Saturday, November 14, 2009

DIRECTOR, FISHERIES TERMINAL DIVISION Versus BHIKUBHAI MEGHAJIBHAI CHAVDA

Industrial Dispute Act, 1947 — Sections 25B and 25G — 'continuous service' and 'retrenchment procedure' — workman/respondent was employed by the appellant as watchman and was paid daily wages — his services were terminated without giving notice and without complying with the provisions of Industrial Disputes Act — Labour Court directed the appellant to reinstate the respondent with 20% back wages for the period when the respondent was kept out of service — order of the Labour Court affirmed by the High Court — nothing brought on record by the appellants to support their contention that fisheries is a seasonal industry — no Government order produced by the appellants to state that the fisheries industry is seasonal — appellants inexplicably failed to produce the complete records and muster rolls from 1985 to 1991 — appellant not produced any documentary evidence to show that the workman not completed 240 days service in the preceding year — procedure for retrenchment under Section 25G not followed — no interference to the orders of the labour Court — appeal dismissed — no cost.

Supreme Court of India

CIVIL APPEAL NO.7463 of 2009

Judge(s): TARUN CHATTERJEE ,H.L. DATTU

Date of Judgment: Monday, November 09, 2009

DIRECTOR, FISHERIES TERMINAL DIVISION

Versus

BHIKUBHAI MEGHAJIBHAI CHAVDA


JUDGMENT

H.L. Dattu,J.

Leave granted.

2) This is an appeal against the judgment and order of the Gujarat High Court in S.C.A. No. 29355 of 2007 dated 30.11.2007. By the impugned judgment, the court has affirmed the award passed by the labour court, Junagadh, in Reference Case No. 192 of 1995 dated 14th May, 2007, wherein and whereunder the labour court has directed the employer to reinstate the workman into service with 20% back wages.

3) The facts in brief are : The Fisheries Terminal Department; (`F.T.D.' for short), the appellant herein, had come into existence sometime in the year 1976. The activities of F.T.D. inter alia consisted of providing landing facilities for catching fish in a clean and hygienic condition and for that purpose, services of daily wage workmen were utilized as and when it was needed. While this practice was going on, the State Government by its order dated 17.10.1988, directed all the departments of the State Government to discontinue the practice of engaging the services of daily wage workmen and in lieu of it to hire labourers on contractual basis.

4) The claim of the workman before the labour court was that he was employed by the appellant on 1.12.1985 as watchman and he was paid daily wages and his presence was also marked in the muster roll. It was further stated, that, his services were terminated without giving notice and without complying with the provisions of Industrial Disputes Act. The stand of the appellant before the labour court was that, the workman was employed on daily wage basis in the year 1986 and the workman had worked till 1988 and in all these years, the workman had worked for 93 days, 145 days and 31 days respectively, and thereby the workman had not worked for more than 240 days in any preceding year. It was also there plea, that, the appellant is a seasonal industry and, therefore, provisions under Section 25F of Industrial Disputes Act is not attracted.

5) The labour court on consideration of the oral and documentary evidence, has concluded that the appellant is an industry, since there is no evidence to show that the appropriate government had declared the appellant as a seasonal industry or the work is performed intermittently. It has also observed, that, the appellant has not produced any documentary evidence to show that the workman had not completed 240 days in the preceding year and was not in service till 1991 and, therefore, adverse inference requires to be drawn that the workman has completed continuous service of 240 days and, accordingly, has concluded that the appellant-employer could not have retrenched the services of the workman without complying with the provisions of Industrial Disputes Act. In view of the aforesaid finding and the conclusion reached, the labour court had directed the appellant to reinstate the respondent with 20% back wages for the period when the respondent was kept out of service.

6) The award passed by the labour court was challenged by the appellant before the High Court. The High Court has endorsed the award passed by the labour court, on the ground that the labour court has rightly come to the conclusion that the appellant has not established by leading cogent evidence that the appellant is not a seasonal industry. It is also observed, that, once it has come in evidence that the workman has completed 240 days of service in the preceding year, then the initial burden is shifted on the employer to rebut the oral evidence of the workman by producing relevant oral and documentary evidence and since the appellant failed to produce the same before the labour court, it was justified in concluding that the workman had completed continuous service of 240 days during the preceding year and accordingly had dismissed the writ petition filed by the appellant.

7) Being aggrieved by the judgment and order passed by the High Court, the appellant is before us in this appeal.

8) The learned counsel for the appellant submitted, that, the appellant industry is seasonal in nature and, the respondent was employed on a purely temporary basis and, therefore, the onus lies on the respondent/workman to prove that he had in fact worked for 240 days in the preceding year. It is further submitted that the claim of the workman was time barred and, therefore, the labour court ought not to have entertained the claim made by the workman, since the workman had approached the labour court nearly after eight years from the date he was supposed to have been terminated from service by the employer.

9) Per contra, the learned counsel for the respondent submitted that the workman immediately after his services were terminated by the employer, had approached the conciliation officer and on failure of the conciliation proceedings, had approached the State government to make reference of the dispute for adjudication before the labour court and, therefore, it cannot be said that the workman had approached the labour court after a long lapse of time. It is further submitted, that, the workman in his evidence, categorically had made statement before the labour court that he had worked for more than 240 days in a preceding year and, since that evidence is not rebutted by the employer by producing the relevant oral and documentary evidence which would be in their possession, the labour court was justified in drawing adverse inference against the employer. It was further submitted, that, since the appellant failed to prove before the labour court by producing necessary evidence that the appellant industry is seasonal in nature, the labour court has not committed any error whatsoever, to accept the oral assertion made by the appellant before the labour court. It is further submitted, since the findings of the labour court cannot be said as perverse findings or based on no evidence, the High Court was justified in declining to interfere with the findings of fact by the labour court in a petition filed under Article 227 of the Constitution of India.

10) From the facts as set out herein above and the submissions made by the learned counsel for the parties, the question that requires to be decided whether the labour court and the High Court was justified in allowing the claim of the workman. It is not the case of the appellant that it is not an industry as defined under Section 2(J) of the Act, but it was its specific stand before the labour court and also the High Court that it is only a seasonal industry and employ workman like the respondent only during fishing season and are relieved at the end of the season and, therefore, the labour court and the High Court were not justified in not only directing the reinstatement of workman into service but also the payment of back wages. This submission of the learned counsel in the appeal requires to be answered with reference to Section 25A of Industrial Disputes Act. The Section is as under:

"25A. Application of sections 25C to 25E.-(1) Sections 25C to 25E inclusive [shall not apply to industrial establishments to which Chapter VB applies, or--] (a) to industrial establishments in which less than fifty workmen on an average per working day have been employed in the preceding calendar month; or (b) to industrial establishments which are of a seasonal character or in which work is performed only intermittently.

(2) If a question arises whether an industrial establishment is of a seasonal character or whether work is performed therein only intermittently, the decision of the appropriate Government thereon shall be final."

11) It is now well settled by several judgments of this court, that, where a workman is employed for a seasonal work or temporary period, the workman cannot be said to be retrenched in view of Section 2(00)(bb). It is relevant to take note of what is stated by this court in the case of Morinda Co-operative Sugar Mills Ltd. vs. Ram Kishan (1995) 5 SCC 653, it was stated by this court :

"....that since the work done by the respondents is only a seasonal work, the respondents cannot be said to have been retrenched in view of what is stated in sub clause (bb) of Section 2(00) of the Act."

12) In the normal course, it is the decision of the appropriate Government which is final in determination whether the said industry is seasonal in nature. As has been observed by the labour court and the High Court, there has been nothing brought on record by the appellants to support their contention that fisheries is a seasonal industry. There has been no order from the Government which has been produced by the appellants to state that the fisheries industry is seasonal. There has been no mention of any decision on the part of the appropriate Government with regard to declaring fisheries as a seasonal industry. Therefore, we concur with the finding of the labour court wherein they have concluded that the appellant cannot be classified as a seasonal industry.

13) The next contention of the learned counsel for the appellant is that the respondent had not worked for 240 days during the preceding twelve months on daily wages and, therefore, the respondent cannot claim any protection under the provisions of Industrial Disputes Act, 1947. The case of the respondent before the labour court was that as he had completed working for more than 240 days in a year, the purported order of retrenchment is illegal, as conditions precedent as contained in Section 25F of the Industrial Disputes Act, 1947 were not complied with.

14) Section 25B of the Act defines "continuous service". In terms of Sub section (2) of Section 25B that if a workman during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer 240 days within a period of one year, he will be deemed to be in continuous service. The respondent claims he was employed in the year 1985 as a watchman and his services were retrenched in the year 1991 and during the period between 1985 to 1991, he had worked for a period of more than 240 days. The burden of proof is on the respondent to show that he had worked for 240 days in preceding twelve months prior to his alleged retrenchment. The law on this issue appears to be now well settled. This court in the case of R.M. Yellatty vs. Assistant Executive Engineer [(2006) 1 SCC 106], has observed :

"However, applying general principles and on reading the aforesaid judgments, we find that this Court, has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping up in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily-waged earners, there will be no letter of appointment of termination. There will also be no receipt of proof of payment. Thus in most cases, the workman (the claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment of termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case."

15) Applying the principles laid down in the above case by this court, the evidence produced by the appellants has not been consistent. The appellants claim that the respondent did not work for 240 days. The respondent was a workman hired on a daily wage basis. So it is obvious, as this court pointed out in the above case that he would have difficulty in having access to all the official documents, muster rolls etc. in connection with his service. He has come forward and deposed, so in our opinion the burden of proof shifts to the employer/appellants to prove that he did not complete 240 days of service in the requisite period to constitute continuous service. It is the contention of the appellant that the services of the respondent were terminated in 1988. The witness produced by the appellant stated that the respondent stopped coming to work from February, 1988. The documentary evidence produced by the appellant is contradictory to this fact as it shows that the respondent was working during February, 1989 also. It has also been observed by the High Court that the muster roll for 1986-87 was not completely produced. The appellants have inexplicably failed to produce the complete records and muster rolls from 1985 to 1991, inspite of the direction issued by the labour court to produce the same. In fact there has been practically no challenge to the deposition of the respondent during cross-examination. In this regard, it would be pertinent to mention the observation of three judge bench of this court in the case of Municipal Corporation, Faridabad Vs. Siri Niwas [(2004) 8 SCC 195], where it is observed:

"A Court of Law even in a case where provisions of the Indian Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against this contentions. The matter, however, would be different where despite direction by a court the evidence is withheld."

16) It is not in dispute that the respondent's service was terminated without complying with the provisions of Section 25F of Industrial Disputes Act. Section 25G of the Act provides for the procedure for retrenchment. The section reads-

"25G. Procedure for retrenchment.- Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman."

The labour court based on the pleadings and evidence on record has come to the conclusion that the services of some of the employees junior to the respondent was continued after the respondent was discharged from its duties. The dates of joining of some of the fellow employees of the respondent like Mohanbhai, Kalubhai and Nanjibhai were not produced by the appellants. The appellants have clearly failed to prove that the services of no junior employee was continued when the services of the respondent was terminated. Thus, the procedure laid down in Section 25G has also not been followed. The findings on facts by the labour cannot be termed as perverse and need no interference.

17) It is also the case of the appellants that there is unexplained delay in approaching the labour court in adjudicating the imaginary grievance by the respondent-workman. In our view, there is no merit in this contention. The workman had approached the Conciliation Officer for resolving the dispute between the employer and the employee and it is only when the conciliation proceedings failed that the matter was referred to the labour court for final adjudication.

18) In view of the above discussion, we do not see any good ground to interfere with the impugned order. Accordingly, appeal requires to be dismissed and it is dismissed. No order as to costs.

DASHRATH RAO KATE Versus BRIJ MOHAN SRIVASTAVA

PRACTICE & PROCEDURE
Civil Procedure Code, 1908
Order 22 Rule 5 Section 11 M.P. Accommodation Control Act, 1961, Section 12(1)(c) Enquiry under Rule 5 CPC Eviction petition against the tenant by S Petition allowed During revision S died A and R brought on record in the revision petition which was allowed and matter remanded back There one D moved the application for amendment Same allowed - Against that fresh revision filed High Court again directing to decide the question of legal representative D accordingly moved application to bring himself as L.R. on record on the basis of WILL executed by S Same allowed and that order remained unchallenged On further evidence being led said decree upheld in appeal Concurrent findings of the court below upset by High Court on the ground that WILL was to be proved again as enquiry under Order 22 Rule 5 was not conclusive Justification. Held that enquiry under Order 22 Rule 5, being not conclusive, would not operate as res judicata. However in the present case, there was full fledged inquiry and WILL was conclusively proved and hence there was no need of D leading evidence again. High Court judgment set aside. Case law discussed.

Supreme Court of India

CIVIL APPEAL NO. 1621 of 2004

Judge(s): Markandey Katju,V.S. Sirpurkar

Date of Judgment: Tuesday, November 03, 2009

DASHRATH RAO KATE

Versus

BRIJ MOHAN SRIVASTAVA


JUDGMENT

V.S. SIRPURKAR, J.

1. The judgment of the High Court, allowing the Second Appeal is in challenge by way of this Appeal. The Second Appeal was filed by the respondent/defendant challenging the judgment of the Appellate Court, whereby the Appellate Court had confirmed the decree passed by the Trial Court.

The High Court framed two questions of law, they were:

"(1) Whether the Court below erred in law in treating the finding recorded in the proceedings under Order XXII Rule 5, CPC to be binding and omitting to decide the question in regard to the locus standi and entitlement of the plaintiff on merits considering the specific pleas urged by the defendant in the written statement subsequent to the substitution of the new plaintiff? and;

(2) Whether the Court below erred in law in granting a decree on the basis of the ground contemplated under Section 12 (1) (c) of the M.P. Accommodation Control Act even though the alleged disclaimer could not be taken to be anterior to the filing of the suit?"

2. Two other substantial questions proposed by the appellant (respondent herein) before the High Court by the respondent herein were:

"(1) Whether the defence contained in the written statement did constitute a ground under Section 12 (1) (c) of the M.P. Accommodation Control Act?

(2) Whether the ground under Section 12 (1) (c) is available to a derivative title holder?"

3. The High Court, however, took into consideration the first question of law and held that if that question of law was answered in favour of the appellant (respondent herein), then the Second Appeal would have to be allowed in favour of the tenant-respondent. It is only on that ground that the appeal came to be allowed. In paragraph 7 of the impunged judgment, the High Court expressed that the gist of the first question was whether the evidence recorded by the Court below before allowing the application under Order 22 Rule 5 of the Code of Civil Procedure (hereinafter referred to as `CPC', for short) could be looked into also for passing a final decree against the appellant-defendant (respondent herein). It, however, observed that if that evidence was ignored, then the plaintiff (appellant herein) had not led any evidence to show that he had locus standi to continue the suit.

4. Few facts would have to be considered. Sukhiabai [sometimes referred to as Sankhyabai] who was the sister of the grandfather of the appellant/plaintiff, owned the house. She was issueless and the appellant/plaintiff was brought up by Sukhiabai and was living with her.

The house in dispute was let out to the respondent herein as a monthly tenant and a written rent note was executed for that purpose. An application came to be filed initially in the year 1990 vide case No. 125/84- 85/90-7 before the Rent Control Authority for eviction against the present respondent. That eviction application was allowed by the Rent Control Authority and hence a Revision came to be filed vide C.R.No.198/96 in the High Court. It was during the pendency of this Revision that Sukhiabai died. The respondent impleaded one Arun and Ramesh claiming themselves to be class I heirs of Sukhiabai and eventually the Revision was allowed by the High Court and the High Court remanded the case to the Civil Court and directed that the questions as to whether intervention could be sought on the basis of the Will and as to whether the respondent was entitled to continue the suit, would have to be gone into by the Trial Court. Upon remand, the suit was numbered as 119-A/96 before the Civil Judge, Gwalior. The appellant/plaintiff moved an application for amendment of the plaint and that amendment was allowed. Against that, the present respondent filed Civil Revision No.91/97, while deciding which, the High Court directed that the question of legal representative of deceased Sukhiabai had to be determined first and after determining the rights of legal representative, a proper party has to be impleaded as the legal representative and the party so impleaded as legal representative would alone have the right to amend the plaint.

5. The present appellant then filed an application to bring himself as the legal representative on record on the basis of the Will which was executed by Sukhiabai in his favour on 26.03.1990. The appellant/plaintiff examined one Prabhakar Rao as PW-2 on 01.09.1997. After due inquiry, the application of the present appellant was allowed by the Trial Court and that is how the present appellant was brought on record in place of Sukhiabai. This order was not challenged and it became final.

6. The parties thereafter led evidence and on that basis the Trial Court decreed the suit by its judgment dated 22.01.1998. That was challenged by way of an appeal before the Additional District Judge, Gwalior, who dismissed the appeal by judgment dated 15.05.1998. These concurrent findings thereafter were challenged before the High Court and the High Court has upset the concurrent findings and has proceeded to dismiss the suit. It is this judgment which has fallen for our consideration.

7. It is clear from the findings of the Trial Court and Appellate Court that the suit has been allowed on the ground of Sections 12 (1) (c) and 12 (1) (e) of the M.P. Accommodation Control Act. The High Court has accepted the arguments of the respondent herein that in spite of the fact that the appellant/plaintiff was brought on record as legal representative of Sukhiabai on the basis of the Will, yet he should have led more evidence to prove the Will in order to prove that he had become owner on the basis of the testamentary succession of the concerned house. In short, the High Court came to the conclusion that since the inquiry under Order 22 Rule 5, CPC was of the summary nature and was limited only to the determination of the right of the appellant herein to be impleaded as the legal representative of Sukhiabai, any finding given in that inquiry would not be binding on the defendant (respondent herein) at the final stage of the suit and the plaintiff (appellant herein) would have to again prove the Will in order to establish his ownership vis-`-vis the concerned premises. The High Court went on to hold that since the title of the plaintiff (present appellant) was based on the Will and it was disputed by the defendant (present respondent), therefore, the appellant/plaintiff had to independently prove his title. For that purpose the evidence led at the time of inquiry under Order 22 Rule 5, CPC would be of no consequence. The High Court then relied upon on the law laid down in Suraj Mani & Anr. Vs. Kishori Lal [AIR 1976 HP 74], wherein it was observed that the evidence recorded during the inquiry under Order 22 Rule 5, CPC could not be equated with the evidence recorded at the time of decision on merits. Another judgment relied upon was Kalyanmal Mills Ltd., Indore Vs. Voli Mohammed [AIR 1965 MP 72]. The third decision relied and followed by the High Court was Raghnath Singh Anar Singh Vs. Gangabai (D) thr. L.R. Bhuwan Singh [AIR 1961 MPLJ 398]. The High Court then proceeded to reject the argument on behalf of the appellant/plaintiff that this was only a suit for the ejectment under the M.P. Accommodation Control Act and the respondent/defendant being an outsider could not have challenged the validity of the partition. On merits, all that was required to be seen was as to whether the appellant herein had been properly brought on record as legal representative of Sukhiabai and if that was so, there was no question of non-suiting the appellant/plaintiff on the basis that the Will was not proved independently. The High Court also went on to record a finding that the appellant herein was not a family member of Sukhiabai as she was not survived by any class I heir. In short, the High Court held that the Will was not proved independently, though on its basis, the appellant/plaintiff was allowed to be brought as a legal representative of Sukhiabai, and proceeded to dismiss the suit.

8. We are unable to agree with the reasoning of the High Court.

9. It is an admitted position that when the Civil Revision was pending before the High Court at the instance of the tenant-respondent, it was filed initially only against one Ramesh and Arun Kate, since Sukhiabai had already died after the order passed in her favour. That Civil Revision was allowed by the High Court and the High Court directed to convert the matter into a suit under M.P. Accommodation Control Act. That is how the original application for conviction was transferred to the Civil Court for hearing. It was before the Civil Court that the present appellant filed an application for being impleaded and the same was allowed without any investigation. The said impleadment was claimed on the basis of a will by Sukhiabai in favour of the appellant. In the Revision No. 91 of 1997 against this impleadment, the High Court directed the Trial Court to decide as to who is the legal heir of Sukhiabai and to substitute such a person as legal heir. In pursuance of that, a full fledged inquiry was conducted by the Trial Court, wherein three witnesses came to be examined by the present appellant to establish the will. In that enquiry, the Trial Court framed a question whether will was written by Sukhiabai and whether on the basis of the said will, appellant Dashrath Rao was her legal representative in this case. One Prabhakar Rao (PW-2) and Ganpat Rao were witnesses on the original will (Exhibit P-1). Ganpat Rao has expired. Besides himself, the appellant/plaintiff examined said Prabhakar Rao (PW-2) and got the will proved. Prabhakar Rao (PW-2) fully supported the case of the appellant in respect of the will. It is noteworthy that both, appellant and said Prabhakar Rao, were extensively cross-examined. Not only this, but the other person Ramesh Kate, who was joined as the legal representative of Sukhiabai in the first Revision, was also got examined by the appellant, who claimed clearly that he had no interest in the property and in fact, the suit house was bequeathed by Sukhiabai in favour of the appellant.

10. The respondent/defendant also examined himself and according to him, the signatures on the will was not that of Sukhiabai. After considering the evidence fully and in details, the Trial Court, by its order dated 9.9.1997, gave a declaration that present appellant Dashrath Rao was the legal representative of Sukhiabai in the case. The Trial Court also clarified that the order was only for the purpose of bringing legal representatives on record. Obviously it was under Order 22 Rule 5, CPC. It is noteworthy that this order is not further challenged by the tenant-respondent.

11. It was thereafter that the appellant/plaintiff made amendments and claimed himself to be the owner of the house in question. He also pointed out that the respondent/defendant was a tenant at a monthly rent of Rs.170/- of the whole house, but later on, the respondent/defendant had vacated one room of his tenancy and handed over it to Sukhiabai and retained 2 rooms and bathroom and the rent was fixed at Rs.130/- per month. He also pointed out that tenant had not paid any rent from 1.1.1994. He also reiterated his relationship with Sukhiabai and the facts regarding the will, as also his bonafide personal need of the rented premises.

12. In his written statement, the tenant-respondent admitted Sukhiabai to be his landlady and also accepted about the rent note dated 10.2.1980. He also again denied that the appellant/plaintiff had become owner and also denied his need. On that basis, issues came to be framed, which are as under:-

(i) Whether there is relation of land lord and tenant between plaintiff and the defendant?

(ii) Whether the defendant has not paid/cleared outstanding rent from 1.1.1984 to the plaintiff?

(iii) Whether the plaintiff is in genuine need of the suit accommodation for his own residential purpose?

(iv) Relief and Costs?

13. The evidence was again led by the appellant, wherein he asserted that the respondent/defendant was the tenant of Sukhiabai and that he had become his tenant now as per the will, since he has become owner on the basis of the will. He also reiterated the will (Exhibit P-1), regarding which Court had given decision in the enquiry under Order 22 Rule 5 CPC. He then deposed about his need. We have seen the cross-examination of this witness by the respondent/defendant, which is lengthy cross-examination and very strangely, we find not a single relevant question asked to him about the will. He was cross-examined mainly as regards his need. In para 18, a stray suggestion was given that Sukhiabai had not executed the will in his favour and that he had manipulated to prepare fraudulent will.

The appellant reiterated that the will was not only executed, but the Court has accepted it. Beyond this, there is nothing in the cross-examination. The respondent/defendant also examined himself and in his evidence also, in para 4, he reiterated that the will shown was forged. He was specifically asked in his cross-examination and he had to admit that he had filed no Revision against the order dated 9.9.1997, by which the Will was held proved, though he asserted that he was going to file the same. It was on this basis that the Trial Court held all the issues in favour of the appellant.

14. Before the first Appellate Court, again it was reiterated by the tenant- respondent (appellant therein) that the Trial Court had committed an error in holding the appellant/plaintiff to be the heir of the suit house. Some judgments were cited in support of this contention, they being Mahendra Dhapu & Ors. Vs. Ram Avtar & Ors. [1923 AIR Nagpur 209], Kalyanmal Mills Ltd., Indore Vs. Voli Mohammad & Ors. [1965 AIR M.P. 72], Raghunath Singh Vs. Ganga Basai [1961 M.P.L.J. 398], Surajmal & Ors. Vs. Kishori Lal [1976 AIR H.P. 74]. The Appellate Court distinguished all these decisions on the factual aspects and held that the Will (Exhibit P-1) was proved by the evidence of the appellant/plaintiff, as also the attesting witness. It was also pointed out that the Will was not disputed by anybody else, muchless even the interested persons. On the other hand, they had supported the Will. The Appellate Court came to the conclusion that in that view, the tenant could not be allowed to raise question on the legality of the title of the appellant herein. The Appellate Court thereafter considered the matter on merits regarding the bonafide need of the appellant and held it to be proved. The Appellate Court further went on to hold that since the tenant had challenged the title of the landlord, i.e., the appellant during the pendency of the eviction petition, the landlord became entitled under Section 12(1)(c) to get the decree of eviction. It is on this basis that the appeal came to be dismissed.

15. The High Court, however, took the view that the Will had to be proved all over again, though it was held proved earlier in the enquiry under Order 22 Rule 5, CPC. We have already earlier referred to the findings of the High Court. In our view, the view of the High Court that the Will had to be proved again, is incorrect.

16. As a legal position, it cannot be disputed that normally, an enquiry under Order 22 Rule 5, CPC is of a summary nature and findings therein cannot amount to res judicata, however, that legal position is true only in respect of those parties, who set up a rival claim against the legatee. For example, here, there were two other persons, they being Ramesh and Arun Kate, who were joined in the Civil Revision as the legal representatives of Sukhiabai. The finding on the Will in the order dated 9.9.1997 passed by the Trial Court could not become final as against them or for that matter, anybody else, claiming a rival title to the property, vis-`- vis, the appellant herein, and, therefore, to that extent, the observations of the High Court are correct. However, it could not be expected that when the question regarding the Will was gone into in a detailed enquiry, where the evidence was recorded not only of the appellant, but also of the attesting witness of the Will and where these witnesses were thoroughly cross-examined and where the defendant also examined himself and tried to prove that the Will was a false document and it was held that he had utterly failed in proving that the document was false, particularly because the document was fully proved by the appellant and his attesting witness, it would be futile to expect the witness to lead that evidence again in the main suit. It was at the instance of the High Court in the revisional jurisdiction that the direction was given that the Trial Court should first decide as to whether who could be the legal representative of Sukhiabai and after complete enquiry, the Trial Court held the Will to be proved. The Will was not only attacked by the appellant on its proof, but also on merits, inasmuch as the respondent/defendant went on to contend before the Trial Court during that enquiry that the Will was unnatural, unfair and was executed in doubtful circumstances. The respondent/defendant had also relied on the reported decision of this Court in Girja Dutt Singh Vs. Gangotri Datt Singh [AIR 1955 SC 346]. The Trial Court, however, rejected this contention. On the other hand, the Trial Court found on merits that the appellant was living with Sukhiabai and Sukhiabai had adopted him orally.

17. Evidence of Ramesh Kate was also referred to, who asserted about this fact. Reference was also made to the evidence of Sukihabai herself in the Rent Control Case No. 14/90-91 that she had adopted Dashrath Rao (appellant herein) and that Dashrath Rao lived with her. Clear cut findings were given by the High Court in these proceedings that from the evidence of Prabhakar Rao (PW-2), the attesting witness, it was clear that Sukhiabai had signed in his presence and he had also signed in present of Sukhiabai and had also seen the other attesting witness signing the Will and attesting the same. Not only this, but the Trial Court also wrote a finding that the objection raised by the defendant (respondent herein) that Sukhiabai was not in a position to understand the Will on account of her poor physical condition, was also rejected by the Trial Court. It was also noted that the Will was executed six years prior to her death and as such, there was no question of Sukhiabai being suffered with any mental or physical disability for executing the Will. Therefore, it is on this basis that the Will was held to be proved. Once this was the position and in the same suit, the further evidence was led, there was no point on the part of the appellant/plaintiff to repeat all this evidence all over again. We have closely seen the relied upon ruling of the Himachal Pradesh High Court in Suraj Mani & Anr. Vs. Kishori Lal (cited supra). The ruling undoubtedly correctly holds that the finding in an enquiry under Order 22 Rule 5 cannot operate as res judicata, provided the very question needs to be decided. The factual situation, however, differs substantially. The case before the Himachal Pradesh High Court only pertained to the correctness of the order passed in the enquiry under Order 22 Rule 5, CPC. That was not a case where the question, as in the present case, fell for consideration. In fact, the Himachal Pradesh High Court also observed and, in our view, correctly, that it was still open to the petitioner (therein) during the trial of the suit to establish that the Will was competent and confered no right, title or interest on the respondent and, therefore, the respondent was not entitled to any relief in the suit. Unfortunately, on evidence in this case, the respondent/defendant did not do anything and did not even challenge the evidence of the appellant that he had become owner of the Will. Merely because the evidence of respondent/defendant and Prabhakar Rao (PW- 2) was not repeated all over again, it cannot be held that the appellant/plaintiff could be non-suited on this ground.

18. Dr. Kailash Chand, Learned Counsel, appearing for the respondent also relied on ruling in Vijayalakshmi Jayaram Vs. M.R. Parasuram [AIR 1995 A.P. 351]. It is correctly held by the Andhra Pradesh High Court that the Order 22 Rule 5 is only for the purpose of bringing legal representatives on record for conducting of proceedings in which they are to be brought on record and it does not operate as res judicata. However, the High Court further correctly reiterated the legal position that the inter se dispute between the rival legal representatives has to be independently tried and decided in separate proceedings. Here, there was no question of any rivalry between the legal representatives or anybody claiming any rival title against the appellant/plaintiff. Therefore, there was no question of the appellant/plaintiff proving the Will all over again in the same suit. The other judgment relied upon is Full Bench Judgment of Punjab & Haryana High Court in Mohinder Kaur & Anr. Vs. Piara Singh & Ors. [AIR 1931 Punjab & Haryana 130]. The same view was reiterated. As we have already pointed out, there is no question of finding fault with the view expressed. However, in the peculiar facts and circumstances of this case, there will be no question of non-suiting the appellant/plaintiff, particularly because in the same suit, there would be no question of repeating the evidence, particularly when he had asserted that he had become owner on the basis of the Will (Exhibit P-1). In a case in Shaligram Bhagoo Kunbi & Anr. Vs. Mt. Dhurpati W/o Shamrao Kunbi [AIR 1939 Nagpur 147], the Division Bench of that Court consisting Hon'ble Stone C.J. and Hon'ble Vivian Bose, J., considered the question. The Division Bench, firstly, quoted from Tarachand Vs. Mt. Janki [AIR 1916 Nag. 89]. The quotation relied on was as follows:-

"It is no longer open to the Court to stay the suit until the dispute as to who is the legal representative of a deceased plaintiff has been determined in a separate suit. The question as to who was the representative of a deceased defendant could not be left open for decision in another suit, even under the old Code, but had to be decided by the Court itself. Under the present Code, all such questions have to be decided by the Court."

The Bench then proceeded to refer to Bombay High Court decision in Raoji Bhikaji Vs. Anant Laxman [1918 (5) AIR Bom 175] and Allahabad High Court decisions in Raj Bahadur Vs. Narayan Prasad [1926 (13) AIR All. 439] and Antu Rai Vs. Ram Kinkar Rai [1936 (23) AIR All. 412] and went on to record that order under Order 22 Rule 5 was not a res judicata. After referring to these rulings, the Bench held:-

"But there is an important qualification to this. It is true the order is not res judicata, but for all that, the decision is final so far as the suit in which it is made is concerned, not on the ground of res judicata but because of Section 47. No subsequent decision in a separate suit can be used to affect the rights of the parties so far as questions relating to the `execution, discharge or satisfaction' of the decree in connection with which the order was made is concerned."

The Bench further observed:-

"Once a person is joined as a legal representative under Order 22 Rule 5, and once it is accepted that that is final so far as that litigation is concerned, then it follows to the decree, and, thereafter, all matters relating to the `execution, discharge or satisfaction' of that decree must be decided under Section 47 and not in a separate suit." (Emphasis supplied)

Ultimately, the Bench came to the conclusion:-

"All that, in our opinion, is not res judicata is the question whether or not the person joined as the legal representative really occupies that character. That question is not finally concluded by a decision under Order 22 Rule 5 except in so far as it concerns the suit in which the decision is made. To that extent, we overrule the judgment in Mt. Laxmi Vs. Ganpat reported in 17 NLR 45. The appeal is dismissed with costs."

(Emphasis supplied) Therefore, it is clear that at least insofar as the suit in the present case is concerned, the question regarding the appellant's right to represent was closed. There could be a second suit, questioning his entitlement on the basis of Will, but admittedly, there is no such challenge by anybody to his status as a legatee of Sukhiabai. Insofar as the suit in the present case is concerned, the question was finally decided under Order 22 Rule 5, CPC and in the same suit, it could not be re-agitated. Obviously, the impugned judgment is incorrect when it holds that the appellant/plaintiff had to lead fresh evidence all over again to prove his status on the basis of the Will, which was held to be proved in the enquiry under Order 22 Rule 5, CPC.

19. All this is apart from the fact that the tenant in this case could not have challenged the Will at all. He was an utter outsider and had no interest in the property as owner. Indeed, from the pleadings and evidence, it is clear that tenant-respondent has not even ventured to claim any rival interest against the appellant/plaintiff.

20. For all these reasons, we are unable to agree with the impugned judgment and we would choose to set aside the same and restore the two judgments of the Trial Court and Appellate Court. The appellant/plaintiff, therefore, succeeds with costs of Rs.25,000/-.

ASHOK KUMAR SHARMA Versus OBEROI FLIGHT SERVICES

Service and Labour law
Misappropriation - Employee found carrying 30 soup spoons illegally in his shoes - Admission of guilt in writing - Termination - Before labour court, plea of workman that letter of confession was written under threat, and no enquiry was held, hence violation of natural justice - Labour court, though holding order of dismissal contrary to law, yet holding it to be not unjustified - Single judge of High Court dismissing writ - Division Bench not believing the contention of the management that 30 soup spoons could be put in a shoe and escape knowledge of security - Management did not conduct any enquiry and dismissed the workman without issuing charge-sheet or show cause notice - Division Bench ordering Rs 60,000 to be paid by management to workman in lieu of reinstatement and back wages - Justification. Held view of High Court is correct. Compensation enhanced from Rs 60,000/- to two lacs. Appeal allowed.


Supreme Court of India

CIVIL APPEAL NO.7395 of 2009

Judge(s): Tarun Chatterjee,R. M. Lodha

Date of Judgment: Friday, November 06, 2009

ASHOK KUMAR SHARMA

Versus

OBEROI FLIGHT SERVICES


JUDGEMENT

R.M. Lodha, J.

Delay condoned. Leave granted.

2. In this appeal by special leave, the workman has challenged the judgment and order passed by the Division Bench of Delhi High Court on March 18, 2008 whereby monetary compensation of Rs.60,000/- has been ordered to be paid by the Management to him in lieu of reinstatement and back wages.

3. The Appellant (for short "workman") was employed by Oberoi Flight Services-Respondent (for short "Management") as a loader on March 10, 1980. Allegedly on August 31, 1986 while returning from duty, the workman was found carrying 30 KLM soup spoons illegally in his shoe. The workman is said to have admitted his guilt in writing on August 31, 1986 itself and then again on the next day i.e. September 1, 1986. The Management acting on the said admission of guilt by the workman, vide order dated September 3, 1986 dismissed him from service. Having been unsuccessful in his representation and legal notice to the Management, the workman raised industrial dispute before the appropriate Government which was referred for adjudication to the Labour Court, Delhi on June 19, 1987.

4. The workman in his statement of claim before the Labour Court set out that being a union leader, the Management hatched a conspiracy against him for his removal and obtained confession letters under threat and coercion. He also set up the plea that without holding any inquiry and in breach of the principles of the natural justice, the order of dismissal was passed by the Management. In the written statement, the Management, on the other hand, narrated the circumstances in which the workman had stolen 30 KLM soup spoons by carrying them in his shoe. The parties led evidence in support of their respective stand. The Labour Court, after hearing the parties, vide his award dated January 31, 1996 held that order of dismissal passed by the Management was contrary to law but at the same time it also held that the dismissal of the workman from the service of the Management was not unjustified. The Labour Court, however, awarded full back wages to the workman from the date of his dismissal until the date of award.

5. The workman challenged the award of the Labour Court by filing Writ Petition which was heard by the Single Judge. The Single Judge held that workman has failed to make out any ground for interference with the impugned award and, consequently, dismissed the Writ Petition on July 30, 2007.

6. Not satisfied with the order of the Single Judge, the workman preferred Letters Patent Appeal. The Division Bench held that it was difficult to believe the contention of the Management that 30 KLM soup spoons could be put in a shoe and that workman walked with the said spoons in his shoe from the work area to the security check area. The Division Bench also noticed that Management having not conducted any enquiry, the dismissal of workman without issuing him charge- sheet or a show cause notice was unsustainable. However, the Division Bench vide his judgment dated March 18, 2008 did not deem it proper to order reinstatement of the workman and instead directed the Management to pay him Rs.60,000/- in full and final settlement of the claim. It is this part of the order which is under challenge in this appeal.

7. This Court in U.P. State Brassware Corporation Ltd. V. Uday Narain Pandey1 held thus:

"41. The Industrial Courts while adjudicating on disputes between the Management and the workman, therefore, must take such decisions which would be in consonance with the purpose the law seeks to achieve. When justice is the buzzword in the matter of adjudication under the Industrial Disputes Act, it would be wholly improper on the part of the superior courts to make them apply the cold letter of the statutes to act mechanically. Rendition of justice would bring within its purview giving a person what is due to him and not what can be given to him in law. 42. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance.

45. The Court, therefore, emphasised that while granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages, therefore, cannot be the natural consequence."

1 JT2005(10)SC344 8. In the case of Sita Ram V. Moti Lal Nehru Farmers Training Institute2 this Court considered the matter thus:

"21. The question, which, however, falls for our consideration is as to whether the Labour Court was justified in awarding reinstatement of the appellants in service.

22. Keeping in view the period during which the services were rendered by the respondent (sic appellants); the fact that the respondent had stopped its operation of bee farming, and the services of the appellants were terminated in December 1996, we are of the opinion that it is not a fit case where the appellants could have been directed to be reinstated in service.

23. Indisputably, the Industrial Court, exercises a discretionary jurisdiction, but such discretion is required to be exercised judiciously. Relevant factors therefor were required to be taken into consideration; the nature of appointment, the period of appointment, the availability of the job, etc. should weigh with the court for determination of such an issue.

24. This Court in a large number of decisions opined that payment of adequate amount of compensation in place of a direction to be reinstated in service in cases of this nature would subserve the ends of justice. (See Jaipur Development Authority v. Ramsahai [(2006) 11 SCC 684], M.P. Admn. v. Tribhuban [(2007) 9 SCC 748] and Uttaranchal Forest Development Corpn. v. M.C. Joshi [(2007) 9 SCC 353])

25. Having regard to the facts and circumstances of this case, we are of the opinion that payment of a sum of Rs. 1,00,000 to each of the appellants, would meet the ends of justice. This appeal is allowed to the aforementioned extent. In the facts and circumstances of this case, there shall be no order as to costs."

9. The afore-referred two decisions of this Court and few more decisions were considered by us in the case of Jagbir 2 JT 2008 (3)SC622 Singh V. Haryana State Agriculture Marketing Board3 albeit in the context of retrenchment of a daily wager in violation of section 25F of Industrial Disputes Act who had worked for more than 240 days in a year and we observed thus:

"7. It is true that earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice."

10. It is not necessary to multiply the decisions of this Court wherein award of compensation in lieu of reinstatement and back wages has been held to be adequate and in the interest of justice.

11. In light of the aforesaid legal position, the view of the High Court that monetary compensation in lieu of reinstatement of the workman would be proper cannot be said to be unjustified. However, we find that the compensation in the sum of Rs.60,000/- awarded by the Division Bench is 3 JT 2009(9)SCC396 grossly inadequate. Regard being had to all relevant facts and circumstances, including the nature of employment and the fact that he was a confirmed employee, in our considered view compensation of Rs.2 lacs to the appellant by the Respondent shall meet the ends of justice. We order accordingly. Such payment should be made, after deducting the amount already paid, within six weeks from today failing which the same shall carry interest at the rate of 9 per cent per annum on unpaid amount.

12. Appeal is allowed in part to the aforesaid extent with no order as to costs.

SATWATI DESWAL Versus STATE OF HARYANA & ORS.

Service & Labour law
Termination of service - Neither show cause issued nor departmental proceeding initiated - Writ dismissed on the ground that other alternative remedy to file appeal under rules before Appellate Authority was available. Held High Court fell in error. Writ is maintainable even if alternative remedy is available since there was violation of principle of natural justice. Order set aside. Termination order quashed.

Supreme Court of India

CIVIL APPEAL NO.7397 of 2009

Judge(s): Tarun Chatterjee,R. M. Lodha

Date of Judgment: Friday, November 06, 2009

SATWATI DESWAL

Versus

STATE OF HARYANA & ORS.


JUDGMENT

TARUN CHATTERJEE, J.

1. Leave granted.

2. This appeal by special leave has been filed against the judgment and final order dated 17th of May, 2007 passed by the High Court of Punjab & Haryana at Chandigarh in CWP No. 7460 of 2007. By the impugned judgment, the High Court had dismissed the writ petition filed by the appellant on the ground of maintainability and relegated the appellant to take statutory remedy of appeal.

3. Heard the learned counsel appearing for the parties and examined the impugned judgment as well as the other materials on record.

4. In our view, this appeal must succeed on a very short point. Before we take up the ground on which this appeal should be allowed, we may state the relevant facts leading to the filing of this appeal, which are as follows :-

The appellant [M.A. B.Ed. M.Sc (Computer)] was appointed as a lecturer in 2003 in a recognized school in the State of Haryana and was subsequently promoted to the post of Principal on account of her seniority. Her appointment and promotion were duly approved by the concerned authorities, but by a non-speaking and unreasoned order dated 11th of September, 2006, her services were terminated by the Manager of the School, namely, the respondent No.5 herein. Admittedly, in this case, no show-cause notice was issued to her nor the order of termination was passed by initiating any departmental proceeding after giving opportunity of hearing to the appellant. This order of termination was challenged by the appellant by way of a writ petition before the High Court, which was dismissed by it on the ground that the appellant had an alternative remedy to file an appeal under the rules before the appellate authority against the order of termination.

5. In our view, the High Court had fallen in grave error in rejecting the writ petition on the aforesaid ground. First, such an order of termination was passed without issuing any show cause notice to the appellant and without initiating any disciplinary proceedings by the authorities and without affording any opportunity of hearing. It is well settled that a writ petition can be held to be maintainable even if an alternative remedy available to an aggrieved party where the court or the tribunal lacks inherent jurisdiction or for enforcement of a fundamental right; or if there had been a violation of a principle of natural justice; or where vires of the act were in question.

6. The aforesaid exceptions recognized by this Court were taken note of by this Court in the case of A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani & Anr. (AIR 1961 SC 1506), in which the Constitution Bench laid down the principles of the above exceptions when writ application could be entertained even if an alternative remedy was available to an aggrieved party. The same view was expressed by this Court in the case of L.K. Verma v. H.M.T. Ltd.& Anr. (AIR 2006 SC 975) and M.P.State Agro Industries Development Corporation & Anr. v. Jahan Khan (AIR 2007 SC 3153).

7. Such being the position and in view of the admitted fact in this case that before termination of the services of the appellant, no disciplinary proceeding was initiated nor any opportunity of hearing was given to the appellant. It is clear from the record that the order of termination was passed without initiating any disciplinary proceedings and without affording any opportunity of hearing to the appellant. In that view of the matter, we are of the view that the writ petition was maintainable in law and the High Court was in error in holding that in view of availability of alternative remedy to challenge the order of termination, the writ petition was not maintainable in law.

8. Apart from that, on a cursory look of the statutory provision of the Constitution of the Parishad Working Committees, it would be clear that before imposing any major penalty against an employee, namely, an order of termination of service, an inquiry must be held in the manner specified in the statutory rules by which the disciplinary authority shall frame definite charges on the basis of allegations on which an inquiry shall be proposed and opportunity must be given to the employee to submit a written statement stating therein whether he/she desires to be heard in person and no order of termination also can be passed without the approval of the Managing Committee. On this count alone, therefore, the High Court was, in our view, in grave error in dismissing the writ petition of the writ petitioner.

9. Accordingly, the impugned judgment of the High Court is set aside and the order of termination passed against the appellant is quashed and the writ petition stands allowed. However, it would be open to the authorities, if so desire, to initiate disciplinary proceedings against the appellant for her termination from service and if such disciplinary proceedings are initiated, the authorities shall give proper opportunity of hearing and permit the parties to adduce evidence in support of their respective stands and after giving such opportunity, the disciplinary authorities thereafter shall give hearing to the appellant and then pass a final order on the question of termination of service of the appellant in compliance with the concerned statutory rules applicable to the appellant.

10. For the reasons aforesaid, the impugned order is set aside and the order of termination passed against the appellant is quashed. The appeal is allowed. There will be no order as to costs.

Gajula Surya Prakasarao Versus State of Andhra Pradesh

Evidence Act, 1872 Sections 32, 157 - Dying declaration - Admissibility - Statement by PW3 recorded as dying declaration by Magistrate - However PW3 survived - Whether statement covered by Section 32. Held no. Statement made by a person in expectation of death, who does not die, cannot be called a dying declaration. However it can be admitted under section 157 to corroborate testimony in court.

Indian Penal Code, 1860, ss. 302 and 307 - Murder - Attempt to murder - Conviction - Challenged - Appellant convicted u/ss. 302 and 307, IPC - Conviction and sentence confirmed by HC - Hence, present appeal - Trial Court and HC relied upon evidence of PW-3 and PW-4 (daughter of deceased) for convicting appellant - Courts below found that appellant had also attempted to kill PW-3 - Whether evidence of PW-3 and PW-4 rightly accepted by courts below? - Held, in present case there was no critical evaluation of evidence of PW-3 and PW-4, and there was no consideration of material contradictions having crucial bearing on veracity of version given by PW-3 and PW-4 - The evidence of PW-3 and PW-4 is doubtful as they made improvements to their statements from stage to stage - Impugned judgment set aside - Appellant acquitted of charges u/ss. 302 and 307, IPC

SUPREME COURT OF INDIA, 10 Nov 2009
Case No: Criminal Appeal No. 1038 of 2008
Gajula Surya Prakasarao Appellant
Versus
State of Andhra Pradesh Respondent
Judge(s): Hon'ble Mr. Justice B. Sudershan Reddy and Hon'ble Mr. Justice J.M. Panchal.
Judgement:
1. This appeal by special leave is directed against the Judgment rendered by a Division Bench of the Andhra Pradesh High Court confirming the conviction of the appellant for the offences punishable under Sections 302 and 307 of Indian Penal Code, 1860 (in short 'IPC'). The High Court by the impugned judgment confirmed the judgment passed by the Principal Sessions Judge, Eluru convicting the appellant under Sections 302 and 307 of IPC and sentencing him to suffer imprisonment for life and rigorous imprisonment for seven years, respectively, and further to pay a fine of Rs.1,000/- each and in default, to suffer simple imprisonment for a period of six months each.

2. In the nutshell, the prosecution version which led to the trial of the appellant is as under:

3. On the intervening night of 7th/8th April, 2002 appellant went to the house of the deceased in Venkatayapalem village with an intention to end the life of the deceased and knocked at the door of the deceased which was opened by the wife of the deceased, Cherukuri Srinukumari (PW-3) and the appellant-accused all of a sudden hacked and attempted to kill her by inflicting severe injuries on her body, as a result of which she fell down and then he rushed towards the deceased who was sleeping and hacked him by inflicting severe injuries. The appellant after committing the offence escaped from the place of occurrence by bolting the door from outside. The daughter of the deceased Sri Surekha (PW-4) aged about 9 years raised hue and cry upon which the neighbours opened the door from outside and informed Cherukuri Gangaraju (PW1) who is a close relation of the deceased who thereafter informed Gopalapuram Police Station and lodged first information report at about 4.00 a.m. on 8th April, 2002. A case was registered as Crime No. 30 of 2002 under Sections 302 and 307 read with Section 34 IPC against unknown persons.

4. The prosecution, in order to establish its case, examined altogether 14 witnesses. The trial court upon appreciation of the evidence found the appellant guilty of the offences punishable under Sections 302 and 307 IPC and sentenced him to suffer imprisonment for life and rigorous imprisonment for a period of seven years, respectively. The trial court mainly relied upon the evidence of PW-3 and PW-4. The High Court vide its judgment dated 20th August, 2007 dismissed the criminal appeal filed by the appellant and accordingly confirmed the judgment of the trial court. The High Court too relied upon the evidence of PW-3 and PW-4. Both courts below found that the appellant attacked the deceased with sharp edged weapon resulting in his death. The courts below also found the appellant- accused attempted to kill PW-3 by inflicting severe injuries on her body.

5. In this appeal, Shri M.N. Rao, learned senior counsel for the appellant, submitted that the evidence of the eye witnesses does not inspire any confidence as PW-3 made a lot of improvements in her version and implicated the appellant for the first time only while deposing before the Court and never before during the investigation or in the first information report. The injured witness (PW-3) and her minor daughter (PW-4) never mentioned the name of the appellant while narrating the incident to their neighbours, police or the Magistrate though the appellant was very well known to them. It was submitted that Section 161 of Code of Criminal Procedure statement (08.04.2002) of PW-3 was clearly ante-timed. The evidence of prime witness PW-3 is totally unreliable and could not be believed under any circumstances as in her cross- examination she went to the extent of denying having given any statement (Ex. P-21) to the Magistrate (CW-1).

6. In response, Ms. D. Bharathi Reddy, learned counsel for the State submitted that the evidence of eye witnesses is clear and cogent. The relationship of the witnesses with the deceased itself cannot be a ground to discard their evidence. Learned counsel submitted that what is relevant is the evidence of PW-3 and PW-4 in the court and not their statement under Section 161 CrPC.

7. We shall first deal with the contention regarding the nature of evidence of PW-3 and PW-4 to consider as to whether their evidence has been rightly accepted by the courts below. In the process, we will not re-appreciate the evidence to substitute our view for that of the courts below but consider as to whether non- consideration of certain important aspects of the case resulted in miscarriage of justice.

8. It is an admitted fact that the deceased was a farmer and cultivating the lands belonging to one Satyam Ramachandra Laxmi Devi of Rytapuram which land was adjacent to the land of the appellant. The owner of the said land decided to dispose of her land admeasuring 01 acre and 54 cents and the deceased was willing to purchase the land at the rate of Rs.90,000/- per acre which price was much higher than the price offered by the appellant who also wanted to purchase the said land. The appellant is stated to have approached the deceased and demanded to cancel the agreement so that he would purchase the land at a lesser price than which was offered by the deceased. The deceased despite the threats proceeded further and informed the landlady that he was ready with the balance sale consideration and required her to execute a registered sale deed on 2.4.2002. The appellant was upset and developed a grudge against the deceased and in the process committed the crime on the intervening night of 7th/8th April, 2002. This is the motive suggested by the prosecution for the appellant committing the crime. The prosecution story itself shows that PW-3 and PW-4 very well knew the appellant and also about the dispute with regard to the purchase of the land. Yet this aspect is not stated by either of them and more particularly by PW-3 at any stage prior to her evidence in the court.

9. Be it noted that the first information report was lodged by one Cherukuri Gangaraju (PW-1) who is none other than a close relation of the deceased at about 4.00 a.m. on 8th April, 2002 in which he clearly stated that on the intervening night of 7th/8th April, 2002 at 2.00 a.m. 'some unknown persons knocked the door of the house, his wife Srinukumari opened the door, two persons entered into the house of Cherukuri Gangaraju, hacked him with knife on his neck and also hacked Srinukumari on her face and hands'. That according to the first information report two unknown persons entered into the house and committed the crime. In his evidence he merely stated that he was informed by the villagers that the deceased was murdered, based on which he gave written report to the police and the police reached at the scene of occurrence within half an hour and shifted the wife of the deceased to the hospital. It is in his evidence that he gave report to the police at the house of the deceased. He did not draft the first information report and he does not remember as to who drafted the same. In his cross-examination it is stated by him that PW-3 was sent by him to the hospital prior to the arrival of the police.

10. Be that as it may, the crucial evidence is that of PW-3. There is some discrepancy in the evidence as to who sent PW-3 to the hospital. But the fact remains that on 9.4.2002 at about 11.25 a.m. her statement was recorded by the Judicial First Class Magistrate (Ex. P21). The Magistrate having received the information at about 11.00 a.m. reached the hospital and recorded the statement as 'dying declaration'. PW-3 in her statement stated that one person came to her house and suddenly beat on her head at about 10 P.M. in the night. She did not identify the person but stated that he was a young man wearing stripes shirt. She did not state anything about the attack on the deceased.

11. CW-2 is Dr. G. Bhaskararao who stated in his evidence that PW-3 was sent for treatment of injuries by Gopalapuram Police Station. As her condition was serious, he immediately sent intimation to JFCM (CW-1) who came and recorded her statement. The doctor (CW-2) was present when CW-1 recorded her statement. He certified that the patient was conscious and coherent to give her statement. The Magistrate at the foot of her statement (Ex. P-21) certified that the declaration recorded by him was read over and she admitted it to be correct and complete. It is specifically observed that she has been conscious, coherent and in a fit state of mind to depose all throughout. He appeared as CW-1 and stated that he recorded the statement of PW-3 under Exhibit P-21. It has not been suggested to him that PW-3 was not in a fit and coherent condition at the time of recording her statement.

12. It is plainly evident that PW-3 was conscious and coherent to make her statement and made her
statement in Exhibit P-21 in which not only she did not mention the name of the appellant but positively stated that she was attacked by an unknown person aged about 20 years. Be it noted that the appellant even at the relevant time was of 50 years and was well known to PW-3. She did not explain as to and under what circumstances she made the statement in Exhibit P-21 nor there is any explanation as to how she omitted the name of the appellant and described somebody else to be the assailant. On the other hand, she went to the extent of stating that she did not know whether the Magistrate had recorded her statement in the house or in the hospital.

13. It is well settled and needs no restatement at our hands that when a person who has made a statement, may be in expectation of death, is not dead, it is not a dying declaration and is not admissible under Section 32 of the Evidence Act. In the instant case, the maker of the statement Exhibit P-21, is not only alive but is examined as PW-3. Her statement, therefore, is not admissible under Section 32; but her statement, however, is admissible under Section 157 of the Evidence Act as former statement made by her in order to corroborate her testimony in court. In the instant case Exhibit P-21 does not corroborate the testimony of PW-3 in Court. It is obvious that PW-3 later on improved the story and roped in the appellant. In Ramprasad v. State of Maharashtra [JT 1999 (4) SC 74 : 1999 (5) SCC 30] this Court held:
'As long as the maker of the statement is alive it would remain only in the realm of a statement recorded during investigation. Be that as it may, the question is whether the Court could treat it as an item of evidence for any purpose. Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact before 'any authority legally competent to investigate the fact' but its use is limited to corroboration of the testimony of such a witness. Though a police officer is legally competent to investigate, any statement made to him during such an investigation cannot be used to corroborate the testimony of a witness because of the clear interdict contained in Section 162 of the Code. But a statement made to a Magistrate is not affected by the prohibition contained in the said section. A Magistrate can record the statement of a person as provided in Section 164 of the Code and such a statement would either be elevated to the status of Section 32 if the maker of the statement subsequently dies or it would remain within the realm of what it was originally. A statement recorded by a Magistrate under Section 164 becomes usable to corroborate the witness as provided in Section 157 of the Evidence Act or to contradict him as provided in Section 155 thereof.'

14. Considered in the light of the law declared by this Court the statement of PW-3 in Exhibit P-21 can be used for corroborating the testimony of PW-3. The evidence of PW-3 is completely at variance with what has been stated by her in Exhibit P-21. This vital aspect of the matter has completely escaped the attention of the courts below which resulted in miscarriage of justice. Enmity between her husband (deceased) and the appellant may be one possible reason for her to implicate the appellant in the case after deliberations.

15. What remains for our consideration is the statement of PW-4 who is none other than the daughter of the deceased. The incident according to her took place at about 2.00 a.m. in the night when the appellant hacked her mother and father. She stated that on her raising hue and cry one Kanniah Tata and others came to the spot. She did not reveal the name of the appellant to the neighbours when they came to the house on her raising hue and cry. Kanniah Tata who is examined as PW-7 stated in his evidence that PW-4 informed him that her father and mother were beaten by somebody. The evidence on record suggests that even PW-4 has also acquaintance with the appellant but she did not mention the name of the appellant at any point of time prior to her evidence in the court. Her evidence is also vague based on which it would be difficult to record any finding of commission of any crime by the appellant. There is no other acceptable evidence available on record based on which the appellant could be held guilty.

16. We are conscious that normally this Court would not substitute its opinion by re-appreciating the evidence with that of concurrent findings of the two courts below. But in the present case, having considered the findings of the courts below, we hold that the courts below found the appellant guilty on the basis of evidence of PWs-3 and 4 upon which no reliance could be placed for the reasons stated herein above. The facts, based on which we have arrived at the conclusion not to rely upon the evidence of PWs-3 and 4, are very much available on record which were altogether ignored by the courts below. The same has resulted in miscarriage of justice. This Court in Zafar v. State of U.P. [JT 2003 (2) SC 126 : 2003 (3) SCC 51] while considering the scope of interference in exercise of its jurisdiction under Article 136 of the Constitution observed:
'Though it is a case of concurrent finding by both the courts resting on the appreciation of evidence, we are of the view that the trial court and the High Court overlooked certain important aspects in the practical application of the rule of prudence and caution which the High Court itself proceeded to apply in appreciating the evidence of the child witness. The High Court failed to take note of certain telling factors emerging from the evidence on record. There was no critical appraisal of the evidence of PW 2 except focusing attention on two alleged contradictions of no significance and repelling the arguments based on them. Even if the finding that the medical evidence does not go counter to the prosecution case is allowed to remain, there are other fatal infirmities in the evidence relied upon by the prosecution which were not adverted to by the High Court. In these circumstances, we are of the view that it is a fit case for interference under Article 136.'

17. In the present case there was no critical evaluation of the evidence of PWs-3 and 4, and there was no consideration of material contradictions having crucial bearing on the veracity of the version given by PWs-3 and 4. They went on making improvements from stage to stage which makes their evidence doubtful. It is under those circumstances, we are compelled to interfere with the concurrent findings of the courts below in order to prevent the miscarriage of justice.

18. For the aforesaid reasons, the impugned judgment is set aside. The appellant is acquitted of the charges under Sections 302 and 307 IPC. The conviction and sentences awarded against the appellant are set aside. The appellant is directed to be released forthwith. The bail bonds earlier executed by him and the sureties, if any, shall stand discharged.

19. The appeal is, accordingly, allowed.