Sultan Singh Vs. State of Haryana and Another - Court Judgment

Excerpt:
- [a.k. sarkar, c.j.,; j.m. shelat,; j.r. mudholkar,; m. hidayatullah, jj.] the respondents were arrested by the police for the offence of trespass and were released on bail. they were tried and sentenced to pay a fine by the nyaya panchayat, a court established under the madhya bharat panchayat act, 1949, with powers to impose only a sentence of fine. the conviction was set aside by the high court on the ground that s. 63 of the act, which provides that no legal practi- tioner shall appear on behalf of any party in a proceeding before the nyaya panchayat, violated art. 22(1) of the constitution and was therefore void. held:(per sarkar c.j., and mudholkar, j.): the high court was in error in setting aside the conviction. under art. 22(1) a person arrested has the constitutional right to consult a legal practitioner concerning his arrest; and, a person who has been arrested as well as one who though not arrested runs the risk of loss of personal liberty as a result of a trial, have the constitutional right to be defended by an advocate of their choice. but in a trial under a law which does not provide for an order resulting in the loss of his personal liberty, he is not entitled to the constitutional right, because, the article is concerned only with giving protection to personal liberty. [241 h-242 c, 244 b-c]. the act does not give any power to deprive any one of his personal liberty either by way of arrest before the trial or by way of sentence of imprisonment as a result of the trial; nor does it deprive an arrested person of his constitutional right to take steps against the arrest or to defend himself at a trial which might occasion the loss of his personal liberty. the fact that the respondents were arrested under another statute, namely, the criminal procedure code cannot make either the section or the act void. [242 g-h; 243 c-d; 244 d-e] state of bombay v. atma ram sridhar vaidya, [1951] s.c.r. 167..204, followed. quaere:...whether respondents were not entitled to the constitutional right because, at the trial they were on bail. [244 e] per bachawat and shelat jj.: section 63 of the act is violative of art. 22(1) and is void to the extent that it denies any person who is arrested the right to be defended by a legal practitioner of his choice in any trial for the crime for which he is arrested. but, the order of the high court, quashing the conviction, should be set aside, because, the respondents did not claim that they should be defended at the trial by counsel, and the circumstances of the case, the existence of s. 63 on the statute book did not cause them any prejudice. [257 g; 258 b-c] as soon as the respondents were arrested without warrants issued by a court, they acquired the rights guaranteed by art. 22(1), and they continued to have those rights though they were released on bail at the time of trial. the rights include the right to be defended even in a trial in which they were in jeopardy of only being sentenced to a fine. because, the pronoun "he" in the second part of art. 22(1) refers to "any person who is arrested'-. if in the exercise of the general powers under the criminal procedure code, the police arrest a person on the accusation of a crime for which he is liable to be tried before a special criminal court, the arrested person has the constitutional right to be defended by counsel at the trial before the special criminal court in respect of the offence for which he was arrested. even if the word "he" means "any person" there is no warrant for giving a restricted interpretation and limiting the right to be defended by counsel to a trial in which the arrested person is in jeopardy of being sentenced to death or to a term of imprisonment. [256 a-d, f-g; 257 a- b] state of punjab v. ajaib singh, [1953] s.c.r. 254, referred to. quaere:whether the tests of an arrest" laid down in ajaib singh's case are exhaustive. [257 c]. per hidayatullah j. (dissenting): the appeal should be dismissed. under art. 22, a person who is arrested for whatever reason, gets three independent rights. the first is the right to be told the reasons for the arrest as soon as an arrest is made, the second is the right to be produced before a magistrate within 24 hours and the third is the right to be defended by an advocate of his choice. when the constitution lays down in absolute terms a right to be defended by one's own counsel, it cannot be taken away by ordinary law, and. it is not sufficient to say that the accused who was so deprived, of the right, did not stand in danger of losing his personal liberty. the words "nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice," in art. 22(1), refer to a person who is arrested. personal liberty is invaded by arrest and continues to be restrained during the, period a person is on bail and, it is not sufficient to say that the accused who was so deprived prisonment. before his release on bail he defends himself against his arrest and the charge for which he is arrested, and after his release on bail, against the charge he is to answer and for answering which, the bail requires him to be present. therefore. s. 63 of the act, being inconsistent with the article, is void. though the contention was raised for the first time in the high court, since it is a question of fundamental right it must be upheld. [248 h; 249 d-f; 251 a-b, f-h; 252 b]. state of punjab v. aiaib singh. [1953] s.c.r. 254 and state of uttar pradesh v. abdul samad [1962]. s.c.r. 915. referred to. - section 12(5) of the act postulates that on receipt and consideration of a report from the conciliation officer, if the government is satisfied that there is a case for reference the respondent/employer before making a reference on a second representation under to the board, labour court, tribunal or national tribunal, as the case may be, it may make such reference.1. tow questions arise in this appeal, namely, (1) whether the state should hear section 10 of industrial disputes act, 1947 (for short, 'the act') since it was rejected on an earlier occasion; and (s) whether there is an order of reference by the state government so as to entitle the appellant to have the dispute adjudicated by the tribunal.2. the facts are not in dispute. way back in 1955, the appellant had joined the respondents as a workmen (khalasi). he was promoted on september 6, 1972 as a tape-reader. he was served with a charge-sheet on june 28, 1979 and his services were terminated on august 9, 1979. on june 30, 1981, he made a demand on the respondent/employer for reinstatement which was rejected, thereafter, he made an application for reference under section 10 of the act to the state government which was rejected by order dated october 20, 1981. the appellant again made a representation on march 25, 1982 and the minister made a note on the representation directing to make a reference. however, since no communication was received by the appellant, he wrote a letter to the labour commissioner, haryana, on april 26, 1984 but to no avail. he then filed the writ petition. by order dated august 6. 1984 in cwp no. 2885/84, the high court dismissed the writ petition. 3. the first question is whether the state should give a hearing to the employer before making a reference on second application, since on an earlier occasion, it was rejected. section 10(1) of the act provides that where an appropriate government is of the opinion that any industrial dispute exists or is apprehended, it may, at any time, by order in writing refer the dispute to named authorities. section 12(5) of the act postulates that on receipt and consideration of a report from the conciliation officer, if the government is satisfied that there is a case for reference the respondent/employer before making a reference on a second representation under to the board, labour court, 'tribunal or national tribunal, as the case may be, it may make such reference. where the appropriate government does not such a reference it shall record reasons therefore and communicate to the parties concerned. 4. a conjoint reading, therefore, would yield to the conclusion that on making an application for reference, it would be open to the state government to form an opinion whether industrial dispute exists or apprehended and then either to make a reference to the appropriate authorities or refuse to make the reference. only on rejection thereof, the order needs to be communicated to the applicant. nonetheless the order is only an administrative order and not a quasi-judicial order. when it rejects, it records reasons as indicated in sub-section (5) of section 12 of the act. the appropriate government is entitled to go into the question whether an industrial dispute exists or is apprehended. it would be only a subjective satisfaction on the basis of the material on record. being an administrative order no lis is involved. thereby there is no need to issue any notice to the employer nor to hear the employer before making a reference or refusing to make a reference. sub-section (5) of section 12 of the act does not enjoin the appropriate government to record reasons for making reference under section 10(1). it enjoins to record reasons only when it refuses to make a reference.5. the need for hearing is obviated, if it is considered on second occasion as even then if it makes reference, it does not cease to be an administrative order and so is not incumbent upon the state government to record reasons therein. therefore, it is not necessary to issue notice to the employer nor to consider his objections nor to hear him before making a reference . accordingly, we are of the view that the high court was wholly wrong in its conclusion that before making refernece on second application, it was incumbent upon the state government to give notice to the employer and to give an opportunity to the employer and record reasons for making refernece. the previous decision of that court relied on in the case at hand was wrongly decided.6. the second question is whether as a fact, reference has been ordered by the government. it is seen that on the earlier occasion admittedly reference was rejected on the ground that the appellant had settled the matter with the employer. in the second application, the minister made a note directing refernece, but in the order communicated later to the appellant by the labour department, it was indicated that in view of the decision already taken, the government did not consider it necessary to reconsider the decision already taken. in other words, they were of the opinion that there existed no industrial dispute. they declined to make reference under section 10(1). therefore, there is no reference, in fact, made to the appropriate tribunal/ labour court or industrial tribunal.7. in these circumstances, we cannot give relief to the appellant, since there is no reference made by the government. the appeal is disposed of accordingly. no costs.