Special Leave Petition Civil No 123 17 of 1987
From the Judgment and Order dated 291987 of the Madhya 619 Pradesh High Court in Misc
Petition No 3308 of 1985
MK Ramamurthy and AK Sanghi for the Petitioners
Vinod Bobde PS Nair and KV Sreekumar for the Respond ents
The following Order of the Court was delivered This petition for special leave is against the judgment dated 291987 of the High Court of Madhya Pradesh dismiss ing the petitioners  writ petition MP No 3308 of 1985
The petitioners demand regularisation of their services claiming to be daily rated workmen for a long time in the mines of the Diamond Mining Project Panna of the National Mineral Development Corporation Ltd Their demands are of regularisation and equal pay for equal work on the ground that they are discharging the same duties as the regular workers
The management has throughout denied the petition ers  claim and alleged that in fact the petitioners have been continued on rolls on humanitarian grounds for several years even though there is no work for them and as such there is no question of regularising the petitioners and giving them the pay of regular workers when in fact they are not doing any work for a long time
The High Court rejected the petitioners  claim and came to the following conclusion The petitioners are not regular employees they do not have any specific job to do they are surplus to the establish ment and merely kept on the roll on humanitarian ground
The respondents are also running in heavy losses during the last three years and it is not possible to absorb the petitioners immediately as regular workmen
In fact the petitioners are being paid their daily wages in spite of their being no work available for them
 Aggrieved by dismissal of the writ petition the petitioners have filed this petition for special leave to appeal under Article 136 of the Constitution
In response to notice of this petition a counter affi davit has been filed on behalf of respondent No 2 reiterat ing the stand taken before the High Court
It has been stated therein that there is no vacancy in the establishment to absorb the petitioners and the accumulated loss to 620 the establishment as on 31st March 1988 is Rs 102940583
A copy of the balance sheet has also been enclosed with the counter affidavit
It has been stated that the petitioners being surplus to the requirement of the Project they cannot be regularised and their retention on the rolls is purely on humanitarian grounds so far
Further facts have been stated in support of their contention
It has also been stated that a Voluntary Retirement Scheme offering considerable amount to these daily rated workmen has been framed which is Annexure R V to the counter affi davit
This document shows the amount of retrenchment com pensation and the ex gratia payment offered to the 63 daily rated workmen under this Scheme
The 54 petitioners are included therein
It was stated at the hearing before us that 9 out of these 63 daily rated workers mentioned in Annexure R V have accepted this Scheme of Voluntary Retire ment and respondent No 2 is prepared to give benefit of the same even to those who may not have agitated their claim
We do not find any ground to interfere with the High Court s decision in view of the clear findings supported by evidence that there are no vacancies or work available in the establishment for absorption of the petitioners and that for quite some time they have been continued on rolls and paid in spite of there being no work for them
On these facts the question of directing their absorption and regu larisation does not arise
The principle of regularisation of a daily rated workman and payment to him of the pay equal to that of a regular workman arises only when the daily rated workman is doing the same work as the regular workman and there being a vacancy available for him he is not absorbed against it or not even paid the equal pay for the period during which the same work is taken from him
On the clear findings in this case this is not the position
This petition must therefore fail
In spite of our above conclusion keeping in view the offer made on behalf of respondent No 2 in the counter affidavit together with Annexure R V thereto which was reiterated at the heating before us we direct that all the 63 daily rated workmen including the 54 petitioners herein mentioned in the aforesaid Annexure R V to the counter affidavit be given the benefit of the Voluntary Retirement Scheme framed by respondent No 2 and they be paid the specified amounts in addition to their all other dues
Subject to this direction the special leave petition is dismissed
No costs
PSS Petition dismissed


Summary:
The appellants were convicted for offences under sections 302394 and 34 IPC
They were alleged to have entered the house of the deceased at midnight and attacked him and his wife PW 14 with sharp edged weapons
He sustained fatal injuries and died instantaneously
His wife was injured
Their two sons ran to the house of uncle PW 1 at a distance to inform him of the incident
They had not seen the assail ants
By the time PW 1 reached the scene the assailants had fled
He had been in the house the whole night and contacted all the concerned persons
In the FIR that he lodged at about 10 am the next morning the assailants were not named
The prosecution case was that the appellants had commit ted the crime on account of enmity
PW 14 who claimed to be an eye witness deposed that she had identified the appel lants
She also stated that she became unconscious and regained consciousness only the next day when the police arrived
PW 1 supported her version
The trial court accepted the testimony of PW 14
The High Court agreed with it
In this appeal by special leave it was contended for the appellants that if PW 14 had identified the assailants it would have been possible for PW 1 to disclose the identi ty of the accused at the time the first information report was lodged and that the prosecution had introduced the theory of unconsciousness of PW 14 only in an attempt to explain away the lacuna Allowing the appeal the Court HELD 1
It is not safe to sustain the conviction when there is 573 reasonable doubt regarding the participation of the appel lants in the crime
The benefit of doubt must necessarily go to them
The statement of PW 1 at the earliest point of time belies the truth of what he had deposed before the court
He had been categoric in the FIR that he had made enquiries with the wife and sons of the deceased before proceeding to the police station and asserted that five or six unknown persons had committed the crime
He had also stated that details could be furnished by the widow and sons of the deceased
This affirmed that he could not gather any useful information regarding identity of the assailants
All the same in cross examination he supported the version of PW 14 that she was lying unconscious when he reached the house at night and she narrated the incident after regaining con sciousness when the police reached there
It clearly indi cates that an attempt had been made by the prosecution to introduce the case of unconsciousness of PW 14 to explain the infirmity
576F G 3
The circumstance that the identity of the assailants was unknown until the police arrived at the scene showed that PW 14 or her children had not identified the assailants at the time of the occurrence
The courts below have failed to appreciate her evidence in the correct perspective in the light of the clinching evidence
576B