Criminal Appeal No 328 of 1979
From the Judgment and Order dated 211979 of the Alla habad High Court in Government Appeal No 663 of 1973
Pramod Swarup for the Appellant
Manoj Swarup Prashant Choudhary and Dalveer Bhandari for the Respondent
The Judgment of the Court was delivered by FATHIMA BEEVI J
Khanjan Pal the appellant was con victed by the High Court for the offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life in reversal of the order of acquittal passed by the Sessions Judge Agra
The brief facts of the case are as under The appellant Khanjan Pal and the deceased Deep Singh were working in the bangles welding factory of Data Ram in Mohalla Rajputana Thana Firozabad
The prosecution case was that while working in the factory at about 230 PM on 841972 the appellant 608 said to the deceased that he had illicit relationship with one Tara
Deep Singh said that he considered Tara to be his sister
The altercation ensued between the appellant and the deceased and in the course of the altercation the appellant stabbed the deceased with a knife and this incident was witnessed by PW 2 Ram Pratap Singh and PW 4 Maharaj Singh besides Umrao Singh PW 1
The injury sustained by the deceased was a punctured wound penetrating into chest cavity
The occurrence was reported at the police station by Umrao Singh father of the deceased at 300 PM the same day
In the course of the investigation blood stained shirt was seized from the appellant and sent for chemical examina tion
The certificate was to the effect that it was stained with human blood
The trial court acquitted the appellant discarding the testimony of the eye witnesses mainly for the reasons that the occurrence could not have happened at the alleged time and place as the place of occurrence was not mentioned in the first information report the postmortem report referred to the presence of undigested food in the abdomen of the deceased the presence of Umrao Singh PW 1 Ram Pratap Singh PW 2 and Maharaj Singh PW 4 was doubtful in the light of the conduct of PW 3 Data Ram and that since the attendance register was not produced it was doubtful whether the factory was opened on that day or not
The appellant was therefore given the benefit of doubt by the trial court
The High Court on a careful analysis of the entire evidence dislodged the finding of the trial court accepted the testimony of PW 2 and PW 4 and concluded that the prosecution had established the charge against the appel lant
We have been taken through the judgments  and the relevant records of the case
We are satisfied that the High Court had interfered with the order of acquittal for cogent reasons and that the conclusion of the High Court that the appellant has caused the death of the deceased Deep Singh by stabbing with a knife in the manner alleged by the prose cution is unassailable
The approach by the trial court was clearly wrong and the finding is perverse
The testimony of the two independent eye witnesses had not been properly appreciated
Their presence at the scene could not at all be doubted in the light of what PW 3 has deposed
They are probable witnesses and there had not been any infirmity in their evidence as rightly pointed out by the High Court
The evidence of PW 1 rejected by the trial court was also not accepted by the High Court
The reasoning adopted by the trial court in our opinion was so perverse that the High Court was justified in upsetting the finding and 609 arriving at an independent conclusion which is fully sup ported by the evidence on record
We do not therefore see any merit in the contention advanced on behalf of the appel lant that the conviction is wrong
however agree with the learned counsel for the appellant that on the basis of the facts proved the offence is not murder punishable under Section 302 IPC and that the act of the appellant as proved would fail only under Section 304 Part II IPC The appellant had in statement under Section 3 13 CrPC admitted that there had been an altercation between the two and the deceased received the injury in the course of a scuffle
The evidence clearly established that the whole incident was a sudden development and that the appellant had acted at the spur of the moment and without any pre meditation
There had been no ill will or enmity between the two
A casual remark made by the appellant provoked the deceased and the altercation ensued which culminated in the stabbing with knife
The appellant used the knife only once and did not act in any cruel man ner
It was in the sudden quarrel in heat of passion that the appellant inflicted the injury on the deceased without any intention to cause death but having knowledge that such act was likely to cause the death of the deceased
In such circumstances
the act of the appellant falls under Excep tion 4 to Section 300 IPC and the appellant is liable to be convicted only under Section 304 Part II IPC We accordingly alter the conviction to one under Section 304 Part II IPC We are told that the appellant had already undergone imprisonment for over one year
He had been released on bail by order of this Court dated 167
The appellant a young man who had been at large for over nearly 12 years in our opinion cannot be committed to prison for any further period at this stage
To meet the ends of justice we direct the appellant to pay a fine of Rs50000 in addition to the term of imprisonment he has already suffered
We thus modify the sentence awarded by the High Court
We also direct that the fine if realised shall be paid to PW 1 Umrao Singh the father of the deceased and other legal heirs of Deep Singh
In case of default in payment of fine the appellant shall undergo further imprisonment for one year
The appeal is partly allowed
GN Appeal partly allowed


Summary:
One Ram Singh was appointed by the appellant company on 1031960
On 1111970 he addressed a letter of resigna tion to the Manager of the company saying that owing to his family circumstances it was no longer possible for him to continue in service and that he was compelled to sever his connections with the company
He made a demand of all his dues
He wrote another letter two days later that someone should be posted in the section where he was working in order that he may learn the work are printing of shares pay sheets and pay registers etc
The appellant company conveyed the acceptance of the resignation with effect from the 16th November 1970 and paid all his dues on 22121970
The amount of gratuity was also paid later
Ram Singh there after raised an industrial dispute and sought a reference under Section 4K of the UP Industrial Dispute Act 1947
Initially his demand was not accepted by the State Govern ment but later the State Government accepted his demand on 28111974 whereupon the appellant company filed a writ petition in the High Court challenging the said reference made by the State Government but the High Court dismissed the petition
The Labour Court thereafter made an award on the reference in favour of the employee
It came to the conclusion that the employee s resignation was not voluntary and therefore his services had been wrongly terminated and accordingly he was directed to be reinstated
The appellant challenged the validity of the said award under Article 226 of the Constitution before the High Court
The High Court came to the conclusion that the employee had tendered his resignation voluntarily but it held that termination of the service of the employee fell within the definition of r etrenchment  as contained in Section 2s and as the appel lant company had failed to comply with the requirement of Section 6N the termination of service was invalid
The High Court accordingly set aside the order of reinstatement passed by 524 the Labour Court and remanded the matter to the Labour Court for a decision on the question whether there was infraction of the provisions of Section 6N Being aggrieved by that order of the High Court the appellant company has filed this appeal after obtaining special leave
Allowing the appeal this Court HELD Where a contract of service is determined on the employee exercising his right to quit such termination cannot be said to be at the instance of the employer to fail within the first part of the definition of retrenchment in Section 2s of the UP Industrial Disputes Act
531H 532A A contract of service can be determined by either party to the contract
If it is determined at the behest of the employer it may amount to retrenchment unless it is by way of punishment for proved misconduct
But if an employee takes the initiative and exercises his right to put an end to the contract of service and the employer merely assents to it it cannot be said that the employer has terminated the employment
In such cases the employer is merely acced ing to the employee s request may be even reluctantly
Here the employee s role is active while the employer s role is passive and formal
The employer cannot force an unwilling employee to work for him
531E F When an employee resigns his office he formally relin quishes or withdraws from his office
it implies that he has taken a mental decision to sever his relationship with his employer and thereby put an end to the contract of service
533E In the present case the employee s request contained in the letter of resignation was accepted by the employer and that brought an end to the contract of service
534B This was a case of voluntary retirement  within the meaning of the first exception to section 2s and therefore the question of grant of compensation under section 6N did not arise
The employee is not entitled to any compensation under section 6N of the State Act
534F The State Bank of India vs
N Sundara Money   Hindustan Steel Ltd vs The Presiding Officer Labour court Orissa and Ors   Delhi Cloth and General Mills Ltd vs Shambhu Nath Mukherji and others   Santosh Gupta vs State Bank of Patiala   L Robert D souza vs Executive Engineer Southern Railway and Anr 1982 1SCC 645 and 525 Corporation of Cochin vs Jalaji and Ors 1984 1 LLJ