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CASE NO.: Appeal (crl.)  280 of 2003

PETITIONER: Sohan Lal @ Sohan Singh & Ors.                                    

RESPONDENT: State of Punjab                                                  

DATE OF JUDGMENT: 14/10/2003

BENCH: K. G. Balakrishnan & B. N. Srikrishna. @ JUDGMENT

SRIKRISHNA, J.

                        This appeal by special leave is directed against the judgment of the  Punjab & Haryana High Court dismissing the appeals of the present  appellants against convictions, under Section 302 read with Section 109 IPC  in respect of appellant No. 1, and under Section 302 IPC in respect of  appellant Nos. 2 and 3.   

       On 1.4.1996 an F.I.R. was lodged at the Sadar Police Station on the  basis of information given by one Bansi Ram (Taya i.e. Uncle) at 10.40 p.m.  on that night with regard to the unnatural death, in suspicious circumstances,  of one Kamlesh Rani. The gist of the F.I.R. was that Kamlesh Rani was  being harassed by her husband-Sohan Lal @ Sohan Singh (first appellant),  mother-in-law Harbans Kaur (second appellant) and sister-in-law  Kanchan  (third appellant), who  ill treated her to extract dowry from her parents. The  said Kamlesh Rani was also thrown out of the house of her in-laws and it  was only after intervention of interested parties that she returned to the  house of the in-laws on 31.3.1996.  On 1.4.1996, Bansi Ram received  information that Kamlesh Rani had been admitted in G.N.D. Hospital, New  Emergency, Amritsar with extensive burn injuries. He lodged a complaint  that Kamlesh Rani had been set on fire by her husband, Sohan Lal, mother- in-law, Harbans Kaur, father-in-law, Sarwan Singh, and sister-in-law,  Kanchan after pouring kerosene oil on her, after conniving with one another.

       The police started investigation in the matter, seized certain  incriminating materials and also recorded statements of witnesses.  As a  result of the investigation, the police filed a Charge Sheet against the three  appellants and Sarwan Singh. It was alleged against Harbans Kaur and  Kanchan that at about 4.00 p.m. on 1.4.1996 they murdered Kamlesh Rani  and committed an offence punishable under         Section 302 of the IPC.  In  the alternative, since Kamlesh Rani had died on account of burn injuries  otherwise than under normal circumstances, within seven years of her  marriage with Sohan Lal @ Sohan Singh, Sohan Lal (husband),  Sarwan  Singh (father-in-law), Harbans Kaur (mother-in-law) and Kanchan (sister-in- law) of Kamlesh Rani were charged with subjecting Kamlesh Rani to cruelty  and harassment on account of demand of dowry and causing her dowry  death, an offence punishable under Section 304B of the IPC. The accused  denied the charges and claimed to be tried. The prosecution examined Dr.  Gurmanjit Rai, Lecturer, Forensic Medicines, Medical College, Amritsar  (PW 1),  Bansi Ram (PW 2), Usha Rani (PW 3), Gopi Ram (PW 4), Rishi  Ram (PW 5),  Lakhbir Singh, Naib Tehsildar, Ratala (PW 6), Jit Singh (PW  7), Surinder Singh HC (PW 8), A.S.I. Joginder Singh, P.S. Civil Lines,  Amritsar (PW 9), Dr. Sat Pal, Surgical Specialist, C.S.C. Saroya, Distt.  Nawan Shehar (PW 10) and A.S.I. Satnam Singh (PW 11) and produced  certain material objects and documents to prove the charges against the  accused.  The trial court held that Kamlesh Rani had died as she was

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murdered by second appellant  Harbans Kaur and third appellant  Kanchan  abetted by first appellant Sohan Lal @ Sohan Singh.  The trial court also  recorded a finding that, as far as dowry death was concerned, there was no  definite statement of any witness that any of the accused had ever demanded  dowry at the time of the marriage or even thereafter.  Upon appreciation of  the evidence on record, the trial court held that the prosecution had failed to  prove its case against accused Sarwan Singh beyond a shadow of doubt.   Sarwan Singh was, therefore, acquitted of all charges against him, but  Harbans Kaur and Kanchan were held guilty of burning Kamlesh Rani to  death and Sohan Lal @ Sohan Singh was held guilty of abetting the same.   Harbans Kaur and Kanchan were thus held guilty of an offence punishable  under Section 302 of the IPC, while  Sohan Lal @ Sohan Singh was held  guilty of an offence punishable under section 302 read with Section 109 IPC.   All three accused were sentenced to imprisonment for life and fine of Rs.  1,000/- each and, in default, a further imprisonment of two months.  Being  aggrieved by the convictions, the three appellants,  Sohan Lal @ Sohan  Singh, Harbans Kaur and Kanchan are in appeal.

       The case of the prosecution rests mostly on two declarations made by  Kamlesh Rani, one on 2.4.1996 to the Naib Tehsildar-cum-Executive  Magistrate, Lakhbir Singh (PW 6) at 3.15 p.m. and the second statement  made under Section 161 of the Cr. P.C., recorded by Satnam Singh, A.S.I.  (PW 11) at 7.10 p.m. on 7.4.1996.  It also rests on the oral testimony of the  witnesses for corroboration of the statements made in the said declarations.

       Appellant No. 1, accused Sohan Lal husband of Kamlesh Rani,  according to the Charge Sheet, had been charged only with the offence of  dowry death, punishable under Section 304B of the IPC. There was no  charge under Section 302 or for abetment of murder under Section 109 of  the IPC.  Counsel for the appellants contended that Section 109 of the IPC,  which deals with abetment of a substantive offence, is itself a substantive  offence for which punishment is prescribed under the section.  Learned  counsel contended that unless an accused has been charged for an offence  under Section 109 IPC and tried, it was not open to the trial court to sustain  the charge under Section 302 with the help of Section 109 IPC for which the  accused was never tried.  Learned counsel relied on the judgments of this  Court in Joseph Kurian Philip Jose  v.  State of Kerala  (1994) 6 SCC 535  and Wakil Yadav and Anr.  v.  State of Bihar (2000) 10 SCC 500 to  buttress his contention.  

Joseph Kurian (supra) holds thus: "Section 109 IPC is by itself an offence though punishable in  the context of other offences.  A-4 suffered a trial for substantive  offences under the Indian Penal Code and Abkari Act.  When his  direct involvement in these crimes could not be established, it is  difficult to uphold the view of the High Court that he could lopsidedly  be taken to have answered the charge of abetment and convicted on  that basis.  There would, as is plain, be serious miscarriage of justice  to the accused in causing great prejudice to his defence.  The roles of  the perpetrator and abettor of the crime are distinct, standing apart  from each other."

 This view was reiterated in the subsequent judgment in Wakil Yadav  (supra).  In Wakil Yadav (supra)  the appellant was originally charged with  several other accused under Section 302  with the aid of Section 109 IPC.   The Court of Sessions convicted all the 7 accused for the offences charged.  The High Court in appeal acquitted 5 persons, convicting one Guru Charan  Yadav substantively for the offence under Section 302 IPC and the  appellant, Wakil Yadav, for the offence under Section 302 read with Section  109 IPC.  There was no dispute that no charge had been framed against the  appellant, Wakil Yadav, under Section 109 IPC.  This Court reiterated the  law laid down in Joseph Kurian (supra) and held that it was not open to the  High Court to convict the accused, Wakil Yadav, for an offence under  Section 302 with the aid of Section 109 IPC, as no charge had been  framed

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against him under Section 109 IPC, which is itself  a substantive offence.        

       Section 211 of the Code of Criminal Procedure requires that the  charge against the accused be precisely stated. Sub-section(4) of Section 211  of the Code of Criminal Procedure specifically requires that the law and  section of the law against which the offence is said to have been committed  shall be mentioned in the charge.  The learned counsel for the respondent  State, relying on Section 464 of the Code of Criminal Procedure, urged that  failure to specify Section 109 in Charge Sheet against Sohan Lal was a mere  irregularity which would not vitiate the trial without proof of prejudice to the  accused.   We cannot agree. The learned counsel for the accused is fully  justified in his submission that failure to frame a charge with regard to the  substantive offence of Section 109 IPC has certainly prejudiced the accused  in the trial court. The accused Sohan Lal @ Sohan Singh was called upon to  face trial only for the charge under Section 304B IPC.  Neither a charge  under Section 302 IPC nor under Section 109 IPC, was levelled against him  in the Charge Sheet.  In the absence of a charge being framed against the  accused Sohan Lal under Section 302 or 109 IPC,  it would certainly cause  prejudice to him, if he is convicted under either for these offences at the end  of  the trial.  In our view, it was not permissible for the trial court to convict  the first accused Sohan Lal for the offence under Section 302 read with  Section 109 IPC.  His conviction under Section 302 read with Section 109  IPC is, therefore, illegal and is liable to be set aside. The High Court erred in  upholding the conviction of Sohan Lal @ Sohan Singh under Section 302  read with Section 109 of the IPC and dismissing his appeal.  

       The learned counsel for the appellants then strongly assailed the  convictions of Harbans Kaur (mother-in-law) and Kanchan (sister-in-law)  under Section 302 IPC.  He contended that the version given in the First  Information Report (FIR) lodged at the instance of Bansi Ram (PW 2) and  the version given by Bansi Ram in his evidence before the trial court are  irreconcilable and suggest that Bansi Ram could never have had the  information with which he rushed to the Police.  In the FIR, Bansi Ram says:   "After making my niece Kamlesh to understand the things, we sent her with  her parent’s in-law on 31.3.1996.  Today on 1.4.1996, we received  information that Kamlesh was admitted to G.N.D. Hospital, New  Emergency, Amritsar in burnt condition. I accompanied by Usha Rani W/o  Hira Lal (brother’s daughter-in-law) reached G.N.D. Hospital, New  Emergency, Amritsar.  My niece Kamlesh told us that on that day at about  4.00 p.m. she was present  in her house and that her husband Sohan Lal,  Banso, mother-in-law, Sarwan Singh, father-in-law and Kanchan her sister- in-law after conniving with one another had set her on fire, after pouring  kerosene oil on her."  In his testimony before the court, Bansi Ram stated  that on 1.4.1996, Gurbux Singh, another son of Sarwan Singh, came to their  house at 8.00 p.m. in the night and told that Kamlesh was admitted in  G.N.D. Hospital, Amritsar in burnt condition.  He then said, " I accompanied  by Usha Rani and another person went to the said hospital.  Kamlesh was in  excessively burnt condition.  She told us that her husband’s sister Kanchan  had tied her legs and Sohan Singh accused had set her on fire after pouring  kerosene oil on her body."  A number of improvements, variations and  inconsistencies between the FIR statement  made by Bansi Ram     (PW 2)  and his evidence before the court were highlighted by the learned counsel  for the accused.  He also contended that it was impossible for Kamlesh Rani  to have spoken to Bansi Ram and given him information as to what  transpired at the time of the incident.  Strong reliance was placed by the  learned counsel on the bed-head ticket (Ex. PQ) which showed that on  1.4.1996 Kamlesh Rani was admitted to the hospital at 6.30 p.m. with  alleged history of burns, that she was prescribed several medicines which  included a strong sedative and pain killer like Calmpose and Pathidine  injections.  There is an endorsement at 8.40 p.m. in the bed-head ticket (Ex.  PQ): "seriousness of the Pt. explained to the relatives." There is also an  endorsement at 9.10 p.m.:  "Pt. declared unfit for statement due to sedation."    

       The learned counsel urged that according to the evidence of Bansi  Ram, he received information about the burn injuries and admission in the

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hospital of Kamlesh Rani at about 8.00 p.m.; he immediately went to Usha  Rani and accompanied by her and others came to the hospital.  By that time,  injections Calmpose, Furtulin and Pathidine had already been administered  at 7.20 p.m., as seen from the I.O. Chart dated 1.4.1996.  It would be  improbable that the patient would be in a position to talk to anyone, if  these  strong sedatives had been administered at 7.20 p.m..  There appears to be  substance in this contention. At 9.10 p.m. the doctor had declared the patient  unfit for statement due to sedation. The exact time at which Bansi Ram  reached the hospital is not available from the evidence on the record. The  evidence of Usha Rani (PW 3) suggests that she had received information  about Kamlesh Rani receiving burn injuries and her admission to the  hospital at  8.30 p.m. on 1.4.1996.  According to    PW 3, she found that,  "she was in a serious condition, she was speechless and was not able to  speak." It is true that Usha Rani was declared as a hostile witness and cross- examined.  Nonetheless, it is open to the accused to rely on the testimony of  Usha Rani for the purpose of improbabilising the evidence of Bansi Ram, in  so far as his talk with Kamlesh Rani on the night of 1.4.1996 is concerned.   In our view, the contention of the learned counsel for the accused is justified  and needs to be upheld.  A cumulative assessment of the evidence of Bansi  Ram (PW 2), Usha Rani (PW 3) and the medical chart (Ex. PQ)  improbabilises that Bansi Ram could have had a talk with Kamlesh Rani in  the evening of 1.4.1996, before he went to the Police Station and had the  FIR recorded.

       The learned counsel thereafter contended that if Bansi Ram’s  testimony is not believable, then the whole of the FIR becomes doubtful and  the case against the accused necessarily collapses. We cannot accept this. It  may be probable that Bansi Ram might have given information to the police  which was exaggerated and added things which, probably, he did not learn  from Kamlesh Rani on 1.4.1996.  It is possible that seeing Kamlesh Rani in  the hospital, after suffering extensive burns to the extent of 80 per cent,  Bansi Ram might have suspected the in-laws of Kamlesh Rani as having  murdered her.  The First Information Report is only a report about the  information as to the commission of an offence; it is not substantive  evidence, as the police has yet to investigate the offence.  If Bansi Ram’s  was the only testimony in support of the prosecution, then perhaps the  counsel’s was right. We find, however, that the prosecution strongly relied  on two declarations, one made to Naib Tehsildar, Lakhbir Singh (PW 6) on  2.4.1996 as well as the statement made by Kamlesh Rani under Section 161  of the Cr. P.C.  recorded on 7.4.1986 by  Satnam Singh, A.S.I., both of  which can be treated as dying declarations.

       The learned counsel for the accused strongly assailed the two dying  declarations and contended that the two dying declarations are mutually  contradictory and the evidence of the other witnesses do not probabilise their  truth.  It was contended that the overall circumstances make it unsafe to  convict the accused merely on the said dying declarations.  We need to  consider these arguments in detail and assess their merit.

       The first dying declaration (Ex. PN) was recorded on 2.4.1996, on the  basis of a complaint (Ex. PL) made by Bansi Ram to the Deputy  Commissioner, Amritsar alleging that the police were not cooperating in  recording the statement by Kamlesh Rani, who had been admitted in the  Emergency Ward. A request was made that some officer may be deputed for  recording her statement and legal action be taken.  Lakhbir Singh, Naik  Tehsildar-cum-Executive Magistrate addressed a letter dated 2.4.1996 to the  Doctor on duty in the hospital requesting the doctor to issue a certificate as  to whether Smt. Kamlesh Rani was fit to give a dying declaration.  According to the evidence of Lakhbir Singh (PW 6), Bansi Ram made an  application addressed to the District Magistrate, Amritsar, on which the  District Magistrate made an endorsement at 2.05 p.m. on 2.4.1996 directing  the Tehsildar to record her statement as an emergency.  The document and  the endorsement have been proved by PW 6.  PW 6, thereafter, went to the  hospital and addressed the letter (Ex. PM) to the Doctor on duty requesting  him to certify as to whether Smt. Kamlesh Rani was fit to give dying

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declaration.  The Doctor on duty (Dr. Vikram Dua, Junior Resident, Surgical  Unit-4, GND Hospital, Amritsar) made an endorsement on the application  (Ex. PM) to the effect: "Pt. is fit for statement."  His endorsement (Ex.  PM/1) was made at 3.00 p.m.. Thereafter, PW 6 went to Kamlesh Rani,  disclosed his identity to her, asked the attendants to go out and, after  ascertaining that she was fit to make the statement voluntarily, recorded her  statement.  The dying declaration (Ex. PN) was recorded without any  omission or addition and as narrated by Kamlesh Rani at 3.15 p.m.. An  endorsement on Exhibit PN 1 was made by PW 6 stating, "The above given  dying declaration of Smt. Kamlesh Rani wife of Sh. Sohan Lal, was  recorded by the undersigned on 2.4.1996 at 3.15 p.m. in the Emergency  Ward of Guru Nanak Dev Hospital, Amritsar." He, thereafter, sent the  original dying declaration to the District Magistrate, who with his  endorsement upon Exhibit PN/1 directed that the same to be sent to the  S.S.P., Taran Taran under sealed cover. This dying declaration (Ex. PN)  translated in English reads as under:          "I,  Kamlesh Rani wife of Sohan Lal resident of 1-a, Jajj  Nagar near V.V. Modern School, Amritsar.  I was burnt on  pouring kerosene oil by my mother-in-law Harbans Kaur and I  am conscious although my body was completely burnt but I  understand all the things.  Before I burnt I took tea mixed  something in it.  After that my mother-in-law put kerosene oil  on me and my sister-in-law named Kanchan lit the fire.  My  husband harasses me and demanded for bringing money from  her parents if  she  resides with him.  Heard and admitting the  correct.

                                                  RTI of                                             Sd/- Kamlesh Rani                                                W/o Sohan Lal                                                       2.4.96"

       The learned counsel for the accused criticised the dying declaration  (Ex. PN) as not legally sustainable on several grounds.  First, it is contended  that the certificate of fitness is not endorsed on the dying declaration itself  but on a separate paper i.e. on Exhibit PM/1.  Secondly, it is contended that  the certificate of fitness alleged to have been given by Dr. Vikram Dua,   Junior Resident, Surgical Unit-4, G.N.D. Hospital, Amritsar  was not proved  as the said Dr. Dua was not examined at all.  He also criticised the evidence  of Dr. Sat Pal, Surgical Specialist, C.H.C. Saroya (PW 10), who produced  the bed-head ticket and identified the writing and signature of Dr. Vikram  Dua with his endorsement on the application.  Though this witness was not  even cross examined, the learned counsel contended that the certificate of  Dr. Dua was not proved in accordance with law.  He also criticised the  evidence of PW 6 by contending that no material was produced by PW 6 to  show that he was really appointed as Naik Tehsildar-cum-Executive  Magistrate.  PW 6 also denied having made a statement to the Police during  investigation and that he had not brought the Gazette Notification whereby  he had empowered to discharge the function of an Executive Magistrate.   

Having read the evidence of PW 6,  in the light of the law  laid down  by a Constitution Bench of this Court in Laxman  v. State of Maharashtra   (2002) 6 SCC 710, and on assessment of the dying declaration, Exhibit PN,  we are afraid that none of  the contentions can prevail. The Constitution  Bench in Laxman (supra),  while resolving the conflict of opinion as to the  manner of testing the credibility of a ’dying declaration’, overruled the view  taken in Paparambaka Rosamma  v.  State of A.P.  (1999) 7 SCC 695 and  approved the correctness of the view taken in Koli Chunilal Savji and Anr.    v.   State of Gujarat  (1999) 9 SCC 562. According to the Constitution  Bench: "The juristic theory regarding acceptability of a dying  declaration is that such declaration is made in extremity, when  the party is at the point of death and when every hope of this  world is gone, when every motive to falsehood is silenced, and  the man is induced by the most powerful consideration to speak

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only the truth.  Notwithstanding the same, great caution must be  exercised in considering the weight to be given to this species  of evidence on account of the existence of many circumstances  which may affect their truth.  The situation in which a man is on  the deathbed is so solemn and serene, is the reason in law to  accept the veracity of his statement.  It is for this reason the  requirements of oath and cross-examination are dispensed with.   Since the accused has no power of cross-examination, the  courts insist that the dying declaration should be of such a  nature as to inspire full confidence of the court in its  truthfulness and correctness.  The court, however, has always to  be on guard to see that the statement of the deceased was not as  a result of either tutoring or prompting or a product of  imagination.  The court also must further decide that the  deceased was in a fit state of mind and had the opportunity to  observe and identify the assailant.  Normally, therefore,  the  court in order to satisfy whether the deceased was in a fit  mental condition to make the dying declaration looks up to the  medical opinion.  But where the eyewitnesses state that the  deceased was in a fit and conscious state to make the  declaration, the medical opinion will not prevail, nor can it be  said that since there is no certification of the doctor as to the  fitness of the mind of the declarant, the dying declaration is not  acceptable.  A dying declaration can be oral or in writing and  any adequate method of communication whether by words or  by signs or otherwise will suffice provided the indication is  positive and definite.  In most cases, however, such statements  are made orally before death ensues and is reduced to writing  by someone like a Magistrate or a doctor or a police officer.   When it is recorded, no oath is necessary nor is the presence of  a Magistrate absolutely necessary, although to assure  authenticity it is usual to call a Magistrate, if available for  recording the statement of a man about to die.  There is no  requirement of law that a dying declaration must necessarily be  made to a Magistrate and when such statement is recorded by a  Magistrate there is no specified statutory form for such  recording.  Consequently, what evidential value or weight has  to be attached to such statement necessarily depends on the  facts and circumstances of each particular case.  What is  essentially required is that the person who records a dying  declaration must be satisfied that the deceased was in a fit state  of mind.  Where it is proved by the testimony of the Magistrate  that the declarant was fit to make the statement even without  examination by the doctor the declaration can be acted upon  provided the court ultimately holds the same to be voluntary  and truthful.  A certification by the doctor is essentially a rule of  caution and therefore the voluntary and truthful nature of the  declaration can be established otherwise."

The view taken in Paparambaka Rosamma (supra) that in the absence of   a medical certification as to the fitness of  state of mind, it would be risky to  accept a dying declaration on the subjective satisfaction of the Magistrate  was overruled as having been too broadly stated and not being the correct  enunciation of law. The Constitution Bench said : "â\200¦It is indeed a hypertechnical view that the certification of  the doctor was to the effect that the patient is conscious and  there was no certification that the patient was in a fit state of  mind especially when the Magistrate categorically stated in his  evidence indicating the questions he had put to the patient and  from the answers elicited was satisfied that the patient was in a  fit state of mind whereafter he recorded the dying declaration.   Therefore, the judgment of this Court in Paparambaka  Rosamma  v.  State of A.P. must be held to be not correctly  decided and we affirm the law laid down by this Court in Koli

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Chunilal Savji  v.  State of Gujarat."

In Koli Chunilal Savji  (supra) a Bench of three learned Judges  rejected the contention that in the absence of a doctor while recording the  dying declaration, the declaration loses its value and cannot be accepted.  The Court observed that,  "â\200¦ the aforesaid requirements are a mere rule of  prudence and the ultimate test is whether the dying declaration can be held  to be  a truthful one and voluntarily given."

       Ravi Chander and Ors.  v.  State of Punjab (1998) 9 SCC 303,   was approved, in which  this Court held that for not examining the doctor,  the dying declaration recorded by the Executive Magistrate and the dying  declaration orally made need not be doubted.  The Court observed that the  Executive Magistrate is a disinterested witness and is a responsible officer  as long as there was no material on record to suspect that he had any animus  against the accused or was in any way interested in fabricating the dying  declaration, no question arises to checking the genuineness of the dying  declaration recorded by the Executive Magistrate.  

       In the face of this clear enunciation of law, we are afraid that none of  the above arguments urged by the learned counsel can be accepted.  Upon  careful assessment of the evidence tendered by PW 6, Lakhbir Singh, Naik  Tehsildar, we find no circumstance brought on record to suspect his  bonafides; nothing has been elicited to show that he was interested in  fabricating a case against the accused or that he had any motive to make out  a false case against the accused.  Hence, we are unable to accept the  contention of the learned counsel for the accused that it is unsafe to convict  the accused on the dying declarations.  

       It was strenuously urged by the learned counsel for the accused that  the testimony of the Naib Tehsildar Lakhbir Singh (PW 6) is unbelievable  because the District Magistrate appears to have acted with great haste in  deputing Lakhbir Singh to record the dying declaration as soon as he was  approached by Bansi Ram (PW 2).  It was also urged that the entries in the  bed-head ticket suggest that the witness was constantly under administration  of heavy sedatives which improbabilises the recording of her dying  declaration by Lakhbir Singh (PW 6). In our view, these are arguments of  desperation. As to how much time the District Magistrate should take in  responding to a request for recording  a dying declaration, is not a matter of  law  or rigidity, but one of convenience depending on the circumstances and  the urgency with which he views it.  

The bed-head ticket shows that the last injection of Pathidine and  other sedative drugs were given at 7.20 p.m. on 1.4.1996.  On 2.4.1996, no  Pathidine injection was given in the morning.  On the contrary, there is an  endorsement in the treatment sheet stating, "Sedation dose of evening  withheld.  Pt. declared fit for statement and the same given in the presence  of the Magistrate." It is contended that this entry has not been proved by any  witness.  In our view, this argument is without substance.  If the accused  wanted to rely on this entry, to impeach the credit worthiness of Exhibit PN,  they were free to examine any witness.  Whether this entry is held proved or  not, it does not detract from the credit worthiness of the evidence of Lakhbir  Singh (PW 6).  We, therefore, think that there is no substance in this  contention.

We are satisfied that the dying declaration (Ex. PN) was made by the  deceased Kamlesh Rani and that there is no need to discard the evidence of   PW 6; that when she made the dying declaration she was in a fit mental  condition to do so and was fully conscious of what she was saying.  Irrespective of whether the endorsement of  Dr. Dua upon Exhibit PM/1 has  been proved in accordance with law or not, we find no reason to discard the  dying declaration (Ex. PN).

       The learned counsel asserted that this is a peculiar case in which there

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are five statements which can be characterised as dying declarations and  each one is inconsistent with the others.  He, therefore, urged that we should  disbelieve all of them, give the benefit of doubt to the accused, and acquit  them.

       According to the learned counsel for the accused, the circumstances  under which the deceased Kamlesh Rani died have been narrated differently  on five different occasions. First,  there is the version in the FIR lodged by  Bansi Ram (PW 2);  second,  is the version given in the deposition of Bansi  Ram (PW 2); third, is the dying declaration recorded by Naib Tehsildar  Lakhbir Singh (PW 6) (Ex. PN); fourth, is the version in the statement of  Kamlesh Rani recorded under Section 161 of  the Cr. P.C. and fifthly, the  version given in the deposition of Jit Singh (PW 7) under cross-examination.   Learned counsel contended that each one of the versions is inconsistent with  the others and, therefore, taking an overall view, as each one the versions  conflicts with the dying declaration (Ex. PN),  it would be unsafe to rely on  the dying declarations to uphold the conviction of the appellants.  Although,  at the first blush, the contention of the learned counsel for the appellants  seems attractive, upon a careful appraisal it has no substance.  We have  already analysed the deposition of Bansi Ram (PW 2) in the light of the  deposition of  Usha Rani (PW 3).  A cumulative reading of the two, together  with the medical endorsements made on the bed-head ticket of G.N.D.  Hospital, clearly ruled out Bansi Ram as having received any information  from deceased Kamlesh Rani.  It is true that both in the FIR as well as in the  deposition of  Bansi Ram (PW 2)  an exaggerated version had been given.  Merely, because Bansi Ram takes it upon himself to give an exaggerated  and coloured version of the circumstances under which Kamlesh Rani died,  we do not think that it would be proper to reject the dying declaration        (Ex.  PN) which we have tested on the anvil of the law laid down by the  Constitution Bench of this Court in Laxman (supra) and found it to have  passed.  We are, therefore, not inclined to accept the contention that the  dying declaration (Ex. PN) needs to be rejected because of the FIR of Bansi  Ram and the deposition of Bansi Ram do not tally with it.

       Next, we turn to the evidence of  Jit Singh (PW 7) on the basis of  which the dying declaration (Ex. PN) is impeached. PW 7 was  examined  only to prove the recovery of certain material objects. He was a Pancha, who  had signed the Panchanama which showed the recovery of certain  incriminating articles.   His examination-in-chief merely consists of the fact  that certain articles were recovered in his presence and that he had attested  the Panchanama, and that his statement had been recorded by the police.   Surprisingly, in his cross-examination, this witness came out with a new  story that he was present at the seen of the occurrence, that Kamlesh Rani  was lying in the hands of her husband Sohan Lal @ Sohan Singh and she  had told all of them including Jit Singh that she had committed suicide, and  that she had committed a blunder, before she was moved to the hospital.   Rightly, this witness was declared as hostile and suggestions were made to  him that the facts deposed by him  had not been narrated in his statement to  the police, that they had been so narrated at the instance of the accused and  that he had deposed falsely under the cross-examination. We have no  hesitation in rejecting that part of the testimony of PW 7 which appears to  have found its way on the record so convenient  for the accused. If at all  there was any truth in his statement that he was present at the time of  occurrence and that the deceased Kamlesh Rani had made any statement  before him, it was the obligation of Jit Singh (PW 7) to have disclosed this  to the police. Had he done so, he would have been treated as a material  witness and examined by the police with regard to the so called statement  made before him. The fact that no such disclosure was ever made by him to  the police, and his attempt to come out with crucial material facts pertaining  to the occurrence, although he was being examined only as a witness to the  Panchanama, do not lend credence to his testimony. It appears to us that     Jit Singh (PW 7) must have been won over by the accused and made bold to  give convenient evidence under cross-examination.  We are not inclined to  accept this very convenient testimony of Jit Singh (PW 7) as detracting from  the veracity and weight to be attached to the dying declaration (Ex.  PN).

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       That leaves us with the other statement made by Kamlesh Rani to the  police under Section 161 of the Cr. P.C.  The High Court in its judgment has  quoted the statement of Kamlesh Rani under Section 161 of the Cr. P.C.  (Ex.  PV),  which is as under:         "Statement of Kamlesh Rani wife of Sohan Lal resident  of Gali No. 1A, Judge Nagar, Amritsar u/s 161 Cr. P.C.

It is stated that I am resident of above said address on  1.4.96. I was burnt by my mother-in-law Harbans Kaur by  pouring kerosene oil. Due to that my body was burnt. At this  time I am conscious.  Before burnt, I took a tea after mixing  some poison in the tea. Then my mother-in-law put a kerosene  oil on me.  My sister-in-law named Kanchan lit the fire by  match box.  Before the present occurrence my father-in-law  Sarwan Singh, Sohan Lal, husband, Harbans Kaur mother-in- law and Kanchan sister-in-law stressing me for bringing dowry  from my parents.  On 1.4.1996 at the time of occurrence my  father-in-law Sarwan Singh and Sohan Lal my husband both  were present in the house.  My husband usually asked me that I  did not like her and he further told me that if she remain with  him bring more dowry from his parents house.  I have heard my  statement which is correct."

       A comparison of the dying declaration (Ex. PN) recorded by PW 6,  Naib Tehsildar Lakhbir Singh, and the statement of Kamlesh Rani recorded  under Section 161 of the Cr. P.C. (Ex. PV) shows that they tally in material  particulars.  There is no conflict or inconsistency between these two  statements.  The contention of the learned counsel as to the inconsistency  must, therefore, fail.   

       Upon careful consideration of the facts and circumstances of the case,  we are satisfied that we can safely accept the veracity of the dying  declaration (Ex. PN) made by Kamlesh Rani deceased which is also fully  corroborated by the other circumstances and not contradicted by her  statement recorded under Section 161 of the Cr. P.C.. No material has been  placed before us to show that the dying declarations were the result of any  tutoring or coaching.  Hence, we are not satisfied that there exist any  circumstances which compel us to suspect the trustworthiness of the dying  declaration.

       Once we come to the conclusion that the dying declaration is credit  worthy, there is no doubt that the accusations against the appellants accused  Harbans Kaur and accused Kanchan are fully proved. In the circumstances,  we are of the view that both the courts below were justified in relying upon  the dying declaration and convicting the two accused, Harbans Kaur and  Kanchan. We see no reason to take a different view in the matter.   

In the result, we make the following order :

First appellant Sohan Lal @ Sohan Singh is acquitted of all the  charges.  He shall be released forthwith, if his custody is not required in any  other case.   

The convictions of second appellant Harbans Kaur and third appellant  Kanchan are hereby upheld.  The appeal is dismissed as far as these accused  are concerned.

+ 5 1444-1445 1999

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5 1446-1452 1999 5  8507  2003 ! The Government of Tamilnadu & Ors.             Vs.  M. Ananchu Asari & Ors.                                  @ October 29, 2003 # S. RAJENDRA BABU & P. VENKATARAMA REDDI

JUDGMENT: JUDGMENT  With  (arising out S.L.P.(Civil) No. 870 of 2002)

P. Venkatarama Reddi, J.  

 Leave granted in S.L.P.(Civil) No. 870/2002. 1.              Civil Appeal Nos. 1444-1445 of 1999 are preferred  against the common judgment of the Division Bench of the  Madras High Court in W.A. Nos. 522 of 1992 and 962 of  1993 dismissing the writ appeals filed by the State of Tamil  Nadu.  The Civil Appeal arising out of S.L.P.(Civil) No.870 of  2002 is against the order of the division bench of the High  Court in Writ Petition No. 11985 of 1992 which was allowed  following the judgment in Writ Appeal Nos. 522 of 1992 and  962 of 1993 referred to supra. Civil Appeal Nos. 1446-1452  of 1999 are those filed by the State of Tamil Nadu against  the common order passed in a batch of writ petitions  disposing of the writ petitions filed by the Transport  Corporation employees in terms of the judgment in Writ  Appeal Nos. 522 of 1992 and 962 of 1993. The State has  directly approached this Court against the said order of the  learned single Judge. Thus, the lead judgment is the one  rendered by the High Court in Writ Appeal Nos. 522 of 1992  and 962 of 1993.  2.              Broadly, the issue in these appeals is whether the  cutoff date fixed by the Government for the purpose of  entitlement to pension of the erstwhile Transport  Department employees who were later on absorbed in  Transport Corporations, is constitutionally valid? The High  Court answered that issue in the negative and directed the  fixation of cutoff date afresh in the light of the observations  made. 3.              The two writ petitioners in W.P. No. 6969 of 1990  with reference to which Writ Appeal No. 522 of 1992 was  filed by the State Government, were the employees of  Nessmony Transport Corporation  which was carved out of  Kattabomman Transport Corporation Limited. The latter  Corporation came into existence from 1.1.1974. The writ  petitioner in W.P. No. 7012 of 1988 out of which writ appeal  No. 962 of 1993 arose is the workers union of Pallavan  Transport Corporation Limited which was formed with effect  from 1.1.1973. The said writ petitioners including the  concerned members of the workers union were originally  employed in the State Transport Department. Pursuant to  the decision taken by the Government to form separate  transport corporations to take over the operation and  management of public transport in the districts concerned,  the two Corporations aforementioned came into existence in  1973 and 1974. The assets and liabilities were transferred  on certain terms to the newly formed Government  Companies which in effect have the status of Public Sector

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Undertakings. The writ petitioners and other similarly  situated employees were deputed to work in the said  transport Corporations. For instance, in G.O.MS. No. 651  (Transport) dated 18.7.1973, it was stipulated that all  employees of the Tamilnadu State Transport Department  serving in the Kanyakumari District for the purpose of  running, maintenance and upkeep of the transport system in  the District will be considered to be employees on  deputation with the Kattabomman Corporation with effect  from 1.1.1974. It was further enjoined that "they will  continue to receive the same emoluments and enjoy the  same conditions of service and privileges till such time the  Corporation frames its own rules and takes those employees  in its pay rolls". The G.O. further provided that the new  Corporation shall be responsible for meeting all the  establishment charges and making pension and leave salary  contributions to Government in respect of such of those  deputed employees of the Transport Department who were  in pensionable services. 4.              It is the stand of the State Government as seen  from the only counter-affidavit filed in W.P. No. 6969 of  1990 that all the employees absorbed in Kattabomman  Transport Corporation Limited were on deputation upto  30.4.1975 and from 1.5.1975 onwards, the Corporation had  framed its own rules and absorbed all of them as  Corporation employees duly accepting the options exercised  by them. It is to be mentioned at this juncture that options  were called for finally only in the year 1982. 5.              The writ petitioners and other similarly situated  employees who moved the High Court under Article 226 for  appropriate reliefs were not eligible to pension while in  Government service in view of non-fulfillment of the criterion  of ten years of qualifying service. It is not in dispute that the  service in the Corporation is non-pensionable. 6.              In order to extend the benefit of pension to the  Government servants permanently absorbed in the Public  Sector Undertakings on the basis of options, the State  Government issued certain orders from time to time. In  order to appreciate the controversy in proper perspective, a  brief reference to these G.Os. is necessary. The first one is  G.O.MS.No. 378 (FR II) dated 18.4.1975. The said G.O.  made the following provision for pension and gratuity. "In addition to pay in the public undertaking an  optee will be entitled to pension/gratuity earned  by him in Government service prior to such  absorption. If the qualifying service under  Government is less than ten years, gratuity and  Death-cum-Retirement Gratuity alone will be  payable.  They are permitted to draw their  pension/gratuity immediately on absorption in the  Corporation."

This G.O. was kept in abeyance till further orders were  issued in regard to the terminal benefits to be given to the  Government servants who opted for service in Public Sector  Undertakings. This was done in G.O.MS.No. 1197 dated  22.8.1978. Then, came G.O.MS.No. 284, Finance (CFC)  Department, dated 31.3.1980 in supersession of the earlier  orders issued on the subject including G.O.MS.No. 378.  According to para 2(iii) of the said G.O.â\200\224  "Pension, in respect of industrial and non  industrial workers who get themselves absorbed in  State owned Corporations/Boards will be  calculated at the time of transfer; it is payable by  the State Government only on retirement of the

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employee from the public sector corporationâ\200¦  ***  ***   *** The pension if any will be paid by the Government  direct to the absorbed employee after his  retirement from the Corporation/Board."

Para 3 of the G.O.  is the crucial provision. It saysâ\200\224 "3. The crucial date for calculating the terminal  benefits in respect of all the State Public Sector  Corporations except the Transport Corporations,  will be the date from which the employee is  continuously working in Corporation or the date of  incorporation of the Corporation, whichever is  later. In respect of Transport Corporations, the  crucial date will be 1st May, 1975 or the date from  which the employee is continuously working in the  Corporation, whichever is later." (Emphasis  supplied)

7.              Thus, as far as the Transport Corporations are  concerned, the relevant date for the purpose of judging the  entitlement of the employees who were earlier in  Government service was fixed as 1st May, 1975. The same  G.O. also stipulated that fresh options will be obtained from  Government servants working in various Corporations/  Boards "on the basis of this G.O.". The Corporations/Boards  were requested to decide absorption of Government  servants on the basis of the terminal benefits indicated in  the G.O. Pursuant to this G.O. a letter was addressed by the  Commissioner and Secretary to Government, Transport  Department on 5.1.1982 to all State Transport Undertakings  to get fresh options from the employees of the erstwhile  Tamilnadu State Transport Department employees absorbed  in the Corporation. The pro-forma of option form was  enclosed therewith. The last date for exercise of options was  fixed as 28.2.1982. As a consequence thereof, the Transport  Corporations called for options to be submitted by  28.2.1982. It appears that G.O.MS.No. 284, dated  31.3.1980 was quashed by the High Court by its judgment  dated 18.1.1983 insofar as it took away  the benefits  conferred by G.O.No. 378 dated 18.4.1975. Subsequently,  G.O.MS.No. 1028 came to be issued on 23.9.1985. It is this  G.O. read with the earlier G.O. 284 that has given rise to the  grievance of the writ petitionersâ\200\224respondents. The relevant  portion of the G.O. is extracted hereunder: "â\200¦Eventhough the erstwhile Tamilnadu State  Transport Department employees have exercised  option for their permanent absorption in the  Transport Corporations on different dates and  were working continuously in the various  Transport Corporations with effect from different  dates from 1.1.72, the crucial date for their  permanent absorption in the Transport  Corporations was fixed as 1.5.75 or the date from  which the employees were continuously working in  the Corporation whichever was later as per orders  issued in the Government order second read  above. The crucial date already fixed in the G.O.  second read above holds good without any change  in this regard." ("The G.O. 2nd read" is G.O. 284 dated 31.3.1980)

8.              It was further laid down that the terminal benefits  of all the erstwhile Tamilnadu State Transport Department  employees working in the various Transport Corporations

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should be settled as per the orders issued in G.O.No.378  dated 18.4.1975 subject to certain procedural modifications  set out in the G.O. The pension/gratuity earned by an  employee while in Government service prior to such  absorption was protected as was done by G.O.No.378. 9.              If the cutoff date stipulated in G.O.1028 dated  23.9.1985 is applied to the case of the writ petitioners, they  will not be eligible to get pensionary benefits. This led to the  filing of the writ petitions in the High Court. 10.             It may be mentioned that during the pendency of  the writ appeals, the Government issued G.O.MS.No. 250  (Transport Department) Dated 18.11.1996 further modifying  the cutoff date in order to benefit the erstwhile State  Transport Department employees. The Government while  fixing the crucial date as 15.9.1975 for the permanent  absorption in the respective Transport Corporations, directed  that pensionary benefits should be granted to those who  have completed ten years of qualifying Government service  as on 15.9.1975 subject to the condition that no arrears of  pension shall be given to the employees benefited by the  revised date for the period prior to 1.1.1986. It does not  appear that any of the respondents will be eligible to get  pension even if the revised date is taken into account. 11.             In writ petition No. 6969 of 1990, the learned  single Judge held that the cutoff date fixed by the  Government in G.O.MS.No. 1028 was illegal and left it to the  Government to fix a fresh cutoff date taking into  consideration the services of the writ petitioners. In the  second writ petition also another learned single Judge of the  High Court  declared the fixation of cutoff date as 1.5.1975 /  14.9.1975 as illegal and arbitrary and directed the  Government to fix the cutoff date afresh within the  stipulated time. At the same time it was indicated in the  judgment that the date on which the options were finally  called for i.e., 20.6.1982 would be the appropriate date for  determining the eligibility to pension. On appeal, the  Division Bench of the High Court while affirming the  judgments in the two writ petitions, concurred with the view  expressed by the learned Judge in the latter case as regards  the fixation of cutoff date with reference to the exercise of  options in the year 1982. The Division Bench observed thus: "â\200¦we are of the view that the cut-off date fixed as  1.5.1975 for the purpose of computing the  terminal benefits of the erstwhile Government  servants, who came to be subsequently  permanently absorbed in the various Government  Undertakings, particularly State Transport  Undertakings, proceeded on an artificial basis. ... ***   ***   *** â\200¦It is only subsequently, in the year 1982, that  such employees were asked to finally exercise  their option, either way, and various employees  exercised their option also. For instance, in  respect of Pallavan Transport Corporation, the said  date within which such options have to be  exercised appears to have been fixed finally by a  letter dated 20.6.1982 and in respect of other  Corporations, it would depend upon the option  called for before they were finally absorbed as  employees of the Corporations, which have come  into existence. Till the respective employees have  exercised their options on their volition, they must  be considered to continue in service as  Government employees only, in view of the fact  that the actual exercise of option by different

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employees may be on different dates and to have  a uniformity among group or category of workers  pertaining to a particular Corporation, the date on  which the options were called for finally, or the  last date within which the options were to be  exercised, once and for all finally, may be taken  up as the relevant criteria in fixing the cut-off or  crucial date for determination of the terminal  benefits. â\200¦"

12.             The learned senior counsel for the appellants has  urged that for all practical purposes, the process of  absorption of deputed employees was completed by  1.5.1975 by which date even the State Transport  Department got disbanded. Our attention was drawn to the  fact that pursuant to the promulgation of the rules known as  ’The Pallavan Transport Corporation Longevity Pay Scheme  and Conditions of Service Rules’ which came into force on 1st  May, 1975, options were called for from the employees on  deputation from Government Departments. The option form  enclosed to the Memorandum dated 29.5.1975 issued by the  Managing Director of PTC Ltd. required the employees to  declare that they voluntarily opted to serve in the PTC Ltd.  and accordingly relinquished all their rights vis-a-vis  Tamilnadu State Transport Department and that they were  willing to get absorbed permanently in the said Corporation  subject to the service put in the State Transport Department  being carried over to PTC Ltd. with pay scales, accumulated  rights for gratuity, provident fund, pension etc. Accordingly,  the respondents exercised their options in 1975 itself and  the process of absorption had thus completed during that  year. Having regard to this background, there is nothing  arbitrary in the policy decision fixing the cutoff date for  eligibility to pension as 1.5.1975. The learned senior counsel  then contended that the relevance and the rationality of  fixation of the crucial date as 1.5.1975 cannot be faulted  merely because one more opportunity was given to exercise  options in the year 1982. The premise on which the  impugned judgment proceeded, namely, that the  respondents continued to be Government employees till final  options were exercised in February, 1982, according to the  learned counsel for the appellants is based on incorrect  appreciation of facts. The financial repercussions have also  been stressed by the learned senior counsel. 13.             We find it difficult to accept the contentions  advanced by the appellants’ counsel. The learned counsel  has not disputed the proposition that the cutoff date fixed by  the Government for the purpose of conferring the  pensionary benefits cannot be arbitrary or whimsical. Even  according to the appellants, the date of permanent  absorption in the service of the Corporation is a material  date and it is in the light of that factor that the cutoff date  was fixed as 1.5.1975. The stand taken in the counter  affidavit filed on behalf of the Government of Tamilnadu in  writ petition No. 6969 of 1990 is that the writ petitioners  were absorbed in the Kattabomman Transport Corporation  with effect from 1.5.1975 on the basis of the options  exercised by them and that their deputation ended on  30.4.1975. That is how the choice of the date 1.5.1975 is  sought to be justified. In other words, the fixation of cutoff  date is sought to be linked up with the completion of the  process of absorption. A perusal of G.Os. 1028 and 250  would also make it clear that the Government wanted to fix  the date for pensionary entitlement to coincide with the date  of permanent absorption. The criterion cannot be said to be

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irrational or irrelevant. But, the question is whether this  factual premise that the process of absorption took place in  the year 1975 is correct. Viewed in the light of G.O.MS.No.  284 dated 30.1.1980 and the subsequent actions taken by  the Management of the State Transport Undertakings, it  cannot be said with certitude that the process of absorption  was completed even in the year 1975. If in fact the process  was completed by April, 1975, the pertinent question would  be why fresh options were directed to be called for in the  year 1980 and actually called for in January, 1982 and  thereafter? G.O.MS.No. 284 dated 30.1.1980 clearly  stipulates that fresh options shall be obtained from the  Government servants working in various Corporations/  Boards. The Corporations/Boards were requested to decide  the question of absorption of Government servants "on the  basis of the terminal benefits indicated in the G.O." The  sanction of pension and other terminal benefits was made  dependent upon the acceptance of options. Specific  reference has been made in the G.O. to the Transport  Department employees. This G.O. gives an unequivocal  indication that the Government itself regarded that the  process of absorption was not complete and that a final  exercise of calling for and accepting the offers should be  gone through, may be, in view of the change of criteria in  regard to the terminal benefits.  As already noticed, G.O.No.  378 was issued on 18.4.1975, it was kept in abeyance on  22.8.1978 and thereafter G.O.No. 284 was issued on  31.3.1980. Thus, the terms and conditions of absorption did  not take final shape till then. Moreover, even if the  respondents had submitted the option forms in the year  1975 for the purpose of availing the Longevity Pay Scheme  or otherwise, there is nothing on record to show that the  said options were treated as final for all purposes. No  material has been placed either before the High Court or  before this Court to establish that the respondents’  deputation came to an end by 1.5.1975 and that they were  absorbed into Corporations’ service from that date. Above  all, the more important point is that nothing has been said in  the counter-affidavit filed by the State Government before  the High Court as to why fresh options were provided for by  G.O. No. 284 and called for by the Corporation in the year  1982, if the entire process was concluded in the year 1975  itself. The counter-affidavit merely contains an assertion  that State Transport Department employees were absorbed  into the Transport Corporation with effect from 1.5.1975 by  accepting the options. In the counter, not even a reference  has been made to G.O.No. 284 and the options exercised  pursuant thereto. The reason for calling for fresh options has  not been spelt out even in the S.L.P. The factual assertion in  the counter-affidavit therefore remains unsubstantiated. 14.             Having regard to these facts and circumstances,  we cannot accept the plea of the appellants that the  absorption did in fact take place in the year 1975. In this  situation, the justification sought to be made out for fixing  the cutoff date as 1.5.1975 loses its ground in which case  the finding of the High Court that the date was arbitrarily  fixed cannot be assailed. 15.             There is one more point which needs to be  considered. In order to explain away the effect and efficacy  of the options called for in the year 1982, a contention has  been raised that G.O. No. 284 pursuant to which the options  were called for was struck down by the High Court in a writ  petition disposed of in the year 1983 and therefore such  options must be regarded as non est in the eye of law. We  find no merit in this contention. It is true that G.O No. 284

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was struck down at the instance of some of the employees  who were benefited by the earlier G.O. which it superseded.  But, that is besides the point. What is material is the factual  inference that is to be drawn from the fact that fresh options  were called for by virtue of and pursuant to G.O.No. 284.  The inference should be that the process of absorption was  not regarded as complete by the Government as well as the  Corporation. The invalidation of that G.O. by the High Court  does not in any way displace this factual inference. In fact  the validity of cutoff date was apparently not adjudicated in  the said writ petition. The options exercised pursuant to  G.O.No. 284 have for all practical purposes regained their  efficacy with the reiteration of the same cutoff date by the  subsequent G.O. dated 23.9.1985. 16.             For the reasons aforesaid we find no merit in  these appeals. The judgment of the High Court is upheld.  However, the High Court while indicating that the last date  for submitting the options finally should have been taken as  the basis for fixation of date, gave a direction to the  Government to fix the relevant date in the light of the  observations made in the judgment. The High Court  proceeded on the basis that it was only on 20.6.1982 and  thereafter that the options were called for. We are of the  view that in view of the long lapse of time and in order to  avoid further delay and the scope for possible controversies,  instead of leaving it to the Government to fix a fresh cutoff  date as per the directions of the High Court, in exercise of  our powers under Article 142 of the Constitution, we direct  that the date 1.4.1982 shall be adopted as cutoff date in  modification of what was prescribed in G.O.No. 1028 dated  23.9.1985 and G.O. No. 250 dated 18.11.1996. The reason  for selecting the said date is that the Commissioner and  Secretary to Government, Transport Department by his  letter dated 5.1.1982 addressed to the Managing Directors  of all State Transport Undertakings requested them to obtain  fresh options by 28.2.1982. The memo issued by the  Managing Director of KTC Ltd. dated 11.1.1982 makes it  clear that the last date for exercise of options was fixed as  28.2.1982 in conformity with the Government’s directive.  The respective Corporations were supposed to finalise the  options sometime thereafter. It is reasonable to presume  that PTC Ltd. and other Corporations would have also  adhered to the same date. The High Court has referred to  the Note dated 20.6.1982 issued by the Managing Director  of PTC (Metro) Ltd. But, it does not fix the last date for  submitting the options. It purports to give certain  instructions as to the follow up action to be taken with  reference to the options received. Hence, the fixation of  cutoff date as 1.4.1982 would, in our view, be appropriate.     Taking into account the aforementioned date for the purpose  of assessing the requisite length of service, we direct the  appellants to take steps to extend the pensionary benefits to  the eligible employees.  Having regard to the conduct of the  respondents in seeking the remedy long after the options  were exercised, we consider it just and proper to direct that  the respondent-employees whoever have retired should get  the arrears of pension only from 1.1.1988 which date is  fixed with reference to the year of filing the first writ petition  namely W.P. No. 7012 of 1988.  The fixation of pension and  payment of arrears should be done accordingly within a  period of four months from today. The appellants are  entitled to adjust the monetary benefits which the  employees would not have received if they were to receive  the pension. 17.             The civil appeals are disposed of accordingly

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without costs.