# M/S. ORISSA CEMEN'f LTD v. UNION OF INDIA

- **Citation:** [1962] Supp. 3 S.C.R. 837
- **Court:** Supreme Court of India
- **Decided:** 1960-12-02
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-s-orissa-cemen-f-ltd-v-union-of-india-2502
- **Pages:** 12

## Headnote

3 S.C.R.
SUPREME COURT REPORTS
M/S. ORISSA CEMEN'f LTD.
v.
UNION OF INDIA
837
(B. P. SINHA, C.J., K. SUBBA RAO, N. RAJAGOPALA
AYYANGAR, J. R. MuDHOLKAR and T. L.
.
VENKA.TARAMA AIYAR, JJ.)
Provident Fund-Contract labour-Contribution to provident fund-If and when principal employer liahle-Providenl
Fund Act, 1952 (XIX of .1952), ss. 5, 6, 7-Employees' Provident Fund Scheme, paras. 30, 31, 32, 73A-Notification No.
S.R.O. 331 dated January 15, 1958-Notification No. G.S.R.
1461 dated December 2, J.?60.
'
The Central Government under s.5 of the Provident
Funds Act, 1952, published a Scheme under the Act for the
establishments of the Provident Fund. Paragraph 2(f)(iii) of
the Scheme defined "Excluded Employees" meaning employees
employed by or through a contractor.
Section 6 of the Act
and paras. 30 to 32 of the scheme provided for the employer
making contribntion to the fund and the combined effect of
s.6.and paras. 30 to 32 of the Scheme is that the contribution
to the Provident Fund is to be 12-1/2% of the basic wages
and dearness allowance, that is to be borne equally by the
employer and the employee and that the employer is to pay
the whole of it, half on his account, and the other half on
account of the employee and he is to recoupe himself bv
deducting it from the wages of the employee.
Paragraph 26
of the Scheme provided that every employee in a factory or
establishment other than excluded employee shall be regarded
to become a member of the fund if he has completed one
years cOntinuous servict".
The Government by Notification No. S.R.O. 351 dated
January 15, 1958, amended Para. 2(f)(iii) of the Sd1eme,
whereby all employees employed by coμtractor who were
directly connected with any manllfacturing process carried
out in a factory or establishment
became entitled to the
benefit by' the Act.
Another Notification No. G. R. E. 1457
dated December 2, 1960 repealed the said para. 2(f)(iii) added
a new para. 73A.
This amendment had the effect of abolishing the distinction between the workmen employed by the
contractors who "vere directly connected with the manufacturing process in the factory or establishment, and those who
were not so connected, all of whom becaine entitled to !h~
1962
MarchH.
JYoz
Orissa Ctmtnt Lid.
••
Ut1ion of India
838 SUPREME COURT REPORTS [1962] SUPP.
benefit of the Schcrnc.
'I'he authorities issued notice on the
petitioner to comply with the changes introduced hy the
amcn<ln1en ts .
The (>(titioncr filed petition under Art.32 of the Constitution challenging the valirlity of the two notifications as unreasonable restrictions and not falling within Art. 19(6) and
that they .slw~ld be struck down as infringing Art. 19( 1) (g) of
the Constttutton.
Held, that the './otification dated Januai:y l'i, 1958 and
December 21, 1960 ore unconstitutional and void.
Section 6( 1) of the Act is to make the employer liahlc
only for a moiety of the provident fund and while the scheme
of 1952 is \vell designed to carrv out this intentions in ito;;
application to \\'Orkrnen directly e~ployc<l, by' reasons of the
combined operation of paras. 30 and 32, it broaks down in its
extension to contract labour by reason of the inapplicability
of para. 32.
It opc.r;ltr.s unfairly and harash.Jy on persons who
employ contract labour and it further results in discrimination
bct\\·ecn those \vho employ contract labour anti. those who
employ direct labour. The scheme. therefore cannot be said
to he reasonable and inust he stn1ck down as not fallin~
v.:ithin the protection afforded hy :\rt.· 19(6).
OnIGIXAL Ju111snrcnoN : Petition No. 17 of
l!l6l.
Petition under Art. :l2 of the ConRtitution
of Indin. for enforcement of Fund11.ment:1l Rights.
A. V. Vistcanatha Saslri, K. C .. Jain nnd 13. P.
Jfahe.~hwari, for tho petitioners.
Bishan N11rain, Snkumar Ghosc and P. D. Menon,
for the rospondcnt..
1962.
March 14.
The Judgment of the Court
was delivered by
VE:-;KATAllAMA AIL\H, J.-The first ·petitioner
is a company cn.rrying on business. in the man~f

## Text

3 S.C.R.
SUPREME COURT REPORTS
M/S. ORISSA CEMEN'f LTD.
v.
UNION OF INDIA
837
(B. P. SINHA, C.J., K. SUBBA RAO, N. RAJAGOPALA
AYYANGAR, J. R. MuDHOLKAR and T. L.
.
VENKA.TARAMA AIYAR, JJ.)
Provident Fund-Contract labour-Contribution to provident fund-If and when principal employer liahle-Providenl
Fund Act, 1952 (XIX of .1952), ss. 5, 6, 7-Employees' Provident Fund Scheme, paras. 30, 31, 32, 73A-Notification No.
S.R.O. 331 dated January 15, 1958-Notification No. G.S.R.
1461 dated December 2, J.?60.
'
The Central Government under s.5 of the Provident
Funds Act, 1952, published a Scheme under the Act for the
establishments of the Provident Fund. Paragraph 2(f)(iii) of
the Scheme defined "Excluded Employees" meaning employees
employed by or through a contractor.
Section 6 of the Act
and paras. 30 to 32 of the scheme provided for the employer
making contribntion to the fund and the combined effect of
s.6.and paras. 30 to 32 of the Scheme is that the contribution
to the Provident Fund is to be 12-1/2% of the basic wages
and dearness allowance, that is to be borne equally by the
employer and the employee and that the employer is to pay
the whole of it, half on his account, and the other half on
account of the employee and he is to recoupe himself bv
deducting it from the wages of the employee.
Paragraph 26
of the Scheme provided that every employee in a factory or
establishment other than excluded employee shall be regarded
to become a member of the fund if he has completed one
years cOntinuous servict".
The Government by Notification No. S.R.O. 351 dated
January 15, 1958, amended Para. 2(f)(iii) of the Sd1eme,
whereby all employees employed by coμtractor who were
directly connected with any manllfacturing process carried
out in a factory or establishment
became entitled to the
benefit by' the Act.
Another Notification No. G. R. E. 1457
dated December 2, 1960 repealed the said para. 2(f)(iii) added
a new para. 73A.
This amendment had the effect of abolishing the distinction between the workmen employed by the
contractors who "vere directly connected with the manufacturing process in the factory or establishment, and those who
were not so connected, all of whom becaine entitled to !h~
1962
MarchH.
JYoz
Orissa Ctmtnt Lid.
••
Ut1ion of India
838 SUPREME COURT REPORTS [1962] SUPP.
benefit of the Schcrnc.
'I'he authorities issued notice on the
petitioner to comply with the changes introduced hy the
amcn<ln1en ts .
The (>(titioncr filed petition under Art.32 of the Constitution challenging the valirlity of the two notifications as unreasonable restrictions and not falling within Art. 19(6) and
that they .slw~ld be struck down as infringing Art. 19( 1) (g) of
the Constttutton.
Held, that the './otification dated Januai:y l'i, 1958 and
December 21, 1960 ore unconstitutional and void.
Section 6( 1) of the Act is to make the employer liahlc
only for a moiety of the provident fund and while the scheme
of 1952 is \vell designed to carrv out this intentions in ito;;
application to \\'Orkrnen directly e~ployc<l, by' reasons of the
combined operation of paras. 30 and 32, it broaks down in its
extension to contract labour by reason of the inapplicability
of para. 32.
It opc.r;ltr.s unfairly and harash.Jy on persons who
employ contract labour and it further results in discrimination
bct\\·ecn those \vho employ contract labour anti. those who
employ direct labour. The scheme. therefore cannot be said
to he reasonable and inust he stn1ck down as not fallin~
v.:ithin the protection afforded hy :\rt.· 19(6).
OnIGIXAL Ju111snrcnoN : Petition No. 17 of
l!l6l.
Petition under Art. :l2 of the ConRtitution
of Indin. for enforcement of Fund11.ment:1l Rights.
A. V. Vistcanatha Saslri, K. C .. Jain nnd 13. P.
Jfahe.~hwari, for tho petitioners.
Bishan N11rain, Snkumar Ghosc and P. D. Menon,
for the rospondcnt..
1962.
March 14.
The Judgment of the Court
was delivered by
VE:-;KATAllAMA AIL\H, J.-The first ·petitioner
is a company cn.rrying on business. in the man~f~c
ture of cement in the Stale of Ortssa and pet1t10ners ~os. 2 and 3 11.re t.wo of its Direotors. They
have filed
the prcsont petition under Art. :l2,
challenging· the validity of two 11otiflc11ti~ns. date<l
Janua.ry Hi, 1958, and D0cembor 2, 19o0, issue 4
3 S.C.R. SUPREME COURT REPORTS
839
by the Central Government under s. 7(1) of the em·
ployees' Provident Funds· Act. 1952 hereinafter
referred to as "the Act". It will be convenient to
first set out the relevant statutory provisions bearing on the question. The Act was passed for the
purpose of providing for the institution of Provident
Funds for the employees in factories and other
establishments. Section 5 of the Act, which deals
with this matter is a.s follows :-
"5. Employees'
Provident
Fund
Schemes.-(!) The Central Government may,
by notification in the Official Gazette, frame
a Scheme to be called the employees' Provi·
dent Fund Scheme for the establishnent of
provident funds under this act for employees
or for any class of employees and specify the establishments or class of establishments to which the said Scheme shall apply
and there shall be established, as soon as
may be a,fter the framing of the Scheme, a
Fund in accordance with the provisions of
this Act and the Scheme.
(2) A Scheme framed under sub-section
(I) may provide that any of its provisions
shall take effect either prospectively or retros.,
pectively on such date as may be specified in
this behalf in the Scheme.
Section 6( 1) which provides for the employer
making contribution to the Furd runs as follows :-
"6(1) The contribution which shall be
p_aid by the employer to the Fund shall be
six and a quarter per cent. of the basic wages
dearness allowance and retaining allowance
(if any) for the time being payable to each
oft.he employees, and the employees contribution shall be equal to the contribution
payable by the emplof'er in respect of him
1962
Orissa Cement Ltd
v.
Union of India
Aryar J,
Oria1a Ctmtnl Lt~.
..
Unfon of lridia
840 SUPREME COURT REPORTS [1962] SUPP.
and may, if any employee so desires and if
the i:lchemo makes provision therefor, be
an amount not exceeding eight and onet.hird per cent. of his basic wages, dearness
allowance and retaining allowance (if any):
Provided that where the amount of any contribution payable under this Act. involves a fraction
of a rupee, the Scheme may provide for the rounding off of 8ueh fraction to the nearest rupee, half
of a rupee or quarter of a rupee.
Under s.7 the ('_,entral Government may, by
notiffoation iP the Official Gazette, add to, amend
or vary any Scheme framed under this Act. Section
14 prescribe~ penalties for any contravention of the
provisions of the Act or default in eompliance with
them.
In exercise of the powers conforrod bys. 5 of
the Act, the Central Government publiRhed on September 2,
195~, what is called the Employees'
Provident Funds Scheme, lflfi~. Para 2(f)(iii) of the
Schomo defines "Excluded Employees'' as men.ning
the employees employed by or through a contractor.
l.Jnde·r Pam :l the provident fund standing to the
credit of an employee vests in the authorities constituted therennder.
Para 26 provides that every
omployee cmployod in a factory or establishment
other than an exc:luded employee shall he required
to become a member of the fund if he has completed
one yc~r's continuous service,
in the factory or
establishment, and there is a proviso that if the employee has actually worked in the factory or establishment for not less than 240 days, he shall
dceme<l to ha,·e cumplnted one years continuous
service.
Paras 30 to :l2 deal with contributions
to he made hy the <'m ployul' and they 11rc
a.~
follows:-
"30. Thn employfir shall, in the first
instanco ipay both thn oontribution pay:tblP, by
3 S.C.R.
SUPREME COURT REPORTS
841
himself (in this Scheme referred to as the employer's contribution) and also, on behalf of
the member . employed by him, the contribution payable by the member (in this Scheme
referred to as the member's contribution)."
"31. Notwithstanding any contract to
the contrary the employer shall not be entitled to deduct the employer's contribution
from the wage of a member or otherwise to
recover it from him.'1
"32. (I) The amount of a member's contribution paid by the employer shall notwithstanding the provisions in this Scheme or any
law for the time being in force or any contract
to the contrary be recoverable by means of
deduction from the wages of the member and
not otherwise :
Provided that no such deduction may be
made from any wage other than that which is
paid in respect of the period or part of the
period in respect of which tho contribution is
p:tyahle :
Provided further that the employer shall
be entitled to recover the employee's share
from a wage other than that which is paid in
respect of the period for which the contribution has been paid or is p:tyable where the
employee has in writing given a false declaration at the time of joining service with the
said employer that be was not already a member of the Fund :
Provided further that where no such
deduction has been made on account of an
accidental mistake or a clerical error, such
deductinri may, with the consent in writing
of the Inspector, he made froll) the subsequent
wages,
·
1962
Orissa Cement Ltd.
v.
Union of India
AiYar J,
J96t
Otissa Cement Ltd.
v.
Union of India
--
8i2 SUPREME COURT REPORTS [196~] SUPP.
(:!) Deduction ma.de from tho wages of a
member paid on daily, weekly or fortnightly
basis should he totalled up to indicate the
monthly deductions.
(3)
Any sum deducted by an employer
from the wage of an employee under this
Sc!icme shall he deemed to have been entrusted to him for the purpose of payinir tho
contribution in respect of which it was deducted."
The combined effect of s. (i and Paras 30 to
32 of tho Schnme is that the contribution to the
Provident J<'und is to be 12-1/:! per cent. of the
basic wages, and dearness allowanc<>, that it. is to be
borne equally by the employer and the employee,
and that the employer is to pay the whole of it,
half on hiR account, and the other half on account
of the employee, a.ncl he is to recoup himself by
deducting it from the wages of the employee. Such
deduction would he poosible only when the employer is the person who h1is to pay wages to t.he
employee and that is why employees cmplo.\'ed hy
or through a contractor were inclmlcd in thB definition of "excluded persons" to whom under Para ~(i
the 8cheme had no application. These cmploy"c8
would bo paid hy the contmctor and the <JUestion of
deduction of wages by tho pri1wipal employer, i.e,
the person who is in charge of the factory m· cst.ahlishment, will not arise.
It is said that with a view to avoicl their
contribution under the Act, t.ho employers rrsorted
increasingly to the , device of employing workm<'n
through contractors, and the GovPrnment accordingly deemed it expedient t.o amend the pre'" isions
o(thll Schomc so as t.o secnro the benefits thereof to
employees who were employed through contrnct.ors.
'fo carry out this purpose, a notification
w:~~
'
3 S.C.R.
SUPREME COURT REPORTS
843
issued on January 15, 1958 No. S.R.O. 331 subRtituting for Para 2(f)(iii) of the Scheme as it stood in
1952 the following :-
'
"(iii) an employee employed by a contractor in any operation not directly connected with any manufacturing process carried
on in the factory or other establishment, or
Exp/,a,nation-ln respect of an employee
employed by a contractor who is not an excluded employee under this paragraph, the
principal employer shall be responsible for
complying with the provisions of the Act and
the Scheme;"
The result of this amendment was that all employees employed by contractors who were directly
connected with any manufacturing process carried
on in the factory or the establishment became entitled to the benefits under the Act. On May ll,
1959, Para26 was suitably amended so as to conform
to the notification dated January 15, 1958. Even
this notification was felt to be inadequate for achieving the objects of the legislation and the,refore in
exercise of the powers conferred by s. 7( 1) of the
Act Government issued a: fresh notification No.
G.S.R. 1467 on December 2, 1960, whereby it repealed Para 2 (f) (iii) as it then stood and added a new
Para 73A as follows :-
. "73A. Where an employee is employed
by, or through, a contractor in, or in connection with, the work of an establishment, the
principal employer shall be responsible for
complying with the provisions of the Act
and this Scheme in relation to such employee."
This· amendment had the effect of abolishing the
distinction made b! the arrHmd..,,,nt of l958 bet\j'eeq
1962
01issa Cement Ltd.
v.
Union of India
AiYaf J,
I96t
Orissa Ctmttd LJd.
••
Union of India
A1yar .T.
844 SUPREME COUH.T ltEPORTS (1062J SOPP.
workmen employod by contractors who wero direc·
tly connected with the manufacturing process in tho
factory or establishment, and those who were not
so connected, all of whom became entitled to the
benefits of the Scheme.
•
The authorities constituted under the Act
issued notices to the first Petitioner drawing its
attention. to the changes introduced by th<i notifi.
cations and asking it. to comply with their provi·
sions, to which the management replied pointing out
the practic:d difficulties in the way of implementing
them as reg:irds workmen brought in by contractors.
A long correspondence followed <mlminating in a
thre:it by the respondents to take penal proceedings
under s. 14 of the Act.
Thereupon. the petitioners
have filed the present potition, raising the queHtion
of the constitutionality of tho two not.ificntions
dated .January );), l!l58 anrl December 2, l!IGO. They
contend that they throw a heavy burden on their
btrnine8s :i.nd cannot, in consequence, b<0 upheld as
reasonable restriction within Art. I 0{6) and m1rnt
be •truck dnwn as infringing Art. 19( I )(g) of the
Con8titntion. Tho respondent.< on t.he other hand
maintain that t.hey arn heneficient l<'gislation ena.ctcd in the interests of tho public ancl :ire within the
protection of Art. J!) ( (i ).
Now there can he no question that the impn)!n·
ed notifications are conceived in the interests of the
public. The Scheme framed under the Act in I U!i2
conferred benefits of provident fund on workmen
directly employed in factories or establishmt·nlR hut
large sections of them working there under similiir
conditions but. crnploycrl hy contractors w0 rc·
<'X·
eluded from its pur\'iew. This was obviously a
disc:rimin:ition for which there w:is no ju:;tific;1tion
and it was this that was Rought to he rem ovcd hy
the notifications in qnest ion. It is not contc·ndcd
by the
petitioners th:i.t the object. behind these
notifications is not such as would fall witbiu
.•
.
'
.
3 S.C.R.
SUPREME COURT REPORTS
845
Art. 19(6). What is urged is that the means and
modus adopted for :10hieving it are unreasonable
and that therefore tho Scheme must be held to
violate Art. 19(l)(g). It is argued that when the
Government decided to confer the benefits of provident fund on workmen who were employed through
contractors, instead of framing provisions appropriate to their character as employees of contractors,
it simply extended to them the provisions which
had been framed in 1952 with reference to workmen
directly employed without regard to the difference
in the situations in which the two classes of workmen were placed. This, it is contended, has led to
results as unjust as unforeseen, and the Scheme must
therefore be held not to be within" the saving of
Art. 19(6).
In order to decide how far this objection is
well founded we must examine the distinction between contract labour and direct la.bom· to the extent
that it bears on the provisions of the Scheme. When
the principal employer engages contract labour there
is no privity of contract between him and the work·
men who actually do the work. It is the contractor
who engages them, and pays wages to them. The
principal employer has as such no direct relationship with them. Now the argument of the petitioners
is that the ob!iga,tion of the employer to contribute
every month to
the provident fund an amount
equal to six and a quarter per cent. of the wages
and dearness allowance of the employee is incapable
of performance as the principal employer is not in a
position to know what wages had been agreed between the contractor and his employees and that
further as the factory or establishment maintains
no muster rolls as regards workmen employed
through contractors, it is not possible for the principal employer to know whether a workmen is .a
casual labourer, or whether he is entitled to the ben~fits of the Scheme under Para 26, by reason of his
1962
Oriss• Cement Ltd.
v.
Union oJ India
AiyarJ.
1962
Orusa Ctm<M Lid.
v.
l/nion of India
AfyarJ.
846 SuPREME COURT REPORTS (1962] SUPP.
having put in continuous work for the requisite
period.
Tho difficulties suggested by the petitioners are
not without substance but they are not, in our view,
of sufficient weight to overthrow the Scheme. It is
true that they could have been eliminated if the
Scheme had enacted a provision imposing on the
contractors an obligation to give a statement in
writing to the prinoipal employer containing the
neoeBBary particulars about the workmen and their
wages.
But even apart from such a provision there
should ho no difficulty in the principal employer
requiring the contractor at the time of the agreement to give those particulars, so as to protect himself. Nor is ther'e any point in the contention that
the workmen may be casual labourers and the
prinoipal employer would not be in a position to
asoertain whether a particular workmen is entitled
to the benefits of the Scheme under Para 26 because
under that para the workman can claim the benefits
of the Scheme only if ho works continuously for a
period of not less then 240 days in that very factory
or establishment, and that is a matt-0r which is
capable of being asoertained by the principal
employer.
A more serious objection to the extension of
the Scheme of 1952 to workmen umployed through
contractors is that the right given to the prinoi pal
employer under Para 32 is incapable of exercise as
against thom. Under Para 30 the whole of the
provident fund, being 12-1 /2 per cent. of the wages
and dearness allowance ha~ to be paid in tho first
instance by the employer and under Para 32 he is to
deduot half of it, being the omployee's share of the
oontribution from his wages.
As already pointed
out, this contemplates that the hand whioh has to
pay the provident fund under Para 30 ia also the
hand that has to pay wages to the workmen under
Para 32. But that is not the position in the oas!\
of oontraot labour.
It is tho oontraotor wh~ p&yd
•
3S.C.R.
'
847
SUPREME COURT HEPORTS
the wages of workmen employed through him, but
the obligation to pay the provident fund is cast on
the principal employer. Now the complaint of the
petitioners is that tbe Scheme works ''with a.n evil
oye and an unequal hand" with reference to an
employer who engages contract labour, in that while
an obligation to pay the entire provident fund,
including the share of his employee, is laid on him,
he is not given the correlative right of recouping
himself to the extent of that share, by deducting
it out of his wages.
-·
The answer of the respondents to this is that
the principal employer might by an arrangement
with the contractor deduct from out of the amounts
payable to him the sums contributed by him to the
provident fund on account of the employees and
that further he might . sue to recover those sums
from the contractor in a suit based on s. 69 of the
Contract Act. But then, it is to be observed, that
Para 32 provides that the employer has to deduct
the amount paid towards thii provident fund on
account of the employee from his wages "and not
otherwise". Moreover the Scheme does not impose
any obligation on the contractor to pay to the
principal employer the amounts paid by him on
account of the employee. The intention of the Legislature as expressed ins. 6(1) of the Act is to make
the employer lii>ble only for a moiety of the provident fund and while the Scheme of 1952 is well
designed to carry out this intention, in its application to workmen directly employed, by reason of
the combined operation of Paras 30 and 32, it breaks
down, in its extension to contract labour by reason
of the inapplicability of Para 32. It operates unfairly
and harshly on persons who employ contract labour
and it further results in discrimination between
those who employ contract labour and those who
employ direct labour.- The Scheme therefore cannot
1952
Orissa Cement Ltd.
v.
Union of India
A{Var J.
1962
Orisso CtmmJ Lttl.
v.
Uni0tt of lrutia
AfyarJ.
19&t
Mo1d114
t
'
r
848 SUl'l\E.ME COlJRT l{EPORTS [Hlli2J SUPP.
be said to be reasonable and must be struck down
as not falling within the protection afforded by
Art. HJ (6).
In the result we hold that the notifiuat.iuns
dated January I 5, 1958, and Dcocmbf)J' 2, 1960, are
unconstitutional and
void.
The
petitioners are
entitled to their costs.
PetitWri allowed .
•
MOHAN SINGH
v.
STATE OF PUNJAB
( B. P. Sr XHA, C. J., P. B. GAJE!WRAGADKAR, K. N.
WANCHoo, N. RAJAGOl'ALA AYYANOAR and
1'. L. V};l\KATARAMA An:AR, JJ.)
Cri1nit1al
Liability-Members of u11/auful
assemblyM aintainahility of conviclion-Cou11nou obejct
and
common
i?ltention-Di•tinction-A/teration of w1.viction-lndian l!enal
Code 1860 (Act 46 of 1860). ss. 302, 149, 34.
The two appellants, who were tried with three others,
were convicted under s. 302 read withs. 149 ands. 147 of the
h1dian Penal Code. Two of these five persons tried together
were acquitted.
In the charge these five accused persons and
none others wc:rc mentioned as forn1ing the unlawful assembly
and the evidence led in the case was confined to them alone.
The facts proved in the case unmistakably showed that the
two appellants and the other convicted person, who inflicted
the fatal blow, were actuated by the common intention of
fatally assulling the deceased. It was contended in this Court
that the conviction of the appellants under s. 302 read with
s. 149 of the Indian Penal Code was not sustainable in law in
view of the acquittal of two of the five accused persons who
were alleged to have formed the unlawful assembly.
Held, that the contention must prevail and the conviction altered to one under '· 302 read with s. 34 of the Indian
Penal Code.
Section 149 of Indian Penal Code prescribes vicarious or
constructive criminal liability for members ofan unlawful