iminal Appeal No 186 of 1956
Appeal by special leave from the judgment and order dated February 18 1955 of the Punjab High Court in Criminal Appeals Nos 389 and 406 of 1954 arising out of the judgment and order dated June 16 1954 of the Court of the Additional Sessions Judge Ferozepur in Sessions Case No 5 of 1954 and Trial No 5 of 1954
726 Jai gopal Sethi Vidya Dhar Mahajan and K L Arora for the appellants
NS Bindra B H Dhebar and T M Sen for the respondent
December 4
The Judgment of the Court was delivered by SARKAR J
Eight persons were tried or offences under sections 148 307 and 364 both read with sections 149 and 34 of the Indian Penal Code by the Additional Ses
sions Judge Ferozepur
The learned Sessions Judge acquitted four of the accused namely Het Ram Teja Ram Manphul and Surja Ram as he did not think that their presence at the occurrence had been proved beyond reasonable doubt
He convicted the remaining four namely Narain Jot Ram Gheru and Jalu under sections 307 and 364 read with section 34
He sentenced Narain Jot Ram and Gheru to rigorous imprisonment for three years under section 307 and two years under section 364
He sentenced Jalu to two years  rigorous imprisonment under each section
On appeal by the convicted persons the High Court of Punjab maintained the convictions but reduced the sentences passed on Jot Ram and Gheru to one year s rigorous imprisonment and Jalu to the term of imprisonment already undergone
It maintained the sentence passed on Narain and dismissed his appeal
Narain Jot Ram and Gheru have appealed To this Court from that judgment
The prosecution case is that one Sultan was the proprietor of a field described in the proceedings as plot No 97
Sahi Ram had been a tenant of the land
The land had not been cultivated in the year preceding the occurrence with which this case is concerned and the owner had thereupon resumed possession of it
On June 14 1953 Mani Ram a son of the proprietor arrived at the field on a tractor accompanied by a Tabourer Moola Ram with the object of Ploughing it and found Sahi Ram actually ploughing
Mani Ram turned Sahi Ram out of the field
Sahi Ram raised a protest but eventually left abandoning his plough on the field
Mani Ram then began to plough the field 727 with his tractor
A little later the tractor developed mechanical trouble and Mani Ram stopped ploughing and started attending to it
While Mani Ram was so engaged Sahi Ram arrived at the spot accompanied by seven persons being the accused earlier named other than Narain variously armed
Jalu had come on a horse
They fell upon Mani Ram and assaulted him
Moola Ram who ran to his rescue was also assaulted
Moola Ram then attempted to run away whereupon Sahi Ram and his party chased him
While Sahi Ram and his party had their attention on Moola Ram Mani Ram got into his tractor and began to drive away from the field
At this point of time Narain arrived on a horse with a gun in his hand
He told the pursuers of Moola Ram to leave him as he was merely a hired man and pointed out that the real culprit Mani Ram was about to escape in the tractor
The party then turned round and pursued Mani Ram
Narain on his horse soon overtook Mani Ram and fired at him while he was still on the tractor in the driver s seat
Mani Ram fell down from the tractor which being in motion proceeded on its own and ran into a tree and stopped
Narain s horse fell against the cultivator of the tractor and was injured
Mani Ram picked himself up and staggered for shelter into the hut of one Mukh Ram which was nearby
The pursuers then came up and Jot Ram fired a shot at Mani Ram inside the hut and so did Gheru
Mani Ram fell down in the hut
Mukh Ram threw himself on the body of Mani Ram to protect him
Gheru and Narain then said that they would burn the hut with Mani Ram inside it
Sahi Ram suggested that it would be better to carry Mani Ram to their house and there kill him and burn his body
Mukh Ram was then dragged away and Mani Ram s body was put on a horse and Jalu mounted it
The party then proceeded towards the village by a foot path with Mani Ram who was then unconscious as their captive
After they had gone some distance Raghbir the younger brother of Mani Ram having heard of the incident came to rescue Mani Ram
He met Jalu on the horse with Mani Ram and Sahi Ram walking close behind 728 the rest of the party being at some distance
Raghbir asked Jalu to put down Mani Ram on which Jalu threatened to kill and Sahi
Ram pointed his sela at Raghbir
Raghbir then shot at Sahi Ram with the pistol he was carrying and the latter fell down and died soon after
Jalu got off the horse and ran away
Before the others could arrive Raghbir carried Mani Ram to the house of one Birbal from where he was later taken to the hospital
The defence was that the prosecution case was wholly false and the real facts were as follows On the date of the occurrence Sahi Ram was ploughing the field when Mani Ram and Raghbir came there and tried to stop him
There was an altercation
Jot Ram and Gheru who were in a field nearby came up and advised Sahi Ram not to dispute over the matter with Mani Ram but have it decided by Panchayat
Sahi Ram Jot Ram and Gheru then left the field and proceeded towards the village
While going Jot Ram noticed that Sahi Ram was carrying a pistol and took it away from him to prevent him from using it in his excitement
Mani Ram and Raghbir also went towards the village but by a different route
The par
ties again met at the village Shamlat
Raghbir abused Sahi Ram and fired a shot at him killing him outright
Jot Ram apprehending that he might also be shot at fired the pistol which he had taken from Sahi Ram and might have injured Mani Ram
There were two unknown persons with Raghbir and Mani Ram at this time and they also used their fire arms
Mani Ram might have received injuries from these firings also
The accused denied that any of them except Jot Ram and Gheru were present at the incident
There were thus two conflicting versions of the same incident and there were two cross cases based on these separate versions
We are concerned with the case started on the complaint of Mani Ram and concerning the injuries suffered by him and his abduction
The other case was against Mani Ram Raghbir Sultan and Dalip also a son of Sultan and was based on what the defence version of the incident in the present case was
In that case Raghbir and Mani 729 Ram were charged under section 302 read with section 34 of the Indian Penal Code for having caused the death of Sahi Ram and Sultan and Dalip were charged under section 302 read with section 109 of the same Code in the same connection
The learned Sessions Judge who heard both the cases acquitted Mani Ram Raghbir Sultan and Dalip of the charges brought against them and convicted the appellants and Jalu in the present case accepting the prosecution version of the incident
As we have earlier stated the conviction was upheld by the High Court
In view of the concurrent findings of fact in the Courts below the learned Advocate for the appellants confined himself in this Court to a question of law which we now proceed to discuss
It has to be remembered that we are concerned only with the case in which the appellants had been tried for offences against Mani Ram
With the other case we are not concerned
In the trial Court the prosecution had cited Raghbir as a witness
Raghbir however refused to give evidence claiming protection under article 20 of the Constitution
The learned Sessions Judge held that Raghbir could not be compelled to give evidence and rejected the contention of the accused that he was not entitled to the protection
The prosecution in the end did not offer Raghbir as a witness and dropped him
When the matter came up before the High Court in appeal it was said on behalf of the appellants that the learned Sessions Judge was wrong in holding that Raghbir was entitled to the protection of article 20 and that the trial had been vitiated by this decision as a result of which the accused had been deprived of the benefit of Raghbir s evidence
The High Court however held that the fact that Raghbir was not examined did not vitiate the trial in any way
It is this part of the High Court judgment that has been challenged before us by the learned Advocate for the appellants
The High Court observed as follows  We may assume that Raghbir would 92 730 not have supported the prosecution story or that he would have admitted to having shot Sahi Ram
The fact that he was unwilling to make a statement does not constitute an irregularity in the trial
Had he been compelled to say something he would in all probability not have told the truth and the question is how the case would have been affected by his statement In my view whatever he had stated would not have rebutted the convincing testimony of the other witnesses in the case and therefore the failure of the Court to examine him does not in any way affect the ultimate decision of the case
 The learned Advocate contended that the High Court had in view the provisions of section 167 of the Evidence Act though the section was not in terms referred
We think this is a fair view to take
The learned Advocate said that what the High Court has done is to say that even assuming that Raghbir s evidence did not support the prosecution story that would not have made any difference to the result because what ever he stated would not have rebutted the convincing testimony of the other witnesses
According to the learned Advocate this view was not justified by section 167
It seems to us that the expression of the opinion of the High Court on this matter has not been happily worded
The question under section 167 is not so much whether the evidence rejected would not have been accepted against the other testimony on the record as whether that evidence  ought not to have varied the decision
 It is clear that if what Raghbir had said in his evidence had gone to support the defence version then a serious question would arise as to whether the decision of the trial Court would have been in favour of the accused instead of against them as it happened to be
It seems to us however that section 167 does not help the appellants
It is clear from the record that the prose cution though it had cited Raghbir as a witness was not very keen to examine him When Raghbir objected to give evidence the prosecution dropped him
Therefore it seems to us that this is not a case in which evidence can be said to have been rejected 731 within section 167 of the Evidence Act
The prosecution did not in fact tender Raghbir as a witness
Nor have we any idea as to what he would have said had he given evidence
Nor is it a case where the defence wanted to call him as a witness
It is not necessary for us nor have we been asked to decide the question whether Raghbir was entitled under article 2o of the Constitution to refuse to give evidence
It is amply clear from the record that the prosecution did not offer him as a witness upon his claiming protection under article 20
The learned Advocate for the appellants then argued that in this view of the matter it must be held that a material witness had been kept out of court by the prosecution and that would give rise to an adverse inference against the prosecution case and cast serious reflection on the fairness of the trial
We were referred by learned Advocate to Habeeb Mohammad vs The State of Hyderabad 1 in this connection
We agree that if a material witness has been deliberately or unfairly kept back then a serious reflection is cast on the propriety of the trial itself and the validity of the conviction resulting from it may be open to challenge The question then is was Raghbir a material witness  It is an accepted rule as stated by the Judicial Committee in Stephen Seneviratne vs The King 2 that  witnesses essential to the unfolding of the narrative on which the prosecution is based must of course be called by the prosecution
 It will be seen that the test whether a witness is material for the present purpose is not whether he would have given evidence in support of the defence
The test is whether he is a witness  essential to the unfolding of the narrative on which the prosecution is based 
Whe ther a witness is so essential or not would depend on whether be could speak to any part of the prosecution case or whether the evidence led disclosed that he was so situated that he would have been able to give evidence of the facts on which the prosecution relied
It is not however that the prosecution is bound to call all witnesses who may have seen the occurrence and 1  2 AIR 1936 PC 289
732 so duplicate the evidence
But apart from this
the prosecution should call all material witnesses
Was Raghbir then a witness essential to the unfolding of the prosecution case  That clearly Raghbir was not
The prosecution case as we have seen was concerned with the injuries caused to Mani Ram and his abduction
According to the prosecution case Raghbir arrived after these offences had been committed  after Mani Ram had been assaulted and shot at and after he had been put on a horse and had been carried some distance
The prosecution no doubt admits that Raghbir shot Sahi Ram but says that he did so in self defence
This incident is an entirely separate incident
It is not necessary to prove it in order to prove the offences with which the appellants were charged
Raghbir therefore was not a witness whom the prosecution was bound to call to establish its case
The fact assuming it to have been so that Raghbir would have said in his evidence that the incidents did not happen as the prosecution stated may no doubt have established a good defence
But if it was so then he would have been only a witness material for the defence and not a witness essential to the unfolding of the narrative on which the prosecution case is based
The prosecution is not bound to call witnesses to establish the defence but only witnesses who are material for proving its own case
Indeed since according to the prosecution case Raghbir arrived after the alleged offences were committed he could not have given any evidence about the prosecution case
We therefore think that the contention of the learned Advocate for the Appellants that the prosecution should have called Raghbir to ensure a fair trial or that he was a witness material to the prosecution case is unfounded
We do not think that the trial has at all been vitiated by the failure to call Raghbir
It may be pointed out that the appellants had not sought to produce Raghbir as a witness on their behalf The learned Advocate then addressed us on the question of the sentence passed on Narain
He said that the High Court passed a higher sentence on him 733 because it was under the impression that he had caused the only grievous injury that was found on the body of Mani Ram
The learned Advocate pointed out that there was no evidence to show that the grievous injury had been caused by Narain
It seems to us that this contention is justified
There is however evidence to show that Narain merited the higher sentence
It was he who directed the attack against Mani Ram
He called the other members of the attacking party to desist from pursuing Moola Ram as Mani Ram was the real enemy and should be dealt with
It is upon that the serious injuries on Mani Ram came to be inflicted
We therefore think that the higher sentence imposed on the appellant Narain was justified
No other question arises in this appeal
The result is that the appeal fails and is dismissed
Appeal dismissed


Summary:
The appellants were in service as tubewell operators in the Irrigation Branch of the Public Works Department of the Punjab Government
The State took a decision to transfer all the tubewells in this branch to the Punjab State Tubewell Corporation a company wholly owned and managed by the State of Punjab
Consequent on this decision a notification was issued on 30th November 1982 abolishing all the posts of tubewell operators in the Irrigation Branch and accordingly notices terminating the services of the appellants were issued
The appellants challenged the termination notices before the High Court contending i that the notification by which the tubewells were transferred was mala fide the only object being to frustrate certain claims of the petitioners which had been judicially recognised ii that the impugned notices did not fulfill the requirements of clauses b and c of section 25F of the in so far as the compensation amount of each individual was not deliv ered at his door and the notices under clause c were not sent by registered post and iii that in case the action of the State was upheld the respondent Corporation should be held to be under an obligation to employ the appellants with continuity of service and under the same terms and conditions which they were enjoying prior to their retrench ment from the service of the State
The High Court rejected the petitions flied by the appellants
The High Court inter alia found that the appel lants had been given all the benefits which they had ob tained from the court
It was also found that the respondent corporation had made an offer of re employment to all the appellants effective from the date of expiry of the notices of their retrenchment by the State Government
According to the learned 368 Judges the sole object of the issuance of the notification was to get rid of the tubewells which were the cause of constant and ever increasing loss to the State exchequer and not any mala fide or extraneous reasons
The services of the appellants have since been taken over by the Corporation
Though at one stage the Corporation had taken the stand that the appellants would be taken as fresh appointees in the Corporation it had subsequently fixed them up at the same level of pay at which they were in Government service immediately before retrenchment and they were also being granted increments on that scale
There remained two grounds of dissatisfaction 1 that the appellants would be junior in service to the tubewell operators who had been engaged by the Corporation on its own account before the appellants joined the service of the Corporation giving the appellants the apprehension that their down gradation in seniority would affect them in case the Corporation started closing down some of the tubewells and discharging its staff and 2 if treated as retrenched Government servant they would be able to get terminal benefits and pension only on the basis of their present lengths of service in the Government
Before this Court the contention of the appellants in this regard was that the Corporation was really nothing but a Department of the Government and that in such circum stances its corporate veil had to be torn as under and its basic identity as department of the Government recog nised and given effect to
Alternatively it was argued that even if the Corporation be taken to be a separate enti ty it was clearly a successor to the Government Depart ment as the Government had assured the Corporation that if it suffered any losses because of the transfer the losses would be made good by the Government that having regard to the virtual identity of the Corporation and the Government this was really a case of the Corporation having taken over a department of the Government and that both the Irrigation Branch of the State Government as well as the Corporation admittedly constituted an industry within the meaning of the 
and the problem should be looked at from the point of view of industrial law
The respondent s case was that the State s obligation came to an end with the payment of retrenchment compensa tion that the Corporation went out of its way to confer a favour on the appellants by agreeing to take them into its service that it would be unfair on the part of the Corpora tion to give the appellants benefit of their earlier service in the 369 Government and make them senior to other employees who had been serving in the Corporation right from the beginning and that this was a fresh employment subject to the normal rules and regulations of the Corporation and the appellants had no right to claim any continuity of service in the circumstances
Disposing of the appeal this Court HELD 1 The fact appears to be that the tubewells were not being operated profitably by the Government and the Government seems to have taken a decision that it would he more efficient economical and prudent to have these tube wells run by the Corporation
There is no reason to doubt the bona fides or the genuineness of this arrangement
378B C 2 When individual drafts for the amounts of compensa tion due to the various tubewell operators were forwarded to the divisional subdivisional offices sufficiently in time to be available to be taken by them by 31st August 1983 there was sufficient compliance with the provisions of clause a of section 25 F 379C D 3 The running of tubewells constitutes an industry whether in the hands of the government or in the hands of the Corporation
381D 4 There is no incompatibility in applying some of the provisions of the to persons in the service of the Government
381D State of Bihar vs Industrial Tribunal 5 Notices under clause c of section 25 F were sent to the Labour Department as well as to the employment ex change through the poen book
The High Court is right in pointing out that such a requirement can be treated errone ous to hold that unless sent by registered post the notices cannot be treated as complying with the statute
379E 6 Where the transferor and transfree is a State or a State instrumentality which is required to act fairly and not arbitrarily the Court has a say as to whether the terms and conditions on which it proposes to hand over or take over an industrial undertaking embody the requisite of fairness in action
In such circumstances it will be open to this Court to review the arrangement between the State Government and the corporation and issue appropriate direc tions
The princi 370 ple sought to be applied is a constitutional principle flow ing from the contours of article 14 of Constitution which the State and Corporation are obliged to adhere to
387F H 388A New Gujarat Cotton Mills Ltd vs Labour Appellate Tribu nal 1957 II LLJ 194 Ramjilal Nathulal vs Himabai Mills Co Ltd 1956 II LLJ 244 Indian Hume Pipe Co Ltd vs Bhimarao  Ban Nigam Karamchari Kalyan Sangh vs Divisional Logging Manager  Ors JT  Workmen vs Dahingeapara Tea Estate  Anakapalla Co op
Agricultural  Industrial Society Ltd vs Its Workmen 1963 Supp1 SCR 730 Hariprasad vs Divikar 1957 SCR 121 Bombay Garage Ltd vs Industrial Tribunal 1953 I LLJ 14 Artisan Press vs LAT 1954 II LLJ 14 Kapur vs Shields  Accountant and Secretarial Services P Ltd vs Union  and Mahabir Auto Stores vs Indian Oil Corporation 1990 3 SCC 752 referred to
7 Looking at the facts of this case in the above perspective it appears that the State Government has acted arbitrarily towards the appellants
The conduct of the Government in depriving the appellants of substantial bene fits which have accrued to them as a result of their long service with the Government although the tubewells continue to be run at its cost by a Corporation wholly owned by it is something which is grossly unfair and inequitable
This type of attitude designed to achieve nothing more than to deprive the employees of some benefits which they had earned can be understood in the case of a private employer but seems ill from a State Government and smacks of arbi trariness
388B 389D E 8 The appellants will be entitled to add their service in the Government to their length of service in the Corpora tion for purposes of computation of their salary length of service and retirement benefits
The Corporation is also directed to ensure as far as possible that none of the appellants are retrenched as surplus on account of any closure of tubewells or other like reason until they retire or leave the service of the Corporation voluntarily for any reason
The advantage of counting the period of their past service with the Government will however not enable them to claim any seniority over the former employees of the Corporation
391G H 390E 9 Even before the insertion of section 25FF in the Actthe employees of a predecessor had no right to claim re employment by the successor in business save in excep tional circumstances
Even where 371 available that claim was not a matter of absolute right but one 01  discretion to be judicially exercised having regard to all the circumstances
391G H