minal Appeal No 183 of 1957
862 Appeal by special leave from the judgment and order dated January 21 1957 of the Patna High Court in Criminal Appeal No 34 of 1956 arising out of the judgment and order dated January 23 1956 of the Court of the 2nd Assistant Sessions Judge at Darbhanga in Sessions Trial No 52 of 1955
P K Chatterjee for the appellant
D P Singh for the respondent
May 20
This appeal by special leave is limited to a particular question only namely correctness of the conviction of the appellant Galfu Sah for an offence under section 436 read with section 109 Indian Penal Code and the propriety of the sentence passed thereunder
The short facts are these
Some 22 accused persons of whom the appellant was one were tried by the learned Assistant Sessions Judge of Darbhanga for various offences under the Indian Penal Code alleged to have been committed by them
The prosecution case was that on May 16 1954 in village Dharhara in the district of Darbbanga a mob of about 40 50 persons including the accused persons formed an unlawful assembly the common objects of which were 1 to dismantle the hut of one Mst
Rasmani 2 to set fire to it and 3 to commit assault if resisted
One Tetar Mian who was the chaukidar of village Dharhara had come to the village at about 10 am to ascertain births and deaths for the purpose of supplying the said information to the officer in charge of the police station for registration
When this chaukidar reached near the hut of Mst
Rasmani who was the widow of one Ganpat he found the mob engaged in dismantling the hut
The chaukidar protested
On this it was alleged the appellant hit him with a lathi on the left high
The chaukidar then raised an alarm and several other persons came there including Ramji Nebi and Munga Lal
Thereafter it was alleged the appellant ordered another member of the unlawful assembly named Budi to set fire to the hut of Mst
Rasmani and he further ordered an assault 863 on Ramji and Nebi
Budi it was alleged set fire to the hut and the hut was burnt
Some members of the mob chased Ramji and Nebi and assaulted them
The learned Sessions Judge found that all the accused persons before him did form an unlawful assembly and came to the hut of Mst
Rasmani on the date and at the time alleged armed with weapons with the common object of dismantling the hut and of committing an assault on remonstrance
He held that in prosecution of the aforesaid common objects the offences of rioting and hurt etc were committed
So far as the charge of arson was concerned he held that the act of incendiarism was an isolated act of some members of the unlawful assembly there being no common object of the entire unlawful assembly to set fire to the hut of Mst
Rasmani
He accepted the evidence given before him to the effect that the present appellant had given the order to Budi to set fire to the hut and that Budi had set fire to it in consequence of the abetment
Accordingly he convicted the accused persons of various offences under sections 147 148 and 323 etc
of the Indian Penal Code
Budi was further convicted under section 436 Indian Penal Code and the present appellant under section 436 read with section 109 Indian Penal Code
There was then an appeal to the High Court of Patna and the learned Judge who heard it found that the evidence against Budi in respect of the allegation that he had set fire to the hut of Mst
Rasmani was not very satisfactory and he acquitted Budi of the charge under section 436 Indian Penal Code
So far as the appellant Gallu Sah was concerned he held that the evidence satisfactorily established that Gallu Sah had given the order to set fire to the hut and the hut was actually set on fire by one member or another of the unlawful assembly
On this finding he affirmed the conviction and sentence of the appellant under section 436 read with section 109 Indian Penal Code the sentence being one of four years  rigorous imprisonment
The conviction and sentence of the appellant for the offences under sections 147 and 323 Indian Penal Code were also affirmed but the conviction and sentence 110 864 under section 324 read with section 149 Indian Penal Code were set aside
We are however not concerned with those convictions and sentences and nothing more need be said about them
We now come to the particular question to which this appeal is limited namely propriety of the conviction and sentence passed on the appellant for the offence under section 436 read with section 149 Indian Penal Code
Mr P K Chatterjee has appeared on behalf of the appellant and has contested the correctness of the conviction on two grounds firstly he has submitted that the evidence on which the conviction was based is the same evidence which was given against Budi Sah and if that evidence was disbelieved with regard to Budi Sah it should not have been believed against the appellant secondly he has submitted that though he does not wish to contend that in every case where the principal offender has been acquitted of the offence a person said to have abetted the commission of the offence must also be acquitted there is no evidence in this particular case that whoever set fire to the hut of Mst
Rasmani did so in consequence of the order of the appellant assuming that the appellant gave an order to set fire to the hut and therefore the conviction of the appellant for abetment is bad in law
As to the first point the learned Judge has in his judgment given good reasons why the evidence of the witnesses with regard to Budi Sah was not accepted and why the testimony of the same witnesses was accepted with regard to the appellant
The witnesses on this point were four persons namely Tetar Ramji Nebi and Munga Lal
Tetar it appears did not mention in his first information that Budi had set fire to the hut but he did mention that the appellant had given the order to set fire to the hut A similar infirmity was found in the evidence of Ramji who also failed to tell the sub inspector of police that Budi had set fire to the hut
Nebi it appears could not be cross examined as he died before the trial began in the Court of Session
So far as Munga Lal was concerned it was elicited in cross examination that he did not speak at the spot or subsequently to any of his co 865 villagers that Budi had set fire to the hut
On these grounds the learned Judge did not accept the testimony of the aforesaid four witnesses so far as the allegation against Budi was concerned
The infirmity which was found in the evidence of the aforesaid four witnesses with regard to Budi Sah was not however present so far as the allegation against the present appellant was concerned and the learned Judge expressly said that the evidence of the aforesaid four witnesses was consistent against the appellant
We see no violation of any rule of law nor even of prudence in the learned Judge accepting the testimony of some of the witnesses against the appellant though he did not accept that testimony against Budi Sah
We now turn to the second point urged on behalf of the appellant
It must be emphasised here that the learned Judge was satisfied that 1 the appellant gave the order to set fire to the hut and 2 tha the hut was actually set fire to by one member or another of the unlawful assembly even though the unlawful assembly as a whole did not have any common object of setting fire to the hut of Mst
Rasmani
The point taken by learned counsel for the appellant is that when the learned Judge did not accept the evidence of the witnesses that Budi set fire to the hut there was really no evidence to show that the person who set fire to the hut of Mst
Rasmani did so in consequence of the order given by Gallu Sah
The learned Advocate points out that one of the essential ingredients of the offence is that the act abetted must be committed in consequence of the abetment
It is necessary to read at this stage some of the sections of the Indian Penal Code with regard to the offence of abetment
Section 107 defines what abetment is
It says  section 107
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 866 Thirdly
Intentionally aids by any act or illegal omission the doing of that thing
 Section 108 is in two parts and explains who is an abettor in two circumstances 1 when the offence abetted is committed and 2 when an act is committed which would be an offence if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor
We are not concerned with the second circumstance in the present case
We are concerned with a person who abets the commission of an offence
Then comes section 109 which is in these terms  section 109
Whoever abets any offence shall if the act abetted is committed in consequence of the abetment and no express provision is made by this Code for the punishment of such abetment be punished with the punishment provided for the offence
Explanation
An act or offence is said to be committed in consequence of abetment when it is committed in consequence of the instigation or in pursuance of the conspiracy or with the aid which constitutes the abetment
 It seems to us on the findings given in the case that the person who set fire to the hut of Mst
Rasmani must be one of the persons who were members of the unlawful assembly and he must have done so in consequence of the order of the present appellant
It is we think too unreal to hold that the person who set fire to the hut of Mst
Rasmani did so irrespective or independently of the order given by the present appellant
Such a finding in our opinion would be unreal and completely divorced from the facts of the case and it is necessary to add that no such finding was given either by the learned Assistant Sessions Judge who tried the appellant or the learned Judge of the High Court
As we read the findings of the learned Judge it seems clear to us that he found that the person who set fire to the hut of Mst
Rasmani did so in consequence of the abetment namely the instigation of the appellant
It is necessary to refer to two decisions to which our attention has been drawn by the learned Advocate
867 The decision in Raja Khan vs Emperor 1 related to a case where one Torap Ali was held to be guilty of cheating by personating one Sabdar Faraji and using his name on a surety bond
The charge against Torap Ali was that he was the principal in the case and the charge against Raja Khan and Cherak Ali Akon the two appellants in that case was that they abetted by being present at the personation which was alleged to have been committed by Torap Ali
Torap Ali was acquitted by the jury
The learned Judge who presided at the jury trial did not however tell the jury what would be the effect of the acquittal of Torap Ali on the charge of abetment against Raja Khan and Cherak Ali
It was because of this omission that the conviction of Raja Khan and Cherak Ali was set aside
The head note of the report however said in general terms that where a person is charged with having committed an offence and another is charged with having abetted him in the commission thereof and the prosecution fails to substantiate the commission of the principal offence there can be no conviction for abetment
This general statement was considered in a later decision in Umadasi Dasi vs Emperor 2 and it was pointed out that in the majority of cases the aforesaid general statement might bold good but there are exceptions to the general rule particularly when there is evidence which satisfactorily establishes that the offence abetted is committed and is committed in consequence of the abetment
We accordingly hold that the conviction of the appellant for the offence under section 436 read with section 109 Indian Penal Code is not bad in law
As to the sentence it does not appear to us that it errs oil the side of severity
It has been stated that the appellant was released on bail on serving out the sentence passed against him for the offences under sections 147 and 323 Indian Penal Code
In our opinion the appeal has no merit and must be dismissed
The appellant must now surrender himself to serve out the remainder of his sentence
1AIR Appeal dismissed


Summary:
According to the Regulation 1614 of the Jammu  Kashmir Industries Employees Service Rules  Regulations the serv ices of the permanent employee could be terminated if the post is abolished or he is declared medically unfit after giving three month s notice or pay in lieu thereof and in case of temporary employee one month s notice or pay in 429 lieu thereof
This regulation was amended on April 20 1983 by adding two more grounds namely if the employee remains on an unauthorised absence or if he takes part in active politics in such cases the services shall be terminated if he fails to explain his conduct satisfactorily within 15 days from the date of issue of notice and the management shall be empowered to take a decision without resorting to further enquiries
Pyare Lal Sharma was employed as a Chemical Engineer by the Jammu  Kashmir Industries Ltd hereinafter called Company 
The Company issued a show cause notice on 21483 in terms of the added clauses for his unauthorised absence from duty
As no reply was submitted the MD terminated his services by an order dated 1461983
Sharma challenged the order of termination by way of a writ petition before the J  K High Court
Learned Single Judge allowed the Writ Petition on three grounds namely violation of Rules of Natural Justice that the Board of Directors having appoint ed Sharma the MD who is subordinate authority could not terminate his services and that the regulation 1614 was arbitrary and violative of article 14 of the Constitution of India
The Letters Patent Bench of the High Court dismissed the appeal of the Company but denied backwages to Sharma
Aggrieved by that order both the Company as well as Sharma came up in appeals before this court
While allowing the appeal of Sharma partially and dismissing the appeal of the Company this Court HELD That Regulation 1614 was not arbitrary
The provision of show cause notice is a sufficient safeguard against arbitrary action
Under grounds a  b of the Regulations three months notice or pay in lieu thereof is required
Regarding grounds c  d the regulations pro vide for 15 days notice to explain the conduct satisfactori ly and there is no requirement of any other notice or pay in lieu thereof
437C D There is no provision in the Articles of Association or the regulations of the company giving same protection to the employees of the company as is given to the civil servants under article 3111 of the Constitution of India
An employee of the Company cannot therefore claim that he cannot be dismissed or removed by an authority subordinate to that by which he was appointed
Since on the date of termination of Sharma s services the MD had the powers of the appointing authority he was legally competent to terminate Sharma s services
437F G 430 Grounds c  d in regulation 1614 exclusively and individually are sufficient to terminate the services of an employee
Once it is established that an employee remains on an unauthorised absence from duty the only action which can be taken is termination of his services
Similar is the case when an employee takes part in active politics
The finding in the termination order cannot be sustained because no notice in this respect was given to Sharma but the order of termination can be supported on the ground of his remaining on unauthorised absence from duty
437H 438A B State of Orissa vs Vidyabhushan Mohapatra 1963 1 Supp
SCR 648 and Railway Board vs Niranjan Singh  relied upon
It is a basic principle of natural justice that no one can be penalised on the ground of a conduct which was not penal on the day it was committed
The date of show cause notice being April 21 1983 the unauthorised absence from duty which has been taken into consideration is from Decem ber 20 1982 to April 20 1983
Whole of this period being prior to the date of amendment of regulation 1614 the same could not be made as a ground for proceeding under ground c of Regulation 1614
The Notice served on the appellant was thus illegal and as a consequence the order of termina tion can not be sustained and has to be set aside
438F G When the termination order is set aside by the courts normally the employee becomes entitled to backwages and all other consequential benefits
In view of the facts and circumstances of this case the court ordered that only sixty percent of the backwages be paid to Sharma
Moneys already received by Sharma under orders of either this Court or High Court shall be adjusted and the balance paid to him
If the money already paid to Sharma is more than what has been ordered to be paid now then there shall be no recovery from him
439A C