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4. If the trial is to get delayed on account of the delay in apprehending the co-accused, it is open to the trial Court to split up the case as against this appellant and proceed therewith, so that, it can be disposed of as expeditiously as possible. If the trial is delayed on account of dilatory tactics adopted by th... |
With these observations, this appeal is disposed of. |
Appeal disposed of. |
Bridge and Roof Company (India), Limited, and Others v Union of India and Others |
Supreme Court of India |
11 September 1962 |
Petition No. 62 of 1962 |
The Judgment was delivered by : K. N. Wanchoo, J. |
1. The short question raised in this writ petition under Art. 32 of the Constitution is whether production bonus is included within the term "basic wages" as defined in s. 2(b) of the Employees' Provident Funds Act, No. 19 of 1952, (hereinafter referred to as the Act Writ Petition 64 of 1962 (The Jay Engineering, Works... |
2. The brief facts necessary for present purposes are these. Petitioner No. 1 (hereinafter' referred to as the Company) is a public limited company engaged in the manufacture of engineering goods, structural fabrication and rolling stock, and the Act applies to the Company. The Company has a production bonus scheme in ... |
3. In addition to basic wages and dearness allowance payable under the award, the Company has two production bonus schemes one for the hourly rated workers and the other for the rest. It is unnecessary to go into the details of the two schemes; but the main feature of the two schemes is that production bonus begins to ... |
4. We may now briefly refer to the relevant provisions of the Act which require consideration. the Act provides by s. 5 for the introduction of Employees' Provident Fund Scheme for certain industries included in Schedule 1 to the Act. In consequence a Provident Fund Scheme was framed in September 1952 knows as the Empl... |
"'Basic wages' means all emoluments which are earned by an employee while on duty or on leave with wages in accordance, with the terms of the contract of employment and which are paid or payable in cash to him, but does not include- |
The cash value of any food concession; |
Any dearness allowance (that is to say, all cash payments by whatever name called paid to an employee on account of a rise in the cost of living), houserent allowance, overtime allowance bonus, commission or any other similar allowance payable to the employee in respect of his employment or of work done in such employm... |
Any presents made by the employer;" |
5. Further, s. 19A of the Act provides for the removal of difficulties and lays down that, if any difficulty arises in giving effect to the provisions of the Act,, and in particular, if any doubt arises as to certain matters including ,,whether the total quantum of benefits to which an employee is entitled has been red... |
6. It appears that difficulties and doubts arose on the question whether production bonus could be taken into account in calculating the contribution of 6-1/4 per centum under s. 6 of the Act, and the Central Government directed about the March 7, 1962 that the question whether production bonus should be liable to prov... |
7. The main contention of the Company is that bonus without any qualification has been expected from the terra ", basic wages" in the definition in s. 2(b) of the Act. Therefore, all kinds of bonus whether it be profit bonus or production bonus or attendance bonus or festival bonus either as an implied condition of ser... |
8. The petition has been opposed on behalf of the Union of India and also on behalf of the two trade unions, which are existing in the Company. It is contended for the respondents that wages are the price for labour and arise out of contract, and the use of the term "basic wages" merely indicates that a certain part of... |
9. The main question therefore that falls for decision is as to which of these two rival contentions is in consonance with s. 2 (b). There is no doubt that ",basic wages" as defined therein means all emoluments which are earned by an employee while on duty or on leave with wages in accordance with the terms of the cont... |
10. Then we come to el. (ii). It excludes dearness allowance, house-rent allowance, overtime allowance, bonus, commission or any other similar allowance payable to the employee in respect of his employment or of work done in such employment. This exception suggests that even though the main part of the definition inclu... |
11. It is clear however from cl. (ii) that from the definition of the word "basic wages" certain earnings were excluded, though they must be earned by employees in accordance with the terms of the contract of employment. Having excluded "dearness allowance" from the definition of "basic wages". a. 6 then provides for i... |
12. Dearness allowance (for examples is payable in all concerns either as an addition to basic wages or as a part of consolidated wages where a concern does not have separate dearness allowance and basic wage Similarly, retaining allowance is pay able to all permanent employees in all seasonal factories like sugar fact... |
13. It is also earned in accordance with the terms of the contract of employment; but because it may not be earned by all employees of a concern it is excluded from, basic wages". Similarly, commission or any other similar allowance is excluded from the definition of "basic wages" for commission and other allowances ar... |
14. To this the exclusion of dearness allowance in cl. (ii) is an, exception. But that exception has been corrected by including dearness allowance in s. 6 for the purpose of contribution. Dearness allowance which is an exception in, the definition of "basic wages" is included for the purpose of contribution by s. 6 an... |
15. This brings us to the consideration of the question of bonus, which is also an exception in el. (ii). Now the word "bonus" has been used in this clause without any qualification. Therefore, it would not be improper to infer that when the word "bonus" was used without any qualification in the clause, the legislature... |
16. There was first production bonus, which was in force in some concerns long before 1952 (see Messrs. Titaghur Paper Mills Co. Limited v. Its Workmen), [1959] Supp. 2 S.C.R. 1012 1959 Indlaw SC 84. Then there was festival or puja bonus which was in force as an implied term of employment long before 1952 (see Messrs. ... |
17. The legislature therefore could not have been unaware that these different kinds of bonus were being paid by different concerns in different industries, when it passed the Act in 1952. Therefore, unless the contention on behalf of the respondents that bonus when it was used without qualification can only mean profi... |
18. We do not think however that this contention is well founded. It is true, as will appear from the terms of reference in various cases of profit bonus that the word "profit" was not used as a qualifying word before the word "bonus" in such cases. It may also be that in many cases where a particular type of bonus was... |
"Re: Bonus for the year 1947" |
19. It seems therefore that when reference was with respect to profit bonus, the term "bonus" though not qualified by the word "profit" bad always been limited by specifying the year for which the bonus was being claimed. Though, therefore, it may be true that literally speaking, the word ", profit" was not used to qua... |
20. We are therefore not prepared to accept that where the word "bonus" is used without any qualification it only means profit bonus and nothing else. On the other hand, it seems to us that the use of the word "bonus" without any qualifying word before it or without any limitation as to year after it must refer to bonu... |
the Act is an All-India Act applicable to all industries mentioned in Sch. I and to all concerns engaged in those industries; and the intention behind the exclusion seems to be to make the incidence of provident fund the same in all industrial concerns, which are covered by the Act so that it was necessary to exclude f... |
21. This brings us to the consideration of the contention raised on behalf of the respondents that wages are the price for labour and arise out of contract, and that whatever is the price for labour and arises out of contract, was intended to be included in the definition of "basic wages" in s.2 (b), and that only thos... |
22. It is therefore not possible to accept the contention on behalf of the respondents that whatever is price for labour and arises out of contract is include 1 in the definition of "basic wages" and therefore production bonus which is a kind of incentive wage would be included. This court had occasion to consider prod... |
23. Rho straight piece rate plan where payment is made according to each piece produced is the simplest of incentive wage plans. In a straight piece rate plan, payment is made according to each piece produced and there is no minimum and the worker is free to produce as much or as little as he likes, his payment dependi... |
24. Such a plan typically guarantees time wage up to the time represented by standard performance and gives workers a share in a savings represented by superior performance. The scheme in force in the Company is a typical scheme of production bonus of this kind with a base or standard up to which basic wages as time wa... |
25. The performance may even fall below the base or standard but the minimum basic wages will have to be paid whether the base or standard is reached or not. When however the workers produce beyond the base or standard what they earn is not basic wages but production bonus or incentive wage. it is this production bonus... |
26. We therefore allow the petition and hold that production bonus of the typical kind in force in the Company is accepted from the term "basic wages" and therefore the decision of the Central Government communicated to the Company on March 7, 1962, that provident fund contributions must also be made on the production ... |
Main Pal v State of Haryana |
Supreme Court of India |
7 September 2010 |
Cr.A. No. 1696 of 2010 Arising out of S.L.P. (Cr.) No. 4624 of 2010] |
The Judgment was delivered by: R. V. Raveendran, J. |
Leave granted. |
1. An FIR was registered on 23.3.1996 on the statement of one Prakashi Devi. She stated that on the night of 22/23.3.1996, while she and her daughter-in-law Sheela Devi were sleeping in her house, around 11.30 PM, the appellant jumped over the front wall of her house and broke the bulbs and ran away; that at that time... |
"That on 23.3.1996, after having made preparation for causing hurt or assault, you committed house trespass into the house of Smt. Prakashi Devi, and thereby committed an offence punishable u/s. 452 IPC within my cognizance. Secondly on the same date, time and place, you assaulted and used criminal force against aboven... |
(Emphasis supplied) |
2. When the said charged was read over and explained to the appellant, he pleaded not guilty to the said charge and claimed trial. |
3. Prakashi Devi was examined as PW-1. She reiterated what was recorded in the FIR, that the appellant came into the house around 11.30 PM and broke the bulbs, that he came again around 00.30 AM and touched her daughter-in-law (Sheela Devi) and when her daughter-in-law woke up and raised an alarm, the appellant ran aw... |
4. It was elicited in her cross-examination that the accused did not go towards her mother-in-law nor say anything to her mother-in-law; that she used to come to the village where her in-laws were residing, only when her husband came home; and that the house of her father-in-law was surrounded by the houses of his brot... |
5. The learned Magistrate by judgment dated 2.2.2001, held the accused guilty of offences u/ss. 452 and 354 Cr.PC and sentenced him for rigorous imprisonment for six months and a fine of Rs.1,000/- in default thereof simple imprisonment for one month. The appeal filed by the accused was dismissed by the Addl. Sessions... |
6. One of the contentions urged by the accused before the appellate court and High Court was that the charge against him was that he attempted to outrage the modesty of Prakashi Devi (PW-1) whereas the evidence was to show that he attempted to outrage the modesty of her daughter-in-law Sheela Devi. He contended that a... |
7. The following question therefore arises for our consideration: When the charge is that the accused assaulted 'X' and outraged her modesty, but the evidence is that he assaulted 'Y' to outrage her modesty, can the accused be punished, for having assaulting and outraging the modesty of 'Y', even though he was not cha... |
8. S. 211 of the Code relates to the contents of the charge. It inter alia provides that every charge under the Code shall state the offence with which the accused is charged. S. 212 of the Code provides that the charge shall contain the particulars as to the time and place of the alleged offence, and the person (if an... |
(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge; |
(b) in case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit. |
9. In Willie (William) Slaney vs. State of Madhya Pradesh [AIR 1956 SC 116 1955 Indlaw SC 80] this court explained the concepts of "prejudice to the accused" and "failure of justice" thus:- |
"(6) Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is ... |
If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is 'substantial' compliance... |
(7) Now here, as in all procedural laws, certain things are regarded as vital. Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satis... |
10. This Court then examined the question as to when a procedure adopted could be said to have worked actual injustice to the accused and held : |
"Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused... |
These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well-established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisag... |
Other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice. In still another class of case, the matter may be so near the border line that very slight evidence of a reasonable possibi... |
... the Code is emphatic that 'whatever' the irregularity it is not to be regarded as fatal unless there is prejudice." |
"It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is require... |
Every reasonable presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt. The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. But when all is said and done what we are concerned t... |
If all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one." |
"In adjudging the question of prejudice the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna will naturally operate to the benefit of the accused and if there is any reasonable and substantial doubt about whether he was, or was reasonably likely to have been, misled in the circumst... |
But these are matters of fact which will be special to each different case and no conclusion on these questions of fact in any one case can ever be regarded as a precedent or a guide for a conclusion of fact in another, because the facts can never be alike in any two cases however alike they may seem. There is no such ... |
11. In Gurbachan Singh v. State of Punjab [AIR 1957 SC 623 1957 Indlaw SC 181] following Willie Slaney, this Court held: |
"In judging a question of prejudice, as of guilt, courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against hi... |
12. In Shamnsaheb M. Multtani vs. State of Karnataka - 2001 (2) SCC 577 2001 Indlaw SC 19904, this Court considered the meaning of the expression "failure of justice" occurring in s. 464 of Cr.PC. This Court held thus : |
"The crux of the matter is this : |
Would there be occasion for a failure of justice by adopting such a course as to convict an accused of the offence under section 304-B IPC when all the ingredients necessary for the said offence have come out in evidence, although he was not charged with the said offence? a conviction would be valid even if there is an... |
One of the cardinal principles of natural justice is that no man should be condemned without being heard, (audi alteram partem). But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspe... |
13. The above principles are reiterated in several decisions of this Court, including State of West Bengal vs. Laisal Haque - AIR 1989 SC 129 1988 Indlaw SC 706, State of A.P. vs. Thakkidiram Reddy - 1998 (6) SCC 554 1998 Indlaw SC 1286, Dalbir Singh v. State of UP [2004 (5) SCC 334 2004 Indlaw SC 247], Dumpala Chandr... |
14. The following principles relating to sections 212, 215 and 464 of the Code, relevant to this case, become evident from the said enunciations: |
(i) The object of framing a charge is to enable an accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. The charge must also contain the particulars of date, time, place and person against whom the offence was committed, as are reasonably sufficient to give the accu... |
(ii) The accused is entitled to know with certainty and accuracy, the exact nature of the charge against him, and unless he has such knowledge, his defence will be prejudiced. Where an accused is charged with having committed offence against one person but on the evidence led, he is convicted for committing offence aga... |
(iii) In judging a question of prejudice, as of guilt, the courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be establish... |
15. The respondent relied upon the decision of this court in State of Himachal Pradesh v. Geeta Ram [2000 (7) SCC 452 2000 Indlaw SC 408]. In that case the respondent was chargesheeted for an offence u/s. 376 IPC and s. 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Magistrate... |
16. The special court framed a charge only for an offence u/s. 376 IPC and after trial convicted the respondent u/s. 376 IPC and sentenced him to ten years imprisonment. The High Court set aside the conviction on the technical ground that the trial court had no jurisdiction as it was a special court specified in under ... |
17. As noticed above, in this case, the charge was that appellant committed trespass into the house of Prakashi Devi for assaulting Prakashi Devi, and assaulted the said Prakashi Devi and outraged her modesty. The accused concentrated his cross-examination with reference to the said charge and elicited answers showing... |
18. Their evidence was that he touched/caught the hand of Sheela Devi and when she raised an alarm he ran away. When the charge was that the accused attempted to commit trespass into the house of Prakashi Devi with intent to outrage the modesty of Prakashi Devi, the conclusion of the appellate court and the High Court ... |
19. When the accused is charged with having entered the house of Prakashi Devi and assaulted the said Prakashi Devi with intent to outrage her modesty and when the accused defended himself in regard to the said charge and concentrated on proving that the said charges were not true, he cannot be convicted for having ass... |
20. The accused did not have any opportunity to meet or defend himself against the charge that he assaulted Sheela Devi and outraged her modesty. Nor did he proceed with his defence on the understanding that he was being charged with having committed the offence with reference to Sheela Devi. One of the fundamental pr... |
21. The illustrations under a provision of a Statute offer relevant and valuable indications as to meaning and object of the provision and are helpful in the working and application of the provision. Illustration (e) u/s. 215 of the Code, as contrasted from illustration (d) under that section, throws some light on thi... |
"(d) A is charged with the murder of Khoda Baksh on the 21st January, 1882. In fact, the murdered person's name was Haidar Baksh, and the date of the murder was the 20th January, 1882. A was never charged with any murder but one, and had heard the inquiry before the Magistrate, which referred exclusively to the case of... |
(e) A was charged with murdering Haidar Baksh on the 20th January, 1882, and Khoda Baksh (who tried to arrest him for that murder) on the 21 st January, 1882. When charged for the murder of Haidar Baksh, he was tried for the murder of Khoda Baksh. The witnesses present in his defence were witnesses in the case of Haida... |
22. Applying the guidance offered by the said illustrations and the legal principles evolved by this Court, the position will be as follows : If Sheela Devi alone had been present at the house at the time of the incident and the accused had assaulted and outraged the modesty of the said Sheela Devi, but in the charge t... |
23. On the other hand, if two persons were present in the house at the time of the incident namely Prakashi Devi and Sheela Devi and the accused is charged with trespassing into the house of Prakashi Devi, and assaulting and outraging the modesty of the said Prakashi Devi, and the witnesses refer only to the assault an... |
24. The court having charged the accused with the offence of having trespassed into the house of Prakashi Devi with intent to assault her and having further charged him for having assaulted the said Prakashi Devi by outraging her modesty, convicts him on the ground that though he did not assault or outrage the modesty... |
25. There were two women present at the house at the time of the alleged incident, namely Prakashi Devi and her daughter-in-law Sheela Devi. In view of the specific charge, the accused concentrated on showing that the charge was false. He did not attempt to meet the case made out in the trial that the offence was again... |
26. The appeal is therefore allowed, the conviction of the accused is set aside and the matter is remitted to the trial court with a direction for a new trial after framing a charge by substituting the words "her daughter-in-law Sheela Devi" for the words "abovenamed Prakashi Devi", in the second part of the charge. |
Appeal allowed. |
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