Monday, August 30, 2010

Jameela & Ors.Versus Union of India

Railways Act (24 of 1989) - S. 123(c),124-A — Untoward incident — Death of passenger due to accidental fall from train — Claim for compensation — The manner in which the accident is sought to be reconstructed by the Railway, the deceased was standing at the open door of the train compartment from where he fell down, is called by the railway itself as negligence. Now negligence of this kind which is not very uncommon on Indian trains is not the same thing as a criminal act mentioned in clause (c) to the proviso to section 124 A. A criminal act envisaged under clause (c) must have an element of malicious intent or mens rea. Standing at the open doors of the compartment of a running train may be a negligent act, even a rash act but, without anything else, it is certainly not a criminal act. Thus, the case of the railway must fail even after assuming everything in its favour.
We are of the considered view that the High Court gravely erred in holding that the applicants were not entitled to any compensation under section 124A of the Act, because the deceased had died by falling down from the train because of his own negligence. First, the case of the Railway that the deceased M. Hafeez was standing at the open door of the train compartment in a negligent manner from where he fell down is entirely based on speculation. There is admittedly no eyewitness of the fall of the deceased from the train and, therefore, there is absolutely no evidence to support the case of the Railway that the accident took place in the manner suggested by it. Secondly, even if it were to be assumed that the deceased fell from the train to his death due to his own negligence it will not have any effect on the compensation payable under section 124 A of the Act.

 
Supreme Court of India

CIVIL APPEAL NO. 1184 OF 2003
Hon'ble Judge(s): Aftab Alam and  RM Lodha
Date of Judgment: 27 August, 2010

Jameela & Ors.Versus Union of India 

O R D E R
AFTAB ALAM, J.1. On June 23, 1997, the GRP found the dead body of a male person at Magarwara Railway Station. From the pockets of the deceased, the police recovered a telephone number, a railway ticket bearing no.35810970, dated June 21, 1997 and a receipt showing payment of excess fare for travelling in a sleeper coach. Information about the discovery of the dead body was given on the phone number and then it came to light that he was a certain M. Hafeez, the husband of appellant no.1 and the father of appellant nos.2-5.

2. The appellants filed a claim case (OA 9700059) before the Railway Claims Tribunal, Lucknow Bench, claiming a compensation of Rs.11,11,000.00 (rupees eleven lakhs and eleven thousand only) under the Railways Act, 1989 (hereafter “the Act”) for the death of M. Hafeez. In the claim application, it was stated that the deceased was travelling from Ahmedabad to Lucknow by Awadh Express (Train No.5064) on a valid ticket and he fell down from the train at or near Magarwara Railway Station in an untoward incident resulting in his death. The applicants’ claim was contested by the General Manager, Northern Railway. The reply filed on his behalf is not on record, but from the Tribunal’s order it appears that in the reply the death of M. Hafeez and the validity of the ticket found in his pocket were admitted. It was, however, stated that according to the railway records, no accident of any kind took place between Kanpur and Lucknow on June 23, 1997 and it appeared that the deceased fell down from the running train due to his own negligence. There was no negligence on the part of the railway. Further, that the applicants had not filed any proof of the accident.

3. In view of the respective stands of the parties, the Tribunal framed the issue, whether the applicants were able to prove that the death of M. Hafeez was due to an “untoward incident” as defined under section 123 of the Railways Act. On a consideration of the materials brought before it, the Tribunal found and held that the claimant had proved that the death of M. Hafeez was due to an “untoward incident” as defined under section 123 of the Act. The Tribunal, then, proceeded to consider the amount of compensation to which the applicants were entitled and found and held that under the Railway Accident (Compensation) Rules, 1990 (as it stood at the time of the accident), the maximum compensation in case of death was Rs.2,00,000.00 (rupees two lakhs only). The applicants were, therefore, entitled to the aforesaid amount only and not anything in excess of it, as claimed by them. It, accordingly, passed its order.

4. Against the judgment and order passed by the Tribunal, the Railways preferred an appeal (FAFO No.277 of 1999) before the Lucknow Bench of the Allahabad High Court. A division bench of the High Court by judgment and order dated November 6, 2001 allowed the appeal and set aside the Tribunal’s order. Before the High Court, reliance was placed on behalf of the Railway on the proviso to section 124A of the Act which provides that no compensation will be payable under that section by the railway administration if the passenger died or suffered injury due to (a) suicide or attempted suicide by him, (b) self-inflicted injury or (c) his own criminal act. A reference was also made to section 154 of the Act which provides that if any person does any act in a rash and negligent manner, or omits to do what he is legally bound to do, and the act or omission is likely to endanger the safety of any person travelling or being upon any railway, he shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both. It was further contended on behalf of the Railway that the deceased M. Hafeez who was travelling in a negligent manner was standing at the door from where he fell down near the Magarwara Railway Station, where the train does not stop. (It needs to be pointed out that this contention could only be based on speculation, as admittedly there was no eyewitness to the accident). The High Court accepted the contentions raised on behalf of the Railway and allowed the appeal observing as follows:

“On the basis of the law & facts indicated by the learned counsel for the parties, we find that in the present case the victim is to be blamed for the incident being negligent and therefore this case is not covered by the definition of the untoward incident. However, so far as the compensation is concerned the case of the claimant is covered by the provision of Section 124-A as because of his own negligence the deceased had fallen down from the train which caused his death. Further in the light of the fact that the deceased acted in a negligent manner without any precaution of safety by station going at the open door of the running train which resulted into his death.”

(emphasis added)

5. We are of the considered view that the High Court gravely erred in holding that the applicants were not entitled to any compensation under section 124A of the Act, because the deceased had died by falling down from the train because of his own negligence. First, the case of the Railway that the deceased M. Hafeez was standing at the open door of the train compartment in a negligent manner from where he fell down is entirely based on speculation. There is admittedly no eyewitness of the fall of the deceased from the train and, therefore, there is absolutely no evidence to support the case of the Railway that the accident took place in the manner suggested by it. Secondly, even if it were to be assumed that the deceased fell from the train to his death due to his own negligence it will not have any effect on the compensation payable under section 124 A of the Act.

6. Chapter XIII of the Railways Act, 1989 deals with the Liability of Railway Administration for Death and Injury to Passengers due to Accidents. Section 123, the first section of the Chapter, has the definition clauses. Clause (c) defines “untoward incident” which insofar as relevant for the present is as under:

“123 (c) untoward incident means-

(1) (i) xxxxxxxx

(ii) xxxxxxxx

(iii) xxxxxxxx

(2) the accidental falling of any passenger from a train carrying passengers.”

Section 124A of the Act provides as follows:

“124A. Compensation on account of untoward incident. - When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident:

Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to -

(a) suicide or attempted suicide by him;

(b) self-inflicted injury;

(c) his own criminal act;

(d) any act committed by him in a state of intoxication or insanity;

(e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident.

Explanation - For the purposes of this section, "passenger" includes -

(i) a railway servant on duty; and

(ii) a person who has purchased a valid ticket for travelling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.”

(emphasis added)

7. It is not denied by the Railway that M. Hafeez fell down from the train and died while travelling on it on a valid ticket. He was, therefore, clearly a “passenger” for the purpose of section 124A as clarified by the Explanation. It is now to be seen, that under section 124A the liability to pay compensation is regardless of any wrongful act, neglect or default on the part of the railway administration. But the proviso to the section says that the railway administration would have no liability to pay any compensation in case death of the passenger or injury to him was caused due to any of the reasons enumerated in clauses (a) to (e).

8. Coming back to the case in hand, it is not the case of the Railway that the death of M. Hafeez was a case of suicide or a result of self-inflicted injury. It is also not the case that he died due to his own criminal act or he was in a state of intoxication or he was insane, or he died due to any natural cause or disease. His falling down from the train was, thus, clearly accidental.

9. The manner in which the accident is sought to be reconstructed by the Railway, the deceased was standing at the open door of the train compartment from where he fell down, is called by the railway itself as negligence. Now negligence of this kind which is not very uncommon on Indian trains is not the same thing as a criminal act mentioned in clause (c) to the proviso to section 124 A. A criminal act envisaged under clause (c) must have an element of malicious intent or mens rea. Standing at the open doors of the compartment of a running train may be a negligent act, even a rash act but, without anything else, it is certainly not a criminal act. Thus, the case of the railway must fail even after assuming everything in its favour.

10. We are, therefore, constrained to interfere in the matter. The judgment and order of the High Court coming under appeal is set aside and the judgment and order of the Tribunal is restored. Since a period of more than 10 years has already elapsed from the date of the judgment of the Tribunal, the compensation money along with interest need not be kept in fixed deposits, but should be paid to the appellants in the ratio fixed by the Tribunal. The payment must be made within 2 months from today.

11. In the result, the appeal is allowed, with costs quantified at Rs.30,000.00 (rupees thirty thousand only) payable to the applicants along with the compensation money.

Sunday, August 29, 2010

Mahendra Nath Yadav vs Sheela Devi

Hindu Marriage Act, 1955, ss. 9 and 13-B -A divorce got through the panchayat as per the local customs of a particular community will not be recognised by any court of law. A divorce, in order to be legalised, mandatorily requires a judicial decree from a court of law and nothing less would do. Dissolution of marriage through panchayat as per custom prevailing in that area and in that community permitted cannot be a ground for granting divorce under Section 13 of the Act, 1955. HC has rightly held that dissolution of marriage through Panchayat as per custom prevailing in that area and in that community permitted cannot be a ground for granting divorce u/s. 13 of the Act, 1955 - Moreover, in case the appellant wanted a decree on the basis of customary dissolution of marriage through Panchayat, he would not have filed a petition u/s. 13 of the Act, 1955 - Filing this petition itself means that none of the parties was of the view that the divorce granted by the Panchayat was legal - No reason to interfere with the well-reasoned judgment of the HC - Appeal dismissed.

Supreme Court of India

Civil Appeal No. 1801 of 2007
Hon'ble Judge(s):  P. Sathasivam & Dr. B.S. Chauhan
Date of Judgment: 25 August, 2010

Mahendra Nath Yadav vs Sheela Devi
 
O R D E R
1. This appeal has been preferred against the judgment and order dated 8th October, 2004 of the High Court of Judicature at Allahabad passed in First Appeal Nos.786 and 787/2000 and by which the decree of divorce granted by the Family Court, Varanasi has been reversed and dismissal of the petition under Section 9 of the Hindu Marriage Act, 1955 (hereinafter called as 'Act, 1955') filed by the respondent before the Family Court has also been reversed and her case has been allowed. The parties herein got married on 3rd May, 1990. The ceremony of 'Gauna' was performed in 1991. Appellant is serving in the Army and respondent is serving as a teacher. There was no proper opportunity for both of them to lead a normal family life. Thus, differences arose and litigation started between the parties. The respondent-wife filed an Application under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter called as 'Cr.P.C.'), before the Judicial Magistrate, Ist Class, Varanasi. The Magistrate vide order dated 10th May, 1995, allowed the said application by directing the appellant to pay the respondent-wife a sum of Rs.400/- p.m. as maintenance. She also filed Case Crime No.131 of 1991 under Section 498A of the Indian Penal Code, 1860 (IPC) against the appellant and his family members in the Police Station, Choubeypur, Varanasi. The appellant preferred Revision No.330/95 in the Court of Sessions Judge, Varanasi against the order of the Magistrate granting the maintenance to the respondent. However, that was dismissed by the Revisional Court vide order dated 15th February, 1996. Though the order passed under Section 125 of Cr.P.C. was subsequently modified by the Family Court vide order dated 2nd June, 1997, the relations between the parties deteriorated, an attempt was made by the appellant's family to settle the matter. According to appellant, it was customary in the locality and in the community to which both parties belong to have a divorce through the Panchayat. Thus, the Panchayat was convened on 7th June, 1997. The said Panchayat decided that the appellant should pay a sum of Rs.30,000/- to the respondent's family. It was paid and a document was prepared which was duly signed by the parties. Thus, the marriage came to an end. In order to give legal effect to the said customary divorce, the appellant tried to persuade the respondent to get divorce from the Family Court under Section 13-B of the Act, 1955 by consent. However, she did not agree. Thus the appellant approached the Family Court by filing Petition No.370 of 1998 under Section 13 of the Act, 1955, seeking divorce on the ground of desertion and cruelty. The respondent filed the counter case i.e. Petition No.57 of 1999 under Section 9 of the Act, 1955, for restitution of conjugal rights. The Family Court decreed the suit mainly on the ground that the marriage stood dissolved through Panchayat and dismissed the petition filed by the wife for restitution of conjugal rights vide order dated 15th September, 2000.

2. Being aggrieved, the respondent preferred appeals against both the orders before the High Court and the High Court has reversed the said order in both the cases. Hence this appeal.

3. In spite of service the respondent-wife did not enter an appearance. Thus, we have heard Dr. J.N. Dubey, learned senior counsel appearing for the appellant. Dr. Dubey has taken us through the evidence available on record and through both the judgments. The High Court has rightly held that dissolution of marriage through Panchayat as per custom prevailing in that area and in that community permitted cannot be a ground for granting divorce under Section 13 of the Act, 1955. We fully agree with the said decision for the reason that in case the appellant wanted a decree on the basis of customary dissolution of marriage through Panchayat held on 7th June, 1997, he would not have filed a petition under Section 13 of the Act, 1955. Filing this petition itself means that none of the parties was of the view that the divorce granted by the Panchayat was legal. In view of the above, we do not see any reason to interfere with the well-reasoned judgment of the High Court. The appeal fails and is accordingly dismissed. No costs.

Haryana State Electricity Board Vs.M/s Hanuman Rice Mills & Ors.

Electricity Connection —Electricity arrears do not constitute a charge over the property. Therefore in general law, a transferee of a premises cannot be made liable for the dues of the previous owner/occupier

Supreme Court of India

CIVIL APPEAL NO. 6817 OF 2010

Hon'ble Judge(s):  R Raveendran, H Gokhale

Date of Judgment: 20 August, 2010

Haryana State Electricity Board  Vs.M/s Hanuman Rice Mills & Ors.
 
O R D E R
R. V. RAVEENDRAN, J.

Leave granted. Heard.

2. The second respondent - Haryana Financial Corporation auctioned the rice mill premises of one of its borrowers - Durga Rice Mills, to recover its dues. The first respondent purchased the said premises at the auction on 14.12.1990 for a consideration of Rs. 15,25,000/- and paid the entire sale consideration to the second respondent. When the first respondent purchased the mill premises, electricity supply to the premises had been disconnected. After taking possession of the premises, the first respondent applied for and obtained electricity connection in its own name in the year 1991. Four years later, the appellant served upon the first respondent, a notice dated 16.1.1995 demanding payment of Rs.2,39,251/- towards arrears of electricity charges due by the previous owner Durga Rice Mills.

3. The first respondent filed a civil suit for permanent injunction and the said suit ended in dismissal on 5.12.1996 which was affirmed by the appellate court on 27.2.1998. Thereafter the appellant served a notice dated 2.3.1998 informing the first respondent that the electricity supply will be disconnected if the said arrears due by Durga Rice Mills were not paid. This was followed by disconnection of electricity supply on 9.3.1998. First respondent filed a suit challenging the said demand and disconnection of electricity supply. The said suit was dismissed by the trial court. While dismissing the suit, the trial court held that the claim of the appellant was barred by limitation. Feeling aggrieved by the dismissal, the first respondent filed an appeal; and feeling aggrieved by the finding that appellant's claim was barred by limitation, the appellant filed an appeal. The first appellate court decided the appeals by a common judgment dated 30.10.2003. It dismissed the appeal filed by the appellant and allowed the appeal filed by the first respondent. It held that first respondent could not be made liable for the dues of the previous owner, as there was no provision in the terms and conditions of sale that the electricity dues of the previous owner should be paid by the first respondent as auction purchaser. The judgment of the first appellate court was challenged by the appellant by filing a second appeal. The Punjab & Haryana High Court by its judgment dated 8.8.2005 dismissed the said appeal holding that the liability of a consumer to pay charges for consumption of electricity, cannot be fastened on a subsequent auction purchaser of the property, in view of the decision of this court in Isha Marbles vs. Bihar State Electricity Board - (1995) 2 SCC 648.

4. Feeling aggrieved the appellant filed this appeal raising two contentions:

(i) The dismissal of the first suit filed by the first respondent for permanent injunction having attained finality, the second suit filed by the first respondent for a declaration that demand and disconnection were invalid, was barred by the principles of res judicata.

(ii) The decision in Isha Marbles relied on by the High Court was inapplicable to the facts of the case. The decision of this court in Dakshin Haryana Bijli Vitran Nigam Ltd. v. Paramount Polymers (P) Ltd. - (2006) 13 SCC 101, entitles the appellant to claim and receive the electricity dues of the previous owner from the new owner/auction purchaser.
Re: Point No. (i)

5. The first suit by the first respondent was for a permanent injunction to restrain the appellant Board from enforcing the demand notice dated 16.1.1995 in respect of the electricity consumption charges incurred by the previous owner. By the second suit, the first respondent sought a declaration that the notice dated 9.3.1998 threatening disconnection of electricity supply for non-payment of the arrears of the previous owner and the consequential disconnection dated 9.3.1998, were invalid and for consequential relief. The matter that was directly and substantially in issue in the second suit was completely different from the matter that was directly and substantially in issue in the first suit. The reliefs claimed were also different, as the first suit was for a permanent injunction and the second suit was for a declaration and consequential relief. Therefore the second suit was not barred by res judicata. Re : Point No. (ii)

6. The High Court held that the demand was untenable in view of the decision in Isha Marbles. In Isha Marbles this court held that in the absence of a charge over the property in respect of the previous electricity dues, and in the absence of any statutory rules authorizing a demand for the dues of the previous occupant, an auction purchaser seeking supply of electrical energy by way of a fresh connection, cannot be called upon to clear the pre-sale arrears, as a condition precedent for granting fresh connection. This court further held that an Electricity Board could not seek the enforcement of the contractual liability of the previous owner/occupier against a purchaser, who was a third party in so far as the contract between the Electricity Board and the previous occupant and that an auction purchaser who purchases the property after disconnection of the electricity supply, could not be considered as a `consumer' within the meaning of the Electricity Act, 1910 or Electricity (Supply) Act, 1948, even though he seeks reconnection in respect of the same premises. This court observed:

"Electricity is public property. Law, in its majesty, benignly protects public property and behoves everyone to respect public property. Hence, the courts must be zealous in this regard. But, the law, as it stands, is inadequate to enforce the liability of the previous contracting party against the auction purchaser who is a third party and is in no way connected with the previous owner/occupier. It may not be correct to state, if we hold as we have done above, it would permit dishonest consumers transferring their units from one hand to another, from time to time, infinitum without the payment of the dues to the extent of lakhs and lakhs of rupees and each one of them can easily say that he is not liable for the liability of the predecessor in interest. No doubt, dishonest consumers cannot be allowed to play truant with the public property but inadequacy of the law can hardly be a substitute for overzealousness." (emphasis supplied)

7. The appellant relies on the subsequent decision of this court in Paramount Polymers (supra) to distinguish the decision in Isha Marbles. In Paramount Polymers (supra), the terms and conditions of supply contained a  provision (clause 21A) providing that reconnection or new connection shall not be given to any premises where there are arrears on any account, unless the arrears are cleared. In view of the said express provision, this Court distinguished Isha Marbles on the following reasoning: "This Court in Hyderabad Vanaspati Ltd. v. A.P. SEB [1998] 2 SCR 620 has held that the Terms and Conditions for Supply of Electricity notified by the Electricity Board under Section 49 of the Electricity (Supply) Act are statutory and the fact that an individual agreement is entered into by the Board with each consumer does not make the terms and conditions for supply contractual. This Court has also held that though the Electricity Board is not a commercial entity, it is entitled to regulate its tariff in such a way that a reasonable profit is left with it so as to enable it to undertake the activities necessary. If in that process in respect of recovery of dues in respect of a premises to which supply had been made, a condition is inserted for its recovery from a transferee of the undertaking, it cannot ex facie be said to be unauthorized or unreasonable. Of course, still a court may be able to strike it down as being violative of the fundamental rights enshrined in the Constitution of India. But that is a different matter. In this case, the High Court has not undertaken that exercise. The position obtaining in Isha Marbles (supra) was akin to the position that was available in the case on hand in view of the Haryana Government Electrical Undertakings (Dues Recovery) Act, 1970. There was no insertion of a clause like Clause 21A as in the present case, in the Terms and Conditions of Supply involved in that case. The decision proceeded on the basis that the contract for supply was only with the previous consumer and the obligation or liability was enforceable only against that consumer and since there was no contractual relationship with the subsequent purchaser and he was not a consumer within the meaning of the Electricity Act, the dues of the previous consumer could not be recovered from the purchaser. This Court had no occasion to consider the effect of clause like Clause 21A in the Terms and Conditions of Supply. We are therefore of the view that the decision in Isha Marbles (supra) cannot be applied to strike down the condition imposed and the first respondent has to make out a case independent on the ratio of Isha Marbles (supra), though it can rely on its ratio if it is helpful, for attacking the insertion of such a condition for supply of electrical energy. This Court was essentially dealing with the construction of Section 24 of the Electricity Act in arriving at its conclusion. The question of correctness or otherwise of the decision in Isha Marbles (supra) therefore does not arise in this case especially in view of the fact that the High Court has not considered the question whether Clause 21A of the terms and conditions incorporated is invalid for any reason."

The decision in Paramount Polymers was followed in Dakshin Haryana Bijli Vitran Nigam Ltd. v. Excel Buildcon Pvt.Ltd. [2008 (10) SCC 720].

8. In Paschimanchal Vidyut Vitran Nigam Ltd. v. DVS Steels & Alloys Pvt.Ltd. [2009 (1) SCC 210] this court held, while reiterating the principle that the electricity dues did not constitute a charge on the premises, that where the applicable rules requires such payment, the same will be binding on the purchaser. This court held:

"A transferee of the premises or a subsequent occupant of a premises with whom the supplier has no privity of contract cannot obviously be asked to pay the dues of his predecessor in title or possession, as the amount payable towards supply of electricity does not constitute a `charge' on the premises. A purchaser of a premises, cannot be foisted with the electricity dues of any previous occupant, merely because he happens to be the current owner of the premises.

When the purchaser of a premises approaches the distributor seeking a fresh electricity connection to its premises for supply of electricity, the distributor can stipulate the terms subject to which it would supply electricity. It can stipulate as one of the conditions for supply, that the arrears due in regard to the supply of electricity made to the premises when it was in the occupation of the previous owner/occupant, should be cleared before the electricity supply is restored to the premises or a fresh connection is provided to the premises. If any statutory rules govern the conditions relating to sanction of a connection or supply of electricity, the distributor can insist upon fulfillment of the requirements of such rules and regulations. If the rules are silent, it can stipulate such terms and conditions as it deems fit and proper, to regulate its transactions and dealings. So long as such rules and regulations or the terms and conditions are not arbitrary and unreasonable, courts will not interfere with them.
A stipulation by the distributor that the dues in regard to the electricity supplied to the premises should be cleared before electricity supply is restored or a new connection is given to a premises, cannot be termed as unreasonable or arbitrary. In the absence of such a stipulation, an unscrupulous consumer may commit defaults with impunity, and when the electricity supply is disconnected for non-payment, may sell away the property and move on to another property, thereby making it difficult, if not impossible for the distributor to recover the dues. Provisions similar to Clause 4.3(g) and (h) of Electricity Supply Code are necessary to safeguard the interests of the distributor."

9. The position therefore can may be summarized thus : (i) Electricity arrears do not constitute a charge over the property. Therefore in general law, a transferee of a premises cannot be made liable for the dues of the previous owner/occupier.

(ii) Where the statutory rules or terms and conditions of supply which are statutory in character, authorize the supplier of electricity, to demand from the purchaser of a property claiming re-connection or fresh connection of electricity, the arrears due by the previous owner/occupier in regard to supply of electricity to such premises, the supplier can recover the arrears from a purchaser.

Position in this case

10. The appellant did not plead in its defence that any statutory rule or terms and conditions of supply, authorized it to demand the dues of previous owner, from the first respondent. Though the appellant contended in the written statement that the dues of Durga Rice Mills were transferred to the account of the first respondent, the appellant did not specify the statutory provision which enabled it to make such a claim. The decision in Paramount Polymers shows that such an enabling term was introduced in the terms and conditions of electricity supply in Haryana, only in the year 2001. The appellant did not demand the alleged arrears, when first respondent approached the appellant for electricity connection in its own name for the same premises and obtained it in the year 1991. More than three years thereafter, a demand was made by the appellant for the first time on 16.1.1995 alleging that there were electricity dues by the previous owner. In these circumstances the claim relating to the previous owner could not be enforced against the first respondent.

11. On facts, it has to be held that the decision of the High Court does not call for interference. The appeal is therefore dismissed. Parties to bear their respective costs.

Monday, August 23, 2010

Eshwarappa @ Maheshwarappa and Anr.Versus C. S. Gurushanthappa and Anr.

Motor Vehicles Act, 1988, Section 140 - No fault compensation - The drunk driver and his four friends died while rashly driving to a temple without informing the car owner. The heirs and legal representatives of the deceased driver, Basavaraj filed a claim for compensation under the Workmen’s Compensation Act, 1923. The accidents tribunal denied any compensation. The Commissioner under the Workmen’s Compensation Act found and held that the accident did not take place in course of employment and rejected the claim for compensation.Tribunal also rejected the express prayer made on behalf of the appellants and other claimants to at least grant the 'no fault compensation' as provided u/s. 140 of the Act on the ground that compensation u/s. 140 of the Act can succeed only in case it is raised at the initial stage of the proceedings - On appeal, HC confirmed the order of Tribunal - Appellants filed appeal against said order submitting that they were entitled to the no fault compensation' as provided u/s. 140 of the Motor Vehicles Act, 1988 - Whether appellant entitled for no fault compensation? - Held, provisions of s. 140 of Act are indeed intended to provide immediate successor to the injured or the heirs and legal representatives of the deceased - Hence, normally a claim u/s. 140 is made at the threshold of the proceeding and the payment of compensation u/s. 140 is directed to be made by an interim award of the Tribunal which may be adjusted if in the final award the claimants are held entitled to any larger amounts - In case a claim u/s. 140 was not made at the beginning of the proceedings due to the ignorance of the claimant or no direction to make payment of the compensation u/s. 140 was issued due to the over-sight of the Tribunal, the door would not be permanently closed - Such a view would be contrary to the legal provisions and would be opposed to the public policy - Hence, Tribunal was completely wrong in denying to the appellant, the compensation in terms of s. 140 of the Act - Appellant (as well as the other 3 claimants) were fully entitled to no fault compensation u/s. 140 of the Act - Appeal allowed.

Supreme Court of India

CIVIL APPEAL NO. 7049 OF 2002

Hon'ble Judge(s):  R.M. LODHA  & AFTAB ALAM

Date of Judgment: 18 August, 2010

Eshwarappa @ Maheshwarappa and Anr.Versus C. S. Gurushanthappa and Anr.
O R D E R
AFTAB ALAM,J.

1. A certain Basavaraj was the driver of a privately owned car. In the night of October 28, 1992 he took out the car for a joyride and along with five persons, who were his neighbours, proceeded for the nearby Anjaneya temple for offering pooja. On way to the temple the car met with a fatal accident in which Basavaraj and four other occupants of the car died; the fifth passenger sustained injuries but escaped death. One of the persons dying in that motor accident was Nagaraj, whose parents are the appellants before this Court.

 2. The heirs and legal representatives of the deceased driver, Basavaraj filed a claim for compensation under the Workmen’s Compensation Act, 1923. They got nothing. The Commissioner under the Workmen’s Compensation Act found and held that the accident did not take place in course of employment and rejected the claim for compensation.
3. The heirs of the four occupants of the car, dying in the accident (including the present appellants) and the fifth passenger suffering injuries in the accident sought compensation before the Motor Accidents Claims Tribunal. Their claims proved to be equally barren.
4. The appellants took the matter in appeal before the High Court where they were equally unsuccessful. They are now in appeal before this Court by special leave.
5. The counsel appearing on behalf of the appellants raised a very limited issue. He submitted that in any event the appellants were entitled to the ‘no fault compensation’ as provided under section 140 of the Motor Vehicles Act, 1988 but they were denied even that by the Tribunal for reasons that are totally unsustainable in law.
6. We are, therefore, required to see how and why the appellants were denied compensation under section 140 of the Act and how far the denial was justified. The appellants filed a claim petition (MVC 1404/92) before the District Judge and MACT, Chitrandurga under section 166 of the Motor Vehicles Act seeking compensation for the death of Nagaraj. The appellants’ petition, along with four other claim petitions (filed by the heirs of the other three occupants dying in that car accident and the fifth occupant who suffered injuries in that accident), was disposed of by the Tribunal by a common order dated May 9, 1996. From the order of the Tribunal, it appears that in four of the five cases before it, including MVC 1404/92, IAs were filed seeking interim compensation of rupees twenty five thousand (Rs.25,000.00) only (as the law stood at that time) in terms of section 140 of the Act. For some reason, however, no order was passed on the IAs and the Tribunal proceeded to examine the claimants’ claim on merits under section 166 of the Act.

7. The Tribunal, in its order summarized the cases of each of the five claimants separately, noting the facts peculiar to the four deceased and the fifth injured occupant of the ill fated car. It also framed the issues arising in each case separately. In regard to Nagaraj, the son of the appellants, it noted that at the time of his death he was eighteen years old. According to the appellants, he worked at a sweetmeat stall and earned rupees eight hundred (Rs.800.00) only per month. He was going to Anjaneya temple in the car being driven by Basavaraj and in the accident he died on the spot. The appellants claimed compensation of rupees one lakh (Rs.1,00,000.00) only. In his case the Tribunal framed four issues which are as under:

1. Whether the petitioners prove that Nagaraj died due to injuries sustained in a motor accident that occurred on 28.10.92 at 11:45pm near Bheemasamudra Cross on Holalkere road due to rash and negligent driving of the car MYG 1624 by its driver?

2. Whether the petitioners prove that they are the legal representatives of Nagaraj, the deceased and are entitled to compensation?

3. What is the quantum of compensation to which the petitioners are entitled and from which of the respondents?

4. Whether the respondents prove that the accident did not occur during the course of employment of the driver of the car MYG 1624 and that they are not vicariously liable to pay compensation?
 

8. The first two issues in the case of Nagaraj, as in all the other cases, were answered by the Tribunal in the affirmative. On issue no.3 appellant no.1, the father of the deceased Nagaraj stated on oath that his son was aged eighteen years and used to work in the hotel of one Siddappa who paid him rupees thirty (Rs.30.00) only per day, but the Tribunal disbelieved him and rejected his testimony. On the basis of the post mortem report, the Tribunal held that Nagaraj, at the time of his death, was aged about fifteen years. It further held that there was no evidence to show that at the time of his death Nagaraj earned anything, pointing out that in paragraph 22 of the claim petition nothing material was mentioned about the loss of earning due to his death. Then, rather gratuitously it fixed the amount of compensation at rupees thirty thousand plus two thousand (Rs.30,000.00 + Rs.2,000.00) observing as follows:

 “Hence the maximum compensation that can be granted to the petitioner herein would be only about Rs.30,000-00 as being just and reasonable and a sum of Rs.2,000-00 toward funeral and obsequious expenses etc. and therefore the petitioners are granted sum total compensation amount of Rs.32,000-00.”

 

9. Having, thus, put the worth of the life of Nagaraj at rupees thirty thousand (Rs.30,000.00) only the Tribunal proceeded to consider whether the appellants were entitled to receive even this amount from the owner of the car or the insurance company (second part of issue no.3 and issue no.4). It held that neither the owner of the car nor the insurance company was liable to pay anything to any of the claimants, including the appellants, because Basavaraj had taken out the car of his employer unauthorisedly and against his express instructions and had caused the accident by driving the car very rashly after consuming liquor. At the time of accident the car had been taken completely away from the control of its owner. In a sense it was stolen by the driver, even though temporarily. The accident was, thus, completely outside the insurance policy. No compensation was, therefore, payable to any of the claimants under section 166 of the Motor Vehicles Act.

10. Up to this stage no exception can be taken to the view taken by the Tribunal. But surprisingly the Tribunal also rejected the express prayer made on behalf of the appellants and other claimants to at least grant the ‘no fault compensation’ as provided under section 140 of the Act. The Tribunal discussed the issue over six pages in its judgment before turning down the claim. It seems to have taken the view, that had the claim for ‘no fault compensation’ been made at the beginning of the proceeding, it might have considered it favourably. But the claim was pressed at a belated stage when it was considering the claim for compensation under section 166 of the Act and more importantly had found that the owner of the car had no responsibility for the accident. In this connection, the Tribunal observed as follows:

 “However, in these cases as already referred to above, if at the initial stage itself if the learned counsel Sri. M. Gnana Swamy had pressed the Tribunal to pass interim award on I.A.I in all the four cases, then the I.A.I filed in all four cases would have been definitely allowed and this Tribunal would have directed both the respondents 1 & 2 and more particularly respondent No.2 to deposit the interim compensation amount leaving open the liability aspect at the fag end of these cases i.e., at the arguments stage. Now that stage is already over and as such now this Tribunal has to consider equally as to whether at this stage as per the principle of no fault liability under s.140 of the Motor Vehicles Act, 1988, these petitioners are entitled for the interim in compensation amount.”
…………….

“Now as regards the no fault liability as already referred to above, perhaps the petitioners would have been granted the interim compensation amount at the initial stage, but now it cannot be done, since the merits of the cases are being dealt with after hearing the arguments at the final stage and the main cases are being disposed of on merits as such.”
…………………….

“Hence in view of my finding that the car was being used totally outside the course of the employment of the driver of the car and totally without the knowledge and consent of the 1st respondent, I hold that even as regards this no fault liability claim also, the 1st respondent or for the matter 2nd respondent amount to any of the petitioner’s hearing. Hence this being the position, I am constrained to observe and hold that although as per the available evidence on record the petitioners are entitled for compensation amount as granted to them, in view of my earlier finding on issue No.3 in all the petitions, but all the same these petitions have got to be dismissed on account of the fact that neither the first respondent nor the second respondent is liable to pay compensation amount to any other petitioners herein.”


11. The appellants took the matter in appeal but the High Court in its brief order did not at all advert to this aspect of the matter.

12. Coming back to the order passed by the Tribunal, we are completely unable to appreciate the reasons assigned for denying the appellants the ‘no fault compensation’ as provided under section 140 of the Act. The Tribunal was gravely in error in taking the view that a claim for compensation under section 140 of the Act can succeed only in case it is raised at the initial stage of the proceedings and further that the claim must fail if the accident had taken place by using the car without the consent or knowledge of its owner. Section 140 is the first section of chapter X of the Act. It is a small chapter consisting of only five sections (from 140 to 144) and has the marginal heading “Liability without Fault in Certain Cases”. Section 140 reads as under:


“140. Liability to pay compensation in certain cases on the principle of no fault.

(1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.
(2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of fifty thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of

twenty-five thousand rupees.

(3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or

of any other person.

(4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement.

(5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force:


Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163A.”

On a plain reading of the provisions it is evident that all that is required to attract the liability under section 140 is an accident arising out of the use of a motor vehicle(s) leading to the death or permanent disablement of any person. Sub-section (2) provides for a fixed amount as compensation. [In case of death, currently it is rupees fifty thousand (Rs.50,000.00) only; at the time the accident from which the appeal arises took place the fixed amount in case of death was rupees twenty five thousand (Rs.25,000.00) only]. Subsection (3) provides that even though the death or permanent disablement resulting from the motor accident might not be due to any wrongful act, neglect or default of the owner of the vehicle, it would have no effect either on his liability or on the amount of compensation. Sub-section (4) conversely provides that the motor accident resulting in the death or permanent disablement might be entirely due to the wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim is made but that too would have no effect either on the right to receive the compensation or the amount of compensation. Sub-section (5) which begins with a non obstante clause makes it further clear that the liability under section 140 is independent of the liability of the owner of the vehicle to pay compensation under any other law for the time being in force. The proviso to sub-section (5), of course, provides that the amount of compensation under any other law would be reduced from the amount of compensation payable under section 140 or under section 163A of the Act.

 

13. Then there is section 141 which reads as under:

“141. Provisions as to other right to claim compensation for death or permanent disablement.

(1) The right to claim compensation under section 140 in respect of death or permanent disablement of any person shall be in addition to any other right, except the right to claim under the scheme referred to in section 163A (such other right hereafter in this section referred to as the right on the principle of fault) to claim compensation in respect thereof under any other provision of this Act or of any other law for the time being in force.

(2) A claim for compensation under section 140 in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible and where compensation is claimed in respect of such death or permanent disablement under section 140 and also in pursuance of any right on the principle of fault, the claim for compensation under section 140 shall be disposed of as aforesaid in the first place.

(3) Notwithstanding anything contained in sub-section (1), where in respect of the death or permanent disablement of any person, the person liable to pay compensation under section 140 is also liable to pay compensation in accordance with the right on the principle of fault, the person so liable shall pay the firstmentioned compensation and-

(a) if the amount of the first-mentioned compensation is less than the amount of the second-mentioned compensation, he shall be liable to pay (in addition to the first-mentioned compensation) only so much of the second-mentioned compensation as is equal to the amount by which it exceeds the first mentioned compensation;

(b) if the amount of the first-mentioned compensation is equal to or more than the amount of the secondmentioned compensation, he shall not be liable to pay the second-mentioned compensation.”

Sub-section (1) of section 141 makes the compensation under section 140 independent of any claim of compensation based on the principle of fault under any other provision of the Motor Vehicles Act or under any other law but subject to any claim of compensation under section 163A of the Act. Sub-sections (2) and (3) further provide that even while claiming compensation under the principle of fault (under section 166) one may claim no fault compensation under section 140 and in that case the claim of no fault compensation shall be disposed of in the first place and the amount of compensation paid under section 140 would be later adjusted if the amount payable as compensation on the principle of fault is higher than it.


14. Finally, section 144 gives overriding effect to the provisions of Chapter X. Section 144 reads as follows:

“144. Overriding effect.-The provisions of this Chapter shall have effect notwithstanding anything contained in any other provision of this Act or of any other law for the time being in force.”

15. Seen in isolation the above provisions might appear harsh, unreasonable and arbitrary in as much as these create the liability of the vehicle(s) owner(s) even where the accident did not take place due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned but entirely due to the wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made but the above provisions must be seen along with certain provisions of Chapter XI. Section 146 forbids the use of the vehicle in a public place unless there is in force, in relation to the use of the vehicle, a policy of insurance complying with the provisions of that chapter. Section 147 contains the provisions that are commonly referred to as ‘Act only insurance’. The provisions of sections 146 and 147 are meant to create the large pool of money for making payments of no fault compensation. Thus the liability arising from section 140 would almost invariably be passed on to the insurer to be paid off from the vast fund created by virtue of sections 146 and 147 of the Act unless the owner of the vehicle causing accident is guilty of some flagrant violation of the law.

 

16. Seen thus, the provisions of chapter X together with sections 146 and 147 would appear to be in furtherance of the public policy that in case of death or permanent disablement of any person resulting from a motor accident a minimum amount must be paid to the injured or the heirs of the deceased, as the case may be, without any questions being asked and independently of the compensation on the principle of fault.

 
17. The provisions of section 140 are indeed intended to provide immediate succour to the injured or the heirs and legal representatives of the deceased. Hence, normally a claim under section 140 is made at the threshold of the proceeding and the payment of compensation under section 140 is directed to be made by an interim award of the Tribunal which may be adjusted if in the final award the claimants are held entitled to any larger amounts. But that does not mean, that in case a claim under section 140 was not made at the beginning of the proceedings due to the ignorance of the claimant or no direction to make payment of the compensation under section 140 was issued due to the over-sight of the Tribunal, the door would be permanently closed. Such a view would be contrary to the legal provisions and would be opposed to the public policy.

 

18. In light of the discussions made above, we are unhesitatingly of the view, that the Tribunal was completely wrong in denying to the appellant, the compensation in terms of section 140 of the Act. We find and hold that the appellant (as well as the other 3 claimants) were fully entitled to no fault compensation under section 140 of the Act. We, accordingly, direct the insurance company to pay to the appellant Rs.25,000/- along with simple interest @ 6% p.a. from the date of the order of the Tribunal till the date of payment. The other 3 claimants are not before this Court, but that is presumably because they are too poor to come to this Court. Since, we have allowed the claim of the appellants, there is no reason why this order should not be extended to the other 3 claimants as well. We, accordingly, do so. The insurance company is directed to make the payment as directed in this judgment within 3 months.

 19. In the result, the appeal is allowed but with no order as to costs.

Indra Devi & Ors.Versus Bagada Ram & Ors

Motor Vehicles Act, 1988, Section140  - No fault compensation - Appellants claimed compensation against the owner of the truck and its insurer - Tribunal rejected the claim of compensation on the principle of fault and held that there was no lapse on the part of the driver of the truck nor was it due to any mechanical fault in the truck.The accident was caused due to the careless and negligent driving of the deceased himself. On that finding, the Tribunal naturally rejected the claim of compensation on the principle of fault. But it did not stop there and went on to hold that the insurance company was entitled to the refund of the amount of no fault compensation along with interest @ 9% p.a. The impugned direction is clearly erroneous and unsustainable in law. The Tribunal has completely failed to realize the true nature and character of the compensation in terms of section 140 of the Act. The marginal heading to section 140 describes it as based ‘on the principle of no fault’. As the expression ‘no fault’ suggests the compensation under section 140 is regardless of any wrongful act, neglect or default of the person in respect of whose death the claim is made. The High Court was equally in error in missing out this grave mistake in the judgment and order passed by the Tribunal and not setting it right. Order of the Tribunal insofar as it permits the insurance company to recover the amount of interim compensation alongwith the interest from the claimants/appellants is set aside - Appeal allowed

Supreme Court of India

CIVIL APPEAL NO. 1508 OF 2004

Hon'ble Judge(s):  R.M. LODHA  & AFTAB ALAM

Date of Judgment: 18 August, 2010

Indra Devi & Ors.Versus Bagada Ram & Anr

O R D E R
 AFTAB ALAM,J. 1. This is the claimant’s appeal from a motor accident claim case.

2. On March 31, 1999, one Ramniwas while going on a motorcycle dashed against the rear side of a truck that was headed in the same direction as the motorcycle. Ramniwas died in the accident. His heirs and legal representatives, the appellants before this Court, moved the MACT, Sojat, Branch Jaitaran, District Pali in MACT Case No.59 of 1999 against the owner of the truck and its insurer, the New India Assurance Company Ltd. for compensation in terms of section 166 of the Motor Vehicles Act, 1988. In course of the proceedings, the appellants claimed no fault compensation under section 140 of the Motor Vehicles Act which was granted to them by the Tribunal and the compensation amount was duly paid by the insurance company. In the main proceeding, however, the Tribunal came to find and hold that insofar as the accident is concerned there was no lapse on the part of the driver of the truck nor was it due to any mechanical fault in the truck. The accident was caused due to the careless and negligent driving of the deceased himself. On that finding, the Tribunal naturally rejected the claim of compensation on the principle of fault. But it did not stop there and went on to hold that the insurance company was entitled to the refund of the amount of no fault compensation along with interest @ 9% p.a. In the operative portion of the judgment, the tribunal ordered as follows:

“According to the above analysis, this claim is dismissed. An amount of Rs.50,000/- has been given to the applicants by The New India Assurance Co. Ltd. as an interim relief and The India Assurance Co. Ltd. will be entitled to have it back with 9% interest p.a.”

3. The claimants took the matter to the High Court in appeal (Civil Miscellaneous Appeal No.323 of 2002). The High Court dismissed the appeal by judgment and order dated August 20, 2002. The High Court agreed with the Tribunal’s finding that the deceased alone was responsible for the accident and hence, the claimants were not entitled to any compensation. Unfortunately, the High Court did not address the issue of no fault compensation and overlooked the direction of the Tribunal for refund of the amount of interim compensation alongwith interest @ 9% p.a.

4. The claimants are now before this Court aggrieved by the direction to refund the amount of interim compensation to the insurance company alongwith interest.

5. The impugned direction is clearly erroneous and unsustainable in law. The Tribunal has completely failed to realize the true nature and character of the compensation in terms of section 140 of the Act. The marginal heading to section 140 describes it as based ‘on the principle of no fault’. As the expression ‘no fault’ suggests the compensation under section 140 is regardless of any wrongful act, neglect or default of the person in respect of whose death the claim is made.



6. We have examined the nature of the ‘no fault compensation’ payable under section 140 of the Act in Eshwarappa @ Maheshwarappa and Anr. vs. C.S. Gurushanthappa and Anr. (Civil Appeal No.7049 of 2002), the judgment in which is pronounced today. We, therefore, do not wish to elaborate the point further. Suffice to say that in view of our judgment in Civil Appeal No.7049 of 2002, the Tribunal was patently in error, in directing for the refund of the amount of ‘no fault compensation’ already paid to the claimants, to the insurance company. The High Court was equally in error in missing out this grave mistake in the judgment and order passed by the Tribunal and not setting it right.

 7. The present appeal must, therefore, be allowed. The order of the Tribunal insofar as it permits the insurance company (respondent no.2) to recover the amount of interim compensation alongwith the interest from the claimants/appellants is set aside.


8. In the result the appeal is allowed but with no order as to costs.

Saturday, August 21, 2010

S.S. Chheena Vs.Vijay Kumar Mahajan

Penal Code, 1860 Section 306 - Abetment to suicide : Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide - No straitjacket formula can be laid down and facts and circumstances of each case are to be considered. To prove abetment one has to show a positive act on the part of the accused instigating or aiding commission of suicide. Deceased was hypersensitive to ordinary petulance, discord and differences. There being no evidence against appellant, order framing charge quashed.

Supreme Court of India

Criminal Appeal No. 1503 of 2010

Hon'ble Judge(s):  Dalveer Bhandari & K.S. Radhakrishnan

Date of Judgment: 12 August, 2010

S.S. Chheena Vs.Vijay Kumar Mahajan

O R D E R
Dalveer Bhandari, J. 1. Leave granted. 
2. This appeal is directed against the judgment of the High Court of Punjab & Haryana at Chandigarh in Criminal Revision No.1800 of 2008 dated 17.2.2009. 
3. The appellant S.S. Chheena was a Security Officer at Guru Nanak Dev University, Amritsar. This job was accepted by him after his retirement from the Indian Police Service (IPS). He is seriously aggrieved by the order of the Additional Sessions Judge, Amritsar by which he had framed a charge against the appellant under section 306 of the Indian Penal Code (for short, IPC). 
4. Brief facts necessary to dispose of this appeal are as under:- On 13.10.2003, a dispute arose between the son of the complainant, namely, Saurav Mahajan, deceased who was a final year student of the Law Department and Harminder Singh, a fellow student of the same class. The dispute was with regard to the theft of a mobile phone which came to the notice of M.D. Singh, the then Head of the Law Department on 13.10.2003, pursuant to which M.D. Singh asked both the students, i.e., Saurav Mahajan, deceased and Harminder Singh alias Montu to submit their versions of the incident in writing. 
5. The deceased and Harminder Singh gave their written versions of the incident and thereafter M.D. Singh forwarded their versions to the University authorities for taking necessary action. Consequently, the enquiry was conducted on 13.10.2003 by the Security Officer of the University - the appellant herein. During the course of the enquiry, on 17.10.2003, the son of the complainant committed suicide by jumping in front of a train. Subsequently, during the search, a suicide note was recovered from the pocket of the deceased dated 16.10.2003. The suicide note is important for adjudicating and deciding this appeal. The said suicide note is reproduced as under:- "SUICIDE NOTE I am Saurav Mahajan a final year student of Department of Law of GNDU. Montu had levelled a false allegation upon me. I am very annoyed because a false allegation has been levelled upon me. I have a faith that this allegation is false, accused Montu and his accomplices will be arrested and I will be declared as innocent. The reason of my annoyance is that I am falsely involved as I did not commit any theft. A dying person will not speak falsely. I have not committed this theft. According to me, the theft has been committed by Harminder Singh in connivance with his accomplices. Harminder Singh says that on the day when the Mobile was stolen, he was taking the test. I made request to Mr. Chhina to see as to whether he was engaged in the test or not? Or he had not completed the whole test, came out a little before the fixed time, and committed theft. Examination sheet of the said day of Harminder Singh be seen. Harminder Singh had admitted two things in the presence of M.D. Singh, HOD of the Law Department, i.e. (1) he had played a joke with me (2) Harminder Singh admitted that he had demanded money from me. Chhina Sahib, M.D. Singh, while dying, I will not speak untrue. I have not committed any theft. Real thief is Montu. He has falsely involved my name. Harminder Singh cannot prove this at any cost because he is totally wrong. On the other hand, he has admitted that he had sold this Reliance set to his friends and has falsely leveled this allegation against me. I request my uncle/aunt, mother/father to forgive me that I tried my best to fulfill their expected wishes but could not do the same because Harminder Singh has leveled false allegation against me. I want to say this thing again that I am innocent and request my mother/father that they may not make any complaint regarding my suicide. I will also say to Chhina Sahib even if they give justice and leave me but the people will have a suspicion about me. I am taking this step on account of my insult. Harminder Singh and his accomplices are responsible for my suicide or MD Singh who did not take into account my faith and without consulting me, has forwarded this case. Dated: 16.10.2003 Sd/- Saurav Mahajan I have not committed any theft and I am not involved with Montu and his accomplices are responsible of my this step. Till today, I have not spoken badly to any one but, however, if any mistake had been done by me to anybody, please forgive me. Sd/- Saurav Mahajan" 
6. In the suicide note it is stated that he (Saurav Mahajan) did not commit the theft and he had committed suicide because he was falsely implicated in the theft case of a mobile phone. He further mentioned in the suicide note that Harminder Singh and his accomplices were responsible for this act. On the basis of the suicide note a FIR No.81 dated 17.10.2003 under section 306 of the IPC was registered at the Police Station, GRPS, Amritsar. In the said FIR, the suicide note of the deceased has been reproduced and on the basis of the same, Harminder Singh was implicated under section 306 IPC along with M.D. Singh. It is pertinent to mention that in the said FIR, the appellant, namely, S.S. Chheena, the Security Officer was not even named as an accused. 
7. The complainant had approached the Punjab State Human Rights Commission, Chandigarh, but, the Commission had also refused to interfere in the investigation conducted in FIR No.81 dated 17.10.2003. 
8. A report under section 173 of the Code of Criminal Procedure was submitted only against Harminder Singh. Pursuant to the presentation of the Challan, charges were framed against Harminder Singh @ Montu. 
9. The complainant, being father of the deceased filed a private complaint in the court of learned Additional Chief Judicial Magistrate, Amritsar, in which it was alleged that the appellant S.S. Chheena and M.D. Singh were responsible for abetting the suicide of his son and sought for their trial under section 306 IPC.
10. During the course of the trial, an application was moved by the Public Prosecutor for summoning of the appellant and M.D. Singh, the then Head of the Department of Law of Guru Nanak Dev University, Amritsar under section 319 Cr.P.C. The learned Additional Chief Judicial Magistrate, Amritsar, on the basis of the said complaint, summoned the appellant as well as M.D. Singh to face trial under section 306 IPC. The trial court dismissed the application under section 319 Cr.P.C. being not pressed as the appellant and his co-accused stood summoned in the complaint case. The trial court clubbed the complaint case with the State case and ordered for framing of the charge under section 306 IPC. Accordingly, a charge-sheet was filed against the appellant along with Harminder Singh @ Montu. 
11. The appellant, aggrieved by the framing of the charge moved the High Court in the Revision Petition which was dismissed on 17.2.2009. Against that order, the appellant has approached this court. 
12. The High Court observed that the material against the appellant was not just the suicide note but also includes threats, humiliating phrases etc. addressed to the deceased and his father over a period of few days. 
13. According to the appellant, it may be significant to mention that if the threat or the humiliating phrases etc. by the appellant had any impact on the deceaseds mind or had led to the abetment to commit suicide then all these facts ought to have been mentioned in the suicide note. In the suicide note nothing had been mentioned against the appellant. According to the appellant in absence of any material against him, no charge could be framed against him under section 306 of IPC. 
14. The appellant submitted that the main question which arises for adjudication is whether it would be just and fair to compel the appellant to face the rigmarole of a criminal trial in absence of any credible material against him? According to the appellant, a careful reading of the suicide note clearly leads to the conclusion that the appellant was not even remotely connected with the offence of abetment. When the appellant was in no manner connected with this case and there was no credible material to connect the appellant with the crime, in this view of the matter, according to the appellant, it would be a futile exercise to compel him to undergo the rigmarole of a criminal trial. 
15. Learned counsel for the appellant has placed reliance on the judgment of this court in Gangula Mohan Reddy v. State of Andhra Pradesh (2010) 1 SCC 750 (in which one of us, Bhandari, J., was the author of the said judgment). The ratio of the said judgment is fully applicable to this case and we deem it proper to rely and reproduce some parts of the said judgment. 
16. In order to properly comprehend the scope and ambit of Section 306 IPC, it is important to carefully examine the basic ingredients of Section 306 IPC. The said section is reproduced as under:- "306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 
17. The word "suicide" in itself is nowhere defined in the Penal Code, however its meaning and import is well known and requires no explanation. "Sui" means "self" and "cide" means "killing", thus implying an act of self-killing. In short, a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself. 
18. Suicide by itself is not an offence under either English or Indian criminal law, though at one time it was a felony in England. In England, the former law was of the nature of being a deterrent to people as it provided penalties of two types: 7 Degradation of corpse of the deceased by burying it on the highway with a stake through its chest. 7 Forfeiture of property of the deceased by the State. 
19. This penalty was later distilled down to merely not providing a full Christian burial, unless the deceased could be proved to be of unsound mind. However, currently there is no punishment for suicide after the enactment of the Suicide Act, 1961 which proclaims that the rule of law whereby it was a crime for a person to commit suicide has been abrogated. 
20. In our country, while suicide in itself is not an offence, considering that the successful offender is beyond the reach of law, attempt to suicide is an offence under Section 309 IPC. 
21. "Abetment" has been defined under Section 107 of the Code. We deem it appropriate to reproduce Section 107, which reads as under: "107. Abetment of a thing.--A person abets the doing of a thing, who-- First.--Instigates any person to do that thing; or Secondly.--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing." Explanation 2 which has been inserted along with Section 107 reads as under: "Explanation 2.--Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act." 
22. The learned counsel for the appellant has placed reliance on a judgment of this Court in Mahendra Singh v. State of M.P. 1995 Supp (3) SCC 731. In Mahendra Singh, the allegations levelled were as under: (SCC p. 731, para 1) "1. ... My mother-in-law and husband and sister-in- law (husbands elder brothers wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning." 
23. The Court on the aforementioned allegations came to a definite conclusion that by no stretch the ingredients of abetment are attracted on the statement of the deceased. According to the appellant, the conviction of the appellant under Section 306 IPC merely on the basis of the aforementioned allegation of harassment of the deceased is unsustainable in law. 
24. The learned counsel also placed reliance on another judgment of this Court in Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618. In this case, a three-Judge Bench of this Court had an occasion to deal with a case of a similar nature. In a dispute between the husband and wife, the appellant husband uttered "you are free to do whatever you wish and go wherever you like". Thereafter, the wife of the appellant Ramesh Kumar committed suicide. The Court in para 20 has examined different shades of the meaning of "instigation". Para 20 reads as under: (SCC p. 629) "20. Instigation is to goad, urge forward, provoke, incite or encourage to do `an act. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation." 
25. In this case, the court came to the conclusion that there is no evidence and material available on record wherefrom an inference of the appellant-accused having abetted commission of suicide by Seema may necessarily be drawn. 
26. In State of West Bengal v. Orilal Jaiswal (1994) 1 SCC 73, this Court has cautioned that the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. 
27. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) (2009) 16 SCC 605 had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the words "instigation" and "goading". The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each persons suicidability pattern is different from the other. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances. 
28. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide. 
29. In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation. 
30. When we carefully scrutinize and critically examine the facts of this case in the light of the settled legal position the conclusion becomes obvious that no conviction can be legally sustained without any credible evidence or material on record against the appellant. The order of framing a charge under section 306 IPC against the appellant is palpably erroneous and unsustainable. It would be travesty of justice to compel the appellant to face a criminal trial without any credible material whatsoever. Consequently, the order of framing charge under section 306 IPC against the appellant is quashed and all proceedings pending against him are also set aside. 
31. As a result, the appeal is allowed and the impugned judgment of the High Court is set aside.

Sushil Kumar Singhal V/S.The Regional Manager, Punjab National Bank

SERVICE & LABOUR LAWS- Conviction for embezzlement of funds - Released on probation - However services terminated - Tribunal and High Court upheld dismissal - Whether benefit granted under 1958 Act, entitles delinquent employee to reinstatement in service. Held, as per 1949 Act Management to dismiss the services of an employee convicted for an offence involving moral turpitude. Conviction in a criminal case and release on probation are two different things. Word 'disqualification' contained in Section 12 of the Act, 1958 refers to a disqualification provided in other Statutes. Grant of probation only washes away the sentence on delinquent's showing good conduct and employee cannot claim a right to continue in service merely because of such benefit.


Supreme Court of India

Civil Appeal No. 6423 of 2010

Hon'ble Judge(s):  P. Sathasivam & Dr. B.S. Chauhan

Date of Judgment: 10 August, 2010

Sushil Kumar Singhal V/S.The Regional Manager, Punjab National Bank

O R D E R
 
Dr. B.S. CHAUHAN, J. Leave granted.

2. This appeal has been preferred against the Judgment and Order dated 10.09.2007 passed by High Court of Punjab & Haryana in Civil Writ Petition 14014 of 2007, by which the High Court had dismissed the writ petition for quashing the award dated 3rd January, 2007, passed by the Central Government Industrial Tribunal-cum-Labour Court-II at Chandigarh (hereinafter called as, 'Tribunal'), by which the Tribunal had upheld the dismissal of the appellant from service on the ground of conviction of the appellant in criminal case involving moral turpitude.
3. Facts and circumstances giving rise to the present case are that the appellant was appointed as a Peon in the respondent-Bank, Kaithal Branch, on 01.12.1971 and stood confirmed on the said post vide order dated 28.12.1977. The appellant was handed over cash of Rs.5000/-, to deposit the same as dues for the Telephone Bill in the Post Office. However, it was not deposited by the appellant, therefore, the bank lodged FIR No. 171 under Section 409 of Indian Penal Code, 1860 (hereinafter called 'IPC') against the appellant, on 27.04.1982, in Police Station, City Kaithal. Appellant was tried for the said offence. After conclusion of trial, the appellant was convicted by the competent Criminal Court vide Judgment and Order dated 28.01.1988. The respondent-Bank issued a Show Cause Notice dated 01.03.1988 to the appellant, proposing dismissal from service and asked the appellant to show cause within a period of seven days. The appellant submitted the reply dated 08.03.1988. However, the respondent-Bank dismissed the appellant from service vide order dated 09.03.1988.

4. Being aggrieved, the appellant raised an industrial dispute under the Industrial Disputes Act, 1947 and the matter was referred to the Tribunal. In the meanwhile, the appeal filed by the appellant against the order of conviction was decided by the appellate Court vide judgment and order dated 29.5.1989. The appellate Court maintained the conviction, but granted him the benefit of probation under The Probation of Offenders Act, 1958 (hereinafter called as, 'Act 1958) and released the appellant on probation. The Tribunal made the award dated 03.01.2007, rejecting the claim of the appellant and holding his dismissal from service to be justified and in accordance with law.

5. Being aggrieved, the appellant challenged the said award of the Tribunal by filing the writ petition No. 14014 of 2007, before the High Court. His petition also stood dismissed vide impugned Judgment and order dated 10.09.2007. Hence, this appeal.

6. Sh. Pradeep Gupta, learned counsel appearing for the appellant, has submitted that once the appellant had been granted the benefit of the Act, 1958, the respondent-Bank ought to have considered his case for reinstatement, as the benefit granted by the appellate Court under the provisions of Act, 1958, had taken away 'disqualification' by virtue of Section 12 of the Act, 1958. The appeal deserves to be allowed and the Judgment and Order of the High Court as well as the Award of the Tribunal are liable to be set aside.

7. Per contra, Sh. Rajesh Kumar, learned counsel appearing for the respondent-Bank, has vehemently opposed the appeal contending that grant of benefit under the Act, 1958 takes away only the punishment (sentence) and not the factum of conviction, therefore, in case, an employee of the Bank stands convicted in an offence involving moral turpitude, it is permissible for the respondent-Bank to remove him from service. Appeal lacks merit and is liable to be dismissed.

8. We have considered the rival submissions made by the learned counsel for the parties and perused the record. The facts of the case are not in dispute. The Trial Court has convicted the appellant under Section 409 IPC after recording the finding of fact that the appellant had not deposited the telephone bill in spite of receiving a sum of Rs. 5000/- for that purpose on 26.04.1982 and he deposited the said amount with the Bank on 27.07.1982 vide voucher (Exhibit PH). Appellant had also taken away the Bicycle of the Bank. The appellate Court maintained the conviction, however, it granted the appellant the benefit of probation under the Act, 1958.

9. The sole question involved in this case is whether the benefit granted to the appellant under the provisions of Act, 1958 makes him entitled to reinstatement in service.

9.1. The issue involved herein is no more res integra.

9.2. In Aitha Chander Rao v. State of Andhra Pradesh [1981 (Suppl.) SCC 17], this Court held:

'As the appellant has been released on probation, this may not affect his service career in view of Section 12 of the Probation of offenders Act.'

10. The said judgment in Aitha Chander Rao (supra) was not approved by this Court in Harichand v.
Director of School Education [1998 (2) SCC 383], observing that due to the peculiar circumstances of the case, the benefit of the provisions of 1958 Act had been given to him and as in that case there had been no discussion on the words 'disqualification, if any attaching to a conviction of an offence under such law', the said judgment cannot be treated as a binding precedent. This Court interpreted the provisions of Section 12 of the 1958, Act and held as under:

'In our view, Section 12 of the probation of offenders Act would apply only in respect of a disqualification that goes with a conviction under law which provides for the offence and its punishment. That is the plain meaning of the words 'disqualification, if any, attaching to a conviction of an offence under such law' therein. Where the law that provides for an offence and its punishment also stipulates a disqualification, a person convicted of the offence but released on probation does not by reason of Section 12, suffers the disqualification. It cannot be held that by reason of Section 12, a conviction for an offence should not be taken into account for the purposes of dismissal of the person convicted from government service.'
(Emphasis added).

11. In Divisional Personnel Officer, Southern Railway & Anr. v. T.R. Chellappan [AIR 1975 SC 2216], this Court observed that the conviction of an accused, or the finding of the Court that he is guilty, does not stand washed away because that is the sine-qua-non for the order of release on probation. The order of release on probation is merely in substitution of the sentence to be imposed by the Court. Thus, the factum of guilt on the criminal charge is not swept away merely by passing the order under the Act, 1958.

12. In Trikha Ram v. V.K. Seth & Anr. [1987 (Suppl.) SCC 39], this Court had held that if a person stands convicted and is given the benefit of the provisions of the 1958, Act, he can be removed from service only on the ground that he stood convicted. But by virtue of the provisions of Section 12 of the 1958, Act, his removal cannot be a 'disqualification' for the purposes provided in other Statutes such as the Representation of the People Act, 1950. The same view has been reiterated by this Court in Union of India & Ors. v. Bakshi Ram [1990 (2) SCC 426]; Karam Singh v. State of Punjab & Anr. [1996 (7) SCC 748]; and Additional Deputy Inspector General of Police, Hyderabad v. P.R.K. Mohan [1997 (11) SCC 571].

13. In Shankar Dass v. Union of India & Anr. [AIR 1985 SC 772], this Court has held that the order of dismissal from service, consequent upon a conviction, is not a disqualification within the meaning of Section 12 of the 1958, Act. The court held as under:

'There are Statutes which provide that the persons, who are convicted for certain offences, shall incur certain disqualification; for example, Chapter III of the Representation of Peoples Act, 1951 entitles 'disqualification' for Membership of Parliament and State Legislatures, and Chapter IV entitles 'disqualification' for voting, contains the provisions which disqualify persons convicted of certain charges from being the Members of Legislatures or from voting at election to the legislature. That is the sense in which the word 'disqualification' is used in Section 12 of the Probation of Offenders Act.......Therefore, it is not possible to accept the reasoning of the High Court that Section 12 of the 1958 Act takes away the effect of conviction for the purpose of service also.'

14. In State of U.P. v. Ranjit Singh [AIR 1999 SC 1201], this Court has held that the High Court, while deciding a criminal case and giving the benefit of the U.P. First Offenders Probation Act, 1958, or similar enactment, has no competence to issue any direction that the accused shall not suffer any civil consequences. The Court has held as under:

'We also fail to understand, how the High Court, while deciding a criminal case, can direct that the accused must be deemed to have been in continuous service without break, and, therefore, he should be paid his full pay and dearness allowance during the period of his suspension. This direction and observation is wholly without jurisdiction....'

15. In Union of India v. Trilochan Patel [AIR 1985 SC 1612], some part of the Judgment in T.R. Chellappan (supra) was overruled by the Constitution Bench of this Court. But the observations cited hereinbefore were not overruled.

16. In Punjab Water Supply Sewerage Board & Anr. v. Ram Sajivan & Anr. [2007 (9) SCC 86], this Court explained that the Judgment in Aitha Chander Rao (supra) did not lay down any law as no reason has been assigned in support of the order. Thus, the same remained merely an order purported to have been passed under Article 142 of the Constitution of India. This Court allowed the disciplinary authority to initiate the disciplinary proceedings in accordance with law and pass an appropriate order, in spite of the fact that in the said case, the court, after recording the conviction, had granted benefits of the provisions of the Act, 1958 to the employee.

17. In view of the above, the law on the issue can be summarized to the effect that the conviction of an employee in an offence permits the disciplinary authority to initiate disciplinary proceedings against the employee or to take appropriate steps for his dismissal/removal only on the basis of his conviction. The word 'Disqualification' contained in Section 12 of the Act, 1958 refers to a disqualification provided in other Statutes, as explained by this Court in the above referred cases, and the employee cannot claim a right to continue in service merely on the ground that he had been given the benefit of probation under the Act, 1958.
18. Sh. Gupta, learned counsel for the appellant has placed very heavy reliance on the Judgment of this Court in Shankar Dass (supra) and submitted that this Court has held otherwise in that case. We have gone through the entire judgment and found that there is a complete fallacy in the submissions made by Sh. Gupta in this regard. In fact, in that case, this Court came to the conclusion that in spite of the fact that the benefit of the provisions of Act, 1958 had been granted by the Criminal Court, disciplinary proceedings could be initiated against the employee. However, in the facts and circumstances of the case involved therein, the Court asked the Management to reconsider the issue of quantum of punishment. This Court had taken note of the observations made by the Criminal Court while granting the benefit of the Act, 1958, which are as under:

'Misfortune dogged the accused for about a year......and it seems that it was under the force of adverse circumstances that he held back the money in question. Shankar Dass is a middle-aged man and it is obvious that it was under compelling circumstances that he could not deposit the money in question in time. He is not a previous convict.'

18.1. The Court also took further note of his other problems as under:

'The appellant was a victim of adverse circumstances; his son died in February, 1962, which was followed by another misfortune; his wife fell down from an upper storey and was seriously injured; it was then the turn of his daughter who fell seriously ill and that illness lasted for eight months.'

18.2. In the aforesaid facts and circumstances, this Court asked the Management to consider whether some other lesser punishment commensurate to the misconduct could be awarded. In fact the punishment of dismissal was found to be disproportionate to the delinquency committed by the appellant therein. Had this Court intended to say that once benefit of the Act, 1958 is extended to a delinquent, his conviction also stands washed off, the court could have directed the Management to re-instate the employee rather than asking to impose a lesser punishment. Thus, the submission so advanced by Shri Gupta is preposterous.

19. This Court reconsidered the said case i.e. Shankar Dass (supra) in Swarn Singh v. State Bank of India & Anr. [1986 (Suppl.) SCC 566], and held that the provisions of Article 311(2) of the Constitution of India conferred the power on the Government to dismiss a person on the ground of conduct which has led to his conviction on a criminal charge. It is thus, clear that it was open to the respondent-Bank to initiate the disciplinary proceedings and impose the punishment in view of the provisions of The Banking Regulation Act, 1949 (hereinafter called as, 'Act 1949').

20. Section 10(1)(b)(i) of the Act, 1949, reads as under:

'No banking company -

(a) .......

(b) Shall employ or continue the employment of any person -

(i) who is, or at any time has been, adjudicated insolvent, or has suspended payment or has compounded with his creditors, or who is, or has been, convicted by a criminal court of an offence involving moral turpitude.'
(emphasis supplied)

20.1. The aforesaid provision makes it clear that the Management is under an obligation to discontinue the services of an employee who is or has been convicted by a Criminal Court for an offence involving moral turpitude.

21. Moral Turpitude means [Per Black's Law Dictionary (8th Edn.,2004)]:

'Conduct that is contrary to justice, honesty, or morality. In the area of legal ethics, offenses involving moral turpitude such as fraud or breach of trust. Also termed moral depravity.

Moral turpitude means, in general, shameful wickedness- so extreme a departure from ordinary standards of honest, good morals, justice, or ethics as to be shocking to the moral sense of the community. It has also been defined as an act of baseness, vileness, or depravity in the private and social duties which one person owes to another, or to society in general, contrary to the accepted and customary rule of right and duty between people.'

22. In Pawan Kumar v. State of Haryana & Anr. [AIR 1996 SC 3300], this Court has observed as under:

''Moral turpitude' is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity.'

23. The aforesaid judgment in Pawan Kumar (supra) has been considered by this Court again in Allahabad Bank & Anr. v. Deepak Kumar Bhola [1997 (4) SCC 1]; and placed reliance on Baleshwar Singh v. District Magistrate and Collector [AIR 1959 All. 71], wherein it has been held as under:

'The expression 'moral turpitude' is not defined anywhere. But it means anything done contrary to justice, honesty, modesty or good morals. It implies depravity and wickedness of character or disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so if it discloses vileness or depravity in the doing of any private and social duty which a person owes to his fellow men or to the society in general. If therefore the individual charged with a certain conduct owes a duty, either to another individual or to the society in general, to act in a specific manner or not to so act and he still acts contrary to it and does so knowingly, his conduct must be held to be due to vileness and depravity. It will be contrary to accepted customary rule and duty between man and man.'

24. In view of the above, it is evident that moral turpitude means anything contrary to honesty, modesty or good morals. It means vileness and depravity. In fact, the conviction of a person in a crime involving moral turpitude impeaches his credibility as he has been found to have indulged in shameful, wicked, and base activities.

25. Undoubtedly, the embezzlement of Rs.5000/- by the appellant, for which he had been convicted, was an offence involving moral turpitude. The Statutory provisions of the Act, 1949, provide that the Management shall not permit any person convicted for an offence involving moral turpitude to continue in employment.

26. In Manish Goel v. Rohini Goel [AIR 2010 SC 1099], this Court after placing reliance on large number of its earlier judgments held as under:

'No Court has competence to issue a direction contrary to law nor the Court can direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injuncted by law.'

26.1. Thus, in such a fact-situation, it is not permissible for this Court to issue any direction as had been issued in the case of Shankar Dass (supra).

27. In view of the above, we reach the conclusion that once a Criminal Court grants a delinquent employee the benefit of Act, 1958, its order does not have any bearing so far as the service of such employee is concerned. The word 'disqualification' in Section 12 of the Act, 1958 provides that such a person shall not stand disqualified for the purposes of other Acts like the
Representation of the People Act, 1950 etc.

27.1. The conviction in a criminal case is one part of the case and release on probation is another. Therefore, grant of benefit of the provisions of Act, 1958, only enables the delinquent not to undergo the sentence on showing his good conduct during the period of probation. In case, after being released, the delinquent commits another offence, benefit of Act, 1958 gets terminated and the delinquent can be made liable to undergo the sentence. Therefore, in case of an employee who stands convicted for an offence involving moral turpitude, it is his misconduct that leads to his dismissal.

28. Undoubtedly, the appellant was convicted by the Criminal Court for having committed the offence under Section 409 IPC and was awarded two years' sentence. The appellate court granted him the benefit of Act, 1958. The Tribunal rejected his claim for re-instatement and other benefits taking note of the fact that appellant was given an opportunity by the Management to show cause as to why he should not be dismissed from service. The appellant submitted his reply to the said show cause notice. The Management passed the order of dismissal in view of the provisions of the Act, 1949. The Tribunal also took into consideration the contents of the Bi-Partite Settlement applicable in the case and rejected the appellant's claim. The High Court considered appellant's grievance elaborately as is evident from the impugned judgment. We could not persuade ourselves, in the aforesaid fact-situation, that any other view could also be possible.

29. In view of the above, we find no force in the appeal and it is accordingly dismissed. No order as to costs.