at Village Roorki Kalan. He along with others visited the Village where he found his daughter, Jaswinder Kaur was lying dead on a cot then he visited Police Station Tapa and lodged an FIR. He stated that on demand of the accused-Raghvir Singh, father-in-law, he spent Rs, 1,50,000/- on the marriage of her daughter. She was given 14 tolas of gold, scooter and Rs.55,000/- in cash. In addition to it he gave cooler, fridge, dressing table, etc. as dowry to his daughter. After 7-8days of marriage, Jaswinder Kaur came to Vilage Kaleke to meet her parents and told them that the accused were demanding more money as dowry and they also demanded the amount of “Shaguns”.

On this, he gave Rs.8,000/- as an amount of “Shaguns” to his daughter which she handed over to her husband-Ranjit Singh who had accompanied Jaswinder Kaur to Kaleke. After about 20 days, when he brought her daughter in Kaleke, she informed that her-in-laws were demanding more dowry. She further informed that she was being harassed by the accused. All the accused including Raj Kaur, sister-in-law, were demanding dowry articles of good quality. Gurmel Kaur(PW-5), mother of the deceased went to her daughter’s matrimonial home one day prior to the date of occurrence of death when her daughter narrated her woeful stories and requested her mother to take her back as she was apprehending death from the accused.

She further informed that the accused was demanding Maruti Car as dowry. Gurmail Kaur(PW-5) assured her daughter to she would tell the entire story to her father and she came back in the evening of the same day at Village Kaleke. Bahadur Singh(PW-4) further stated that his brother-in-law (wife’s brother) went to meet Jaswinder Kaur at about 12/12.30 P.M. on the day of occurrence and saw that all the accused including Raj Kaur, sister-in-law were scolding Jaswinder Kaur as she had not brought Maruti Car for them.

15. Gurmail Kaur(PW-5), mother of the deceased, deposed in her statement that her daughter was married to accused-Ranjit Singh about 4 months before the date of the occurrence of her death. Sufficient dowry was given in the marriage as per the demand of the accused. She had gone to the Village Roorki Kalan to meet her daughter where she told her that she was being maltreated by her-in-laws as they were demanding Maruti Car and the demand was made by Baldev Kaur, mother-in-law, Ranjit Singh, husband, Raghbir Singh, father-in-law and Raj Kaur, sister-in-law of the deceased. She also told her mother that they were threatening to kill her in case she did not bring Maruti car. She requested her mother to take her back to Kaleke as she apprehended danger to her life at the hands of the accused. She consoled her daughter and assured her that she would narrate the matter to her father. She came to the Village Kaleke and narrated the entire matter to Bahadur Singh(PW-4). Next day at about 3.30 P.M. they received a message that their daughter had been killed by her-in-laws.

16. Dr. Bhalinder Singh(PW-2) conducted the post mortem examination on the dead body of Jaswinder Kaur @ Baljinder Kaur w/o Ranjit Singh @ Makhan Singh, R/o Roorke. The deceased was shown aged about 30 years. The following injuries were found on the body of the deceased:

i. Abrasion on the right side of neck 1x.25 cm in size 8cm away from right angle of mouth 0.5 cm away from right ear. Horozontal in position.

ii. Contusion on right side of neck measuring 5×1 1/2 cm, 1cm below injury no. 1 and oblique in position.

iii. Contusion on right side of neck measuring 5×1 1/2 cm 1/2 cm below injury no. 2.

iv. Contusion on right side of neck measuring 4×1 1/2 cm 1/2 cm below injury no. 3.

v. Contusion on left side 3x2cm in the middle.

vi. Upper eye-lid of left eye was swollen and blushed.

On dissection of neck soft tissue ecchomised. He stated that Hyoid bone was fractured. Right lung and left lung were congested with punctiform hemorrhage. Right heart contained blood and left heart was empty. Pericardium was congested. Doctor opined that the cause of death was due to asphyxia by throttling. In his cross-examination, he also stated that there is a possibility that if a ligature like a Parna was used for hanging through ling it would cause ligature marks. Dev Raj (PW-3) draftsman prepared a site plan for the same. Gurcharan Singh(PW-6), ASI, P.S. Kotwali, Barnala who was the AIO, recorded the FIR and stated that he inspected the spot and prepared the rough site of the spot (Ex.PK) with correct marginal note. Cot on which the dead body was lying was also taken into possession vide memo (Ex.PF). On 31st May, 1996, he arrested the accused; Baldev Kaur, Raghbir Singh and Ranjit Singh.

17. He recorded the statement of Bahadur Singh(PW-4) as (Ex.DA)and Gurmail Kaur(PW-5) as (Ex.DB) without any omission or addition. He noted down the brief according to the facts contained in the FIR. It was given in the evidence of PW-4 that one day before the death of Jaswinder Kaur, Gurmail Kaur(PW-5) mother of the deceased went to meet her daughter where she expressed her apprehension of threat to her life and requested to take her alongwith her (Gurmail Kaur PW-5). She also conveyed that there was a demand of Maruti Car from the accused for which Gurmel Kaur (PW-5) assured her daughter that she would bring the matter to the notice of Bahadur Singh(PW-4), father of the deceased.

18. The statements of PW- 4 and PW-3(parents of the deceased) were duly corroborated with respect to the demand of dowry and harassment immediately prior to the date of occurrence and the event of her visit a day prior to her death. They were subjected to lengthy cross examination. Apart from minor discrepancies, which do not go to the root of the case, their statements are corroborated on material particulars so far as the demands of harassment to Jaswinder Kaur is concerned.

19. Their statements indict the series of incidents forming part of the same transaction which culminated in the death of Jaswinder Kaur. The deceased was disrespected by her-in-laws right from the very beginning and from time to time was being harassed on demand of dowry. The sequence of events, discussed above, suggested that cruelty and harassment on account of such demands were present till her death.

20. Learned counsel for the appellant laid much stress that there is no independent eye witness to corroborate the statements of PW-4 and PW-5 who are closely related to the deceased. The contention is again meritless. It is, but natural, that instance of cruelty, harassment of demand of dowry generally would remain within the personal knowledge of near relations and they would be the best persons to depose about the same. Therefore, the evidence of physical and mental torture of the deceased from the accused is not to be discarded simply on the score of independent corroboration.

21. One of the stand taken by the appellant that no Panchayat was convened and the matter was not reported to the police cannnot be the ground to discard the evidence of PW-4 and PW-5 who are material witnesses. About the harassment meted to a girl normally in Indian family, the matter is first reported to the parents and not to the Panchanayat. It is not necessary that such matter is required to be reported to the Panchayat.

22. From the statements of Dr.Bhalinder Singh(PW-2), it is apparent that the death of Jaswinder Kaur was caused by bodily injury which is otherwise than under the normal circumstances. The death took place within few months of the date of marriage i.e. much before seven years of marriage. It is shown that soon before her death she was subjected to cruelty and harassment by her husband in connection with the demand of dowry. Therefore, the present case squarely falls within the meaning of dowry death for the purpose to attract Section 304-B IPC. Section 113-B of the Indian Evidence Act deals with the presumption of “dowry death” and proclaims that when the question is whether a person has committed a dowry death of a woman and it is shown that soon before her death, such woman had been subjected by such person to cruelty or harassment, for or in connection with demand of a dowry, the Court shall presume that such person had caused “dowry death”. It can, therefore, be understood that irrespective of the fact whether the accused had any direct connection with the death or not, he shall be presumed to have committed the “dowry death” provided the other requirements mentioned above are satisfied.

23. In the present case, we have noticed that the prosecution has successfully proved the ingredients necessary to attract the Provision of Section 304B IPC. Such ingredients having been proved, Section 113-B of the Indian Evidence Act automatically comes into play. In the facts and circumstances, the death of Jaswinder Kaur had taken place just within four months of her marriage. The case of the prosecution mainly rests on the evidence of PW-4 and PW-5, parents of the deceased. They have made statements that even at the time of marriage they spent Rs,1,50,000 and even after 7-8 days of marriage when Jaswinder Kaur came to their parents house and conveyed that the accused were demanding dowry as the amount of “shagun” for which Rs.8,000/- was given her to hand-over to her husband who accompanied her. Their statement further suggested that upon subsequent visit of their daughter after about 20 days, a sum of Rs.1500 was spent by PW-4 for purchase of certain articles, which his daughter took to her matrimonial home in a tractor. Just a day before the death, she informed her mother Gurmail Kaur(PW-5) that the accused were torturing her and demanding Maruti Car.

24. The statement of the accused corroborates the materials particularly in relation to harassment and demand of dowry and death by torture. The accused being the husband and direct beneficiary of the said demand of Maruti Car, we find no reason to differ with the conclusion of the Trial Court as affirmed by the Appellate Court that the appellant is guilty of the offence under Section 304B IPC.

25. At the end of the argument, learned counsel for the appellant made an alternative submission and requested to take a lenient view in view of the fact that after the death of Jaswinder Kaur (first wife), the appellant got married second time and from his second wife he has three children out of which one son is handicapped and his mother is also paralysed. Taking into consideration the aforesaid fact, we affirm the conviction under Section 304B IPC and 498-A IPC and reduce the sentence awarded under Section 304B IPC to seven years alongwith the sentence of two years imposed under Section 498-A IPC and fine of Rs.2,000/- as imposed by the Trial Court and affirmed by the Division Bench of the High Court with direction that both sentences shall run concurrently. Bail bonds of the appellant are cancelled and he is directed to be taken into custody forthwith to serve out the remainder of the sentence.

…………………….J. (A.K.PATNAIK)

…………………….J. (SUDHANSU JYOTI MUKHOPADHAYA)

NEW DELHI,

JULY 3, 2013

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State of Himachal Pradesh Vs. Jai Chand

State of Himachal Pradesh Vs. Jai Chand

[Criminal Appeal No. 269 of 2007]

SUDHANSU JYOTI MUKHOPADHAYA, J.

1. This appeal is preferred by the State of Himachal Pradesh against the judgment dated 16th November, 2004 in Criminal Appeal No. 392 of 2002. By the impugned judgment the Division Bench of the Himachal Pradesh High Court at Shimla, acquitted the accused-respondent by allowing the appeal and set aside the order of conviction under Section 302 IPC and Section 498-A IPC with sentence thereunder, passed by the Sessions Judge, Hamirpur, HP on 13th June, 2002.

2. The respondent(herein) Jai Chand, along with two others were tried for offence punishable under Section 302 (r/w Section 34)IPC and Section 498-A IPC. Learned Sessions Judge, Hamirpur found Jai Chand, accused no. 1 to be guilty under Section 302 and 498-A IPC. He was sentenced to undergo Imprisonment for life and to pay fine of Rs.5000/-, in default of payment of fine, to undergo imprisonment for one year. No separate sentence under Section 498-A IPC was imposed upon the accused. The two other accused, namely, Prem Chand and Smt. Nimmo Devi were acquitted.

3. The record reveals that accused no. 1, Jai chand (respondent herein) and accused no. 2, Prem Chand are real brothers whereas accused no.3, Nimmo Devi is their sister-in-law (Bhabhi), the wife of their elder brother, Prakash Chand.

4. The prosecution version as unfolded during the trial may briefly be stated as follows: Smt. Vidya Devi (since deceased) was wife of Jai Chand, accused no. 1(respondent herein). She was married to Jai Chand in the year 1996. On 13th July, 2001, Smt. Vidhya Devi was brought to District Hospital, Hamirpur in serious condition by accused no. 1 for medical treatment. The Medical Officer on duty had informed the police, Police Station at Sadar vide Rapat No. 3 dated 13th July, 2001(Ex.PW-8/A) that one woman was brought to the hospital for medical treatment under suspicious circumstances. On the said information, Sansar Chand (PW-8), Inspector/S.H.O. accompanied by other police officials went to the hospital where he found the dead body of Vidya Devi lying in the Varanda. Roshan Lal, (PW-1), father of the deceased was standing near the dead body.

He made statement (Ex.PW-1/A) that his son-in-law, Jai Chand(accused No.1) is a habitual drunkard and under the influence of liquor, he was in the habit of beating and treating his daughter with cruelty. Prem Chand (accused no.2) and Smt. Nimmo Devi (accused no.3) also used to taunt and abuse the deceased. Two years ago, accused no. 1, left the deceased at her parents’ house. PW-1 pacified his daughter that all this happens in joint families and sent her back to matrimonial house. In these circumstances, Vidhya Devi committed suicide due to mal-treatment and torture by all the accused persons.

On 13th July, 2001 at about 8.30A.M. one Kashmir Singh, resident of his Village Kot, informed PW-1 that his daughter Vidhya Devi had been brought to the hospital at Hamirpur where she expired. PW-1 alongwith his son, Ajit Singh(PW-2) went to the hospital and found Vidhya Devi dead. PW-1 had noticed injuries on her person. The statement of PW-1 (Ex.PW.1/A) was forwarded by PW-8 (vide Ex.PW- 8/A) to the Police Station for registration of the case. First Information Report (Ex.PW-6/A) was recorded by PHC Ramesh Chand( PW-6) P.S. Sadar Hamairpur, H.P.. Investigation was conducted initially by PW-8.

He prepared inquest reports (Ex.PW-2/A) and Ex.PW-2/B). He wrote an application (Ex.PW-8/B) to the Senior Medical officer, Zonal Hospital, Hamirpur for conducting the post-mortem to the dead body of the deceased. Photographs (Ex.P-9 to Ex.P-14) of the dead body were also taken. Jai Chand (accused no. 1) was present in the hospital and he handed over ‘dupattas’ (Ex.P-2),’shirt’ (Ex.P-3) and ‘Salwar’ (P-6) of the deceased to PW-8 which were taken into possession vide memos; (Ex.PW-2/C and PW-2/D) respectively. Thereafter, PW-8 handed over the file for investigation to Hari Ram (PW-9). PW-9 collected the post-mortem repot(Ex.PW-10/A). On the basis of the report, the case was converted from Section 306 IPC to under Section 302 IPC.

5. Jai Chand, accused no. 1 made the alleged disclosure statement (Ex.PW-5/A) under Section 27 of the Evidence Act to the effect that he alongwith co-accused had hanged the deceased with ‘Barli’ (a wooden kari placed horizontally on the walls of the room). To the same effect, disclosure statements (Ex.PW.5/B and Ex.PW-5/D) were made by accused no. 3. Jai Chand, accused no. 1 also got recovered one iron bucket (Ex.P-7) which was taken into possession vide disclosure memo(PW-5/C). PW-9 prepared the site map(Ex. PW-9/A) depicting the place where the accused person had put the face of the deceased in the bucket filled with water and pointed the place where her body was tied with ‘barli’ by accused persons.

6. As per, the disclosure statement of Jai Chand, (accused no. 1) and Nimmo Devi (accused no. 3), on the intervening night of 12th/13th July, 2001, Vidhya Devi came out of the room and went to a place where the cattle were used to be kept. Her husband, Jai Chand, accused no. 1 also followed her and asked his wife to go to bed but she did not respond thereto. Both of them entered into verbal fight. Accused no. 1 at that time dipped the head of the deceased in the bucket full of water lying there. As a result thereof, she felt suffocated and the water entered into her mouth as well as in stomach. Accused no. 1 then lifted her from that place and laid her on the cot. Accused no. 1 called accused nos. 2 and 3. Accused no. 3 caught hold of arms of the deceased whereas accused no. 2 caught hold of her legs.

Accused no. 1 throttled the deceased with hands and caused her death. On finding no movement in her body, all the accused hanged the deceased with dupattas and thereafter laid the dead body of the deceased Vidhya Devi on a cot. On the following morning, Jai Chand, accused no. 1 told his mother that his wife had become unconscious during the night and now she is not speaking anything. Jai Chand, accused no. 1 then took her wife to the courtyard and laid her body on a cot lying there. The residents of the village were informed about the death of Vidhya Devi. One Smt. Damodri Devi brought some milk from her house but the deceased could not inhale the same.

Thereafter, accused no. 1 accompanied by Kartar Singh and Deepak Kumar brought the deceased on the cot to the road side. Prakash Chand, brother of accused no.1 who had gone to call the doctor, had brought the taxi and the deceased was thus taken to the Zonal Hospital, Hamirpur where she was declared dead. The body of the deceased was sent for post mortem. PW-10, Dr. K. C. Chopra submitted post mortem report (Ex.PW-10/A). The stomach contents including viscera etc. preserved by the team of doctors has been got analysed and as per report Ext. PW-8/B, neither the contents of any poison nor intoxicant could be detected on analysis thereof. Thus, no case of poisoning was found.

7. On receipt of post mortem report (Ex.PW-10/A) and report of the Chemical Examiner(Ex.PW-8/D), it was found that the deceased had not committed suicide but she was killed by the accused no. 1 by dipping her face into a bucket of water and strangulating her. All the three accused were sent for trial for the office under Section 302 read with Section 34 IPC and 498-A IPC.

8. PW-10, Dr. K. C. Chopra, Medical officer, Zonal Hospital, Hamirpur, H.P., in his statement stated that he alongwith Dr. K.S. Dogra conducted post mortem of the dead body of Smt. Vidhya Devi, wife of Jai Chand and observed as follows:

“EXTERNAL APPEARANCE: Dead body was lying in supine with face in the centre (there was no turning of face to either side). White leathorty foam seen at both nostrils which was more on pressing the epigastriun. No sticky saliva was present on the angle of the mouth. No postmortem staining was present over the back and legs. No petechcial haemorrages seen over the chest or legs. Two contusions 3×2 cm present on the left upper arm, reddish blue in colour. No stretching and elongation of neck, head inclined to neither side.

LIGATURE MARK There was 10 cm long ligature mark of dark brown colour extending from left sternocleide mastoid to the right sternocleide mastoid below cricoids cartilage, reddish brown in colour, abrasion to be on the right side. Ligature mark encircles the neck only on front side. No encircling of the neck on the back and away from sternecleid mastoid. There was ligature of 1.5 cm wide or less than it at places (ligature used was not presented by the police at the time of postmortem examination).

It was not with the body either. No abrasion/brusises on the mouth, nose, cheeks, forehead. Lips were blue. Tongue was in drawn, plinching of teeth, on opening base of tongue swollen. No injury to tough, clinching of hands present.

DISSECTION OF NECK On dissection, there was extra vasation of blood into sub- subcutanous tissue under ligature mark on right side present. Platysma and right sternocloide mastoid muscle lacerated. No laceration of sheath of carotid artries. No fracture of hyoid bone or thyroid cartilage. Epiglottis not cyanosed Trachea and larynx were congested and have forthy mucous. First 2-3 rings of trachea fractured.

ABDOMEN: Walls and peritoneum were normal. Mouth Pharynx and oasophagus had whitish fluid. Stomach was containing 500 cc of fluid mixed with mucous and small sticky material. Small Intestine was containing semi-digested food but no fluid are present. Faecal matters were present in large intestine. Liver was normal, it was dark in colour, on cutting dark fluid came out. The spleen was dark in colour and was congested. Kidney was normal in size and was congested. The bladder was empty. Organ of generation was normal. There was no evidence of rape or any injury.

CRANIUM SPINAL CORD There was no fracture of skullbone. Brain was congested and also the membrane.

THORAX: Walls, ribs, cartilages and pleurae were normal. Larynx and trachea was congested and contained white fluid, no sand or mud seen, no food particles present. Right and left lung were distended, pale grey, indented by the ribs, heavy cedemataous, spongy, pite on pressure. On pressing, frothy whitish fluids came through bronchials. Heart was normal, left side was empty and the right was full. No fracture/dislocation of bones were found.

9. Dr. K.C. Chopra (PW-10) also stated their opinion as to cause of death of the deceased. The same is quoted hereunder: “In our opinion deceased died due to asphyxia caused by drowning and strangulation. The probable time between injury and death was immediate and between death and postmortem within 24 hours. x x x x x x x x x In our opinion as mentioned in Ex.PW-10/A strangulation in this case was not caused by suspending the body. The chances of dupatta as ligature mark in the case were minimum, i.e. dupatta like Ex P-2 and P-3. Drowning and strangulation are possible in this case while putting the face/mouth of deceased in bucket Ex-P-8 filled with water and with pressure being applied.”

10. Dr. K.C. Chopra (PW-10) further stated that the post mortem report was written by Dr. K.S. Dogra (PW-8) and was signed by both of them.

11. The accused no. 1 (respondent herein) made a plain denial of the prosecution case. In statement under Section 313 Cr.P.C., accused no. 1(respondent herein) alleged that witnesses have falsely deposed against him being relative of the deceased and due to enmity with him. In reply to question no. 26, the accused no. 1 stated as follows: “Q.26 Anything else you want to say? Ans. The deceased had illicit relations with my nephew Banku Ram, S/o Shri Rohli Ram. On one occasion when I came on leave to the house, came across few love letters written by said Banku Ram to the deceased; on this I inquired from her about such relations and asked her to discontinue such relations. On this she went to the house of her parents and stayed there for about 3 months and when brought to my house by her parents, she used to remain depressed. She has, thus committed suicide due to her own problems and not on account of the alleged torturing attributed to him. I am thus innocent and implicated falsely in this case. It is, however, submitted that those letters were burnt by me with the idea to maintain cordial relations with the deceased and also to forget whatever as happed in the past.”

12. The Trial Court considered the version of Kartar Chand (PW-3) posted as Primary Education Teacher in Government High School, Barhi, an independent witness, Post Mortem Report (PW-10/A), statement of Dr. K.C. Chopra (PW-10), report and the testimony of PW-1 and PW-2 and held that “the circumstances reveal that the deceased has been done away to death by the said accused and none else”. “The circumstances appearing in the prosecution evidence are conclusive in nature and leads to the only conclusion that it is accused no.1 who has caused the death to the deceased.”

13. The Division Bench of the High Court rejected the evidence of the prosecution witnesses for the reasons which may be summed up as below:

i. Dr. K.C. Chopra (PW-10) had no experience as a forensic expert, therefore, his evidence cannot be read under Section 45 of the Evidence Act.

ii. The Division Bench appreciated the medical evidence itself and held that there was no sign of injuries suggestive of resistance on the part of the deceased to establish that the face of the deceased was forcibly thrust into iron bucket filled in with water. Only 500cc of fluid mixed with mucous and small sticky material was found in the stomach. The hairs of the deceased was not found wet. Dr. K.C. Chopra (PW-10) found marks of injuries on the neck of the deceased but in his cross examination he stated that if the force was applied, in that event, the bucket which was used as ligature could touch both the ears. But no injuries were found on the ears of the deceased or on any part of her mouth or head.

iii. The conduct of Jai Chand, accused no.1 would go to show that he tried very hard to save the life of his wife by taking her to the Zonal Hospital, Hamirpur for medical treatment. Had Smt. Vidhya Devi been killed by her husband, he would not have dare to take the dead body of the deceased to the hospital to get the medical opinion against himself.

14. Learned Counsel on behalf of the appellant-State submitted that the High Court was wrong in ignoring the medical evidence which clearly established that it was not a case of suicide but a case of homicide which ultimately has been caused by the husband of the deceased. The High Court also failed to notice the statement of Jai Chand, accused no. 1 (respondent herein), husband of the deceased under Section 313 which is self explanatory that he had been keeping a hatred attitude towards his wife due to her illicit relation with his nephew and which resulted in motive and intention to kill her during night. This statement coupled with other circumstantial evidence leave no doubt that the accused no.1 cannot escape himself from the commission of offence.

Further according to the appellant as deceased Vidhya Devi was staying with the respondent and died unnatural death, it was for Jai Chand (respondent) being husband to explain the circumstances under which she died. Learned counsel also contended that the High Court failed to appreciate that although there is no direct evidence, chain of circumstances appeared on record is so complete to fetch conviction to the husband of the deceased if not to all the accused. It is on the basis of disclosure statement of accused no.1 a bucket which is most relevant evidence relating to the medical evidence is recovered, which is sufficient to convict the respondent.

15. Learned counsel appearing on behalf of the respondent referred to the findings of the Division Bench of the High Court in support of the respondent.

16. The principal contention raised in support of the appeal filed on behalf of the State is that the medical evidence available on record completely supports the prosecution case. Let us, therefore, have a look at medical evidence available on record. Post-Mortem Report(PW-10/A) has already been noticed above. The plea raised by accused no. 1(respondent herein) was that the deceased died due to suicidal hanging cannot be accepted for the reason that her body was not found stretched. If she had strangulated herself, her body should have been stretched and the fracture of hyoid bones and thyroid cartilages should have been there.

Post mortem Report clearly shows that there is no such fracture and the testimony of Dr. K.C. Chopra( PW-10) supports the same. In a death case, by way of hanging, the tongue of the deceased should not have been indrawn as has been noticed in the post mortem report(Ex.PW-10/A), but the same should have been out of the mouth. There being the evidence of 2-3 rings of trachea fractured, trachea, larynx, spleen and kidney being congested is also suggestive of the fact that it was not a suicidal death, but a homicidal one. The team of doctors after observing so, during the examination, have come to the conclusion that the cause of death was Asphyxia caused by drowning and strangulation. The probable time between injury and death had been recorded minimum.

The death by way of drowning and strangulation can be caused instantaneously. Admittedly, it is not the case of either of the parties that the death is caused by way of poisoning, however, in order to rule out the possibility in this behalf also, the stomach contents including viscera etc. preserved by the team of doctors got analysed and as per report (Ex.PW-8/D), neither the contents of any poison nor any intoxicant could be detected on analysis thereof.

17. Dr. K.C. Chopra (PW-10) is specific while deposing in his examination-in-chief that strangulation in this case has not been found to be caused by suspending the body. He also ruled out the chances of dupattas (Ex.P-2 and P-3) being the ligature used for strangulation by the deceased and to the contrary, he specifically stated that drowning and strangulation are possible in this case by dipping the face/mouth of the deceased into the bucket (Ex.P-8) filled with water and by applying force in pressing her mouth therein.

18. Much stress was made by learned counsel appearing on behalf of the respondent that there is no possibility of the ears touching the top of bucket, even if mouth of anyone is dipped therein and pressed with force. An effort was thus been made to discard the testimony of PW-10. However, in our view, it is not so relevant as to whether the bucket used as a ligature was touching the ears or not.

19. It is true that post-mortem report(PW-10/A) is not a substantive piece of evidence. But the evidence of such doctor cannot be insignificant. This Court in State of Haryana v. Ram Singh, (2002)2 SCC 426 held as under:

20. “While it is true that the post-mortem report by itself is not a substantive piece of evidence, but the evidence of the doctor conducting the post-mortem can by no means be ascribed to be insignificant. The significance of the evidence of the doctor lies vis-à-vis the injuries appearing on the body of the deceased person and likely use of the weapon therefor and it would then be the prosecutor’s duty and obligation to have the corroborative evidence available on record from the other prosecution witnesses.” In the present case, the post-mortem was conducted by a team of doctors, namely, Dr. K.C. Chopra and K.S. Dogra. In cross-examination, no suggestion was made on behalf of the defence that they were not competent or that Dr. K.C. Chopra and Dr. K.S. Dogra have not expertised to perform post mortem of a body. The viscera test was done by forensic expert (PW-8), who submitted the report.

21. From the aforesaid evidence, it is clear that Dr. K.C. Chopra (PW-10) conducted the post mortem and the forensic expert (PW-8) conducted the viscera test. The High Court proceeded on erroneous premise to hold that “Dr. K.C. Choopra might have acquired some experience as Medical Officer but he is not a forensic expert to give the level of an expert witness examined in the Court.”

22. The High Court was thus, clearly in error, in formulating its own opinion based on conjectural premises and deciding the case on the basis of that, discarding the opinion of the medical experts regarding the nature of the injury and cause of death. The conclusions are not sustainable otherwise also .

23. It is true that PW-1, father of the deceased, PW-2, brother of the deceased and PW-5 Prem Chand belong to the same village. However they being related to each other and being residents of the same place is not fatal to the prosecution case, because they have deposed about the facts which are not in controversy save and except that the deceased was being tortured by the accused persons. However, the present case is not a case of suicidal death of the deceased on being fed-up with the torture of the accused persons, but a case of homicidal death and as such, the version of PWs. 1 and 2 in this behalf is not so material.

24. The recovery of bucket(Ex.P-8) has been proved as the same has been produced by accused no. 1(respondent herein) himself before the police as recorded in memo (Ex.PW-5/C) recorded at his instance in the presence of Prem Chand (PW-5) and Pyare Lal. As a matter of fact, the bucket was lying in the courtyard where it is identified by accused no. 1(respondent herein) and thereafter, was taken into possession by the police. The reference in this behalf can be made to the statement of Prem Chand(PW-5) who stated that accused no. 1 had shown the bucket to the police which was sealed in a parcel and thereafter taken into possession vide recovery memo ((Ex.PW- 5/C). Not only this, he even identified the bucket(Ex.P-8) to be the same. The recovery of an incriminating article from a place which is open and accessible to others, alone cannot vitiate such recovery under Section 27 of the Indian Evidence Act. Thus, the present is the case where there is no difficulty in holding that the bucket(Ex.P-8) is the same which was used by the respondent(herein) for drowning and strangulating his wife, Vidhya Devi.

25. Kartar Chand(PW-3) is an independent witness. In his testimony, he deposed that on his way to school on 13th July, 2001 from his village, when he reached Village Ulehra, (native place of the accused) around 7.15 A.M., he met accused no. 1(respondent) and Deepak carrying the deceased on the cot to the road side for carrying her to the hospital and it was the accused no. 1(respondent herein) who told Kartar Chand(PW-3) that as she was ill, hence being taken to the hospital. The accused no. 1 has thus, misrepresented the factual position to PW-3 which shows guilty intention on his part. No doubt, in reply to question no. 11, he denied having represented so to Kartar Chand(PW-3) and as per his version, the said witness was told that deceased had strangulated herself, but there is no reason to disbelieve the testimony of PW-3, as a matter of fact, PW-3 is an independent witness. Reply to question no. 11 shows that accused no. 1 also accepted that PW-3 met him on the spot in the early morning. Therefore, it cannot be said that the PW-3 was interested in the case of either of the parties. Not only this, as per version of PW-3, the deceased at that time was silent and there was no movement in her body, meaning thereby that she was already dead in the house itself and in order to mislead the village folks and to create evidence that he made efforts to save his wife’s life he took her dead body to the hospital. Such conduct on his part amply demonstrates that it is the accused no. 1 (respondent herein) alone who caused the death of his wife, Vidhya Devi.

26. Post mortem report(PW-10/A) prepared by Dr. K.C. Chopra(PW-10) shows that there was ligature mark on the neck of the deceased. The opinion of the doctor is clear and definite that the ligature mark of 10cm long and 1.5 cm. wide in horizontal position cannot be caused by hanging but could have been caused by strangulation. Medical evidence, therefore, completely falsify the case of accused no. 1(respondent herein). The conduct of the accused no. 1 was also not natural. When he found his wife hanging, he neither made hue and cry nor called the villagers nearby. He along with others brought down the body of the deceased. He, even thereafter, did not report the matter immediately on his own to police.

27. The act of bringing his wife, Vidhya Devi to the hospital cannot absolve the guilt of accused no. 1(respondent herein) of an offence committed by him. He was the best person who could have explained the reasons for the horizontal ligature mark of 10 cm. x 1.5cm. on the neck of the deceased and as to why he did not inform the matter to the villagers before bringing down the body of the deceased.

28. Therefore, we find that all the findings by the Division Bench of the High Court, rejecting the evidence of Dr. K.C. Chopra (PW-10) and other material witnesses including Kartar Chand (PW-3) and Prem Chand (PW- 5) are clearly unsustainable, whereas those given by the Trial Court accepting the evidence of these witnesses were weighty and sound.

29. Hence, we allow the appeal and set aside the impugned order of acquittal passed by the Division Bench of the High Court of Himachal Pradesh on 16th November, 2004 and convict the accused-respondent under Section 302 IPC for the murder of his wife, Vidhya Devi and sentence him to imprisonment for life. We, thereby restore the order of conviction passed against the accused-respondent by the Trial Court. The accused- respondent shall surrender immediately to serve out the remainder of the sentence.

………………………..J. (A.K. PATNAIK)

………………………..J. (SUDHANSU JYOTI MUKHOPADHAYA)

NEW DELHI,

JULY 3, 2013

Posted in Advocate in Lucknow | Tagged

Rajinder Singh Vs. State of Haryana

Rajinder Singh Vs. State of Haryana

[Criminal Appeal No.14 of 2007]

[Criminal Appeal No.15 of 2007]

SUDHANSU JYOTI MUKHOPADHAYA, J.

1. These two appeals are directed against the common judgment dated 9th December, 2005 passed by the learned Single Judge of the Punjab and Haryana High Court at Chandigarh in two separate Criminal Appeal Nos. 392-SB of 1995 and 151-SB of 1995, whereby the learned Single Judge dismissed the appeals preferred by the accused and affirmed the conviction and sentence awarded by the Additional Session Judge, Yamuna Nagar at Jagadhri.

2. The appellants were tried for offences under Sections 498-A , 304-B and 201/34 IPC and after hearing the parties the learned Additional Session Judge, Jagadhri by its judgment dated 22nd February, 1995 convicted the appellant Rajinder Singh for the offences under Sections 498-A , 304-B and 201 IPC whereas other appellants, namely, Surinder Singh, Pritam Singh, Gurvinder Singh were convicted for offences under Section 201/34IPC.

Accused-Appellant Rajinder Singh was sentenced to undergo RI for a period of two years and to pay a fine of Rs.500/- for offence under Section 498-A IPC, in default of payment of fine, he had to undergo further RI for six months; for offence under Section 304-B IPC he was sentenced to undergo RI for a period of seven years and for the offence under Section 201 IPC, he was sentence to undergo RI for a period of two years and to pay a fine of Rs.500/- in default of payment of fine, he was to undergo further RI for a period of six months.

The other accused, namely, Surinder Singh, Pritam Singh and Gurvinder Singh were sentenced to undergo RI for a period of 2 years and to pay a fine of Rs.500/- each for the offence under Section 201/34 IPC, in default of payment of fine they were to undergo RI for a period of six months. Accused, Madan Lal had been acquitted by that judgment. During the pendency of the appeal before the High Court, appellant-Pritam Singh died and his case got abated. Thus the case was confined to rest of the accused.

3. The case of the prosecution against the accused-appellant- Rajinder Singh is that Santosh Kaur, daughter of Nahar Singh was married with the accused-appellant on 22nd April, 1992. Sufficient dowry articles were given. On 11th December, 1992, accused-appellant left his wife Santosh Kaur in her parents house for one month when Santosh Kaur told her father- Nahar Singh that her father-in-law; Pritam Singh, husband- Rajinder Singh, brother-in-laws; Gurvinder Singh and Surinder Singh and Madan Lal, brother-in-law of her husband has been harassing her for bringing less dowry. She also told that they were demanding Rs.25,000/- and asked her to bring that amount when she came back to her in-law’s house on Lohri. Nahar Singh was not in a position to pay the amount demanded and assured his daughter that he might arrange some money when she would go back to her-in-law’s house.

On 15th January, 1993, when Sukhbir Singh, brother of Santosh Kaur, was taking her to her-in-law’s house, his father-Nahar Singh told him to make the accused understand that some money would be sent by 20th January,1993 and that they should not harass her. He also informed this fact to Sucha Singh, Sarpanch of the village. Finally, money could not be arranged by 20th January, 1993. On 24th January, 1993, one Pritam Singh came to the house of Nahar Singh and informed him that his daughter-Santosh Kaur had died during the intervening night of 23rd/24th January, 1993 and she had also been cremated in the morning of 24th January, 1993. On 25th January, 1993, Nahar Singh, Sucha Singh, Sukhbir Singh and some other family members went to Mamliwala to the house of the accused and after verifying the facts, lodged a report before Police Station, Chhachhrauli. A case was registered and accused were sent for trial.

4. After trial, case was found to be proved against Rajinder Singh for the offence under Sections 498-A,304-B and 201 IPC and against Surinder Singh, Pritam Singh and Gurvinder Singh for the offence under Section 201/34 IPC; hence they were convicted for the same whereas Madan Lal was acquitted.

5. Learned counsel for the appellant submitted that no demand of dowry and threat was ever made to the deceased or her family members. In fact no complaint in this regard was ever made by the complainant or the deceased or by anybody else to the police. No letter was written by the deceased about the demand of dowry or cash. Therefore, the impugned order is liable to be set aside.

6. Learned Counsel for the appellant further submitted that the Court below failed to consider the fact that the cremation was never done secretly. Cremation ceremony was attended by persons very much close to the complainant family. The deceased- Santosh Kaur never complained to anybody at neighborhood about her-in-laws or about torture or harassment or demand of dowry or cash by them. Therefore, the present case was a false and concocted story made by the prosecution. Further, according to him PW-2, Nahar Singh, father of the deceased in his deposition stated that his daughter after marriage never complained about the accused-appellant.

7. Learned counsel for the prosecution per contra relied upon the evidence and submitted that the ingredients necessary for the application of Section 304-B IPC were established beyond reasonable doubt. Therefore, the presumption under Section 113-B of the Indian Evidence Act arises and hence it is proved that the accused-appellant caused the dowry death.

8. The admitted position in the present case is that the deceased was married with the accused-appellant on 22nd April, 1992. She died in the night intervening by 23rd/24th January, 1993. The cremation of the dead body was done in the morning of 24th January, 1993 without waiting for the parents of the deceased. Pritam Singh(PW-7) stated in his deposition that about about 12.00 noon, he was standing on the bus stand of Khizrabad and was talking with some people. Then he came to know that Santosh Kaur, daughter-in-law of Pritam Singh had died and was cremated. Then he told this fact to Nahar Singh(PW-2), father of the deceased who stayed in the Village Kotian.

On the next day, PW-2 alongwith Sucha Singh and other persons went to Village Mamliwala and verified the fact that Santosh Kaur had died and has also been cremated. The distance between the villages Mamliwala and Kotian was not so much and it was only about 17-18 kms. It was winter season; month of January but it has not been made clear why the accused-appellant cremated the body of the deceased in the early morning of 24th January, 1993 without even calling the parents of the deceased which shows that there was something which the accused- appellant wanted to conceal.

9. As per statement of Nahar Singh(PW-2), Sukhbir Singh(PW-3) who were the father and the brother of the deceased, accused-appellant Rajinder Singh left deceased in her parents’ house for about one month in December, 1992. PW-2 stated that her daughter-Santosh Kaur told him that her father-in-law; Pritam singh, husband, Rajinder Singh, brother- in-laws; Gurvinder Singh and Surinder Singh and Madan Lal, brother-in- law of her husband were harassing her for bringing less dowry. She also told that they were demanding Rs.25,000/- and told her to bring that amount when she came back on Lohri. Nahar Singh(PW-2) was not in a position to meet the said demand at that stage.

He assured his daughter that he would arrange some money and give her by the time she leaves back to her matrimonial house. On 15th January, 1993, his son Sukhbir Singh took Santosh Kaur to her-in-laws house. He told him to make the accused understand that they would pay some money by 20th January, 1993 and they should not harass her. This fact was also informed to Sucha Singh, Sarpanch of the village. But the money could not be arranged by 20th January, 1993 and after about 3-4 days, i.e. on 24th January, 1993, Pritam Singh (PW-7) came to PW-2 and told about the death of Santosh Kaur whose death took place during the intervening night of 23rd/24th January, 1993.

10. Sukhbir Singh (PW-3), brother of the deceased also corroborated the statements made by his father Nahar Singh(PW-2). He stated that the deceased told them that her husband Rajinder Singh, brother-in-laws; Gurvinder Singh and Surinder Singh, father-in-law; Pritam Singh and Madan Lal, brother-in-law of her husband were harassing her for not bringing sufficient dowry.

He further told that they were demanding Rs.25,000/-. PW-3 then told her sister that they would pay the amount by 20th January, 1993. Then on 15th January, 1993 he took her sister to the house of her-in- laws and came back next day after telling his sister that the amount of 25,000 will be paid by 20th January, 1993. PW-3 further stated that the accused were harassing his sister even prior to 11th December, 1992. He also stated that on hearing about her death, he alongwith his father, Pritam Singh (PW-7), Sucha Singh, Sarpanch of the village, went to the village Mamliwala. They found the accused weeping and it was found that the dead body of his sister had already been cremated before they reached there. Then his father reported the matter to the police.

11. Pritam Singh(PW-7) stated that on 24th January, 1993 he came to Khizrabad to see his brother-in-law. At 12.00 noon while standing on the bus stand of Khizrabad, he heard some people talking that Pritam’s Singh dauther-in-law Santosh Kaur died and had been cremated. Therefore, he told this fact to Nahar Sing(PW-2) at Kotian. Then on next day he came to the village Mamliwala alongwith 10 other persons where they came to know that Santosh Kaur had been cremated. Then all of them went to Police Station and lodged the report.

12. Nar Singh (PW-9), SHO, Police station Parakhpur, stated that on 25th January, 1993 he was posted as SI/SHO of Police Station, Chhachhrauli. On that day, complainant (PW-2) came to police station and lodged the FIR (Ex.P.B.). He recorded statement, inspected the spot and the place of occurrence and took into possession the clothes of the deceased vide memo(Ex.P.E.) which was stained with “vomiting and latrine”. Clothes were sealed into a parcel with the seal of the 6-B.R., which was handed over to Sucha Singh(PW-4). Ex.P.E. was attested by Sucha Singh(PW-4) and Sukhbir Singh(PW-3). Thereafter he went to the place of cremation and prepared the rough site plan of the cremation ground (Ex.P.M.). The ash and bones were taken into possession vide recovery memo (Ex.P.E.) which was also attested by PW-4 and PW-3. Statements of PW-3 and PW-4 were recorded (Ex.P.N.). He arrested the accused. The parcel of clothes and ash & bones were sent to forensic laboratory. No contradiction could be found during the cross examination of prosecution witnesses.

13. The accused in their examination under Section 313 Cr.P.C. admitted the factum of marriage but denied the allegation relating to demand of dowry. In reply to question no. 14, accused-Rajinder Singh stated that his wife Santosh Kaur died a natural death on account of heavy vomiting and loose motions. He also stated that they neither demanded any dowry nor pressurized her to bring Rs.25,000/- from her father and that they were falsely implicated in the case.

14. Admittedly, Santosh Kaur died in the intervening night of 23rd/24th January, 1993 and she was cremated in the early morning of 24th January, 1993. The distance between Village Mamliwala and Kotian was not much and it was just 17-18kms. It was the month of January and winter season, the necessity of the accused-appellant to cremate the dead body within few hours of death in the early morning of 24th January, 1993 without informing the parents of the Santosh Kaur has not been explained.

The Police took into possession the ash and bones from the cremation ground and clothes of the deceased and sent the same to the Deputy Director-cum-Assistant Chemical Examiner to the Government of Haryana, F.S.L. Madhuban. As per report an “Organo Phosphorus Pesticide” was detected on the salwar stained with dirty brown material, one printed lady’s shirt stained with dirty brown material and one green coloured woolen shawl of the deceased. As per report of F.S.L. (Ex P.L.1), the bones were found of the human being. Therefore, it is clear that Santosh Kaur died other than under normal circumstances. The accused-appellants have also failed to explain the presence of an “Organo Phosphorus Pesticide” in the vomiting of the deceased.

15. Section 106 of the Evidence Act does not relieve the burden of prosecution to prove guilt of the accused beyond reasonable doubt but where the prosecution has succeeded to prove the facts from which a reasonable inference can be drawn regarding the existence of certain other facts and the accused by virtue of special knowledge regarding such facts fail to offer any explanation then the Court can draw a different inference.

16. The ingredients necessary for application of Section 304-B IPC and the applicability of Section 113-B of the Evidence Act was discussed by this Court in State of Rajasthan v. Jaggu Ram, (2008)12 SCC 51. In the said case, this Court held as follows:

“11.The ingredients necessary for the application of Section 304-B IPC are:

1. that the death of a woman has been caused by burns or bodily injury or occurs otherwise than under normal circumstances;

2. that such death has been caused or has occurred within seven years of her marriage; and

3. that soon before her death the woman was subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand for dowry.

4. 12. Section 113-B of the Evidence Act lays down that if soon before her death a woman is subjected to cruelty or harassment for, or in connection with any demand for dowry by the person who is accused of causing her death then the court shall presume that such person has caused the dowry death. The presumption under Section 113-B is a presumption of law and once the prosecution establishes the essential ingredients mentioned therein it becomes the duty of the court to raise a presumption that the accused caused the dowry death.

5. 13. A conjoint reading of Section 304-B IPC and Section 113-B, Evidence Act shows that in order to prove the charge of dowry death, prosecution has to establish that the victim died within 7 years of marriage and she was subjected to cruelty or harassment soon before her death and such cruelty or harassment was for dowry. The expression “soon before her death” has not been defined in either of the statutes. Therefore, in each case the court has to analyse the facts and circumstances leading to the death of the victim and decide whether there is any proximate connection between the demand of dowry, the act of cruelty or harassment and the death.”

17. In the present case, the prosecution proved that the death of Santosh Kaur has occurred otherwise than under normal circumstances. Such death has occurred within a period of 9 months of her marriage i.e. much before seven years. The statements of PW-2 and PW-3 are trust-worthy and they stated that Santosh Kaur was subjected to harassment by her husband and other accused relatives in connection with demand for dowry just prior to death. The prosecution having established essential ingredients, it becomes the duty of the Court to raise a presumption that the accused caused dowry death.

18. In the present case, the accused has failed to explain as to why he was in a hurry to cremate the deceased in the early morning of 24th January, 1993 while she died in the mid night of 23rd/24th January, 1993 i.e. within few hours. The village of deceased’s parents was just 17-18kms far from the village of the accused but the reason as to why they were not informed about the incident on the same day and why the accused had not waited for them to come is not explained. The accused has also failed to explain as to why according to the F.S.L. Report, an Organo Phosphorus Pesticide was found in the vomiting of the deceased. Therefore, the Trial Court rightly drew an inference that the accused-appellants were guilty of the offence for which they were charge.

19. Hence, we find no merit in these appeals. These are accordingly, dismissed. Bail bonds of the appellants are cancelled. They shall surrender within a period of two weeks to undergo the remaining sentence.

…………………..J. (A.K.PATNAIK)

…………………..J. (SUDHANSU JYOTI MUKHOPADHAYA)

NEW DELHI,

JULY 3, 2013

Posted in Advocate in Lucknow | Tagged

S. Anil Kumar @ Anil Kumar Ganna Vs. State of Karnataka

S. Anil Kumar @ Anil Kumar Ganna Vs. State of Karnataka

[Criminal Appeal No.937 of 2006]

SUDHANSU JYOTI MUKHOPADHAYA, J.

1. This appeal has been preferred by the appellant against the judgment dated 4th January, 2006 in Criminal Appeal No.1042 of 1999 passed by the learned Single Judge of the High Court of Karnataka at Bangalore, whereby the learned Single Judge reversed the judgment of acquittal dated 2nd August, 1999 passed by the Xth Additional City Sessions Judge at Bangalore in S.C.No.86 /96 and convicted and sentenced the appellant for the offences under Section 304-B and Section 498-A of the IPC. The Appellate Court imposed sentence of rigorous imprisonment for seven years for the offence punishable under Section 304-B of the IPC and rigorous imprisonment for two years and to pay a fine of Rs.10,000/-, in default, to undergo simple imprisonment for three months for the offence punishable under Section 498-A of the IPC. The Appellate Court further ordered that the sentences shall run concurrently.

2. The case of the prosecution is briefly stated below: The complainant-Parasmal’s sister Meena Kumari was married to accused No.1, Anil Kumar on 13th December, 1990. In relation to the said marriage a demand was made by accused Nos.1 and 3 to 5 for dowry of an amount of Rs.1,50,000/- and gold weighing 800 gms. It was agreed by the bride’s party to pay a sum of Rs.50,000/- and 500 gms. of gold as dowry and, accordingly, the marriage was performed. After the marriage, Meena Kumari came to know that her husband Anil Kumar, accused No.1 (appellant herein) had developed illicit intimacy with accused No.2, Sumithra alias Savitri, wife of Kailaschand, (PW-8).

After some time, accused Nos.1 and 3 to 5 began to treat Meena Kumari with cruelty since she failed to bring the amount demanded by accused No.1 for expansion of his business. Whenever Meena Kumari came to her brother’s house, she complained about ill treatment meted out to her by accused No.1. After some days, the amount demanded by accused No.1 was given, but his demand did not subside. On 20th January, 1992 at about 7.00 a.m., Meena Kumari took milk and went inside her house. After some time, accused No.1, Anil Kumar left the house.

Thereafter Meena Kumari came out of the house and requested Smt. Kamalamma, a neighbour to bring a nipple for putting the same to tap. When Kamalamma brought the nipple, she found the door of the house closed. Meena Kumari did not open the door in spite of knocking by Kamalamma. At that time, Sarojamma, (PW- 6) was also present. At about 9.00 a.m. the mother of PW-6, Kailas and Anil Kumar came and knocked the door, but the door was not opened. Despite their efforts, door was not opened and there was no response from inside. Therefore, Anil Kumar put his hand through the ventilator and unlatched the door and opened it. When they went inside, they found that Meena Kumari had hanged herself from the fan and had committed suicide.

The news spread and later, a friend of the accused Sri Shanthilal (PW-9) came and he gave on phone a message to Meena Kumari’s elder brother S. Parasmal (PW-1), who was residing in Mysore. Intimation sent to him was that Meena Kumari was seriously ill and they should come immediately. On their way to Bangalore, Parasmal (PW-1), learnt that Meena Kumari had committed suicide. They reached the house of the accused at about 5.00 p.m. and after ascertaining the matter, Parasmal (PW-1) went to the Police Station and informed the Police. The Police came to the house and after inspecting the spot, took the complaint of PW-1.

On the basis of the same, he registered a case in Cr.No.33/92 against the accused Nos.1 and 2. Sri. M.V. Chengappa, PSI, Hebbal Police Station (PW-23) started with the investigation and further investigation was taken up by, Praveena, ACP, Yeshwanthpur Sub-Division (PW- 24). The investigation disclosed that accused Nos.3 to 5 were also involved in the matter. Therefore, they were added in the list of the accused. After further investigation by S.V.D. Souza (PW-25), Police Inspector, ADC, COD, Bangalore and his successor, B. Venkataramana, Police Inspector, ADC, COD, Bangalore (PW-26) a chargesheet was placed against the accused for the offences punishable under Section 498-A and 304-B of the IPC and Sections 3,4 and 6 of the Dowry Prohibition Act, 1961.

3. The accused pleaded not guilty of the charges and claimed to be tried. The prosecution examined in all 26 witnesses and closed its case. As per prosecution PWs-1, 10,11,12,13,15 and 18 were examined with regard to the payment of dowry. To substantiate the allegation of the dowry harassment they examined PWs-10,11,12,13,14,16 and 21 and other witnesses who saw the body hanging with fan. PWs-2, 7 and 19 were Panch witnesses. PW- 17, Dr. Thirunavakkarasu was the Professor, Forensic Medicine, who conducted the post-mortem examination. PW-21, was the Taluk Executive Magistrate, who conducted inquest proceedings. PWs.22 to 26 are the Police Officers.

4. The accused in their statements under 313 Cr.P.C. denied the allegations made against them. On behalf of defence one Vimal Kumar (DW-1) was examined to show that there was no demand for dowry and no harassment was made to Meena Kumari. It was suggested on behalf of the defence that Meena Kumari had extra affinity towards PW-10, Ashok Kumar Jain and perhaps on the objection raised by the accused she might have committed suicide.

5. The trial court on appreciation of evidence on record came to hold that the statements of material witnesses, PW-1 and PW-12 and some others are contradictory and there statements are not trustworthy. In view of such finding the trial court acquitted the accused of all the charges levelled against them.

6. One of the reasons shown by the trial court to come to the conclusion that the statements are not trustworthy, was that PW-1, complainant nowhere mentioned in the complaint that demand of Rs.1,50,000/- in cash and 800 gms. of gold as dowry was made as pre-condition to marry Meena Kumari. Such allegations were also not made before the Tahsildar (PW.21), as evident from the observation of the trial court: “12..It is an undisputed fact that nowhere in the complaint Ex.P3, it is mentioned that the accused persons demanded Rs.1.5 lacks and 800 grams of gold as dowry as a pre-condition to marry the deceased Meenakumari. In the second para of the complaint, Ex.P.3, it is mentioned that the marriage was done as per their request and that to their satisfaction.

At the time of marriage, they gave 500 grams of gold ornaments and Rs.50,000/- cash and household articles, further, nowhere in the complaint Ex.P.3 any mentioned is made with regard to the payment of Rs.10,000/- during 1991 to the first accused and subsequent payment of Rs.25,000/- to the first accused in the house of PW. at Mysore. Now I will see the cross-examination of PW.21, the Tahsildar. He states that PW.1 has not stated before him that the accused persons demanded 800 grams of gold and Rs.1.50 lacks of as dowry. Likewise, PW.1 has not stated before him that the first accused and his family members participated in the marriage talks. He admits that PW.10 stated before him vide Ex.D.2. He admits that PW.1 has not stated before him that the third accused sent deceased Meenakumari to bring the balance of Rs.1.00 lack and 300 grams of gold. Likewise PW.1 has not stated before him that he gave Rs.10,000/- to accused Nos.1 and 3 and sent deceased Meenakumari.

He also admits that PW.1 has not stated before him that PW.1 went to Devgarh and requested accused No.3 to send Meenakumari with him for which he refused. He also states that PW.1 has not stated before him that he sent his brother Sampathlal to bring Meenakumari and that he brought her to his house at Mysore in June, 1991. Likewise, he has also not stated that the first accused did not take back Meenakumari to his house and therefore she stayed in her house for about 2 1/2 months, PW.1 has not stated before PW.21 that Meenakumari was telling before him that she was insulted by her in-laws for having not taken the dowry articles. It is also admitted by PW.21 Tahsildar that PW.1 has not stated before him during November, 1991, accused Nos.1 and 2 and one Sampathlal came to his house and his father PW.22 gave Rs.25,000/- to the first accused. PW.21 also states that PW.1 Parasmal has not specifically stated phone that the second accused was ill- treating her. PW.10 also not stated before PW.21 the Tahsildar on 13.01.1992.

He sent Mohanlal to Bangalore to see Meenakumari and that in turn they told him about the harassment given to her by the first accused. PW.21 also states that PW.18 A. Suresh Jain has not stated before him that deceased Meenakumari came to Mysore six months after the marriage and stayed in the house of PW.1 for about 1 1/2 months and that she complained of harassment by her in-laws for the same of dowry. 13. From the evidence of PW-21 the Tahsildar it is crystal clear that at no point of time, either PW-1 or as matter of fact, this PW-18 never stated that the accused persons made a demand for Rs.1.5 lakhs and 800 grams of gold as dowry. Likewise, whatever PW-1 states in the chief examination are all omissions which were not stated before PW-21 the Tahsildar immediately after this incident. Absolutely there is no substance in PWs-1 and 12 telling that they paid Rs.10,000/- at Benali and Rs.25,000/- in the house of PW-1 at Mysore to the first accused”

7. The High Court relied substantially on the submission made by the learned Addl. SPP appearing for the prosecution who stated that there are abundant material placed on the record by the prosecution including depositions of PWs-1,10 to 16 and 21, many of whom spoke about the demand of dowry, payment of dowry and dowry harassment. It was contended that the learned Sessions Judge because of minor discrepancies in the statements of the prosecution witnesses has given the benefit of doubt in acquitting all the accused. The Sessions Judge had not considered the provisions of Sections 113-A and 113-B of the Evidence Act to be drawn against the accused. In view of such argument, the Appellate Court re-appreciated the evidence and observed as follows:

“8.Though it is submitted by the learned Addl.SPP that there is abundant material regarding demand for dowry and payment of dowry for the settlement of marriage, on perusal of the depositions of PWs.1,10,11,12,13,15 and 18, we are unable to agree with his view. It is an admitted fact that an amount of Rs.50,000/- and gold ornaments weighing about 500 gms were given at the time of marriage. The evidence is not sufficient to raise a presumption that this payment of money as dowry was on demand by the accused nos.1 and 3 to 5. As rightly observed by the learned Sessions Judge, they appear to be customary presents given from the bride’s side.” Again on re-appreciation of evidence of PWs.1,10,11,12,13,14,15,16 and 21, the Appellate Court while holding that it was unable to find the allegations involve accused Nos.2 to 5 observed as follows:

“9. It is not the case of the prosecution that from those distant places the accused Nos.3 to 5 tutored accused No.1 to demand dowry or ill-treat Meena Kumari. Therefore, we do not find sufficient ground to interfere in the conclusion of the learned Sessions Judge with regard to the demand for dowry payment of dowry and dowry harassment so far as the allegations relate to accused Nos.3 to 5.”

8. So far as accused No.2 is concerned she being a neighbour’s wife the trial court held that she cannot be held responsible for any demand of dowry or dowry harassment. The trial court acquitted all the accused No.1 to 5 for offences punishable under Sections 3,4 and 6 of the Dowry Prohibition Act and accused Nos.2 to 5 for an offence punishable under Section 498-A of the IPC with the following observation:

“10. Of course, a suggestion has been made that as informed by Meena Kumari, there was illicit relationship between the accused nos.1 and 2. But this has not been substantiated by any material. Merely because some witness says that they learned from Meena Kumari that there was illicit relationship between accused Nos.1 and 2 and of that it was the cause for marital discord between accused nos.1 and Meena Kumari, that cannot be accepted. Considering all these materials, we hold that the acquittal of accused nos. 1 to 5 for offences punishable under Sections 3,4 and 6 of the Dowry Prohibition Act and accused nos.2 to 5 for an offences punishable under Sections 498-A of the IPC does not need interference.”

9. In spite of such finding referring to the statements made by PWs.1,10 to 16 and 21 the Appellate Court held that accused No.1-appellant herein is liable to be convicted for the offences for dowry harassment and dowry death and made the following observations: “The learned Sessions Judge lost sight of the presumption that is available in Sections 113-A and 113-B of the Evidence Act and ignoring the evidence of PWs.1, 10 to 16 and 21, held that there was no dowry harassment, so far as the allegation relates to the accused no.1. We find absolutely no reason to discard the evidence of these witnesses so far as the allegations relate to the accused no.1 and consequently he is liable to be convicted for the offences under Sections 498-A, 304-B of the IPC. Since the dowry harassment by the accused nos.2 to 5 has not been proved, the acquittal granted to them does not need any interference.”

10. Learned counsel for the appellant submitted that if one view has been taken by the trial court which is not perverse, it was not open to the Appellate Court to substitute such view to re-appreciate the evidence for coming to a different conclusion.

11. Per contra, according to the learned counsel for the State, the High Court was right in reversing the judgment of acquittal passed by the trial court in view of sufficient evidence of PWs.10 to 16 and 21 recorded to show that the appellant has subjected deceased to harassment due to which she was compelled to commit suicide.

12. This Court in the case of Rohtash vs. State of Haryana, (2012) 6 SCC 589, held that only in exceptional cases where there are compelling circumstances and where the judgment in appeal is found to be perverse, the High Court can interfere with the order of acquittal. In the said case the following observation was made by this Court: “27. The High Court interfered with the order of acquittal recorded by the trial court. The law of interfering with the judgment of acquittal is well settled. It is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court’s acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.”

13. We have gone through the evidence of the prosecution witnesses PWs.1, 10 to 16 and 21 relied on by the prosecution. We find that there are contradictory statements which cannot be stated to be a minor contradiction as was suggested by the learned Addl.SSP before the Appellate Court. The improvement in the statements of PW.1 and 12 is clear. The allegation about the demand of dowry of Rs.1,50,000/- and 800 gms. of gold ornaments and harassment and torture made by accused No.1 on deceased was not disclosed and mentioned in the First Information Report or before the Tahsildar(PW.21) who recorded the initial evidence. In Ex.P.2 and complaint Ex.P.3 absolutely there is no evidence to show that Rs.25, 000/- was demanded and Rs.10,000/- was given to accused No.1 either at Benali or at Mysore. Further, payment of Rs.50,000/- and 500 gms. of gold to accused No.1 as dowry was also not established beyond reasonable doubt.

14. Once the prosecution failed to prove the basic ingredients of harassment or demand of dowry and the evidence brought on record were doubted by the trial court, it was not open to the High Court to convict accused No.1 on presumption referring to Section 113-A or 113-B of the Evidence Act. The presumption of innocence of the accused being primary factor, in absence of exceptional compelling circumstances and perversity of the judgment, it was not open to the High Court to interfere with the judgment of the trial court in a routine manner.

15. For the reasons aforesaid, we set aside the impugned judgment dated 4th January, 2006 in Criminal Appeal No.1042 of 1999 passed by the High Court, allow the appeal by restoring the judgment dated 2nd August, 1999 of the trial court. The appellant is on bail, his bail bonds stand discharged.

……………………..J. (A.K. PATNAIK)

……………………..J. (SUDHANSU JYOTI MUKHOPADHAYA)

NEW DELHI,

JULY 3, 2013

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Kazi Akiloddin Sujaoddin Vs. State of Maharashtra & Ors.

Kazi Akiloddin Sujaoddin Vs. State of Maharashtra & Ors.

[Civil Appeal No. 5084 of 2013 arising out of SLP (C) No.31318 of 2011]

SUDHANSU JYOTI MUKHOPADHAYA, J.

1. Leave granted. The appellant is aggrieved by impugned order dated 15th September, 2011 passed by the Division Bench of the High Court of Bombay, Nagpur Bench, Nagpur in a Review Application, MCA No.774/2011. By the impugned order the Division Bench reviewed and recalled the judgment and order dated 5th October, 2010 passed in Writ Petition No.3883/2010(D) filed by the appellant. The High Court further directed the State of Maharashtra to deposit rental compensation at the rate of 8% of the amount of Rs.1,07,82,270/- as enhanced and awarded by the Reference Court, in First Appeal No.06/2010, as the same is pending against the award passed by the Reference Court. The High Court by the impugned order also allowed the appellant to withdraw only half of the amount deposited by the State upon furnishing security to the satisfaction of the Registrar and to keep remaining amount in FDR of a Nationalised Bank pending the litigation.

2. The only question involved in this appeal is whether the High Court of Bombay, Nagpur Bench was justified in directing the State to deposit the rental compensation with the Appellate Court at the rate of 8% per annum on the award value passed by the Reference Court for the period of occupation before formal acquisition, allowing the appellant to withdraw only 50% of such rental compensation during the pendency of the appeal.

3. The factual matrix giving rise to this appeal are as follows:- The matter relates to payment of rental compensation with regard to land occupied by State before the formal acquisition. The Land Acquisition Act, 1894 does not contemplate the payment of any rental compensation. The entitlement of rental compensation is on the basis of resolutions and instructions issued by the State of Maharashtra from time to time since 7th February, 1949 including Resolutions dated 2nd May, 1961, 1st December, 1972, 2nd April, 1979 and 24th March, 1988.

4. By the aforesaid Resolutions, the State of Maharashtra has empowered the Irrigation and Power Department/Buildings and Communication Department Officers to take possession of lands required for its development works by private negotiations, wherever possible, as it was apprehended that the speed of acquisition of lands under the Land Acquisition Act, 1894(hereinafter referred to as the ‘Act’), would not be, in view of its procedural requirements, commensurate with the speed of work planned by the Department, thus resulting in delay in execution of works. It was also indicated that prompt payment of such compensation should be done.

5. By Resolution dated 2nd May, 1961 it was decided by the State Government that in cases where awards have been declared by the Revenue authorities, rental compensation should be paid at the rate of 4% per annum on the award value for the period of occupation before the formal acquisition plus the adjustment which has been paid by the owner of the land for that period in respect of that land. Subsequently, by Resolution dated 1st December, 1972 while procedure for taking possession of the land by private negotiations were notified, the determination of rental compensation was enhanced to 6-1/2% per cent of the final award value, as apparent from the paragraph 6 of the said Resolution quoted hereunder:

“6 .Payment of rental compensation: The responsibility of payment of rental compensation of to the title holder of the lands taken over by I. & P.D./B & C.D. officers through private negotiations rests with I. & P.D. /B. & C.D. Officers for the period from the date on which possession of the land is taken over till the date on which the full amount of final Award is paid. Government has now decided that the rental compensation payable shall be 6-1/2% of the final award value in respect of both Non-Agricultural land and Agricultural land. With a view to avoiding any inconvenience to the owners of the land who have willingly parted with their land and to ensure timely and regular payments of rental compensation, the following procedure should be adopted.”

6. By the subsequent Resolution dated 2nd April, 1979 the State Government decided to increase the percentage from 6-1/2% to 8% for working out the amount for payment of rental compensation, which reads as follows: “GOVERNMENT OF MAHARASHTRA Irrigation Department, Resolution No.IND.1078/1014/IMG-(3) Sachivalaya, Bombay 400032, Dated 2nd April, 1979. Read: Government Resolution, Irrigation and Power Department, No.IPM. 1069/20083/I(5), dated Ist December, 1972 Resolution: The question of raising the percentage of rental compensation admissible to the title holders of the lands during the period from the date of taking over the possession of their lands by private negotiations till the payment of final award was under the consideration of Government for some time past. Government is now pleased to increase the percentage from 6-1/2% to 8% laid down for working out the amount for payment of rental compensation in paras 6 and 7 of Government Resolution, Irrigation and Power Department, No.IPM.1069/20083-I(5), dated Ist December, 1972 with effect from Ist January, 1979.”

7. The State Government by its Resolution dated 24th March, 1988 directed the authorities to pay rental compensation on time else the amount is payable towards interest. The relevant portion of the said Resolution is quoted hereunder: “3. It has come to the notice of the Government that the directions given in the aforesaid Government Resolutions are not being followed properly. As a result, the land owners are facing harassment and inconvenience. Due to the delay in sending proposal for acquisition of lands where possession has been taken through private negotiations, the amounts payable towards interest and rental compensation have increased. 4. In view of the amendment of the Land Acquisition Act, 1894 and the time limits specified for the acquisition of land as also in view of Section 4(1) of the Act and the increase in the amount of solatium from 15% to 30%, special attention is required to be given to the completion of process of acquisition quickly.”

8. The respondent-State required the land of the appellant for construction of flood protection wall for the city of Akola and after negotiations the appellant handed over the possession of his land on 15th November, 1998 to the State. Subsequently, Notification under Section 4 of the Land Acquisition Act, 1894, was published on 3rd June, 1999 in respect of said land, followed by Notification under Section 6 of the Act published on 18th November, 1999. The Special Land Acquisition Officer by his award dated 4th August, 2000 determined the compensation at the rate of Rs.5,61,000/- per hectare and awarded total compensation of Rs.9,45,173/- in favour of appellant.

9. Aggrieved by the award, the appellant filed an application under Section 18 of the Act which on reference registered as LAC No.140/2000 in the Court of District Judge, Akola. During the pendency of the said reference case, the appellant received a sum of Rs.59,998/- on 7th August, 2001 towards rental compensation. The amount was calculated at the rate of 8% of the compensation awarded by the Land Acquisition Officer. The Reference Court by its award dated 2nd August, 2008 allowed the application and enhanced the rental compensation @ 8% per annum on Rs.1,07,82,270/- with interest at the rate of 9% from 12th October, 2000 to 11th October, 2001 that is for one year and interest at the rate of 15% per annum, thereafter, till the date of actual payment.

10. Aggrieved by the enhancement, the State Government preferred First Appeal No.06/2009 before the High Court of Bombay. In the said appeal, the High Court passed interim order on 28th January, 2009 staying operation, implementation and execution of the order passed by the Reference Court on the condition of depositing 50% of the amount granted by the Reference Court. The First Appeal No.06/2009 is still pending before the High Court for its decision.

11. The appellant was also not happy with the award passed by the Reference Court, therefore, he preferred First Appeal No.1210/2008, which is also pending before the High Court.

12. During the pendency of the appeals, the appellant applied to the 3rd respondent for grant of rental compensation on the basis of enhanced compensation awarded by the Reference Court by its order dated 2nd August, 2008. As no reply was received by the appellant he filed a Writ Petition No.2763/2009 before the High Court of Bombay, Bench at Nagpur. The said writ petition was disposed of on 6th July, 2009 recording the statement of the Assistant Government Pleader that the application of the appellant would be decided on merits at the earliest. Thereafter, the 3rd respondent on consideration of the said application, by his letter dated 5th October, 2009 rejected the prayer on the ground that the order of Reference Court was under challenge before the High Court. Against the order of rejection the appellant preferred Writ Petition No.3883/2010, before the High Court of Bombay, Bench at Nagpur.

In the said case, the Special Land Acquisition Officer, 4th respondent filed an affidavit assailing the order passed by Reference Court. According to the appellant, there is no statement made in the said reply that the appellant was not entitled for enhanced rental compensation on the basis of compensation awarded by the Reference Court. The High Court allowed the said writ petition by order dated 5th October, 2010 referring to the decision of this Court in State of Maharashtra and others vs. Maimuma Banu and others, (2003) 7 SCC 448. As the Division Bench ordered to pay enhanced rental compensation to the appellant as per award passed by the Reference Court, the respondents filed a review petition for recalling the order dated 5th October, 2010. It was submitted that the order was passed by the High Court on wrong interpretation of decision in Maimuma Banu (supra) and that there is an error apparent on the face of the record.

13. On notice and hearing the parties, the High Court passed the impugned order dated 15th September, 2011, recalling its earlier order dated 5th October, 2010. The following direction has been issued in place of earlier order: “In the result, the judgment and order dated 5/10/2010 is reviewed and set aside. Instead we direct the State of Maharashtra to deposit as rental compensation 8% of the amount of Rs.1,07,82,270/-, in First Appeal No.6/2010, which is the compensation as enhanced by the Reference Court in this Court for the period from 15/11/1998 i.e. the date of taking possession till the date of the award i.e. 4/8/2000. The original petitioner Kazi Akiloddin Sujaoddin may withdraw the half amount deposited by the State upon furnishing security to the satisfaction of the Registrar. The remaining amount shall be kept in F.D.R. of a nationalized bank pending the litigation.

6. Four weeks time is granted to deposit the above said amount.

7. Order accordingly.”

14. Learned counsel for the appellant contended that the appellant is entitled for the enhanced rental compensation proportionate to the increase in compensation awarded by the Reference Court. As per the policy of the respondent-State, the claimant is entitled to rental compensation at the rate of 8% of the amount of compensation awarded to the claimant for acquisition of his land. Circulars issued by the State do not limit the rental compensation to 8% of the amount awarded by the Land Acquisition Officer. The resolutions do not stipulate that the rental compensation should not be enhanced proportionate to the enhancement of compensation awarded by the Reference Court or higher courts.

15. Learned counsel for the appellant further contended that the High Court committed a grave error in deciding against the appellant by reviewing its own order on the basis of judgment of this Court in State of Maharashtra and others vs. Maimuma Banu and others, (2003) (7) SCC 448.

16. Per contra, according to the respondents, the Reference Court enhanced the compensation exorbitantly. Therefore, the State Government was left with no other option but to challenge the award by filing the first appeal, registered as First Appeal No.06/2009.

17. In Maimuma Banu (supra) this Court noticed that the State of Maharashtra by its resolutions and instructions, contained in the circulars dated 1st December, 1972, 17th September, 1977, 2nd April, 1979 and 24th March, 1988 provided for rental compensation, payable to the title- holders of the lands. Apart from those resolutions, the provisions of the Land Acquisition Act, 1894 do not contemplate payment of any rental compensation. In the said case of Maimuma Banu (supra) the Court decided the question relating to the ‘payment of interest on rental compensation’ awarded to the persons whose lands were acquired under the Land Acquisition Act, 1894; this Court in the said case also held as follows:

“9. It is not in dispute that in most of the cases the rental compensation has not been paid. If that factual position continues, it clearly is a case where the amount to which a person is entitled is withheld without any legitimate excuse. The learned counsel for the appellants strenuously urged that in most of the cases the proceedings have not yet attained finality and are pending either before the Reference Court or in appeal. That does not provide a legitimate excuse to the appellants to withhold payment of the rental compensation. The amount calculated on the basis of award by the Land Acquisition Officer cannot be below than the amount to be ultimately fixed. If in appeal or the reference proceeding, there is any variation, the same can be duly taken note of as provided in law. There is no difficulty and we find none as to why the compensation on the basis of value determined by the Land Acquisition Officer cannot be paid.

If there is upward revision of the amount, the consequences will follow and if necessary, redetermination of the rental compensation can be made and after adjustment of the amount paid, if any, balance can be paid. If, however, the Land Acquisition Officer’s award is maintained then nothing further may be required to be done. In either event, payment of the rental compensation expeditiously would be an appropriate step. Looking at the problem from another perspective, one thing is clear that authorities have clearly ignored the sense of urgency highlighted in the various resolutions.”

18. From the aforesaid decision of this Court, it is clear that during the pendency of a reference proceeding or appeal before a Higher Court the rental compensation is to be determined on the basis of award passed by the Land Acquisition Officer. Subsequently, if there is upward revision of amount, consequences will follow and if necessary, re- determination of the rental compensation can be made and after adjustment of the amount paid, if any, balance can be paid.

19. In the present case, we find that the State Government along with the appellant is not satisfied with the award passed by the Reference Court and hence, two appeals against the said award by both parties are pending before the High Court of Bombay, Nagpur Bench for determination. Giving reference to the decision in Maimuma Banu (supra) it was not open to the High Court to direct the authorities to pay rental compensation as per award passed by the Reference Court. For the reason aforesaid, if the High Court recalled the order dated 5th October, 2010 and directed the State Government to deposit rental compensation at the rate of 8% of the amount awarded by the Reference Court with the appellate Court, allowing the appellant to withdraw the half of the amount, no interference is called for. However, this order will not stand in the way of appellant to claim proportionate higher rental compensation, if the order of the Reference Court is upheld or further enhancement of compensation is made by the Appellate Court.

20. We find no merit in this appeal. It is, accordingly, dismissed with observations as made above. No costs.

……………………..J. (T.S. THAKUR)

……………………..J. (SUDHANSU JYOTI MUKHOPADHAYA)

NEW DELHI,

JULY 3, 2013

Posted in Advocate in Lucknow | Tagged

P. Sudhakar Rao & Ors. Vs. U. Govinda Rao & Ors.

P. Sudhakar Rao & Ors. Vs. U. Govinda Rao & Ors.

[Civil Appeal Nos. 1712-1713 of 2002]

Madan B. Lokur, J.

1. There is a clear distinction between weightage given for years of service rendered by an employee for purposes of promotion and weightage given for years of service rendered by an employee for purposes of seniority in a grade. While the first concerns eligibility for promotion to a higher post, the other concerns seniority for being considered for promotion to a higher post.

2. To consider the validity of weightage for seniority purposes and its impact on the seniority of other employees, the following question has been referred to a larger Bench in these appeals. The reference order is reported as P. Sudhakar Rao v. U. Govinda Rao, (2007) 12 SCC 148. – “Whether the decision given in Devi Prasad v. Govt. of A.P. [1980 (Supp) SCC 206] and State of A.P. v. K.S. Muralidhar [(1992) 2 SCC 241] laid down the correct law or the decision given in G.S. Venkat Reddy v. Govt. of A.P.[1993 Supp (3) SCC 425], K. Narayanan v. State of Karnataka [1994 Supp (1) SCC 44] and State of Gujarat v. C.G. Desai [(1974) 1 SCC 188] laid down the correct proposition of law?”

3. It appears to us that this question ought not to be answered in the narrow confines in which it is framed, nor should it be answered on the basis of the limited submission noted in the reference order relating to “the validity of the rule by which retrospective seniority benefit was given to the Junior Engineers by G.O.Ms No. 54 Irrigation (Service IV-2) dated 15.2.1983.” The question has larger implications and we propose to answer it keeping the broad canvas in mind. We also propose, in this light, to answer the question on merits of these appeals, namely, whether, on appointment as a Junior Engineer, weightage of service given to a Supervisor can be taken into account for fixing his seniority as a Junior Engineer, thereby effectively refixing the seniority with retrospective effect. Factual background:

4. Initially, the State of Andhra Pradesh had a single engineering department. This was subsequently broken-up into several – departments but we are not concerned with that. What we are concerned with is that at all material times, engineers in Andhra Pradesh were either in the Andhra Pradesh Engineering Subordinate Service or in the Andhra Pradesh Engineering Service.

5. The Andhra Pradesh Engineering Subordinate Service consisted, inter alia, of Junior Engineers who possessed a degree in engineering and Supervisors who possessed a diploma in engineering. Upon recruitment, both categories of engineers were placed in the same pay scale but Junior Engineers, by virtue of a better academic qualification, had a higher starting pay while Supervisors were placed in the minimum of the pay scale. Functionally, both had more or less similar duties to perform. A Supervisor could, while in service, obtain an engineering degree and if he did so, he would be designated as a Junior Engineer and given a higher pay in the same pay scale.

6. A Junior Engineer or a Supervisor was eligible for appointment by transfer as an Assistant Engineer in the Andhra Pradesh Engineering Service as it existed. This continued to be so till the Special Rules for the Andhra Pradesh Engineering Service were promulgated by issuance of G.O.Ms. No. 285 PWD dated 22.2.1967. –

7. With effect from 22.2.1967 the Andhra Pradesh Engineering Service consisted of five categories of officers, the juniormost being Category 5 – Assistant Engineer. As mentioned above, a Junior Engineer or a Supervisor was eligible for appointment by transfer as an Assistant Engineer in the Andhra Pradesh Engineering Service. The mode of recruitment was:

a. By direct recruitment (or)

b. By recruitment by transfer of

i. Junior Engineers and Supervisors of the Andhra Pradesh Engineering Subordinate Service;

ii. Draughtsman, Special Grade and Draughtsman Grade-I of the Andhra Pradesh Engineering Subordinate Service.

8. Later, by issuance of G.O.Ms No. 1149 dated 5.11.1973 a sixth category of officers was included in the Andhra Pradesh Engineering Service, namely, Junior Engineer with effect from 28.2.1972. This was declared a gazetted post. The inclusion of the post of Junior Engineer in the Andhra Pradesh Engineering Service resulted in its consequent exclusion from the Andhra Pradesh Engineering Subordinate Service. The effect of this was that a separate cadre of Junior Engineers, distinct from erstwhile Junior Engineers/Supervisors was formed. –

9. The mode of recruitment for Junior Engineers in the Andhra Pradesh Engineering Service was now by direct recruitment. This meant that despite having an engineering degree, Supervisors were not eligible for appointment as Junior Engineers on transfer. However, the mode of recruitment for the next higher post of Assistant Engineer was by way of direct recruitment, by promotion of a Junior Engineer having not less than 5 years service in the grade and by transfer of a Supervisor having a minimum service of 10 years in the grade.

10. To remedy this situation in the case of Supervisors who had obtained an engineering degree prior to 28.2.1972 the State Government issued G.O.Ms No. 893 dated 15.6.1972 inserting a note being Note 2 under Rule 4 of the Andhra Pradesh Engineering Service Rules. Through this Note, a Supervisor was given a weightage of 50% of service rendered by him on his acquiring an engineering degree while in service. The weightage was subject to a maximum period of 4 years service rendered prior to acquisition of the degree. The weightage was available as if the service had been rendered by the Supervisor in the post of Junior Engineer. The weightage was, therefore, available for inclusion for appointment to – the post of Assistant Engineer. However, the weightage was subject to certain conditions, one of them being that it was available to only those Supervisors who had obtained a degree prior to 28.2.1972.

11. Note 2 below Rule 4 (as inserted) in the Andhra Pradesh Engineering Service Rules reads as follows: “Supervisors who acquire, while in service, B.E., A.M.I.E. (India) qualification shall be entitled to count 50% of their service rendered as Supervisor prior to acquisition of such qualification, subject to a maximum limit of 4 years as if it had been in the post of Junior Engineers for the purpose of consideration for appointment by transfer to the post of Assistant Engineer from Junior Engineer and subject to the following conditions:

i. They should render a minimum service of one year after acquisition of B.E. or A.M.I.E. (India) qualification:

ii. They should be considered to have been placed below the list of the Junior Engineers of the year after giving weightage as indicated above.

iii. They should put in a total service of 5 years as Junior Engineer inclusive of the period given as weightage.

iv. The benefit of weightage given above shall be given effect for the purpose of all selections that are made by Public Service Commission pertaining to the years from 2nd January, 1968 onwards till 28th February, 1972.” [Note: Clause (4) was subsequently amended but we are not concerned with the amendment].

12. The benefit of weightage granted to Supervisors by G.O.Ms No. 893 dated 15.6.1972 was challenged as being arbitrary, – unreasonable and violating Article 14 of the Constitution. This Court rejected the challenge in Devi Prasad and held that the benefit of weightage was a matter of government policy which needed no interference since it was not unreasonable or arbitrary.

13. In what appears to be an oblique reference to loss of promotional chances that Junior Engineers may have to suffer due to weightage being given to Supervisors this Court observed as follows: “Perhaps there is force in the submission of Dr. Chitale that the Junior Engineers have to face adversity in the matter of promotions. All that we can do is to emphasise that this being a matter of government policy, the State will receive any representation that may be made for change of policy from the Junior Engineers and consider whether any such change in the policy is justified in the circumstances of the case. In so doing, there is no doubt that the other affected groups will also be heard because administrative fair play is basic to satisfaction of government servants as a class. We say no more nor do we indicate that in our view there is any hardship. We only mean to say that government will remove hardships if by modification of policy it can achieve this result. Undoubtedly, in this process, both sides will have to be heard not as a rule of law but as a part of administrative fair play.”

14. As mentioned above, the benefit of weightage was available to only those Supervisors who had obtained an engineering degree – before 28.2.1972. There was no provision relating to those who had obtained a degree post 28.2.1972.

15. Apparently to overcome this anomaly, and as a result of representations made, the State Government issued G.O.Ms No. 451 dated 10.6.1976 containing a decision that Supervisors who have acquired a graduate qualification while in service should be appointed temporarily as Junior Engineers (prospectively) with immediate effect. This decision was implemented.

16. The implementation of G.O.Ms No. 451 resulted in consequential orders relating to weightage of service rendered and the inter se seniority of Supervisors vis-à-vis Junior Engineers. The consequential orders were issued through G.O.Ms No. 559 dated 18.7.1977. These orders provided as follows: “2. Accordingly, matters relating to weightage, seniority, etc., have been examined by the government and the following orders are issued:-

i. Supervisors who acquire graduate qualification may be appointed as Junior Engineers on or after February 28, 1972, subject to the availability of vacancies in the cadre of Junior Engineers. They will not be entitled for appointment as Junior Engineers automatically from the date of acquisition of degree qualification; –

ii. A Supervisor, who is appointed as Junior Engineer, shall be entitled to count one-third of the service rendered by him as Supervisor, before his appointment as Junior Engineer, subject to a maximum of four years, for the purpose of computing the service as Junior Engineer, which will render him eligible for consideration for promotion as Assistant Engineer.

iii. The seniority of the Supervisors, who are appointed as Junior Engineers, shall be fixed with reference to the notional date arrived at after giving weightage of service;

iv. A Supervisor, who is appointed as Junior Engineer, shall put in a minimum service of one year as Junior Engineer to become eligible for promotion as Assistant Engineer;

v. No Supervisor shall ordinarily be eligible for appointment as Junior Engineer unless he has not in a minimum service of three years as Supervisors. A Supervisor with less than three years of service, who is appointed as Junior Engineer for any special reason, shall not be entitled to any weightage for his past service. 3. Necessary amendment to the Special Rules for the Andhra Pradesh Engineering Service will be issued separately.”

17. The interpretation of G.O.Ms No. 559 dated 18.7.1977 came up for consideration before this Court (through the State Administrative Tribunal) in Muralidhar. This Court dealt with the issue of seniority and concluded as follows:

i. “The weightage of four years in respect of upgraded Junior Engineers as provided in G.O.Ms. No. 559 has to be reckoned from the date of appointment and not the date of their acquiring the degree qualification; –

ii. On the basis of that notional date, their inter se seniority has to be fixed;

iii. The regularisation of the degree holders Junior Engineers who passed the SQT by giving retrospective effect cannot be held to be illegal, and their seniority among themselves shall be subject to the order of ranking given by the Public Service Commission on the basis of the SQT;

iv. The government shall prepare a common seniority list of the degree holders Junior Engineers and the upgraded Junior Engineers on the above lines and that list shall be the basis for all the subsequent promotions. Promotions, if any, already given shall be reviewed and readjusted in accordance with the said seniority list; and

v. The approval of the Public Service Commission in respect of these appointments and their seniority thus fixed need not be sought at this distance of time.” Impugned G.O.Ms No. 54 dated 15.2.1983:

18. As mentioned in G.O.Ms No. 559 dated 18.7.1977 necessary amendments in the Special Rules for the Andhra Pradesh Engineering Service were carried out by issuance on 15.2.1983 of the impugned G.O.Ms No. 54 with effect from 28.2.1972. This G.O.Ms is significant for three reasons:

i. it had retrospective operation;

ii. it statutorily regularized recruitment by transfer “of Supervisors of the Andhra Pradesh Engineering Subordinate Service who have acquired the B.E. or A.M.I.E. (India) qualification and who are approved probationers in that category.” and

iii. it inserted Note – 3 below Rule 4 of the Andhra Pradesh Engineering Service Rules. This Note dealt with issues of weightage given to the service rendered by a Supervisor and his/her entitlement to seniority. The Note reads as follows:

“(3) A Supervisor who is appointed by transfer as Junior Engineer on or after 28.2.1972 shall be entitled to count l/3rd of the service rendered as Supervisor before appointment as Junior Engineer subject to a maximum of 4 years weightage for the purpose of computing the service as Junior Engineer, which will render eligible for consideration for promotion as Assistant Engineer, and subject to the following conditions:-

i. The seniority of a Supervisor, who is appointed as Junior Engineer shall be fixed in the category of Junior Engineers with reference to the notional date arrived at after giving weightage of service aforesaid;

ii. A Supervisor who is appointed as Junior Engineer shall put in a minimum service of one year on duty as Junior Engineer, after such appointment, and a total service of five years as Junior Engineer, inclusive of the period given as weightage to become eligible for promotion as Assistant Engineer;

iii. No Supervisor shall ordinarily be eligible for appointment as Junior Engineer, unless he has put in a minimum service of three years as Supervisor;

iv. A Supervisor with less than three years of service, who is appointed as Junior Engineer for any special reasons, shall not be entitled to any weightage of his past service as Supervisor.” –

19. Aggrieved by the issuance of G.O.Ms No. 54 dated 15.2.1983 petitions were filed by aggrieved Junior Engineers in the State Administrative Tribunal questioning its validity. The Tribunal rendered its decision, which was then challenged in this Court. This Court remanded the matter for fresh consideration by the State Administrative Tribunal which then upheld the validity of the G.O.Ms. Decision of the Tribunal:

20. In its decision regarding retrospective operation given to the G.O.Ms the Tribunal held, relying upon a Constitution Bench decision in B.S. Yadav v. State of Haryana, 1980 Supp SCC 524 that retrospective operation could be given to the G.O.Ms and that there was no illegality in this regard. It was further held that the impugned G.O.Ms merely gave statutory recognition to a situation existing through the executive order contained in G.O.Ms No. 559 dated 18.7.1977.

21. The Tribunal also upheld the grant of weightage given to Supervisors who obtained a graduate degree. For arriving at this conclusion, the Tribunal referred to Devi Prasad which had found the benefit of weightage to be neither arbitrary nor unreasonable. A – reference was also made to Muralidhar in this regard. The Tribunal rejected the contention that because the post of Junior Engineer had become a gazetted post in a different cadre, a Supervisor who subsequently became a Junior Engineer was not entitled to weightage. It was held that Supervisors and Junior Engineers continued to perform substantially the same functions and hold the same responsibilities. Therefore, the mere gazetting of a post and change of cadre would not make any material difference to the principle laid down by this Court.

22. On the issue of impacting and disturbing the seniority of directly recruited Junior Engineers by Supervisors, the Tribunal initially dealt with the issue rather cursorily and held that the seniority would get altered and that there would be a certain amount of fluidity in the seniority of Junior Engineers but that was no reason to strike down G.O.Ms. However, later in its judgment, the Tribunal explained that weightage was all along being given to Supervisors and it is this that caused the fluidity in the seniority list of Junior Engineers. –

23. The Tribunal then upheld the validity of the impugned G.O.Ms and disposed of the petitions pending before it by recording the following observations:

i. “The Junior Engineers on acquisition of Degree qualification in Engineering would be entitled for weightage of those appointments are made or deemed to have been made under the Rules providing for such appointments and weightage with reference to their dates of appointment (not with reference to acquisition of degree qualification) against a vacancy in the cadre of Junior Engineer.

ii. (2) The Government is advised to consider fixing a ratio between direct recruits and those appointees by appointment by transfer to the post of Junior Engineer (now Assistant Executive Engineer) to the post of Assistant Engineer (now Deputy Executive Engineer)”. Decision of the High Court:

24. Feeling aggrieved by the decision rendered by the Tribunal, Junior Engineers challenged it in the Andhra Pradesh High Court. However, the petitioners in the High Court did not challenge the validity of the entire G.O.Ms No. 54 dated 15.2.1983 but contended that “the weightage rule should be confined to the eligibility and the same should not be considered for the purpose of seniority.” The decision of the High Court is reported as U. Govinda Rao v. Government of Andhra Pradesh, 2002 (1) ALD 347 = 2002 (1) ALT 713. –

25. While adverting to the impact of the benefit of weightage on the seniority of Junior Engineers, the High Court drew attention to the averment in one of the cases wherein a chart was drawn of the notional seniority given to Supervisors. This chart is as follows:

Sl. No. Name of the respondent Year of passing Degree Appointment as Assistant Executive Engineer (Supervisor) by transfer

1

Md. Sirajuddin

1986

7.5.1986

2

B. Seva

1986

6.5.1986

3

Ms. Zinullabuddin

1986

31.7.1986

4

G. Uppalaiah V.T.

1987

4.10.1987

5

Venkateshwarlu

1987

4.10.1987

6

K. Bhaskar

1988

8.9.1988

7

P. Maheedar Raj

1988

3.3.1989

8

A. Gopal

1988

31.3.1989

26. The High Court noted that:

i. the notional date of seniority of Supervisors was given without any reference to any existing vacancy;

ii. seniority was given to the Supervisors from a date when they did not even possess the qualification to hold the post of – Junior Engineer, and

iii. regularly appointed Junior Engineers were being subjected to a loss of seniority at the instance of those Supervisors who had been regularized subsequently.

27. The High Court then relied upon B.S. Yadav, K.C. Arora v. State of Haryana, (1984) 3 SCC 281, P.D. Agarwal v. State of U.P., (1987) 3 SCC 622 and K.V. Subba Rao v. Government of A.P., (1988) 2 SCC 201 to conclude that the civil right of seniority of the Junior Engineers could not be taken away by applying the impugned G.O.Ms retrospectively. Relying upon Devi Prasad and Muralidhar it was held that weightage of past service can be given to the Supervisors only from the date of appointment.

28. In conclusion, it was held that the impugned rule violates Article 14 and 16 of the Constitution in so far as it takes away the vested right of seniority of Junior Engineers vis-à-vis Supervisors. Discussion on the judgments:

29. Feeling aggrieved, Supervisors before the High Court preferred these appeals. Since the issue of weightage of service for eligibility purposes was decided in their favour, the principal grievance (if not the only grievance) raised by them, as noted by the Bench that earlier heard these appeals is “the validity of the rule by which – retrospective seniority benefit was given to the Junior Engineers by G.O.Ms No. 54 Irrigation (Service IV-2) dated 15.2.1983.” Indeed, before us also, the only contention related to the issue of striking down the benefit of retrospective seniority given to the Supervisors.

30. The question referred to the larger Bench arises in this context, but as noted above, it has wider implications.

31. Desai is the earliest case mentioned in the reference order and this concerned the [Gujarat] Engineering Service Rules, 1960. This case dealt with two classes of employees:

a. those who had rendered service as officiating or temporary Deputy Engineers prior to their direct recruitment as Deputy Engineers, and

b. those promotee Deputy Engineers who had rendered service as officiating or temporary Deputy Engineers prior to their promotion.

32. The case of the category (a) employees was that their ‘pre direct recruitment’ services should be counted as ‘eligibility service’ for purposes of their next promotion as Executive Engineers since the ‘pre- promotion’ services of category (b) was being so counted. In other words, without the word ‘weightage’ having actually been used, the category (a) employees wanted some weightage to be given to their ‘pre direct recruitment’ services. This Court found no basis – for such an interpretation of the relevant recruitment rules. This Court also found that the directly recruited Deputy Engineers were not discriminated against vis-à-vis promotee Deputy Engineers in this regard since they fell in two distinct groups or classes having a rational basis. Consequently, there was no violation of Article 14 or Article 16 of the Constitution.

33. The following two paragraphs from the judgment of this Court give the essence of the view of this Court: “If a person, like any of the respondents, to avoid the long tortuous wait leaves his position in the “never-ending” queue of temporary/ officiating Deputy Engineers etc. looking for promotion, and takes a short cut through the direct channel, to Class II Service, he gives up once for all, the advantages and disadvantages that go with the channel of promotion and accepts all the handicaps and benefits which attach to the group of direct recruits.

He cannot, after his direct recruitment claim the benefit of his pre-selection service and thus have the best of both the worlds. It is well-settled that so long as the classification is reasonable and the persons falling in the same class are treated alike, there can be no question of violation of the constitutional guarantee of equal treatment. “As pointed out by this Court in Ganga Ram case [(1970 1 SCC 377] in applying the wide language of Articles 14 and 16 to concrete cases, doctrinaire approach should be avoided and the matter considered in a practical way. If the claim of the respondents to the counting of their pre-selection service is conceded, it will create serious complications in running the administration; it will result in inequality of treatment rather than in removing it. If the pre- selection service as officiating Deputy Engineers of direct recruits having such service, is – taken into account for the purpose of promotion, it would create two classes amongst, the same group and result in discrimination against those direct recruits who had no such pre-selection service to their credit.”

34. The next decision in line is Devi Prasad which relates to the Andhra Pradesh Engineering Subordinate Service Rules and is, therefore, important for our purposes. This decision came to be rendered as a result of the issuance of G.O.Ms. No. 893 dated 15.6.1972 relating to Supervisors in the Andhra Pradesh Engineering Subordinate Service. By the said G.O.Ms. a note being Note 2 was inserted under Rule 4 of the Andhra Pradesh Engineering Service Rules.

35. Thereby a Supervisor working as a Junior Engineer was given a weightage of 50% of service rendered by him. This was treated as if the said Supervisor/Junior Engineer had rendered service in the post of Junior Engineer for the purpose of consideration for appointment to the post of Assistant Engineer from Junior Engineer. This G.O.Ms was challenged as being arbitrary, unreasonable and in violation of Article 14 of the Constitution.

36. As is evident, the effect of weightage was limited to eligibility for appointment to the post of Assistant Engineer from Junior – Engineer – it had no reference to seniority. This Court found that there was nothing capricious in the “limited benefit of weightage” being given to Supervisors. This Court also concluded that the grant of weightage was a matter of government policy which needed no interference since it was not unreasonable or arbitrary.

37. Considered from this point of view, there is essentially no conflict between Desai and Devi Prasad. Both cases dealt with weightage for eligibility purposes and not with any reference to seniority based on the weightage given. It is true that in Devi Prasad it is mentioned that Desai was distinguishable. However, the distinguishing feature did not relate to the rules – both were statutory – but related to the reasonableness thereof. In Desai the employees took a short cut to the Class II service via direct recruitment and thereby gave up “the advantages and disadvantages that go with the channel of promotion” and accepted “all the handicaps and benefits which attach to the group of direct recruits.” This was not so in Devi Prasad where there was functional parity between Junior Engineers and Supervisors and the only real difference between the two categories was the academic superiority of the Junior Engineers. –

38. The benefit of G.O.Ms No. 893 dated 15.6.1972 was available to only a limited category of Supervisors, namely those who had obtained an engineering degree prior to 28.2.1972. Consequently, in response to representations made, the Andhra Pradesh Government issued G.O.Ms No. 451 dated 10.6.1976 containing a decision that Supervisors acquiring a graduate qualification even after 28.2.1972 should be appointed temporarily as Junior Engineers (prospectively) with immediate effect.

39. This resulted in consequential orders being G.O.Ms No. 559 dated 18.7.1977 relating to weightage of service rendered and the inter se seniority of Supervisors vis-à-vis Junior Engineers.

40. The interpretation of G.O.Ms No. 559 dated 18.7.1977 was considered in Muralidhar. This Court noted in the opening paragraph of its decision that “The dispute is regarding the inter se seniority between the Supervisors who are upgraded as Junior Engineers and the degree holders who are directly appointed as Junior Engineers.”

41. This Court endorsed the terms of the G.O.Ms without actually going into the legality thereof. This was apparently because the issue of seniority had been burning for two decades and this Court – wanted to bring a quietus to it. This is clear from the fact that in its conclusion, this Court bypassed the statutory rules which required the imprimatur of the Public Service Commission for the appointments made. While recording its conclusions, this Court said: “Having given our careful consideration particularly to the fact that this litigation has been pending for the last so many years, about two decades, we feel that it is high time a finality has to be reached by resolving the controversies and in this context we are of the view that the approval of the Public Service Commission in respect of these appointments need not be sought, if the government has not already obtained the approval of the Public Service Commission. To sum up, our conclusions are as under:

i. The weightage of four years in respect of upgraded Junior Engineers as provided in G.O.Ms. No. 559 has to be reckoned from the date of appointment and not the date of their acquiring the degree qualification;

ii. On the basis of that notional date, their inter se seniority has to be fixed;

iii. The regularisation of the degree holders Junior Engineers who passed the SQT by giving retrospective effect cannot be held to be illegal, and their seniority among themselves shall be subject to the order of ranking given by the Public Service Commission on the basis of the SQT;

iv. The government shall prepare a common seniority list of the degree holders Junior Engineers and the upgraded Junior Engineers on the above lines and that list shall be the basis for all the subsequent promotions. Promotions, if any, already – given shall be reviewed and readjusted in accordance with the said seniority list; and

v. The approval of the Public Service Commission in respect of these appointments and their seniority thus fixed need not be sought at this distance of time.”

42. Effectively, therefore, this Court not only accepted weightage of service for the benefit of Supervisors for eligibility purposes, but also for purposes of seniority by accepting the concept of a notional date for such a determination. As mentioned above, this Court did not consider the legality of the seniority of Supervisors based on weightage vis-à-vis Junior Engineers.

43. Venkat Reddy was decided on its own peculiar facts and to deal with a specific situation. As mentioned in the beginning of the judgment, the controversy ” relates to the determination of seniority between the appellants who entered service in the various engineering departments of the State initially as Supervisors and who on acquiring a degree in engineering were redesignated Junior Engineers and those graduate Junior Engineers who were temporarily appointed on ad hoc basis under Rule 10(a)(i)(1) of the Andhra Pradesh State and Subordinate Service Rules and whose – services were later regularised under GOMs No. 647 dated September 14, 1979.”

44. Venkat Reddy concerned itself with the seniority of a limited class of Junior Engineers who were appointed temporarily on an ad hoc basis and subsequently regularized. The case centred round the interpretation of the latter part of clause (ii)(a) of G.O.Ms No. 647 dated 14.9.1979 containing the words “should be regularised from the next date following the date on which the last regular appointment in that category was made in the unit concerned”. The relevant portion of the G.O.Ms reads as follows:

i. “the services of all temporary Government employees who were appointed by direct recruitment to any category or post and are continuing in service as on August 9, 1979 should be regularised without subjecting them to any test written or oral;

ii. (a) the services of all temporary employees in all categories, other than LDCs, Typists and Steno-typists, in the Offices of the Heads of Departments and Junior Assistants, Typists and Steno-typists in the Secretariat, should be regularised from the next date following the date on which the last regular appointment in that category was made in the unit concerned or from the date of temporary appointment whichever is later;”

45. The controversy arose due to a ban on the recruitment of Junior Engineers through the Public Service Commission in Andhra Pradesh. To sidestep the ban, Junior Engineers were recruited on a – temporary and ad hoc basis under Rule 10(a)(i)(1) of the Andhra Pradesh State and Subordinate Service Rules (paragraph 2 of the Report). This rule provides that where it is necessary in the public interest to emergently fill a vacancy in the post borne on the cadre of a service, class or category and if the filling of such vacancy in accordance with the rules is likely to result in undue delay, the appointing authority may appoint a person temporarily otherwise than in accordance with the said rules (paragraph 10 of the Report).

46. In due course of time, the question of the regularization of these Junior Engineers came up for consideration. The State Government then lifted the ban on recruitment and decided to regularize the services of the temporary and ad hoc Junior Engineers after subjecting them to a Special Qualifying Test (SQT) conducted by the Public Service Commission.

47. Some temporary and ad hoc Junior Engineers were ineligible to take the SQT while others were eligible and they did take the test but did not qualify. It was to accommodate these Junior Engineers (and others similarly placed) that G.O.Ms No.647 dated 14.9.1979 was issued and it is under these atypical circumstances that Venkat Reddy was decided and the expression relating to – regularization “from the next date following the date on which the last regular appointment in that category was made” occurring in the said G.O.Ms interpreted. Given these facts, this decision does not impact on the question that we are concerned with in these appeals.

48. Narayanan concerned itself with the validity of the Karnataka Public Works Engineering Department Service (Recruitment) (Amendment) Rules, 1985. These were challenged by directly recruited Assistant Engineers, inter alia, for giving retrospective appointment to diploma holders and seniority even prior to the date of their eligibility. More specifically, this Court considered the impact of retrospective operation of an amendment to the rules made in 1985 with effect from 1976 and finding no nexus between the appointment and giving retrospective effect to the appointment, struck down its retrospective operation. In this context, it was observed: “The retrospective operation of the impugned rule attempts to disturb a system which has been existing for more than twenty years. And that too without any rationale. Absence of nexus apart no rule can be made retrospectively to operate unjustly and unfairly against other (sic). In our opinion the retrospective operation of the rule with effect from January 1, 1976 is discriminatory and violative of Articles 14 and 16.”

49. This Court quoted Note (2) relating to the appointment by transfer of a Junior Engineer to the post of Assistant Engineer, as introduced by the impugned amendment. However, it did not deal with the issue of seniority, apparently since the retrospective operation of the impugned rule was struck down, which had its consequential effect. Note (2) as per the impugned amendment reads as follows: “2. Amendment of the Schedule: In the Schedule to the Karnataka Public Works Engineering Department Services (Recruitment) Rules, 1960, in the entries relating to the category of posts of ‘Assistant Engineer’ for columns (2) and (3) the following shall be substituted, namely: By direct recruitment or by transfer of a Junior Engineer. For Direct recruitment: Should be a holder of a degree in Civil Engineering or Mechanical Engineering depending upon the requirements, as the case may be or of a Diploma certificate from a recognised Institute of Engineers that he has passed parts A and B of the Associate Membership Examination of the Institute of Engineers or equivalent qualification. Age: Must not have attained the age of thirty-five years. For transfer: Must possess B.E., or AMIE (India) qualification in Civil Engineering, or Mechanical Engineering.

Note (1) The option of the Junior Engineer shall be obtained before such transfer within the time stipulated by the Government.

Note (2) The transfer shall be effective from the date of graduation subject to the availability of vacancies without ignoring the inter se seniority among those eligible for such transfer.”

50. Without discussion, this Court restricted the applicability of Note (2) and held that it shall be read as providing eligibility only.

51. To sum up, therefore, Desai and Devi Prasad dealt with issues of granting weightage to a section of employees for the purposes of eligibility for appointment or promotion. In principle, this Court did not object to the grant of weightage, provided that it did not violate Article 14 or Article 16 of the Constitution. The principle having been settled by this Court, the validity of a statutory rule or executive order would have to be tested on that touchstone.

52. Muralidhar endorsed Desai and Devi Prasad on the principle relating to the grant of weightage for eligibility purposes. This issue, therefore, is no longer res integra. However, Muralidhar extended the weightage, sub silentio, to the issue of seniority as well without examining the legality or validity thereof. The issue of weightage for seniority was not specifically raised before this Court – and it also appears, as mentioned above, that this Court wanted to bring a quietus to litigation pending for about two decades on the issue. That the expectation of this Court was belied is clear from the fact that another two decades have gone by and we are still grappling with this issue.

53. Venkat Reddy was decided in the context of a specific situation and did not lay down any general principle for application either confirming or contradicting the principles laid down in Desai, Devi Prasad or Muralidhar.

54. Narayanan also did not concern itself with the validity of weightage of service for appointment or promotion nor did it concern itself with any issue of seniority. It was confined merely to the retrospective operation of a statutory rule, which it struck down with consequential effect.

55. Where does this leave us in so far as the decisions mentioned in the reference order are concerned? On the question of weightage of service for appointment or promotion the issue is now well settled. However, on the question of weightage of service for seniority, the issue is still open since the judgments in the reference – deal with different and, in some cases, specific or limited issues. Hence this reference.

56. The problem as we see it is that somewhere down the line, the issue came to be limited to the Andhra Pradesh Engineering Service. In our opinion, the reference concerns a much larger audience and we propose to answer it in that light and not in the limited context of the submission made relating to the validity of the rule by which retrospective seniority benefit was given to the Junior Engineers by G.O.Ms No. 54 dated 15.2.1983. Answering the questions:

57. As far as the impact of the retrospective operation of the executive instructions or statutory rules on the seniority of employees is concerned (including the Junior Engineers before us), this issue is now settled by a few recent decisions of this Court. There is no doubt that retrospective operation can be given to statutory rules such as the Andhra Pradesh Engineering Service Rules. But, the retroactivity must still meet the test of Article 14 and Article 16 of the Constitution and must not adversely trench upon the entitlement of seniority of others. –

58. Without intending to multiply precedents on this subject, reference may be made to a decision rendered by this Court more than two decades ago. In State of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334 it was held that retrospective seniority cannot be given to an employee from a date when he was not even born in the cadre. So also, seniority cannot be given with retrospective effect so as to adversely affect others. Seniority amongst members of the same grade must be counted from the date of their initial entry into the grade. It was held: “In the instant case, the promotee respondents 6 to 23 were not born in the cadre of Assistant Engineer in the Bihar Engineering Service, Class II at the time when respondents 1 to 5 were directly recruited to the post of Assistant Engineer and as such they cannot be given seniority in the service of Assistant Engineers over respondents 1 to 5.

It is well settled that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others. It is well settled by several decisions of this Court that amongst members of the same grade seniority is reckoned from the date of their initial entry into the service. In other words, seniority inter se amongst the Assistant Engineers in Bihar Engineering Service, Class II will be considered from the date of the length of service rendered as Assistant Engineers.

This being the position in law respondents 6 to 23 cannot be made senior to respondents 1 to 5 by the impugned government orders as they entered into the said service by promotion after respondents 1 to 5 were directly recruited in the quota of direct recruits. The judgment of the High Court quashing the impugned government orders made in Annexures 8, 9 and 10 is unexceptionable.”

59. This decision was cited with approval, a few years ago, along with the decision rendered in Keshav Chandra Joshi v. Union of India, 1992 Supp (1) SCC 272. This Court held that when a quota is provided for, then the seniority of the employee would be reckoned from the date when the vacancy arises in his/her quota and not from any anterior date of promotion or subsequent date of confirmation. It was observed that injustice ought not to be done to one set of employees in order to do justice to another set. It was said in Uttaranchal Forest Rangers’ Assn. (Direct Recruit) v. State of U.P., (2006) 10 SCC 346, on referring to these judgments that:

“We are also of the view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to adversely affect the direct recruits appointed validly in the meantime, as decided by this Court in Keshav Chandra Joshi v. Union of India [1992 Supp (1) SCC 272] held that when promotion is outside the quota, seniority would be reckoned from the date of the vacancy within the quota rendering the previous service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotees, it would not be proper to do injustice to the direct recruits. – “This Court has consistently held that no retrospective promotion can be granted nor any seniority can be given on retrospective basis from a date when an employee has not even borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validly in the meantime.”

60. However, the mere existence of a vacancy is not enough to enable an employee to claim seniority. The date of actual appointment in accordance with the required procedure becomes important in such a case. This was so held in State of Uttaranchal v. Dinesh Kumar Sharma, (2007) 1 SCC 683 [followed in Nani Sha v. State of Arunachal Pradesh, (2007) 15 SCC 406] where it was said: “Another issue that deserves consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited. Here the respondent’s contention is that since the vacancy arose in 1995-96 he should be given promotion and seniority from that year and not from 1999, when his actual appointment letter was issued by the appellant. This cannot be allowed as no retrospective effect can be given to the order of appointment order under the Rules nor is such contention reasonable to normal parlance. This was the view taken by this Court in Jagdish Ch. Patnaik v. State of Orissa [(1998) 4 SCC 456].”

61. More recently, and finally, in Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267 all relevant precedents on the subject were considered, including the Constitution Bench decision in – Direct Recruit Class II Engg. Officers’ Assn. v. State of Maharashtra, (1990) 2 SCC 715 and the legal position summarized (by Lodha, J.) as follows:

i. “(i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.

ii. (ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure there from in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.

iii. Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.

iv. The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.”

62. In a separate but concurring opinion, Aftab Alam, J. reiterated the position but referred to some more precedents on the subject. It was then said: – “To the decisions referred to on this point in the main judgment I may add just one more in Suraj Parkash Gupta v. State of J & K [(2000) 7 SCC 561]. The decision relates to a dispute of seniority between direct recruits and promotees but in that case the Court considered the question of antedating the date of recruitment on the ground that the vacancy against which the appointment was made had arisen long ago. In SCC para 18 of the decision the Court framed one of the points arising for consideration in the case as follows: (SCC p. 578)

“18. (4) Whether the direct recruits could claim a retrospective date of recruitment from the date on which the post in direct recruitment was available, even though the direct recruit was not appointed by that date and was appointed long thereafter?” This Court answered the question in the following terms: (Suraj Parkash Gupta case SCC p. 599, paras 80-81) “Point 4 Direct recruits cannot claim appointment from the date of vacancy in quota before their selection 80. We have next to refer to one other contention raised by the respondent direct recruits. They claimed that the direct recruitment appointment can be antedated from the date of occurrence of a vacancy in the direct recruitment quota, even if on that date the said person was not directly recruited. It was submitted that if the promotees occupied the quota belonging to direct recruits they had to be pushed down, whenever direct recruitment was made. Once they were so pushed down, even if the direct recruit came later, he should be put in the direct recruit slot from the date on which such a slot was available under the direct recruitment quota.

81. This contention, in our view, cannot be accepted. The reason as to why this argument is wrong is that in service jurisprudence, a direct recruit can claim seniority only from the date of his regular appointment. He cannot claim seniority from a date when he was not borne in the service. – This principle is well settled. In N.K. Chauhan v. State of Gujarat [(1977) 1 SCC 308], Krishna Iyer, J. stated: (SCC p. 325, para 32) Later direct recruit cannot claim deemed dates of appointment for seniority with effect from the time when direct recruitment vacancy arose. Seniority will depend upon length of service. Again, in A. Janardhana v. Union of India [(1983) 3 SCC 601] it was held that a later direct recruit cannot claim seniority from a date before his birth in the service or when he was in school or college. Similarly it was pointed out in A.N. Pathak v. Secy. to the Govt. [(1983) 3 SCC 601] that slots cannot be kept reserved for [the] direct recruits for retrospective appointments.”

63. The facts of the appeals before us show that at least some of the Supervisors were given retrospective seniority on the date when they were not even eligible for appointment as Junior Engineers. The precedents referred to above show that this is impermissible. In addition as pointed out by the High Court, there is no indication of the vacancy position, that is, whether the Supervisors could be adjusted in the grade of Junior Engineers from the date on which they were given notional retrospective seniority. There is also no indication whether the quota of vacancies for Supervisors was adhered to as on the date on which they were given notional retrospective seniority. The case law suggests that this is an – important factor to be considered. Finally, it is quite clear that the grant of retrospective seniority to Supervisors has adversely impacted on the promotion chances of Junior Engineers by bringing them down in seniority. This too is impermissible.

64. From the various decisions referred to and from the facts of the case, it is clear that to pass the scrutiny of Article 14 of the Constitution, the seniority of Supervisors should be reckoned only from the date on which they satisfied all the real and objective procedural requirements of the Andhra Pradesh Engineering Service Rules and the law laid down by this Court. This has not happened in the present appeals creating a situation of unreasonableness and unfairness.

65. It may be mentioned that by the time Muralidhar came to be decided, the impugned G.O.Ms No. 54 dated 15.2.1983 had already come into existence. Though this was brought to the notice of this Court, its validity was neither examined nor determined. This is the first occasion when the constitutional validity of the said G.O.Ms has been considered. – Conclusion:

66. For the reasons aforesaid, we see no occasion for interfering with the view taken by the High Court to the effect that the grant of retrospective seniority to Supervisors on their appointment as Junior Engineers violates Article 14 of the Constitution. The weightage of service given to the Supervisors can be taken advantage of only for the purpose of eligibility for promotion to the post of Assistant Engineer. The weightage cannot be utilized for obtaining retrospective seniority over and above the existing Junior Engineers.

67. We may mention that in Asis Kumar Samanta v. State of West Bengal, (2007) 5 SCC 800, the question whether retrospective promotion or seniority can be granted or not has been referred by a Bench of two learned Judges to a larger Bench. It has been noted therein that the grant of retrospective promotions and seniority was accepted by this Court in four decisions while grant of retrospective seniority was held to be ultra vires in five decisions. When these appeals came up for hearing on 02.5.2013, learned counsel for Asis Kumar Samanta sought an adjournment to make alternative arrangements since he could not appear against the – State of West Bengal. Accordingly, that matter was adjourned beyond the ensuing summer vacations.

68. Be that as it may, the pendency of a similar matter before a larger Bench has not prevented this Court from dealing with the issue on merits. Even on earlier occasions, the pendency of the matter before the larger Bench did not prevent this Court from dealing with the issue on merits. Indeed, a few cases including Pawan Pratap Singh were decided even after the issue raised in Asis Kumar Samanta was referred to a larger Bench. We, therefore, do not feel constrained or precluded from taking a view in the matter.

69. The question referred to us is answered accordingly and the appeals are dismissed, but with no order as to costs.

…………………..J. (R.M. Lodha)

…………………..J. (Madan B. Lokur)

…………………..J. (Kurian Joseph)

New Delhi

July 3, 2013

Posted in Advocate in Lucknow | Tagged

Shri Lal Mahal Ltd. Vs. Progetto Grano Spa

Shri Lal Mahal Ltd. Vs. Progetto Grano Spa

[Civil Appeal No. 5085 of 2013 arising out of SLP (C) No. 13721 of 2012]

R.M. LODHA, J.

1. Leave granted.

2. The question for consideration in this appeal by special leave is whether appeal award no. 3782 and appeal award no. 3783 both dated 21.09.1998 passed by the Board of Appeal of the Grain and Feed Trade Association, London (for short, “Board of Appeal”) in favour of the respondent are enforceable under Section 48 of the Arbitration and Conciliation Act, 1996 (for short, “1996 Act”)?

3. By a contract dated 12.05.1994 between Shiv Nath Rai Harnarain (India) Company, New Delhi (sellers) and Italgrani Spa, Naples, Italy (buyers) a transaction relating to 20,000 MT (+/- 5%) of Durum wheat, Indian Origin (for short, “goods”) for a price at US$ 162 Per MT was concluded. Some of the salient terms of the contract are as follows: “Commodity Durum Wheat Indian Origine new crop Test Weight 80 KG/HL.MIN Moisture 12 PCT.MAX Vitrious 80 PCT. MIN Broken 3 PCT. MAX Proteine 12 PCT. MIN Foreign Matter 2 PCT MAX Sprouted/Spotted 1 PCT. MAX Soft Wheat 1.5 PCT. MAX Quantity 20,000 MT With 5%+/- Sellers Option in 1 single shipment Shipment 1-30/June 1994 Quantity final at loading Quality, Conditions All final at time and place of loading As per first class Intl Company Cert.

“S.G.S.”, nominated by the buyers certificate and quality showed at the certificate will be the result of an average samples taken jointly at port of loading by the representatives of the sellers and the buyers. Price US Dlrs 162,00 Per M. Ton FOB stowed Kandla, Buyers to give 10 days preadvise of vessels arrival Payment Against 100 PCT L/Credit irrevocable and confirmed for 100 PCT payable at sight against Foll. Shipping docs Other conditions All other terms and conditions not in contradictions with the above to be as per G.A.F.T.A Rules, 64/125 and its successive Amendments (In force at time and place of shipment date) which the parties admit that they have knowledge and notice.”

4. The buyers opened a letter of credit (L/C) on 17.06.1994 in favour of the sellers. The sellers claim that all documents required under the L/C, including the S.G.S India Limited certificate, were submitted by them which were accepted by the buyers’ bankers and payment was duly released to the sellers.

5. The buyers nominated M.V. Haci Resit Kalkavan as the vessel for loading of the goods. There was delay in shipment but that is not material for the purposes of this appeal. The ship completed loading on 13.08.1994 and sailed for discharge port. The Bill of Lading was dated 08.08.1994.

6. The sellers faxed a copy of SGS India certificate of weight, quality and packing to the buyers on 16.08.1994. The buyers passed a copy of that certificate to SGS, Geneva with the request to them to issue the necessary certificate under the sale contract which the buyers had entered with ‘Office Alegerien Inter professional das cereals’ (OAIC). After the goods had reached the destination, the buyers sent a fax to the sellers on 23.08.1994 advising that analysis carried out by S.G.S. Geneva showed the wheat loaded was soft common wheat and not durum wheat as required under the contract. The buyers considered the sellers to be in breach of the contract for shipping un-contractual goods and held sellers responsible for all losses/damages both direct and indirect arising out of and the consequence of such breach.

7. The sellers on 31.08.1994 responded to the above communication and asserted that S.G.S. India was an inspection agency; the wheat supplied was inspected by S.G.S. India at the time of procurement and also before loading the vessel and the inspection agency had confirmed that the wheat supplied met typical characteristics of Indian durum wheat and complied with the specifications provided in the contract.

8. The buyers claimed arbitration on 04.11.1994 which was registered as case no. 11715A. The Arbitral Tribunal, GAFTA proceeded to arbitrate the dispute. The Arbitral Tribunal, GAFTA in its award dated 04.12.1997 accepted the buyers’ case that in appointing S.G.S. Geneva, their aim was to safeguard the performance of both contracts by having one company to coordinate all operations regarding inspection, control and the issue of certificate relating to the cargo and rejected the sellers’ assertion that having loaded the goods, and presented a certificate provided by an international superintendence company, they had fulfilled their contractual obligations.

The sellers’ contention that S.G.S. India were nominated by the buyers and they were agents for buyers was rejected. The Arbitral Tribunal, GAFTA, concluded that wheat described on the certificate of quality and condition presented by the sellers as durum wheat of Indian origin was, in fact, soft wheat. The certificate was held to be uncontractual and with regard to description, it was held that sellers were in breach of contract and the buyers were entitled to damages based on the difference between the contract price and the FOB value of the goods as delivered and buyers were also entitled to any further proven loss directly and naturally resulting in the ordinary course of events from the breach.

The Arbitral Tribunal, GAFTA passed the final award in the following terms: “We do hereby award that Sellers shall pay Buyers forthwith the sum of US $ 1,023,750.00 (One million twenty three thousand seven hundred and fifty United States dollars) being the difference between the FOB contract price-US $ 162.00 per tonne less US $ 2.00 per tonne penalty for extending the shipment period, i.e. US $ 160.00 per tonne, and the FOB price of the Soft wheat shipped on m.v. “HACI RESIT KALKAVAN” i.e. US$ 111.25 per tonne amounting to US $ 48.75 per tonne on 21,000 tonnes, equating to US $ 1023.750 together with interest thereon at the rate of 7% (Seven percent) per annum from 24th August 1994 to the date of this Award.

We do further award that Sellers shall pay Buyers forthwith the sum of US $ 303,007.60 (Three Hundred and three thousand and seven United States dollars and 60 cents.) being the loss incurred in replacing the wheat shipped on m.v. “HACI RESIT KALKAVAN” with Durum wheat shipped on M.V. “EUROBULKER 1” and M.V. “SEA DIAMOND H” together with interest thereon at 7% (Seven percent) per annum on: US$ 276,512.40 (the loss on M.V. “EUROBULKER 1”) from 1st October, 1994 to the date of this Award. AND US$ 26,495.20 (the loss on M.V. “SEA DIAMOND H”) from 5th December, 1994 to the date of this Award.

We do further award that sellers shall pay Buyers forthwith the sum of US $ 138,590.28 (One hundred and thirty eight thousand five hundred and ninety United States dollars and 28 cents) being demurrage incurred on M.V. “HACI RESIT KALKAVAN” amounting to 19 days 10 minutes at US $ 7,000 per day/pro-rata equating to US $ 138.590.28 together with interest thereon at a rate of 7% (Seven percent) per annum from 30th September 1994 to the date of this Award. We do further award that Sellers claim for the return of US $ 42,000 fails.”

9. It appears that following the commencement of arbitration proceedings, the sellers contested the jurisdiction of the Arbitral Tribunal, GAFTA. The sellers filed a petition in Delhi High Court for a declaration that there was no arbitration agreement between the parties. They also prayed for an order restraining the Arbitral Tribunal, GAFTA from proceeding with the arbitration initiated by the buyers. Although initially interim order was granted but the petition was finally dismissed by Delhi High Court. The special leave petition from that order was dismissed by this Court. In the meanwhile, the Arbitral Tribunal, GAFTA had passed an interim award on 16.10.1995 holding, inter-alia, that the arbitration claim was properly made and it had jurisdiction to decide both the preliminary and substantive issues. On 05.02.1997, buyers made a separate claim for arbitration for sellers’ alleged breach of the arbitration agreement in bringing legal proceedings in India concerning the first dispute before it had been determined under the GAFTA Rules. As regards this claim also, the Arbitral Tribunal, GAFTA was constituted and an award No. 12159 dated 04.12.1997 came to be passed by the Arbitral Tribunal, GAFTA.

10. From the above two awards, namely, award no. 11715A and award no. 12159, the two appeals being appeal award no. 3782 and appeal award no. 3783 were filed by the sellers before the Board of Appeal. The Board of Appeal disposed of appeal award no. 3782 (arising out of award No. 11715A) on 21.09.1998 and passed the award in the following terms: “We do hereby award that Sellers shall forthwith pay to Buyers the sum of US$ 1,023,750.00 (one million, twenty three thousand seven hundred and fifty United States Dollars) being the difference in value of US$ 48.75 per tonne between the goods supplied and goods of the contractual description calculated on 21,000 tonnes, together with interest thereon at 7% (Seven per centum) per annum from 24th August, 1994 to the date of this Award.

We further award that Sellers shall forthwith pay to Buyers the sum of US $ 138,590.28 (one hundred and thirty eight thousand five hundred and ninety United States Dollars and twenty eight cents), being demurrage incurred at load, together with interest thereon at 7% (seven per centum) per annum from 30th September 1994 to the date of this Award. We further award that Buyers’ claim for consequential damages fails. We further award that Sellers shall forthwith pay to Buyers the sum of £ 4,340.00 (four thousand three hundred and forty pounds sterling only), being the fees and expenses of Arbitration 11715A. We further award that Sellers shall forthwith pay to Buyers the sum of £ 1,750 (one thousand seven hundred and fifty pounds only), being the costs and expenses of Buyers’ Representative in preparing and presenting this case.”

11. Appeal award no. 3783 (arising out of award no. 12159) was disposed of also on the same day by the following award: “We do hereby award that sellers shall forthwith pay to Buyers as part of their damages the sum of £ 1,762.90 (one thousand seven hundred and sixty two pounds and ninety pence), being the reasonable charges and disbursements of Middleton Potts incurred in considering and responding to the proceedings taken by Sellers in India. We further award that Sellers shall pay to Buyers as the balance of their damages the sum of £ 15,924.00 (fifteen thousand nine hundred and twenty four pounds), being the total of O.P. Khaitan’s four invoices nos. ATP/804 of 1995/6, ATP/206 of 1996/7, ATP/286 of 1996/7 and ATP/767 of 1996/7, or such lesser sum as shall be agreed by the parties or assessed by an appropriate officer or person in India, in either Indian rupees or sterling as being the reasonable fees, expenses, etc. incurred in considering and responding to the proceedings taken by Sellers in India.

But we reserve to ourselves the right to assess these fees, expenses, etc. upon application of one or both of the parties, in the event that the parties are neither able to agree them, nor able to agree upon an appropriate officer or person in India to assess them. We further award that Sellers shall forthwith pay to Buyers the costs and expenses of the first tier arbitration no. 12159 in the amount of £2,190.00 (two thousand one hundred and ninety pounds) together with £ 85.00 (eighty five pounds), being the fee for appointment of an arbitrator on Sellers’ behalf. We further award that Sellers shall forthwith pay to Buyers the sum of £ 500 (five hundred pounds only) being the costs and expenses of Buyers’ Representative in preparing and presenting this case.”

12. The sellers challenged the appeal award no. 3782 in the High Court of Justice at London. The appeal was dismissed on 21.12.1998. The sellers did not challenge the award passed by the Board of Appeal in appeal award no. 3783. Both awards, thus, have attained finality.

13. It was then that buyers instituted a suit in the Delhi High Court for enforcement of the awards both dated 21.09.1998 passed by the Board of Appeal in appeal award no. 3782 and appeal award no. 3783. The sellers raised diverse objections to the enforcement of the above awards.

14. The appellant, Shri Lal Mahal Limited, is successor in interest of the sellers while the respondent Progetto Grano SPA is the successor in interest of buyers. When the proceedings were pending before the Delhi High Court, the substitution in the proceedings took place. This is how the parties are now described in the appeal. For the sake of convenience, we shall continue to refer the appellant as ‘sellers’ and the respondent as ‘buyers’.

15. Inter alia, the submission of the sellers before the High Court was that the appeal awards passed by the Board of Appeal which are sought to be enforced are contrary to the public policy of India inasmuch as they are contrary to the express provisions of the contract entered into between the parties. The sellers submitted before the Delhi High Court that the Board of Appeal erred in accepting the test report by S.G.S. Geneva whereas under the contract, it was the test report of S.G.S.India that was material. The goods in question were inspected at the port of discharge in the absence of the sellers. In terms of the contract between the parties, the inspection certificate was given by S.G.S. India which was nominated by the buyers themselves. There was no requirement for any inspection at the point of discharge of the consignment. Responsibility of the sellers ceased after the said obligation was fulfilled.

16. On the other hand, it was submitted on behalf of the buyers before Delhi High Court that the plea raised before the Board of Appeal on the certificate issued by the S.G.S. Geneva was a matter of appreciation of evidence and determination of question of fact which is beyond the scope of the proceedings under Section 48 of the 1996 Act. The buyers submitted that the sellers cannot be permitted to reopen questions of fact as already decided by the Board of Appeal which were affirmed by the High Court of Justice at London. Seeking enforcement of the awards of the Board of Appeal, it was submitted that there was nothing in the awards which could be said to be against the public policy of India.

17. Dealing with the submissions made on behalf of the parties, the High Court considered the objections of the sellers and recorded its conclusion as follows: “23. The above conclusion of the GAFTA Arbitral Tribunal is based on an appreciation of the evidence produced by the parties. The stark finding, confirmed by the reports of three independent analysts, two in Greece (one a private lab and another State lab) and the FMBRA in England, was that the consignment sent by the Defendant contained only 9% durum wheat. 90% was soft wheat. In the circumstances, the only conclusion possible was the one arrived at by the Arbitral Tribunal viz., “the wheat, described on the Certificate of Quality and Condition presented by Sellers as Durum wheat of Indian origin, was soft wheat.”

This conclusion has been affirmed by the impugned Appeal Award No. 3782 by the Board of Appeal, GAFTA. It has been further affirmed by the rejection by the High Court of Justice at London of the Defendant’s petition challenging the Appeal Award No. 3782. The above conclusion cannot be held to be contrary to the terms of the contract or to the public policy of India. Further, this Court is not expected in enforcement proceedings, re-determine questions of fact. The grounds enumerated in Section 48 of the Act are meant to be construed narrowly and does not permit a review of the foreign award on merits.”

18. Then in paragraph 25 of the impugned judgment, the High Court observed that there was no serious defence in opposition to the enforcement of two foreign awards. The High Court overruled the objections raised by the sellers to the enforcement of foreign awards and held that they were enforceable under Part II of the 1996 Act.

19. We have heard Mr. Rohinton F. Nariman, learned senior counsel for the appellant (sellers) and Mr. Jayant K. Mehta, learned counsel for the respondent (buyers) at quite some length.

20. Having regard to clause (b) of sub-section (2) of Section 48 of the 1996 Act, we shall immediately examine what is the scope of enquiry before the court in which foreign award, as defined in Section 44, is sought to be enforced. This has become necessary as on behalf of the appellant it was vehemently contended that in light of the two decisions of this Court in Saw Pipes[1] and Phulchand Exports[2], the Court can refuse to enforce a foreign award if it is contrary to the contract between the parties and/or is patently illegal. It was argued by Mr. Rohinton F. Nariman, learned senior counsel for the appellant, that the expression “public policy of India” in Section 48(2)(b) is an expression of wider import than the expression “public policy” in Section 7(1)(b)(ii) of the Foreign Awards (Recognition and Enforcement) Act, 1961. The expansive construction given by this Court to the term “public policy of India” in Saw Pipes1 must also apply to the use of the same term “public policy of India” in Section 48(2)(b).

21. Mr. Jayant K. Mehta, learned counsel for the respondent, on the other hand, placed heavy reliance upon the decision of this Court in Renusagar3 and submitted that what has been stated by this Court while interpreting Section 7(1)(b)(ii) of the Foreign Awards Act in that case is equally applicable to Section 48(2)(b) of the 1996 Act and the expression “public policy of India” in Section 48(2)(b) must receive narrow meaning than Section 34. Saw Pipes1 never meant to give wider meaning to the expression, “public policy of India” insofar as Section 48 was concerned. According to Mr. Jayant K. Mehta, Phulchand Exports2 does not hold that all that is found in paragraph 74 in Saw Pipes1 is applicable to Section 48(2)(b). He argued that in any case both Saw Pipes1 and Phulchand Exports2 are decisions by a two-Judge Bench of this Court whereas Renusagar[3] is a decision of three-Judge Bench and if there is any inconsistency in the decisions of this Court in Saw Pipes1 and Phulchand Exports2 on the one hand and Renusagar3 on the other, Renusagar3 must prevail as this is a decision by the larger Bench.

22. The three decisions of this Court in Renusagar3, Saw Pipes1 and Phulchand Exports2 need a careful and close examination by us. We shall first deal with Renusagar3. It is not necessary to narrate in detail the facts in Renusagar3 . Suffice it to say that Arbitral Tribunal, GAFTA in Paris passed an award in favour of General Electric Company (GEC) against Renusagar. GEC sought to enforce the award passed in its favour by filing an arbitration petition under Section 5 of the Foreign Awards Act in the Bombay High Court. Renusagar contested the proceedings for enforcement of the award filed by GEC in the Bombay High Court on diverse grounds. Inter alia, one of the objections raised by Renusagar was that the enforcement of the award was contrary to the public policy of India. The Single Judge of the Bombay High Court overruled the objections of Renusagar.

It was held that the award was enforceable and on that basis a decree in terms of the award was drawn. Renusagar filed an intra-court appeal but that was dismissed as not maintainable. It was from these orders that the matter reached this Court. On behalf of the parties, multifold arguments were made. A three-Judge Bench of this Court noticed diverse provisions, including Section 7(1)(b)(ii) of the Foreign Awards Act which provided that a foreign award may not be enforced if the court dealing with the case was satisfied that the enforcement of the award would be contrary to public policy. Of the many questions framed for determination, the two questions under consideration were; one, “Does Section 7(1)(b)(ii) of the Foreign Awards Act preclude enforcement of the award of the Arbitral Tribunal, GAFTA for the reason that the said award is contrary to the public policy of the State of New York?” and the other “what is meant by public policy in Section 7(1)(b)(ii) of the Foreign Awards Act?”.

This Court held that the words “public policy” used in Section 7(1)(b)(ii) of the Foreign Awards Act meant public policy of India. The argument that the recognition and enforcement of the award of the Arbitral Tribunal, GAFTA can be questioned on the ground that it is contrary to the public policy of the State of New York was negated. A clear and fine distinction was drawn by this Court while applying the rule of public policy between a matter governed by domestic laws and a matter involving conflict of laws. It has been held in unambiguous terms that the application of the doctrine of “public policy” in the field of conflict of laws is more limited than that in the domestic law and the courts are slower to invoke public policy in cases involving a foreign element than when purely municipal legal issues are involved.

Explaining the concept of “public policy” vis-à-vis the enforcement of foreign awards in Renusagar 3 , this Court in paras 65 and 66 (pgs. 681-682) of the Report stated: 65. This would imply that the defence of public policy which is permissible under Section 7(1)(b)(ii) should be construed narrowly. In this context, it would also be of relevance to mention that under Article I(e) of the Geneva Convention Act of 1927, it is permissible to raise objection to the enforcement of arbitral award on the ground that the recognition or enforcement of the award is contrary to the public policy or to the principles of the law of the country in which it is sought to be relied upon.

To the same effect is the provision in Section 7(1) of the Protocol & Convention Act of 1937 which requires that the enforcement of the foreign award must not be contrary to the public policy or the law of India. Since the expression “public policy” covers the field not covered by the words “and the law of India” which follow the said expression, contravention of law alone will not attract the bar of public policy and something more than contravention of law is required. 66. . . . . . . . . This would mean that “public policy” in Section 7(1)(b)(ii) has been used in a narrower sense and in order to attract the bar of public policy the enforcement of the award must invoke something more than the violation of the law of India.

Since the Foreign Awards Act is concerned with recognition and enforcement of foreign awards which are governed by the principles of private international law, the expression “public policy” in Section 7(1)(b)(ii) of the Foreign Awards Act must necessarily be construed in the sense the doctrine of public policy is applied in the field of private international law. Applying the said criteria it must be held that the enforcement of a foreign award would be refused on the ground that it is contrary to public policy if such enforcement would be contrary to (i) fundamental policy of Indian law; or (ii) the interests of India; or (iii) justice or morality. (Emphasis supplied by us)

23. In Saw Pipes1, the ambit and scope of the court’s jurisdiction under Section 34 of the 1996 Act was under consideration. The issue was whether the court would have jurisdiction under Section 34 to set aside an award passed by the Arbitral Tribunal, GAFTA which was patently illegal or in contravention of the provisions of the 1996 Act or any other substantive law governing the parties or was against the terms of the contract. This Court considered the meaning that could be assigned to the phrase “public policy of India” occurring in Section 34(2)(b)(ii). Alive to the subtle distinction in the concept of ‘enforcement of the award’ and ‘jurisdiction of the court in setting aside the award’ and the decision of this Court in Renusagar3, this Court held in Saw Pipes1 that the term “public policy of India” in Section 34 was required to be interpreted in the context of the jurisdiction of the court where the validity of the award is challenged before it becomes final and executable in contradistinction to the enforcement of an award after it becomes final.

Having that distinction in view, with regard to Section 34 this Court said that the expression “public policy of India” was required to be given a wider meaning. Accordingly, for the purposes of Section 34, this Court added a new category – patent illegality – for setting aside the award. While adding this category for setting aside the award on the ground of patent illegality, the Court clarified that illegality must go to the root of the matter and if the illegality is of trivial nature it cannot be held that award is against public policy. Award could also be set aside if it was so unfair and unreasonable that it shocks the conscience of the court.

24. From the discussion made by this Court in Saw Pipes1 in paragraph 18* (pgs. 721-722), paragraph 22** (pgs. 723-724) and paragraph 31*** (pgs. 727-728) of the Report, it can be safely observed that while accepting the narrow meaning given to the expression “public policy” in Renusagar3 in the matters of enforcement of foreign award, there was departure from the said meaning for the purposes of the jurisdiction of the Court in setting aside the award under Section 34.

25. In our view, what has been stated by this Court in Renusagar3 with reference to Section 7(1)(b)(ii) of the Foreign Awards Act must equally apply to the ambit and scope of Section 48(2)(b) of the 1996 Act. In Renusagar3 it has been expressly exposited that the expression “public policy” in Section 7(1)(b)(ii) of the Foreign Awards Act refers to the public policy of India. The expression “public policy” used in Section 7(1)(b)(ii) was held to mean “public policy of India”.

A distinction in the rule of public policy between a matter governed by the domestic law and a matter involving conflict of laws has been noticed in Renusagar3. For all this there is no reason why Renusagar3 should not apply as regards the scope of inquiry under Section 48(2)(b). Following Renusagar 3, we think that for the purposes of Section 48(2)(b), the expression “public policy of India” must be given narrow meaning and the enforcement of foreign award would be refused on the ground that it is contrary to public policy of India if it is covered by one of the three categories enumerated in Renusagar 3. Although the same expression ‘public policy of India’ is used both in Section 34(2(b)(ii) and Section 48(2)(b) and the concept of ‘public policy in India’ is same in nature in both the Sections but, in our view, its application differs in degree insofar as these two Sections are concerned. The application of ‘public policy of India’ doctrine for the purposes of Section 48(2)(b) is more limited than the application of the same expression in respect of the domestic arbitral award.

26. We are not persuaded to accept the submission of Mr. Rohinton F. Nariman that the expression “public policy of India” in Section 48(2)(b) is an expression of wider import than the “public policy” in Section 7(1)(b)(ii) of the Foreign Awards Act. We have no hesitation in holding that Renusagar3 must apply for the purposes of Section 48(2)(b) of the 1996 Act. Insofar as the proceeding for setting aside an award under Section 34 is concerned, the principles laid down in Saw Pipes1 would govern the scope of such proceedings.

27. We accordingly hold that enforcement of foreign award would be refused under Section 48(2)(b) only if such enforcement would be contrary to (i) fundamental policy of Indian law; or (2) the interests of India; or (3) justice or morality. The wider meaning given to the expression “public policy of India” occurring in Section 34(2)(b)(ii) in Saw Pipes1 is not applicable where objection is raised to the enforcement of the foreign award under Section 48(2)(b).

28. It is true that in Phulchand Exports2 , a two-Judge Bench of this Court speaking through one of us (R.M. Lodha, J.) accepted the submission made on behalf of the appellant therein that the meaning given to the expression “public policy of India” in Section 34 in Saw Pipes1 must be applied to the same expression occurring in Section 48(2)(b) of the 1996 Act. However, in what we have discussed above it must be held that the statement in paragraph 16 of the Report that the expression “public policy of India used in Section 48(2)(b) has to be given a wider meaning and the award could be set aside, if it is patently illegal” does not lay down correct law and is overruled.

29. Having regard to the above legal position relating to the scope of “public policy of India” under clause (b) of sub-section (2) of Section 48, we shall now proceed to consider the submissions of the parties.

30. Mr. Rohinton F. Nariman, learned senior counsel for the appellant, argued that the appeal awards by the Board of Appeal cannot be enforced on the touchstone that they are contrary to public policy of India. It is so as both the Arbitral Tribunal, GAFTA and the Board of Appeal have gone beyond the terms of the contract between the sellers and the buyers. Despite the contract being FOB contract between the parties which specifically sets out that the certificate of quality obtained at the load port from the buyers’ nominated certifying agency, i.e., S.G.S. would be final and the certifying agency in fact issued such a certificate, the Arbitral Tribunal, GAFTA as well as the Board of Appeal relied upon evidence procured unilaterally by the buyers from other certifying agencies beyond the terms of the contract which was based on quality specifications of a forward contract which the buyers had signed with OAIC Algiers.

In this regard, learned senior counsel referred to the certificate issued by S.G.S. India which confirmed that weight, quality and packing of the goods met the contractual specifications both in terms of description and quality. The Merchandise was found to be sound, loyal, merchantable, free from living insects, defects, diseases and contamination of any nature. However, the buyers appointed Crepin Analysis and Controls, Rouen for testing the sample of the goods for their forward contract with OAIC Algiers. The said agency tested the goods on a completely different set of parameters as stipulated under the contract. Crepin did not even test the goods for their contents of vitreous and moisture.

31. Learned senior counsel for the appellant submitted that being an FOB contract the title of the goods and risk is passed on to the buyers the moment the goods were loaded on the ship. The goods were admittedly loaded on 08.08.1994 after which the risk fell on the buyers. In this regard reliance was placed on a decision of this Court in D.K. Lall[4].

32. Mr. Rohinton F. Nariman vehemently contended that once parties had agreed that certification by an inspecting agency would be final, it was not open to the Arbitral Tribunal, GAFTA as well as Board of Appeal, to go behind that certificate and disregard it even if the certificate was inaccurate (which was not the case). In this regard, reliance was placed on two judgments of the English courts, namely, Agroexport[5] and Alfred C. Toepfer.[6]. He submitted that House of Lords in Gill & Duffus[7] has affirmed the decision in Alfred C. Toepfer6. It was, thus, submitted that the Arbitral Tribunal, GAFTA and the Board of Appeal having disregarded the finality of the certificate issued by S.G.S. India, the awards were plainly contrary to contract and, therefore, not enforceable in India.

It was submitted on behalf of the appellant that it was not an issue in dispute and not the buyers’ case before the Arbitral Tribunal, GAFTA and/or the Board of Appeal that the procedure adopted by SGS India was not in conformity with the contract. It was, therefore, not open to the Board of Appeal to render a finding which went beyond the scope of the buyers’ very case. Accordingly, it was argued that the Board of Appeal dealt with the questions not referred to it and which were never in dispute and, therefore, award cannot be enforced because it is contrary to Section 48(1)(c) of the 1996 Act as well.

33. Learned senior counsel for the appellant highlighted that the real problem in the present case was not that S.G.S. India did not properly certify the goods and/or that they did not meet the contractual specifications provided for under the contract between the buyers and sellers but because the buyers were unable to use it for their forward contract with OAIC Algeria. This is further fortified from the fact that the buyers entered into a further contract with the sellers on 09.09.1994 for a much larger quantity of the goods with the very same specifications. He, thus, submitted that the judgment of the High Court should be set aside and the appeal awards must be held to be not enforceable in India.

34. Mr. Jayant K. Mehta, learned counsel for the respondent, on the other hand, supported the impugned judgment and submitted that the High Court was justified in dismissing the objections of the appellant as no ground was established or proved by the appellant on which enforcement of the foreign awards could be refused under Section 48 of the 1996 Act.

35. Learned counsel submitted that the FOB contract has no relevance to the liability of a seller to sell the contractual goods or to the quality of the goods sold. It is only relevant for determination of risk and liability during transportation of the goods which is not the issue in the present case. With reference to D.K. Lall4 relied upon by the learned senior counsel for the appellant, it was submitted that D.K. Lall4 was only on issue of insurance liability and in that context the nature of FOB contract had been discussed. D.K. Lall4 does not concern with the issue of sellers’ breach in selling uncontractual goods.

36. Mr. Jayant K. Mehta submitted that the findings of the Arbitral Tribunal, GAFTA, as upheld by the Board of Appeal, are that

a. the contract specified that the certification of quality is final at the time and place of loading;

b. as per the contract certification by S.G.S. India was to be conclusive based on sampling at the time and place of loading;

c. two distinct aspects were required to be considered whether S.G.S. India was the contractual party and, if yes, whether S.G.S. India certificate was in the contractual form. While it was found that S.G.S. India was the contractual agency, the sellers failed to establish that the S.G.S. India certificate was in contractual form. Buyers, on the other hand, did establish that the S.G.S. India certificate was not in contractual form,

d. S.G.S. India’s certification was uncontractual as there were two fatal errors in the certification, firstly, it did not follow the contractual specified mode of sampling in that the contract required the result to be of an average sample taken at the port of loading, not the weighted average of pre-shipment and shipment, secondly, the analysis done by S.G.S. India was doubtful;

e. as the buyers held the sellers to be in breach on the grounds of defective sampling and certification by S.G.S. India, the buyers requested the sellers to attend at discharge for joint sampling which was not accepted by the sellers and

f. the method used for determining soft wheat used by S.G.S. India obviously produced very different results to the methods used by Crepin and other laboratories. On the balance of probabilities, the Arbitral Tribunal, GAFTA found and the Board of Appeal agreed that the wheat described in the certificate of quality and condition was soft wheat and, therefore, buyers were entitled to damages.

37. Learned counsel submitted that the findings recorded by the Arbitral Tribunal, GAFTA and the Board of Appeal were in the realm of interpretation of the contract and appreciation of the evidence which cannot be reopened by arguing that the foreign award is contrary to the contract and, therefore, its enforcement would offend public policy of India. About the decisions of the English courts in Agroexport5 and Alfred C. Toepfer6 , learned counsel submitted that decisions of English courts cannot form part of public policy of India. This Court does not exercise appellate jurisdiction over the foreign awards and cannot be called upon to enquire as to whether foreign awards are contrary to the principles of English law. Learned counsel submitted that in any case the judgments of the English courts in Agroexport5 and Alfred C. Toepfer6 do not apply to the fact situation of the present case. Learned counsel also submitted that the decision of House of Lords in Gill & Duffus7 has no application to the present case.

38. Learned counsel for the respondent argued that once the sampling by S.G.S. India has been found to be uncontractual, that certificate cannot bind the buyers and, therefore, no error or illegality was committed by the Arbitral Tribunal, GAFTA, or the Board of Appeal to look into the certificate issued by Crepin. Learned counsel for the respondent thus, submitted that the Delhi High Court was justified in rejecting the objections of the appellant.

39. It is not necessary to advert to the findings recorded by the Arbitral Tribunal, GAFTA as what is sought to be enforced by the buyers is the two awards of the Board of Appeal.

40. The challenge to the enforceability of the foreign awards passed by the Board of Appeal is mainly laid by the sellers on the ground that the Board of Appeal has gone beyond the terms of the contract by ignoring the certificate of quality obtained at the load port from the buyers’ nominated certifying agency, i.e., SGS India which was final under the contract. The Board of Appeal, while dealing with the question whether the SGS India certificate was issued by the contractual party and in contractual form, noticed the clause in the contract in respect of quality and condition and it held that SGS India was an acceptable certifying party under the contract. As regards the other part of that clause that provided, “certificate and quality showed in the certificate will be the result of an average samples taken jointly at port of loading by the representatives of the sellers and the buyers”, the Board of Appeal recorded its finding as follows:

“The SGS India certificate shows that an inspection took place at the suppliers godowns inland, and representative samples taken. Sealed samples were inspected lotwise and the cargo meeting the contractual specifications was allowed to be bagged for dispatch to Kandla. Continuous supervision of loading into the vessel was also carried out at the port. The samples drawn periodically were reduced and composite samples were sealed; one sealed sample of each lot was handed over to the supplier, one sealed sample of each lot was analysed by SGS and the remaining samples were retained by SGS for a period of three months unless and until instructions to the contrary were given.

The analysis section of the certificate states that “The above samples have been analysed and the weighted average Pre-shipment and Shipment results are as under: We find that this procedure was not in conformity with the requirements of the Contract, which required the result to be of an average sample taken at port of loading, not the weighted average of pre-shipment and shipment samples. Accordingly the certificate is uncontractual and its results are not final. In consequence the Board is obliged to evaluate all the evidence presented, including the evidence of the uncontractual SGS India certificate to decide whether or not the goods were of the contractual description, i.e. Durum wheat Indian origin.” (Emphasis supplied by us)

41. Thus, having held that SGS India was the contractual agency, the Board of Appeal further held that the sellers failed to establish that the SGS India certificate was in contractual form. Two fundamental flaws in the certification by SGS India were noted by the Board of Appeal, one, SGS India’s certification did not follow the contractual specified mode of sampling and the other, the analysis done by SGS India was doubtful. The Board of Appeal then sifted the documentary evidence let in by the parties and finally concluded that wheat loaded on the vessel Haci Resit Kalkavan was soft wheat and the sellers were in breach of the description condition of the contract.

42. It is pertinent to state that the sellers had challenged the award (no. 3782) passed by the Board of Appeal in the High Court of Justice at London. The three decisions;

i. Agroexport5 by Queen’s Bench Division,

ii. Toepfer6 by Court of Appeal, and

iii. Gill & Duffus7 by House of Lords, were holding the field at the time of consideration of sellers’ appeal by the High Court of Justice at London.

In Agroexport5 , it has been held that an award founded on evidence of analysis made other than in accordance with contract terms cannot stand and deserves to be set aside as evidence relied upon was inadmissible. The Court of Appeal in Toepfer6 has laid down that where seller and buyer have agreed that a certificate at loading as to the quality of goods shall be final and binding on them, the buyer will be precluded from recovering damages from the seller, even if, the person giving the certificate has been negligent in making it. Toepfer6 has been approved by the House of Lords in Gill & Duffus 7.

The High Court of Justice at London can be assumed to have full knowledge of the legal position exposited in Agroexport 5, Toepfer6 and Gill & Duffus7 yet it found no ground or justification for setting aside the award (no. 3782) passed by the Board of Appeal. If a ground supported by the decisions of that country was not good enough for setting aside the award by the court competent to do so, a fortiori, such ground can hardly be a good ground for refusing enforcement of the award. Accordingly, we are not persuaded to accept the submission of Mr. Rohinton F. Nariman that Delhi High Court ought to have refused to enforce the foreign awards as the Board of Appeal has wrongly rejected the certificate of quality obtained from the buyers’ nominated certifying agency and taken into consideration inadmissible evidence in the nature of certificates obtained by the buyers’ for the purposes of forwarding contract.

43. Moreover, Section 48 of the 1996 Act does not give an opportunity to have a ‘second look’ at the foreign award in the award – enforcement stage. The scope of inquiry under Section 48 does not permit review of the foreign award on merits. Procedural defects (like taking into consideration inadmissible evidence or ignoring/rejecting the evidence which may be of binding nature) in the course of foreign arbitration do not lead necessarily to excuse an award from enforcement on the ground of public policy.

44. In what we have discussed above, even if it be assumed that the Board of Appeal erred in relying upon the report obtained by buyers from Crepin which was inconsistent with the terms on which the parties had contracted in the contract dated 12.05.1994 and wrongly rejected the report of the contractual agency, in our view, such errors would not bar the enforceability of the appeal awards passed by the Board of Appeal.

45. While considering the enforceability of foreign awards, the court does not exercise appellate jurisdiction over the foreign award nor does it enquire as to whether, while rendering foreign award, some error has been committed. Under Section 48(2)(b) the enforcement of a foreign award can be refused only if such enforcement is found to be contrary to (1) fundamental policy of Indian law; or (2) the interests of India; or (3) justice or morality. The objections raised by the appellant do not fall in any of these categories and, therefore, the foreign awards cannot be held to be contrary to public policy of India as contemplated under Section 48(2)(b).

46. The contention of the learned senior counsel for the appellant that the Board of Appeal dealt with the questions not referred to it and which were never in dispute and, therefore, these awards cannot be enforced being contrary to Section 48(1)(c) is devoid of any substance and is noted to be rejected.

47. In the circumstances, we hold that appeal has no merit. It is dismissed with no order as to costs.

…………………..J. (R.M. Lodha)

…………………..J. (Madan B. Lokur)

…………………..J. (Kurian Joseph)

NEW DELHI

JULY 03, 2013

[1] Oil and Natural Gas Corporation Limited v. Saw Pipes Limited; (2003) 5 SCC 705

[2] Phulchand Exports Limited v. O.OO. Patriot; (2011) 10 SCC 300

[3] Renusagar Power Co. Limited v. General Electric Company; 1994 Supp (1) SCC 644 * *18. Further, in Renusagar Power Co. Ltd. v. General Electric Co. this Court considered Section 7(1) of the Arbitration (Protocol and Convention) Act, 1937 which inter alia provided that a foreign award may not be enforced under the said Act, if the court dealing with the case is satisfied that the enforcement of the award will be contrary to the public policy. After elaborate discussion, the Court arrived at the conclusion that public policy comprehended in Section 7(1)(b)(ii) of the Foreign Awards (Recognition and Enforcement) Act, 1961 is the “public policy of India” and does not cover the public policy of any other country.

For giving meaning to the term “public policy”, the Court observed thus: (SCC p. 682, para 66)………. * **22. The aforesaid submission of the learned Senior Counsel requires to be accepted. From the judgments discussed above, it can be held that the term “public policy of India” is required to be interpreted in the context of the jurisdiction of the court where the validity of award is challenged before it becomes final and executable. The concept of enforcement of the award after it becomes final is different and the jurisdiction of the court at that stage could be limited. Similar is the position with regard to the execution of a decree. It is settled law as well as it is provided under the Code of Civil Procedure that once the decree has attained finality, in an execution proceeding, it may be challenged only on limited grounds such as the decree being without jurisdiction or a nullity.

But in a case where the judgment and decree is challenged before the appellate court or the court exercising revisional jurisdiction, the jurisdiction of such court would be wider. Therefore, in a case where the validity of award is challenged, there is no necessity of giving a narrower meaning to the term “public policy of India”. On the contrary, wider meaning is required to be given so that the “patently illegal award” passed by the Arbitral Tribunal could be set aside. If narrow meaning as contended by the learned Senior Counsel Mr. Dave is given, some of the provisions of the Arbitration Act would become nugatory.Take for illustration a case wherein there is a specific provision in the contract that for delayed payment of the amount due and payable, no interest would be payable, still however, if the arbitrator has passed an award granting interest, it would be against the terms of the contract and thereby against the provision of Section 28(3) of the Act which specifically provides that “Arbitral Tribunal shall decide in accordance with the terms of the contract”.

Further, where there is a specific usage of the trade that if the payment is made beyond a period of one month, then the party would be required to pay the said amount with interest at the rate of 15 per cent. Despite the evidence being produced on record for such usage, if the arbitrator refuses to grant such interest on the ground of equity, such award would also be in violation of sub-sections (2) and (3) of Section 28. Section 28(2) specifically provides that the arbitrator shall decide ex aequo et bono (according to what is just and good) only if the parties have expressly authorised him to do so. Similarly, if the award is patently against the statutory provisions of substantive law which is in force in India or is passed without giving an opportunity of hearing to the parties as provided under Section 24 or without giving any reason in a case where parties have not agreed that no reasons are to be recorded, it would be against the statutory provisions.

In all such cases, the award is required to be set aside on the ground of “patent illegality”. * ***31. Therefore, in our view, the phrase “public policy of India” used in Section 34 in context is required to be given a wider meaning. It can be stated that the concept of public policy connotes some matter which concerns public good and the public interest. What is for public good or in public interest or what would be injurious or harmful to the public good or public interest has varied from time to time. However, the award which is, on the face of it, patently in violation of statutory provisions cannot be said to be in public interest. Such award/judgment/decision is likely to adversely affect the administration of justice. Hence, in our view in addition to narrower meaning given to the term “public policy” in Renusagar case it is required to be held that the award could be set aside if it is patently illegal. The result would be – award could be set aside if it is contrary to:

(a) fundamental policy of Indian law; or

(b) the interests of India; or

(c) justice or morality, or

(d) in addition, if it is patently illegal Illegality must go to the root of the matter and if the illegality is of trivial nature it cannot be held that award is against the public policy. Award could also be set aside if it is so unfair and unreasonable that it shocks the conscience of the court. Such award is opposed to public policy and is required to be adjudged void.

[4] Contship Container Lines Limited v. D.K. Lall and Others; (2010) 4 SCC 256

[5] Agroexport Enterprise D’etat Pour Le Commerce Exterieur v. N.V. Goorden Import CY. U.S.A; (1956) 1 Q.B. 319

[6] Alfred C. Toepfer v. Continental Grain Co (1974) 1 Lloyds Law Reports 11

[7] Gill & Duffus S.A. v. Berger & Co.Inc. (1984) 1 Lloyd’s Law Reports 227

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