Quarterly Digest

The professional misconduct committed by respondent was extremely grave and serious. He had indulged in mischief-making. An advocate found guilty of having filed vakalatnamas without authority and then filing fictitious compromises without any authority deserves punishment commensurate with the degree of misconduct that meets the twin objectives-deterrence and correction. Fraudulent conduct of a lawyer cannot be viewed leniently lest the interest of the administration of justice and the highest traditions of the Bar may become casualty. By showing undue sympathy and leniency in a matter such as this where the advocate has been found guilty of grave and serious professional misconduct, the purity and dignity of the legal profession will be compromised. Respondent advocate had even been previously found to be involved in a professional misconduct and he was reprimanded. Having regard to all these aspects, held just and proper if the respondent-advocate was suspended from practice for a period of three years. (Narain Pandey vs. Pannalal Pandey; 2012(8) Supreme 685)

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Allahabad High Court Rules

Rule 7—Second writ petition on same facts would be barred

Rule 7 of the Allahabad High Court Rules, 1952, is crystal-clear which says that second writ petition on the same facts would be barred. The Apex Court in Forward Construction Col vs. Prabhat Mandal (Regd), Andheri, AIR 1986 391, was pleased to rule that the orders dismissing the first writ petition operates as res judicata between the parties and no second petition on the same facts is maintainable. (Brahm Pal Panchal vs. Union of India; 2013 (80) ACC 753 (All)

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Arms Act

S. 17(3)—Arms licence—Cancellation of—Mere involvement in a criminal case shall not create ground of cancellation of arms licence

Settled law is, mere involvement in a criminal case without finding that such involvement shall be detrimental to public peace and tranquility shall not create the ground for cancellation of arms licence. (Raj Kumar Verma vs. State of U.P.; 2013 (80) ACC 231 (All)

S. 17(3)(h)—Mere involvement in a criminal case is no ground for cancellation of fire arms licence

The provision of sub-sections (3) and (4) of Section 17 of the Arms Act provides various conditions for variation/cancellation or suspension of the arms licence.

The question as to whether mere involvement in a criminal case or pendency of a criminal case can be a ground for revocation of licence under the Arms Act, has been dealt with by a Division Bench of this Court in (Sheo Prasad Mishra vs. District Magistrate, 1978 AWC 122). The Division Bench relied upon the earlier decision of another Division Bench of this Court in the case of Masi Uddin vs. Commissioner, Allahabad, 1972 ALJ 573, wherein it has been held:--

“A licence may be cancelled, inter-alia, on the ground that it is “necessary for the security of public peace or for public safety, to do so. The District Magistrate has not recorded a finding that it was necessary for the security of the public peace or for public safety to revoke the licence. The mere existence of enmity between a licencee and another person would not establish the “necessary” connection with security of the public peace or public safety.

In the case before Court also the District Magistrate has not recorded any finding that it was necessary to cancel the licence for the security of public peace or for public safety. All that he has done is to have referred to some applications and reports lodged against the petitioner. The mere fact that some reports had been lodged against the petitioner could not form basis for cancelling the licence. The order passed by the District Magistrate and that passed by the Commissioner cannot, therefore, be upheld on the basis of anything contained in section 17(3)(b) of the Act.”

(Mulayam Singh vs. State of U.P.; 2013 (80) ACC 786 (All)

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Bar Council of India Rules

R. 49 - Constitution of India, Article 233 (2) – Appointment – Post of Distt. Judges – Eligibility – Consideration of – Full time salaried public prosecutors rendered ineligible for appointment to the post of Distt. Judge under Article 233 (2)

The reference before the Full Bench arose in view of the fact that the Division Bench of this Court while considering the Petition, found itself unable to agree with the view expressed by an earlier Division Bench in Ayub Pathan vs. High Court of Judicature at Bombay. [Writ Petition 1848 of 2011 decided on 3 March, 2011] The Petitioners before the Court in that case were in the service of the Union of India or, as the case may be, the State of Maharashtra as Public Prosecutors on a salaried basis. They challenged an advertisement of this Court dated 18 February, 2011 inviting applications for the post of a District Judge to the extent to which full time salaried Public Prosecutors, Assistant/Additional Public Prosecutors and Law Officers to the Central or State Government or of any public corporation or body constituted by statute were not eligible for appointment as District Judges. It was urged that (i) This amounted to a discrimination because all Public Prosecutors whether salaried or not constitute one class; and (ii) A condition had been inserted in the advertisement without a corresponding provision in the Judicial Service Rules. There was obviously no merit in the second contention that there was no prohibition in the Judicial Service Rules because as noted in the earlier part of this judgment, the rules were specifically amended on 31 December, 2010 to incorporate such a prohibition. On the first submission, the Division Bench relied upon the judgment of the Supreme Court in Satish Kumar Sharma (supra) in support of the proposition that salaried Public Prosecutors constitute a class different from' those who were not salaried employees. In that regard, reliance was placed on paragraph 23 of the decision in Satish Kumar Sharma. Now, it is undoubtedly true that the discrimination that was urged before the Supreme Court in Satish Kumar Sharma was by a full time salaried Law Officer of the State Electricity Board who claimed that he has been discriminated against qua prosecutors and government pleaders. Dealing with that submission, the Supreme Court held that the duty, nature of work and service conditions of the Appellant there were substantially different from those of a prosecutor or government pleaders, particularly in relation to acting in Court and that hence, the Appellant stood on a different footing. The observations in paragraph 23 of the decision in Satish Kumar Sharma do not therefore, deal with the nature of the discrimination that was urged before the Court in Ayub Pathan's case. To that extent, the Division Bench in Ayub Pathan's case has not; with great respect, correctly construed the context in which the observations in paragraph 23 of the decision in Satish Kumar Sharma's case were made. Having said this, we must still come to the conclusion that the provisions by which full time salaried Public Prosecutors have been rendered ineligible for appointment to the post of District Judge, cannot be regarded as discriminatory. Court has dealt with this aspect in considerable amount of detail in the earlier part of this judgment. To recapitulate, court has emphasized two facets. Firstly, as a consequence of the deletion of the second and third paragraphs of Rule 49 of the Rules framed by the Bar Council of India, there is now an absolute prohibition on an Advocate accepting full time salaried employment with a person, Government, firm corporation or concern and upon accepting such employment, the Advocate has to notify the Bar Council and shall thereupon cease to practise as an Advocate. Secondly, Article 233(2) which contemplates that a person will be eligible to be appointed as a District Judge “If he has been for not less than seven years an Advocate or a pleader" must be construed to mean a person who is on the rolls of the Bar Council and entitled to practise under the provisions of the Advocates Act. Where under the rules framed under the Advocates Act, there is a prohibition on an Advocate accepting full time salaried employment - a prohibition which has been upheld - an Assistant Public Prosecutor appointed under Section 25 of the Code of Criminal Procedure, 1973 and in the full time salaried employment of the State would not meet the description of a person eligible to be appointed as a District Judge within the meaning of Article 233(2). In the circumstances, while court accepted the submission that the reason which was indicated by the Division Bench in Ayub Pathan was not correct, Assistant Public Prosecutors in the position of the Petitioners appointed on a civil post on the establishment of the State and in full time salaried employment would not be eligible for being, appointed as District Judge under Article 233(2) of the Constitution. (Sunanda Bhimrao Chaware v. High Court of Judicature; 2013 (1) SLR 588 (Bom)

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Civil Procedure Code

S. 3 – Court and Tribunal – Distinction - Tribunals are created to reduce burden of Courts - Perform quasi judicial function- And can exercise only certain powers under Civil or Criminal Procedure Codes - Fact that tribunal is headed by judicial officer does not make it Court

In a regular Court, the Codes, in their entirety, civil as sell as criminal, must be strictly adhered to. Therefore, it is evident that the terms ‘Court’ and ‘tribunal’ are not interchangeable. Tribunals have primarily been constituted to deal with cases under special laws and hence provide for specialized adjudication alongside the Court. (State of Gujarat and Anr. v. Gujarat Revenue Tribunal Bar Association and Anr.; AIR 2013 SC 107)

S. 24 - Transfer Application - Ground for

The applicant has applied under Section 24 C.P.C. for the transfer of Civil Appeal No.108 of 2002 (Shakeela Vs. Mehbood Ali Siddiqui) from the court of Additional District Judge Court No.22, Allahabad to some other competent court within the same judgeship.

The aforesaid appeal arises out of judgment, order and decree dated 23.5.2002 passed in Original Suit No329 of 1986 which is said to be for cancellation of a sale deed.

The applicant had previously filed an application before the District Judge for transfer of the proceedings which was rejected by the District Judge vide order dated 22.8.2012.

In the above circumstances, the applicant by the aforesaid transfer application is not only seeking transfer of the proceedings from one court to another but has also prayed for setting aside the order of the District Judge 22.8.2012.

Thus, the mere bald allegation that the applicant will not get justice from the court concerned for the person that the court is proceeding with the matter expeditiously, is not a ground for getting the proceedings transferred. (Shakeela vs. Mehboob Ali Sidiqul; 2012(1) ARC 290 (All HC)

S.100—Concurrent finding—Reversability of

Supreme Court has observed that the opinion of the High Court in Second Appeal was not justified in reversing the concurrent findings arrived at by the Trial Court and the first Appellate Court. Accordingly, Court set aside the orders passed by the High Court and restore the orders passed by the Trial Court. (Ghisalal M. Agrawal (Dead) through L.Rs. and others vs. Rameshwar @ Ramu Jawahar; 2013 (1) ARC 11 (SC)

S. 103 - Powers of High Court to determine issue on facts

Even though the lower appellate court has not discussed the question of bonafide need and comparative hardship however on the principle of Section 103 C.P.C. defining the powers of the High Court in Second appeal, even in writ petition High Court may if the evidence on record is sufficient determine any issue necessary for the disposal of the writ petition which has not been determined by the lower appellate court or even by both the courts below. Supreme Court in R.E.V. Gounder v. V.V.P. Temple, 2004 ACJ 304 (S.C.); 2004 SCFBRC 66: 2004 (1) ARC 137 and R.C. Kesarvani v. Dwarika Prasad, 2002 (2) ARC 298, has held that when the matter is pending for long remand must be avoided. Supreme Court in its authority reported in Shail v. Manoj Kumar, 2004 ACJ 1213, placing reliance upon Surya Dev Rai v. R.C. Rai, 2003 (6) SCC 675,: 2003 (2) ARC 385 has held that in exercise of writ jurisdiction High Court has the jurisdiction also to pass itself such a decision or direction as the inferior Court or tribunal should have made. (Udai Pratap Singh and ors vs. IV Additional D.J. Varanasi and ors.; 2013(2) ALJ 279)

S. 115 – Revision - Scope of - Scope of jurisdiction which fall within purview of Section 115 - Determination of

It is noteworthy that, if a clever drafting has created the illusion of a cause of action, it is incumbent upon the Trial Judge to nip in the bud, at the first hearing, by examining the party searchingly under Order 10 C.P.C.

An application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appear to be barred by any law. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. For the said purpose, only the averments made in the plaint are relevant. At this stage, the court would not be entitled to consider the case of the defence.

On the other score, in view of the law laid down by a full Bench of the Hon'ble Apex Court in the case of Pandurang Dhoni Chougule vs Maruti Hari Jadhav reported in AIR 1966 SC, 153, in which it has been held, "It is well-settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court, which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the Court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of Section 115 of the Code. But an erroneous decision on a question of law reached by the subordinate court which has no relation to questions of jurisdiction of that Court, cannot be corrected by the High Court under Section 115.", the revision is not maintainable. (B.P. Singh vs. Ramesh Chandra Rai; 2012(1) ARC 244 (All HC, Lucknow-Bench)

S. 115 – Revisions – Against order rejecting the application to examine the value and directing plaintiff to pay additional Court fee and make amendment

Secondly, the Court has to decide a case on the strength of the evidence led by the parties. A .court of law cannot function as an “assessor”. Assessmert by a Court of law is nothing short of introduction of a third case, which is not permissible under Indian Judicial System. On one hand, the learned Trial Court has rejected the application of the defendant to examine the valuer report which is on the records and which report has been rejected by the Court on the ground that the valuer has valued the property in suit in the year 2010, though the suit was filed in the year 1996. On the other hand, learned Trial Court has enhanced the value of the property to the detriment of the plaintiff, without any substance or evidence, as if the learned Trial Court is a “Judge” of a country where there is no judicial system or law or where there is no constitutional mechanism. The perversity is apparent on the face of the record. There is no material on the record nor there is any law which empowers the Court to make its own assessment irrespective of what are the pleadings of the parties.

The word “perverse” has been defined as deliberately departing from what is normal and reasonable. It obviously means unreasonableness and irrational.

“10. Lord Dipock explained ‘irrationality’ as follows:

“By ‘irrationality’ I mean what can by now be succinctly referred to as Wednesbury unreasonableness’. It applies to a decision which is to outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”

“In other words, to characterize a decision of the administrator as “irrational” the Court has to hold, on material, that it is a decision “so outrageous” as to be in total defiance of logic or moral standards. Adoption of “proportionality” into administrative law was left for the future.

These principles have been noted in aforesaid terms in Union of India and another v. G.Ganayutham, (1997)7 SCC 463. In essence, the test is to see whether there is any infirmity in the decision making process and not in the decision itself. (See Indian Railway Construction Co. Ltd. V. Ajay Kumar, 2003(5) AIC 129 (SC)= (2003)4 SCC 579= 2003(97) FLR 411(SC).”

Another aspect of the case is that, at the most the learned Trial Court
might have considered it to be equitable to but equity cannot be enforced by a Court of law, when it is opposed by the law on the point; equity cannot chew the law. The law on the point is crystal clear that “when there is a conflict between law and equity, it is the law which is to prevail. Equity can only supplement the law when there is a gap in it, but it cannot supplant the law. The Court cannot legislate under the garb of interpretation.

Hence, there should be judicial restraint in this connection, and the temptation to do judicial legislation should be eschewed by the Courts. In fact, judicial legislation is an oxymorn. The literal rule of interpretation really means and there should be no interpretation.

By the impugned order, the learned Trial Court has chewed all rules of procedure as enshrined in the Code of Civil Procedure and all the provisions relating to burden of proof as provided in Chapter VII of the Evidence Act, 1872. Only thing, which is appreciable, is that the learned Trial Court is really concerned about disposal of old cases but that concern should be subject to judicial norms, rules of procedure and application of law.

In the view of the facts as mentioned above, impugned order has rightly made both the parties to the suit aggrieved and due to this reason both the parties have approached this. Court to invoke its jurisdiction under Section 115 the Code of Civil Procedure.

Since the learned Trial Court has directed the plaintiff to pay additional Court fee, make amendment etc., the finality can well be attached to the order in question because the suit shall have to be dismissed if the plaintiff fails to succumb to the impugned order which shows deliberate and obstinate desire to behave in a way that is unreasonable or unacceptable and contrary to the accepted standards or practice of judicial institution.

Revisions are accordingly allowed Impugned order is set aside and the learned Trial Court is directed to decide the application paper No. 130-C/133-C and issue relating to valuation, strictly in accordance with law and settled norms of justice. (Abhay Sood vs. Babu Batuk Nath; 2013 (118) RD 648)

O.2 and R. 2—Provisions under—Scope and object

The provisions of Order 2 Rule 2 of the CPC:

“ORDER 2

2. Suit to include the whole claim.

(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits; except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.”

The object behind enactment of Order II Rule 2(2) and (3) of the CPC is not far to seek. The Rule engrafts a laudable principle that discourages/prohibits vexing the defendant again and again by multiples suits except in a situation where one of the several reliefs, through available to a plaintiff, may not have been claimed for a good reason. A later suit for such relief is contemplated only with the leave of the Court which leave, naturally, will be granted upon due satisfaction and for good and sufficient reasons. The situations where the bar under Order II Rule 2(2) and (3) will be attracted have been enumerated in a long line of decisions spread over a century now. Though each of the aforesaid decisions contain a clear and precise narration of the principles of law arrived at after a detailed analysis, the principles laid down in the judgment of the Constitution Bench of this Court in Gurbux Singh vs. Bhooralal, AIR 1964 SC 1810 may be usefully recalled below:

“In order that a plea of a bar under O. 2 r. 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based, (2) that in respect of that cause of action the plaintiff was entitled to more than one relief, (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar.”

The cardinal requirement for application of the provisions contained in Order 2 Rule 2(2) and (3), therefore, is that the cause of action in the later suit must be the same as in the first suit. It will be wholly unnecessary to enter into any discourse on the true meaning of the said expression, i.e. cause of action.

In the instant case though leave to sue for the relief of specific performance at a later stage was claimed by the plaintiff in C.S. Nos. 831 and 833 of 2005, admittedly, no such leave was granted by the Court. The question, therefore, that the Court will have to address, in the present case, is whether the cause of action for the first and second set of suits is one and the same. Depending on such answer as the Court may offer the rights of the parties will follow.

The learned Single Judge of the High Court had considered, and very rightly to be found to follow an earlier Division Bench order in the case of R. Vimalchand and M. Ratanchand vs. Ramalingam, T. Srinivasalu & T. Venkatesaperumal holding that the provisions of Order II Rule 2 of the CPC would be applicable only when the first suit is disposed of. As in the present case the second set of suits were filed during the pendency of the earlier suits, it was held, on the ratio of the aforesaid decision of the Division Bench of the High Court, that the provisions of Order 2, Rule 2(3) will not be attracted. Judicial discipline required the learned Single Judge of the High Court to come to the aforesaid conclusion. However, Court is unable to agree with the same in view of the object behind the enactment of the provisions of Order 2 Rule 2 of the CPC as already discussed by us, namely, that Order 2 Rule 2 of the CPC seeks to avoid multiplicity of litigations on same cause of action. If that is the true object of the law, on which do not entertain any doubt, the same would not stand fully subserved by holding that the provisions of Order 2 Rule 2 of the CPC will apply only if the first suit is disposed of and not in a situation where the second suit has been filed during the pendency of the first suit. Rather, Order II, Rule 2 of the CPC will apply to both the aforesaid situations. (Virgo Industries (Eng.) P.Ltd. (M/s) vs. M/s. Venturetech Solutions P. Ltd.; 2013 (1) ARC 711 (SC)

O. 6, R. 17—Amendment in written statement—Rejection of—Legality of

Order 6, Rule 17 CPC provides that the Court may at any stage of the proceedings allow either party alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. However, in view of the proviso, no application for amendments is liable to be allowed after the trial has commenced, unless the Court comes to the conclusion that parties seeking amendment could not have raised the matter before the commencement of trial inspite of due diligence.

The object of the rule is that Court should try and adjudicate the case on merits and allow all amendments that may be necessary for determining the real question in controversy between the parties, provided it does not cause injustice or prejudice to other side.

It is, no doubt, correct that Hon’ble Apex Court in series of decision has held that the power to allow the amendments is wide and can be exercised at any stage of the proceedings in the interest of justice. Even in the case of Abdul Rehman and another vs. Mohd. Ruldu and others (supra) relied upon by the learned counsel for the petitioner, the same view has been expressed. it may be relevant to quote paragraph 7 of the said reports:

“It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any stage of the proceedings for the purpose of determining the real question in controversy between them. The Courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”

(Gopal Chandra vs. Kundan Lal Gulati; 2013 (1) ARC 807)

O. 6, R. 17—Rejection of amendment of plaint at appellate stage—Legality of

Petitioner’s application for amendment of the plaint at the fag end of the hearing of the appeal has been rejected. The suit of the petitioner was for partition which was dismissed and in appeal when a date for hearing was fixed, the amendment was filed.

The court below in rejecting the amendment has come to the conclusion that no case for accepting the amendment at such a belated stage as per the proviso to Order 6 Rule 17 C.P.C. has been made out.

In view of the above, the Court find no case for interference in exercise of writ jurisdiction. (Lalit Mohan vs. Madan Mohan; 2013 (1) ARC 151)

O. 6, R. 17 Proviso - Amendment of plaint - After commencement of trial - Permissibility of

A bare perusal of above Rule 17 would show that an amendment is permissible by the Court at any stage of proceedings, of course, in such manner and in such terms as the Court may find just, but, such an amendment is required to be necessary for the purpose of determining the real question in controversy between the parties. It gives very wide power to the Court for allowing amendment but the proviso added therein restricts such wide power of the Court simultaneously by observing that no application for amendment shall be allowed after the Trial has commenced unless the Court comes to the conclusion that in spite due diligence, party could not have raised the matter before the commencement of Trial. Now there is an embargo on an application for amendment to be allowed once the Trial has commenced. The embargo is complete. The only scope, thereafter is that the Court comes to the conclusion that despite due diligence such matter could not have been raised by the parties concerned before the commencement of Trial. Therefore the party seeking amendment, after commencement of Trial, is bound to first plead and then prove that the amendment it has sought could not have been pleaded by it before commencement of Trial despite its due diligence. After the Trial has commenced, an amendment cannot be sought and allowed as a matter of course unless conditions of due diligence is found to have existed therein since it is prohibited by proviso to Order 6 Rule 17 C.P.C.

In the present case, the parties could not dispute that the Trial has commenced long back. Neither in the application the plaintiff-respondent ever pleaded that despite due diligence he could not have raised the issue which he has sought by virtue of amendment earlier nor there is any such finding recorded by the Trial Court while allowing the amendment. Unfortunately, even the Revisional Court has not looked into this aspect of the matter. The impugned orders passed by Courts below, therefore, are wholly illegal and cannot sustain. (Suraj Prakash vs. Waqf Khudaband Tala Mausooma; 2012(2) ALJ 275)

O. 7, R. 11 Rejection of plaint - Validity - Earlier suit filed by defendants for ejectment and delivery of possession - Matter pending since long - Defendants/decree holders not allowed by plaintiff to reap fruits of decree - Prayer made for framing additional issue rejected by trial Court holding that identity of property was not in dispute - Plaintiff did not claim to be in possession of any property other than property in regard to which he had suffered an eviction decree - Plaintiff's conduct not equitable - For same property, earlier he claimed adverse possession against different individuals - Rejection of plaint, held proper

The matter is pending since 1987 and till now the respondents/decree holders were not allowed by the plaintiff to reap the fruits of the decree. A prayer was made by the plaintiff under Order 14 of the C. P. C. for framing of additional issues 'whether the Khasra number of the suit property is 17/2 or 18', which was rejected by the trial Court and this Court in para - 6 of its order has also held that the identity of the property is at all not in dispute.

Apart from the above, the plaintiff nowhere in the plaint claims to be in possession of any property other than the property in regard to which he had suffered an eviction decree. The plaintiff's conduct, on the face, is also not equitable. For the same property, earlier he was claiming adverse possession against respondents No. 2 to 4 and now he is claiming adverse possession against respondent No.1 with a specific prayer to restrain respondents No. 2 to 4 from interfering in possession over the suit property, for which, they have already obtained a decree. Considering every aspect of the matter, the trial Court has rightly rejected the plaint under Order 7 Rule 11 of the C.P.C. The appeal, being devoid of merit, is liable to be and is hereby dismissed. (Jagdish Sahu v. State of Chhattisgarh and others.; AIR 2013 Chha 27)

O. 8, R. 6A (1) - Counter Claim by defendant can only be raised against claim of plaintiff that too in respect of cause of action accruing to defendant against plaintiff

A plain reading of Order VIII Rule 6A(1) makes it clear that a defendant in a suit is entitle to set up by way of counter-claim, a claim against the plaintiff in respect of the cause of action accruing to the defendant against the plaintiff.

In view of the plain and simple language used in the aforesaid provision it is ample clear that a counter-claim by the defendant in the suit can only be raised against the claim of the plaintiff that too in respect of cause of action accruing to the defendant against the plaintiff. It does not permit filing of a counter claim against the other defendants to the suit.

In other words the counter-claim by a defendant has to be against the claim of the plaintiff and in respect of the cause of action accruing to the defendant against the plaintiff. Thus no counter claim against the co-defendants in the suit is permissible in law. (Man Singh vs. D.J. Ghazipur and ors.; 2013 (2) ALJ 323)

O. 14, R. 2 & O. 41, R. 23 - Court passing Appelable orders - To decide lis on all issues - Such course would avoid necessity to make order of remand and consequential delay

The court said that it deems it necessary to reiterate a fundamental principle of law that all courts whose orders are not final and appealable, should take notice of. All such courts should decide the lis before it on all issues as may be raised by the parties though in its comprehension the same can be decided on a single or any given issue without going into the other questions raised or that may have arisen. Such a course of action is necessary to enable the next court in the hierarchy to bring the proceeding before it to a full and complete conclusion instead of causing a remand of the matter for a decision on the issue (s) that may have been left undetermined as has happened in the present case. The above may provide a small solution to the inevitable delays that occur in rendering the final verdict in a given case. (Chandradhoja Sahoo v. State of Orissa and Ors.; AIR 2013 SC 367)

O. 16, R. 1 - Summoning of witnesses - By dasti process - Validity - Suit for divorce - Notices issued by Court to witnesses returned with endorsement that witnesses were not residing in given addresses - Petitioner wife failed to supply correct address - It was duty of respondent husband to prove allegation of illicit relationship between his wife and one of witness - Rejection of application for issuing summons to witnesses through Court by Family Court, held proper - Directing petitioner wife to serve witnesses by dasti process, held proper

In the instant case the Principal Judge, Family Court issued notices to the witnesses but same were returned with the endorsement that they are not residing in the given addresses. Since these two witnesses are the witnesses of the petitioner, it was the duty of the petitioner to supply their correct address, which-the petitioner did not supply. In such circumstances, the Principal Judge, Family Court, Dehradun rightly passed order asking the petitioner to serve the summons on witnesses by dasti process. The application filed by the petitioner for issuing summons to the witnesses through Court has rightly been rejected. Were the witnesses were crucial witnesses or not, it is the duty of the plaintiff/respondent to prove the al1egation which he has levelled against the petitioner/defendant. If these witnesses are not examined, the plaintiff/respondent will also not be benefited. Neither the Principal Judge, Family Court exceeded his jurisdiction vested in him under the law nor his order is without jurisdiction (Smt. Archana Garg v. Vineet Kumar Jain; AIR 2013 Utr 18)

O. 19, R. 3 – Evidence Act, S. 3 Affidavit – Not evidence

Affidavits are not included within the purview of the definition of “evidence” in S. 3 of the Evidence Act, and the same can be used as “evidence” only if, for sufficient reasons, the Court passes an order under O 19 of the Code of Civil Procedure, 1908. Thus, the filing of an affidavit of one’s own statement, in one’s own favour, cannot be regarded as sufficient evidence for any Court or Tribunal, on the basis of which it can come to a conclusion as regards a particular fact-situation. However, in a case where the deponent is available for cross examination, and opportunity is given to the other side to cross-examine him, the same can be relied upon. Such view stands fully affirmed particularly, in view of the amended provisions of O. 18, Rules 4 and 5 CPC. (Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and Ors.; AIR 2013 SC 58)

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Constitution of India

Art. 14 – Natural justice- Right of cross examination - Is integral part of natural justice principles

Not only should the opportunity of cross examination be made available, but it should be one of effective cross-examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law as cross examination is an integral part and parcel of the principles of natural justice. (Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and Ors.; AIR 2013 SC 58)

Arts. 14 and 16 – Compassionate appointment - Object of

Petitioner's father was a peon in Judgeship Bijnor. He died in harness. Petitioner has been appointed on the post of peon in the same Judgeship under U .P. Recruitment of Dependants of Government Servant Dying-in-harness Rule 1974. Petitioner has also joined on the post of peon; however, he wants a Class III job. In this regard, learned counsel for the petitioner has placed reliance upon a report given by two Additional District Judges on 8.1.2010 to the District Judge which is Annexure 5 to the writ petition recommending that petitioner may be appointed a clerk on compassionate ground as his father died in harness on 22.5.2009. Learned counsel for the petitioner has placed reliance upon an authority of this Court reported in Rajesh Singh v. Director of Education, 1991 UPLBEC 345.

The Court does not agree with the contention of learned counsel for the petitioner. The Supreme Court in Commissioner of Public Instructions v. K.R. Vishwanath; AIR 2005 SC 3275 has held that strictly the claim of compassionate appointment can not be upheld on the touchstone of. Articles 14 & 16 of the Constitution of India and that the object of such appointment is to enable the family to get over sudden financial crisis or to mitigate the hardship due to death of the bread earner in the family. Paragraphs 10, 11 and 11-A of the said authority is quoted below:

"10. As was observed in State of Haryana and Ors. v. Rani Devi and anr., AIR 1996 SC 2445 it need not be pointed out that the claim 'of person concerned for appointment on compassionate ground is based on the premises that he was dependant on the deceased-employee. Strictly this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right. Die-in harness scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased-employee.

In view of the above authorities it is quite clear that the purpose of giving compassionate appointment is to provide minimum succour, to mitigate the hardship and to enable the family to get over sudden financial crisis. It cannot be by way of wind fall or bonanza. Giving appointment to the dependent on a post lower to the post on which deceased was working amounts to mitigating the hardship. The family may not get as much salary as the deceased was getting but it will be getting at least some salary. Giving appointment on the same post on which the deceased was working completely wipes out the hardship which the family may face due to death of the bread earner in harness. However, giving job on a higher post is not to mitigate the hardship but providing more than what the family was earlier getting. This is not permissible under law. This is beyond the permissible inroad which may be made in the area of Articles 14 and 16 or the Constitution. It will be illegal encroachment in the territory occupied by Articles 14 and 16 of the Constitution. The purpose of mitigating hardship may override Articles 14 and 16 of the Constitution however, the object of providing more than what the deceased was getting can not be permitted to override the mandate of Articles 14 and 16. (Amit Kumar v. State of U.P.; 2013 (1) SLR 29 (All)

Art. 16 – Salary – Liability to pay – A private college taken over by Govt. – Liability would start from date of which State Govt. has taken over

The appellants were appointed prior to 29.1.1981 by the then Managing Committee of the R.B.T.S. Homeopathic Medical College and Hospital, Muzaffarpur. A Notification dated 29.1.1981 was issued by the Health Department, Government of Bihar to take over the private medical college with effect from 1.4.1981. In the Notification dated 29.1.1981, it was made clear that these institutions will be taken over by the Government of Bihar with effect from 1.4.1981. Therefore, in court considered view, the liability of the State Government would arise from the date these private institutions were taken over by the State Government i.e. with effect from 1.4.1981.

In case of employees where some payments have been made by the State Government, court directed the State not to recover that amount from the employees. In other cases, the employees would be entitled to different pay scales only from 1.4.1981. (Chandra Nath Jha v. State of Bihar; 2013 (1) SLR 518 (P&H)

Arts. 21, 19 & 25 - Does not mere animal existence or continued drudgery through life - Lack of basic amenities, healthcare, security and proper tracks for Amarnathji yatris

Now, court may examine the dimensions of the rights protected under Article 21 of the Constitution of India. The socio-economic justice for people is the very spirit of the preamble of our Constitution. ‘Interest of general public’ is a comprehensive expression comprising several issues which affect public welfare, public convenience, public order, health, morality, safety etc., all intended to achieve the socio-economic justice for people. In the case of Consumer Education and Research Centre v. Union of India, (1995) 3 SCC 42, this Court while noticing Article 1 of the Universal Declaration of Human Rights, 1948 (for short ‘UDHR’) asserted that human sensitivity and moral responsibility of every State is that “all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” The Court also observed “the jurisprudence of personhood or philosophy of the right to life envisaged under Article 21, enlarges its sweep to encompass human personality in its full blossom with invigorated health which is a wealth to the workman to earn his livelihood, to sustain the dignity of person and to live a life with dignity and equality.

Not only this, there is still a greater obligation upon the Centre, State and the Shrine Board in terms of Article 48A of the Constitution where it is required to protect and improve the environment. Article 25(2) of the UDHR ensures right to standard of adequate living for health and well-being of an individual including housing and medical care and the right to security in the event of sickness, disability etc. The expression ‘life’ enshrined in Article 21 of the Constitution does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to livelihood, better standard of living, hygienic conditions in the workplace and leisure. The right to life with human dignity encompasses within its fold, some of the finer facets of human civilization which makes life worth living. The expanded connotation of life would mean the tradition and cultural heritage of the persons concerned. In the case of Consumer Education & Research Centre (supra), the Court discussing the case of C.E.S.C. Ltd. v. Subhash Chandra Bose; [(1992) 1 SCC 441] stated with approval that in that case the Court had considered the gamut of operational efficacy of human rights and constitutional rights, the right to medical aid and health and held the right to social justice as a fundamental right. The Court further stated that the facilities for medical care and health to prevent sickness, ensure stable manpower for economic development and generate devotion to duty and dedication to give the workers' best performance, physically as well as mentally. The Court particularly, while referring to the workmen made reference to Articles 21, 39(e), 41, 43 and 48-A of the Constitution of India to substantiate that social security, just and humane conditions of work and leisure to workmen are part of his meaningful right to life.

From the analysis of the above, it is clear that the appropriate balance between different activities of the State is the very foundation of the socio-economic security and proper enjoyment of the right to life. (Court on Its Own Motion vs. Union of India & Others; 2012(8) Supreme 646)

Arts 21, 15, 14 and 51-A(e)—Eve-teasing—Malady is against constitutional mandate—Directions issued

The respondent who was a police official was alleged to have misbehaved with a woman at a bus-stand. He was found guilty in the departmental enquiry but was acquitted in the criminal case. The issue before the Supreme Court was whether the respondent was entitled to reinstatement as a result of his acquittal. While dealing with this issue, the Supreme Court collaterally considered the social evil of eve-teasing.

There is no uniform law in the country to curb eve-teasing effectively in or within the precinct of educational institutions, places of worship, bus-stands, metro stations, railway stations, cinema theatres, parks, beaches, places of festival, public service vehicles or any other similar place. Eve-teasing generally occurs in public places which, with a little effort, can be effectively curbed. Consequences of not curbing such a menace are at times disastrous. There are many instances where girls of young age are being harassed, which sometimes may lead to serious psychological problems and even committing suicide. Every citizen in this country has the right to live with dignity and honour which is a fundamental right guaranteed under Article 21 of the Constitution. Sexual harassment like eve-teasing of women amounts to violation of rights guaranteed under Articles 14, 15 as well.

It is very difficult to establish the facts as required by Section 294 IPC and, seldom, complaints are being filed and criminal cases will take years and years and often the offender gets away with no punishment and filing complaint and to undergo a criminal trial itself is an agony for the complainant, over and above the extreme physical or mental agony already suffered. Similarly, the burden under Section 509 IPC is on the prosecution to prove that the accused had uttered the words or made the sound or gesture and that such word, sound or gesture was intended by the accused to be heard or seen by some woman. Normally, it is difficult to establish this and, seldom, a woman files complaints and often the wrongdoers are left unpunished even if the complaint is filed since there is no effective mechanism to monitor and follow up such acts. The necessity of a proper legislation to curb eve-teasing is of extreme importance, even the Tamil Nadu legislation has no teeth.

Eve-teasing can be categorised in five heads: (1) verbal eve teasing; (2) physical eve teasing; (3) psychological harassment; (4) sexual harassment; and (5) harassment through some objects.

Parliament is currently considering the Protection of Woman against Sexual Harassment at Workplace Bill, 2010, which is intended to protect female workers in most workplaces. Provisions of that Bill are not sufficient to curb eve-teasing. Before undertaking suitable legislation to curb eve-teasing, it is necessary to take at least some urgent measures so that it can be curtailed to some extent. In public interest, directions are issued as follows:

(1) All the State Governments and Union Territories are directed to depute plain clothed female police officers in the precincts of bus-stands and stops, railway stations, metro stations, cinema theatres, shopping malls, parks, beaches, public service vehicles, places of worship, etc. so as to monitor and supervise incidents of eve-teasing.

(2) There will be a further direction to the State Government and Union Territories to install CCTV cameras in strategic positions which itself would be a deterrent and if detected, the offender could be caught.

(3) Persons in charge of the educational institutions, places of worship, cinema theatres, railway stations, bus-stands have to take steps as they deem fit to prevent eve-teasing, within their precincts and, on a complaint being made, they must pass on the information to the nearest police station or the Women's Help Centre.

(4) Where any incident of eve-teasing is committed in a public service vehicle either by the passengers or the persons in charge of the vehicle, the crew of such vehicle shall, on a complaint made by the aggrieved person, take such vehicle to the nearest police station and give information to the police. Failure to do so should lead to cancellation of the permit to ply.

(5) The State Governments and Union Territories are directed to establish Women Helpline in various cities and towns, so as to curb eve-teasing within three months.

(6) Suitable boards cautioning such act of eve-teasing be exhibited in all public places including precincts of educational institutions, bus-stands, railway stations, cinema theatres, parks, beaches, public service vehicles, places of worship, etc.

(7) Responsibility is also on the passer-by and on noticing such incident, they should also report the same to the nearest police station or to Women Helpline to save the victims from such crimes.

(8) The State Governments and Union Territories of India would take adequate and effective measures by issuing suitable instructions to the authorities concerned including the District Collectors and the District Superintendent of Police so as to take effective and proper measures to curb such incidents of eve-teasing.

(Dy. Inspector General of Police vs. S. Samuthiram; (2013)1 SCC (Cri) 566)

Arts. 21, 22(1) and 39—Right to speedy trial and fair trial—Deprivation of right to speedy does not per se prejudice the accused in defending himself

‘Speedy trial’ and ‘fair trial’ to a person accused of a crime are integral part of Article 21. There is, however, qualitative difference between the right to speedy trial and the accused’s right of fair trial. Unlike the accused’s right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances. Each case of delay in conclusion of a criminal trial has to be seen in the facts and circumstances of such case. Mere lapse of several years since the commencement of prosecution by itself may not justify the discontinuance of prosecution or dismissal of indictment. The factors concerning the accused’s right to speedy tiral have to be weighed vis-à-vis the impact of the crime on society and the confidence of the people in judicial system. Speedy trial secures rights to an accused but it does not preclude the rights of public justice. The nature and gravity of crime, persons involved, social impact and societal needs must be weighed alongwith the right of the accused to speedy trial and if the balance tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the right of accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end. These principles must apply as well when the appeal Court is confronted with the question whether or not retrial of an accused should be ordered. (Mohd. Hussain @ Julfikar Ali vs. State (Govt. of N.C.T.) Delhi; 2013 (80) ACC 910 (SC)

Art. 136 – Exercise of power under Discretionary - Art. 136 does not confer right to appeal

Article 136 of the Constitution does not confer a right of appeal on a party. It only confers discretionary power on Supreme court to be exercised sparingly to interfere in suitable cases where grave miscarriage of justice has resulted from illegality or misapprehension or mistake in reading evidence or from ignoring, excluding or illegally admitting material evidence. (Yasir Chisti & Anr. v. State of Rajasthan; 2012 Cr.LJ 637)

Art. 141 – Law laid down by Supreme Court is law of the Land and has to be obeyed by all

The government departments are no exception to the consequences of wilful disobedience of the orders of the Court. Violation of the orders of the Court would be its disobedience and would invite action in accordance with law. The orders passed by this Court are the law of the land in terms of Article 141 of the Constitution of India. No Court or Tribunal and for that matter any other authority can ignore the law stated by this Court. Such obedience would also be conducive to their smooth working, otherwise there would be confusion in the administration of law and the respect for law would irretrievably suffer. There can be no hesitation in holding that the law declared by the higher court in the State is binding on authorities and tribunals under its superintendence and they cannot ignore it. This Court also expressed the view that it had become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have a grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty are important hallmarks of judicial jurisprudence developed in this country, as discipline is sine qua non for effective and efficient functioning of the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and to abide by the rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.

These very principles have to be strictly adhered to by the executive and instrumentalities of the State. It is expected that none of these institutions should fall out of line with the requirements of the standard of discipline in order to maintain the dignity of institution and ensure proper administration of justice. (Priya Gupta & Anr. vs. Addl. Secretary, Ministry of Health & Family Welfare & Ors.; 2012(8) Supreme 693)

Art. 141 - Binding force of Judgment – Scope of

There can be no dispute with respect to the settled legal proposition that a judgment of court is binding, particularly, when the same is that of a co-ordinate bench; or of a larger bench. It is also correct to state that, even if a particular issue has not been agitated earlier, or a particular argument was advanced, but was not considered, the said judgment does not lose its binding effect, provided that the point, with reference to which an argument is subsequently advanced, has actually been decided. The decision therefore, would not lose its authority, “merely because it was badly argued, inadequately considered or fallaciously reasoned”, the case must be considered, taking note of the ratio decidendi of the same i.e., upon which, the decision of the court is based, or on the test or abstract, or the specific peculiarities of the particular case, which finally gives rise to the decision (Ravinder Singh v. Sukhbir Singh and Ors.; 2013 Cr. LJ 1123)

Art. 141 - Precedent – Judgment of Supreme Court - High Court has to accept it and should not in collateral proceedings write contrary judgment - Controversy over Govt. resolution - Supreme Court interpreting it one way - Reopening of controversy by High Court in collateral proceedings - Approach of High Court deprecated - Principle of Res judicata also do not permit re-examination

That court said that, when the judgment of a Court is confirmed by the higher court, the judicial discipline requires that Court to accept that judgment and it should not in collateral proceedings write a judgment contrary to the confirmed judgment. Court may as well not the observations of Krishna Iyer, J. in Fuzlunbi v. K khader Vali and another reported in 1980 (4) SCC 125.

It is for the State to decide as to which cadres should be merged so long as the decision is not arbitrary or unreasonable. As stated earlier, the resolution dated 7.7.2006 is well reasoned and justified, and cannot be called arbitrary or unreasonable to be hit by Article 14. It deserved to be upheld. It is possible that the merger may affect the prospects of some employees but this cannot be a reason to set-aside the merger. Once the State Govt. has taken the necessary decision to merge the two cadres in a given case, the State Govt. is expected to follow it by framing the necessary rules.

State Govt. at this stage before the learned Single Judge the entire controversy was once again gone into. The law of finality of decisions which is enshrined in the principle of res-judicata or principles analogous thereto, does not permit any such re-examination and the learned Judge clearly failed to recognize the same. (Bihar State government Secondary School Teachers Association v. Bihar Education Service Association and Ors.; AIR 2013 SC 487)

Art. 226 – Judicial Review in Service matters – Order of dismissal passed after full-fledged enquiry – Remedy of appeal not availed – Interference by High Court – Not proper – High Court does not act as an appellate authority

The High Court, in view of Court, under Article 226 of the Constitution of India was not justified in interfering with the order of dismissal passed by the appointing authority after a full-fledged inquiry, especially when the Service Rules provide for an alternative remedy of appeal. It is a well acceptable principle of law that the High Court while exercising powers under Article 226 of the Constitution does not act as an appellate authority. Of course, its jurisdiction is circumscribed and confined to correct an error of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of the principles of natural justice. In State Bank of India and Others v. Ramesh Dinkar Punde; (2006) 7 SCC 212, this Court held that the High Court cannot re-appreciate the evidence acting as a court of Appeal. Court have, on facts, found that no procedural irregularity has been committed either by the Bank, presenting officer or the Inquiring Authority. Disciplinary proceedings were conducted strictly in accordance with the Service Rules. (State Bank of India and Ors vs. Narendra Kumar Pandey; 2013(1) Supreme 292)

Art. 226 – U.P. Recruitment of Service (Determination of Date of Birth) Rules – Date of birth – Correction of – Whether the date of birth recorded in the service book of an employee can be modified or changed at his instance after long lapse of time or at the end of his service – Held, “No”

From a perusal of the Rule, it transpires that if a person enters in to service after passing the High School Examination, then the date of birth recorded in the High School certificate shall be deemed to be his correct date of birth. The said Rule also provides that no application or representation shall be entertained for correction of such date or age in any circumstances whatsoever. Thus, in relation to correction of date of birth, a legal fiction has been made which means that the date of birth recorded in either of the circumstances referred to under Rule 2 of the Rules of 1974 shall be deemed to be correct for all purposes particularly for the purpose of determining the age of retirement. The effect of deeming provision/legal fiction has been considered time and again. The Apex Court in the case of Sant Lal Gupta and others v. Modern Cooperative Group Housing Society Ltd. and others; (2010) 13 SCC 336, has observed as under:-

" .... It is the exclusive prerogative of the legislature to create a legal fiction meaning thereby to enact a deeming provision for the purpose of assuming the existence of a fact which does not really exist. ...

To the case in hand, admittedly, the appellant entered in service without passing the High School examination, therefore, the date of birth recorded in the service book shall be deemed to be correct and in view of the legal fiction created under Rule 2, no application or representation for its correction could be entertained. (Mohan Singh v. U.P. Rajya Vidyut Utpadan Ltd.; 2013 (1) SLR 129 (All)

Art. 226 – Writ jurisdiction – Availability of – When an alternate and equally efficacious remedy is open to litigant, he should required to pursue that remedy and not envoke the extra ordinary jurisdiction of the High Court

By series of decision it has been settled that the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ, if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted.

It may be noted that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the extra ordinary jurisdiction of the High Court to issue a prerogative writ as the writ jurisdiction is meant for doing justice between the parties where it cannot be done in any other forum. (Amitabh Thakur v. Union of India; 2013 (1) SLR 134 (All)

Arts. 226 and 311 – Dismissal from service – Without giving reasonable opportunity of hearing – Validity of – It would be vitiating principle of natural justice

In this case, court is unable to agree with the view of learned Single Judge that prior approval of D.I.O.S. was necessary before passing the impugned dismissal order dated 9.7.2008 court was the considered view that the scheme of the Regulations 31 to 45 of Chapter III of the U.P. Intermediate Education Act, 1921 does not provide that prior approval or sanction of D.I.O.S. is essentially required for awarding punishment of removal or terminating of a Class IV employee of the institution recognized under the aforesaid Act.

Undisputedly the contesting Respondent No. l has not participated in the departmental enquiry proceedings. In view of the facts and circumstances of the case and rival contention of learned counsel for the parties, the Court do not find any substance in the arguments of the learned counsel for appellants that the contesting Respondent No. l has absconded and on account of his deliberate operation full fledged enquiry in the matter was not required.

Court was the considered view that the impugned dismissal order from service has been passed without affording reasonable opportunity of hearing and without following the procedure and against the relevant Regulations 31 to 45 of Chapter III framed under Scheme 16-G of the U .P. Intermediate Education Act, 1921, and thus in violation of statutory provisions as well as in gross violation of Principle of natural justice. In this regard, the view expressed by learned Single Judge does not call for any interference. (Committee of Management v. Suresh Kumar; 2013 (1) SLR 33 (All)

Arts. 226 and 227 - Supervisory jurisdiction - Scope and ambit

The finding of fact has been recorded after perusing the record by courts below that the documents are in possession of defendant no. 4 therein and this finding has not been shown or said to be perverse in the entire writ petition except what has been stated in the objection filed by courts below have been reiterated here at also.

Both the Courts below have recorded concurrent findings of fact and unless these findings are shown perverse or contrary to record resulting in grave injustice to petitioner, in writ jurisdiction under Article 226/227, the Court exercising restricted and narrow jurisdiction would not be justified in interfering with the same. In supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority.

This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes.

For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record.

It is well settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (Mook Kumar Jaiswal vs. VIIIth Addl. District Judge; 2012(1) ARC 207 (All HC)

Art. 229, 235 - U. P. Govt. Servant Conduct Rules - R. 3 - Misconduct by Judicial Officer - Proof of

The disciplinary inquiry regarding conduct of a judicial officer while passing order in exercise of his judicial function can very well be inquired and gone into and can be made subject matter of disciplinary inquiry. However, the misconduct in passing an order by a judicial officer in exercise of his judicial function can be inquired only when the officer has acted in the manner as would reflect on his reputation or integrity or good faith or devotion to duty or there is material to show recklessness or misconduct in the discharge of his duty or he acted in a manner which is unbecoming of a government servant or acted negligently or omitted the prescribed conditions which are essential for exercise of statutory power or an order has been passed to unduly favour one of the parties or actions of the officer are actuated by corrupt motive. An officer while exercising his judicial functions passes large number of orders. The orders may be assailed both on the ground of error of law and error of facts but the mere fact that orders are erroneous is no ground to draw a disciplinary proceeding. When the orders have stemmed out of any corrupt motive or when intend to favour one of the parties or a consideration which is not germane with the case, it can be said that officer has misconducted himself and such conduct can be gone into and enquired.

The charges against the petitioner, as noticed Judicial Officer, were in three parts i.e. (i) rejecting the first bail application substantially on the same ground, (ii) without affording sufficient opportunity of hearing to the complainant or prosecution and (iii) extraneous consideration. As far as second charge is concerned, no finding has been given by the Enquiry Judge that bail application was allowed without affording opportunity to the complainant or prosecution. The allegation that officer has passed the order after taking illegal gratification was specifically examined and rejected by the Enquiry Judge. The allegation that substantially on the same ground earlier bail application was rejected, has been found favour with the Enquiry Judge.

Although the Enquiry Judge held that bail was granted on account of extraneous consideration but no extraneous consideration having either been referred to or proved, the charge of misconduct against the officer cannot be said to be proved. Further the opinion on the Enquiry Judge that substantially on the same ground first bail application was rejected is also not a proof of misconduct by charged officer while allowing the bail application unless the granting of bail is referred to or found out on any extraneous consideration which having not been proved in the instant case, the charge of misconduct against the Charged Officer cannot be held to be proved. Therefore the order reducing the Judicial Officer in rank consequent to disciplinary proceedings would be liable to be set aside. (Syed Hasan vs. High Court of Judicature at Allahabad; 2013(2) ALJ 182)

The service – Can only mean the judicial service

The Constitution Bench in Chandra Mohan has the thus clearly held that the expression ‘the service’ in Article 233(2) means the judicial service.

Court have no doubt that the expression, ‘the service’ in Article 233(2) means the “judicial service”. Other members of the service of Union or State are as it is excluded because Article 233 contemplates only two sources from which the District Judges can be appointed. These sources are:

(i) judicial service; and

(ii) the advocate/pleader or in other words from the Bar. District Judges can, thus, be appointed from no source other than judicial service or from amongst advocates. Article 233(2) excludes appointment of District Judges from the judicial service and restricts eligibility of appointment as District Judges from amongst the advocates or pleaders having practice of not less than seven years and who have been recommended by the High Court as such.

(Deepak Aggarwal v. Keshav Kaushik and others; 2013(1) Supreme 355)

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Consumer Protection Act

Ss. 2(1)(d), 15, 17—Jurisdiction of consumer forum—Determination of—Consumer Forum cannot adjudicate matters involving disputed question of facts

Considering the facts and circumstances of the case it appears that facts of that case are beyond the scope of summary trial under the provisions of the Consumer Protection Act, 1986 and therefore, that appeal was dismissed. We still have the same view. There were very much complicated questions of facts and law involved in the matter i.e. question of issuance of notification of acquisition in respect of land in question as well as right of the State Government, right of the Union Government and Bhilai Steel Plant, which is an authority under the Government of India, different orders issued by State Government, B.S.P. Union of India at different point of time and their consideration and expression of opinion on those orders, will be of far reaching effects.

As this Commission already considered the aforesaid points in Steel Authority of India Ltd. Bhilai Steel Plant vs. M.S. Bhaskaran & Anr., (2012) 2CPR 170 (Chhatt.) vide order dated 28.7.2012 allowed the appeal of Steel Authority of India Ltd., Bhilai Steel Plant and dismissed the complaint of complainant Shri M.S. Bhaskaran on the ground that Writ Petition for considerations of the same questions is pending before the High Court and therefore, the same cannot be decided in summary proceedings before Consumer Fora.

In view of this, Commission do not find any ground to admit this matter for final hearing. The appeal has got no substance and is liable to dismissed in limine at Motion Hearing Stage without notice to the respondents and the same is dismissed. No order as to the cost of this appeal.” Hence, this revision petition.

Recently Hon’ble National Commission its decision, in the case of Mangilal Soni vs. T. Morappa & Ors., II (2011) CPJ 95 (NC) having identical facts, which was a consumer complaint filed directly before Hon’ble National Commission and in that case also, there was an agreement of sell of property and part consideration was paid, but the vendor has failed to fulfil its obligation under the agreement so the consumer complaint was filed, has observed that—

Taking the averments and allegations on their face value, we are of the considered opinion that opposite parties cannot be said to have rendered any service to the complainant, for the deficiency of which, the complaint can be filed before a Consumer Fora. It appears to be a case of nonperformance of its obligation by a vendor under an agreement to sell for which the complainant would have been advised to file civil suit either for specific performance of the agreement to sell or any other alternative relief in accordance with law. In our opinion, the complaint before this Commission is wholly misconceived and is dismissed as such, however, with liberty to the complainant to work out his remedy before a competent Court in accordance with law.

Thus, as the question has been decided finally by Hon’ble National Commission, in the aforesaid reported case and if there is only a case of non-performance of its obligation by the vendor under an agreement to sell, then for the purpose of getting relief, consumer complaint does not lie and the appropriate remedy is of filing Civil Suit either for specific performance of agreement of sell or any other alternative remedy, in accordance with law. Applying the principle in the facts of the present case, we find that in the facts of the present case also the remedy available to the complainant was that of filing Civil Suit for specific performance of a contract of sell of the disputed House and lease-deed of the disputed land therein or to avail any other appropriate remedy before any other Forum.

From the records it is evidence that there are many complicated questions of facts and law involved in the matter, i.e. question of issuance of notification of acquisition in respect of the land in question as well as the rights of the State Government, the rights of the Union Government and Bhilai Steel Plant, which is an authority under the Government of India, the different orders issued by State Government, Bhilai Steel Plant and Union of India at different points of time. The decisions taken on this issue and expressions of opinion on the said orders would have far reaching effects.

The petitioner has filed this complaint after 31 years and hence, it is time barred. In compliance with the orders of the Hon’ble High Court, registration of lease deed between the Government and the petitioner had been executed. The petitioner did not protest at the time of registration, hence, the petitioner’s conduct amounts to acceptance in silence. Petitioner should have filed this case and got the same adjudicated in a Civil Court and not in a Consumer Forum. (D.K. Lalwani vs. Bhilai Steel Plant, Steel Authority of India; 2013(1) CPR 468 (NC)

Ss. 15, 17, 19 and 21— Grant of compensation—It cannot be exorbitant

Complainant/petitioner was allotted Plot No.4577, Sector II, Extension Urban Estate, Jind by respondent/OP vide allotment letter dated 11.10.2000. Possession of flat was offered vide letter dated 20.3.2001 and possession certificate was received by the complainant on 30.3.2001. Complainant raised construction upto DPC level for which certificate was issued on 28.6.2002. As electric wire was passing 3ft. over the rear portion of the plot, the complainant could not continue construction work. Electric line was removed on 5.9.2002, hence, allging deficiency in service filed complaint. Opposite Party resisted the claim and submitted that electric line was removed within 67 days from the date of submitting certificate and thus there was no deficiency in service and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to pay a sum of Rs. 1,50,000/- and further to refund amount of interest recovered from the complainant and further extended period of construction which was wasted in removing electric line. Respondent filed appeal and learned State Commission vide impugned order partly accepted the appeal and modified order of compensation and reduced it to Rs. 10,000/- against which this revision petition has been filed.

It is admitted fact that possession certificate was received by petitioner on 30.3.2001 and complainant raised construction upto DPC level without permission. Certificate for construction was issued on 28.6.2002 and in such circumstances, petitioner could have started construction only after that date. It is also clear that electric wire was removed by respondent within 67 days from the date of issuing DPC level certificate. In such circumstances, there was no occasion for the District Forum to grant huge compensation of Rs. 1,50,000/-. Petitioner has not mentioned in her complaint that how much amount she intended to spend on the construction activities and within a period of two months how much cost escalated. Learned State Commission has rightly observed in its impugned.

So, Commission do not find any infirmity in the impugned order in modifying amount of compensation to the petitioner and there is no justification for enhancement of compensation and in such circumstances, revision petition is liable to be dismissed. (Mrs. Lajwanti vs. Chief Administrator; 2013 (1) CPR 361 (NC)

Ss. 15, 17, 19 and 21— Financial service—Sale of vehicle on failure to deposit outstanding dues—Validity of—Vehicle can be repossessed and sold in case default in repayment of loan amount

District Consumer Disputes Redressal Forum, Yavatmal (for short, “District Forum”) before whom petitioner filed a complaint under section 12 of the Consumer Protection Act, 1986, (for short, “Act”) dismissed the same, holding that there is no deficiency on the part of respondent no. 1. Being aggrieved by order of the District Forum, petitioner filed appeal before the State Commission, which dismissed the same , vide its impugned order. Hence, the present revision petition. In this case, District Forum, in its order has specifically held, that notices dated 27.10.2001 and 27.2.2002, were issued to the petitioner as well as his guarantors, specifically demanding that amount be paid within 14 days and also to return the vehicle. Thus, this plea of the petitioner that no notice was issued to him falls to the ground. It is also not in dispute that, petitioner was a defaulter and has not paid the entire EMI as agreed by him.

Under Section 21(b) of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. There was no illegality or material irregularity on the part of the State Commission in this case.

Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21(b) of the Act. Since, two for a below have given detailed and reasoned order which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction. Thus, present petition is hereby, dismissed with cost of Rs. 5,000/- (Mr. Ashok Laxman Gulhane vs. The Manager, Tata Finance Co. Ltd.; 2013 (1) CPR 558 (NC)

Ss. 15, 17, 19 and 21— Medical negligence—Determination of—Failure of medical procedure does not amounts to medical negligence

In this case, it was proved that in 1990 itself when the Petitioner was a young boy he had come to Dr. Mandal for treatment with serious problems in his both eye because of which he had limited vision in the right eye and was almost blind in the left eye. The procedures conducted at the Children Eye Care Centre included cataract surgery as also surgery to attach the detached retina but with very little success. It was under the circumstances, that the Petitioner was referred to a rehabilitation centre to teach him how to move around with such limited vision because by 2002 the vision in his left eye was nil and the vision in his right eye was recorded upto a distance of 10 cms. Therefore, the Petitioner’s contention that he had visited the Respondents with only some problems in his eyes is not correct.

From the medical records files in evidence, it is established that Respondents using their best professional skills as qualified doctors tried their best to preserve whatever limited vision remained in the right eye and, therefore, undertook a procedure where was a possibility of getting some navigational vision in the right eye. However, this procedure could not succeed because the retina and the optic nerve were found to be unhealthy. There is also no evidence that high power lens were implanted in the Petitioner’s eye because of which he became blind. No credible evidence, including that of any medical expert, was produced by the Petitioner, on whom there was onus to do so, to prove medical negligence on the Respondents’ part or to challenge the credibility of the documents and the statements of Respondents and other witnesses. Petitioner’s contention that it was because of the negligence of Respondents that he contracted glaucoma is also not borne out by the evidence on record which clearly confirms that he was already undergoing treatment for glaucoma well before he visited Respondents at the Vitreo Retinal Institute. The State Commission in its well-reasoned order has, therefore, rightly concluded that no medical negligence has been proved in this case. So, Commission agreed with these findings and upholds the order of the State Commission in toto. (Mohd. Abdul Masood vs. Dr. O. Muralidhar; 2013 (1) CPR 503 (NC)

Ss. 15, 17, 19 and 21—Banking loan—Unilateral enhancement of rate of interest—Bank cannot charge rate of interest unilaterally

Separate complaints were filed before the District Forum, which allowed the complaints. Vide order dated 6.4.2010, the District Forum directed the bank to charge Fixed deposits rate of interest as mutually agreed between the parties and adjust the amount of excess interest already charged by Bank.

Aggrieved by that order, the Bank field 5 different appeals before the State Commission. The State Commission vide its order dated 14.2.2012 dismissed the appeal.

Thereafter, they filed the revision petitions. This is an undisputable fact that in the year 2004-05, the parties entered into an agreement. The complainants entered into an agreement. The complainants selected the second option for payment of interest. Consequently, the petitioner is entitled to charge 8% plus 1%. Both the counsel agreed to that proposal. It may be also mentioned here that State Bank of India could not produce any agreement wherein it was stated that after the lapse of two years, the rate of interest would change or it would be taken as per R.B.I. guidelines. The bank cannot change it unilaterally. The consent of the other party is required. It should be given an opportunity to ponder over the new rates. The bank cannot enhance it arbitrarily. Furthermore, no circular from R.B.I. saw the light of the day. No affidavit was filed by the petitioner in support of his case. Consequently, N.C. hold that the petitioner is entitled to get the interest @8% plus 1%, meaning thereby the total rate of interest is @9% from the date of paying of the loan till its realization. (State Bank of India vs. Meena Walia; 2013(1) CPR 301 (NC)

Ss. 17, 19, 21—Death of passenger due to lack of medical facilities at Airport - Airports not expected to have I.C.U. facilities inspite of this, there was Administrative deficiency on part of Respondent/Airport Authorities

The Patient suffered a serious heart attack near the immigration counter prior to his boarding the AIR India flight to Mauritius to attend a conference is not in dispute. It is also a fact that a doctor who was available on duty had attended to the Patient within minutes and after due examination administered two injections and tried to revive him through Cardio Pulmonary Resuscitation, which is a standard procedure, particularly when Intensive Care Unit (ICU) facilities are not available. The Court further note that within minutes an ambulance was arranged to take the Patient to AIIMS where he was examined and within minutes declared dead. This lends credence to the contention of the Respondent that the Patient was already clinically dead at the airport but was shifted to AIIMS at the insistence of his relatives. Appellants have sought to prove negligence by stating that medical facilities at the airport were not adequate to treat patients suffering from medical incidents whereas the Respondents were contractually bound to do so since fees are charged for making available services to both passengers and visitors at the airport, which would also include specialized medical services at the airport. On a perusal of the evidence, Court noted that admittedly a doctor had attended to the Patient within minutes and administered him life-saving injections. Airports are not expected to have ICU facilities, which is what is required in cases of serious heart attacks. In the instant case, Court noted that the Respondents exercised whatever reasonable care was possible at that time in attending to the Patient and also in arranging an ambulance to immediately take him without delay to a specialized referral facility i.e. AIIMS. The State Commission being a court of fact has concluded that though there was no medical negligence because the Patient was given immediate medical aid, yet there were some administrative deficiencies since the required medical facilities to treat serious cases were not available at the airport, including the presence of more than one doctor on duty. No doubt, the presence of more than one doctor and somewhat more upgraded facilities beyond First Aid at the medical centres and dispensaries has now become necessary in view of the increasing use of air travel by a very large number of passengers. The State Commission taking cognizance of the above administrative deficiency on the part of Respondents has awarded an amount of Rs. 35,000/- as compensation and costs. We feel that this is adequate keeping in view the circumstances of this case where there was no delay in providing the best possible medical assistance available at that time at the airport. (Saroj Diksha vs. International Airport Authority of India; 2013 (1) CPR 290 (NC)

Ss. 17, 19 and 21—Medical negligence—Surgery at wrong place of body constitute medical negligence

Appellants, who was around 6 years old at the time of filing the complaint before the State Commission, was admitted to Respondent hospital with complaint of temporary Inguinal Hernia (R) and after diagnostic tests, confirming that he was suffering from Inguinal Hernia (R), he was operated on 12.8.1989. However, instead of operating on the Right side, Appellant was operated for Left Inguinal Hernia and Herniatomy. This mistake was noted by the main doctor of the hospital and after his discharge on 26.8.1989 he was advised to come back in September, 1989. Appellant’s father, therefore, got him back on 07.09.1989, when he was informed that an operation is required on the Right Inguinal Herniatomy. His father refused to get another surgery done and he was taken to Maharaja Hospital, Chennai, where after a medical check-up he was informed by Dr. A.P. Subramaniam that Respondent had made a mistake in conducting the first surgery on the Left Inguinal Hernia. Being aggrieved by the medical negligence on the part of Respondent, Appellant filed a complaint before the State Commission and requested that Respondent be directed to pay him Rs. 1,50,000/- as compensation. The State Commission after hearing the parties dismissed the complaint filed by the Appellant against the Respondent. Being aggrieved by the dismissal of his complaint Appellant has filed the present first appeal.

In view of the overwhelming documentary evidence from Respondent’s own hospital discussed in the foregoing paras, Commission was unable to agree with the finding of the State Commission that as per the evidence on record there was no medical negligence in the treatment of the Appellant. Clearly, Appellant was diagnosed for conducting a surgery on the Right Inguinal Herniatomy whereas without any evidence that it was the Left side which required the surgery, this surgery was conducted. Had the Respondent advised the Appellant’s parents during their visit to the hospital that the Appellant had bilateral Herniatomy, then perhaps there would be some case for the Respondent to explain how the surgery was conducted on the Left side. In the instant case, nowhere did the case history state that the Appellant had symptoms of bilateral Herniatomy. On the contrary, as stated above, after clinical and diagnostic tests, it was recorded that the surgery was for Herniatomy on the Right side. In view of these facts, Commission was of the view that there is force in the Appellant’s contention that he was wrongly operated for Left Inguinal Herniatomy whereas the surgery should have been conducted on the Right Side.

What constitutes medical negligence is now well settled through a number of judgments of this Commission as also of the Hon’ble Supreme Court of India. One of the principles to test medical negligence is whether a doctor exercised a reasonable degree of care and caution in treating a patient [Supreme Court Case Indian Medical Association vs. V.P. Shantha, (1995) 6 SCC 651 and this Commission case Tarun Thakore vs. Dr. Nashir M. Shroff (OP No. 215 of 2000)]. In the instant case, the facts clearly indicate that the required reasonable degree of care and caution was not taken by Respondent in the treatment of the Appellant and, thus, Respondent was guilty of medical negligence, for which the Appellant should justifiably be compensated. (Javeed vs. Manager/Officer-incharge; 2013 (1) CPR 311 (NC)

Ss. 19 and 21— If petitioner has failed to provide sufficient cause for delay of 55 days in filing revision petition—Held, “Application for condition of delay would not be maintainable because of limitation”

Complainant has stated that he was a consumer with reference to respondent no.1/opposite party no. 1 who supplies gas cylinders to him. He alleges deficiency in service with regard to supply of gas cylinders to him regularly. Respondent No.1/OP No. 1 in its written version has admitted that the complainant is a consumer under him and is the holder of two gas cylinders. He has also stated that he all along supplied gas cylinders to the complainant within 24 hours from the date of booking. All the dates of booking and delivery of the cylinder are mentioned in the gas book belonging to the complainant.

The District Forum on a careful perusal of the petitioner of complainant along with annexed documents and oral evidence of both parties and the written version filed by the OP no. 1 and also after hearing the arguments advanced by counsels of both parties came to the conclusion that the petitioner/complainant had no cause of action to file this case and he is not entitled to get any relief as prayed for. Hence, the complaint was dismissed on contest against OP no. 1 and ex parte against OP no. 2 without any cost.

Aggrieved by the order of the District Forum, the petitioner filed an appeal before the State Commission. The State Commission in its order stated as follows:

“Respondent no. 1 is present through Learned Advocate. None appears on behalf of the appellant. On 27.1.2012 appellant was directed to show cause as to why the appeal shall not be dismissed on the ground of default. Since, none appears on behalf of the appellant today, appeal stands dismissed.”

The present revision petition has been filed on 5.10.2012. The date of the impugned order is 15.2.2012 and the order had been received by the petitioner/complainant on 15.5.2012. Vide IA no. 1 of 2012 in RP no. 3806 of 2012 the complainant has sought condonation of delay in filing the present revision petition.

The complainant has failed to offer convincing reason in support of his application. The petitioner/complainant is supposed to explain the day-to-day delay, but needful has not been done. The petitioner has failed to provide ‘sufficient case’ for the delay of 54 days.

The petitioner has not been able to satisfactorily explain the cause of delay. Accordingly, no sufficient ground has been made out to condone the delay of 54 days in filing this present revision petition. The application for condonation of delay under these circumstances is not maintainable and the present revision petition being barred by limitation is hereby dismissed. (Mr. Sisir Basak vs. Mr. Pradip Kumar Saha, Proprietor; 2013 (1) CPR 514 (NC)

Ss. 19 and 21—Revision—Scope and ambit—Scope of revisional jurisdiction is extremely limited

The scope of revisional jurisdiction of this Commission in exercise of power under Section 21(b) is extremely limited one. Under this provision, this Commission can intervene only in cases where it is found that the State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. In this behalf, Hon’ble Apex Court has held in Rubi (Chandra) Dutta vs. United India Insurance Company Limited, (2011) 11 SCC 269):

23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a diffiret view than what was taken by the two forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, Commission was of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two for a.”

Commission has perused the records and heard the petitioner Dr. Devi Dayal Gupta, in person. He did not make any attempt to explain how the relief sought in the present petition has become larger than the prayer in the original complaint. The only answer he could tender was that his prayer for costs of litigation had not been considered by the fora below. There is nothing in the revision petition or in the personal argument of the petitioner, which points to any jurisdictional error, irregularity or illegality in the impugned order, which could justify invocation of the revisional jurisdiction of this Commission. (Dr. Devi Dayal Gupta vs. B.R.S. Institute of Medical Sciences, Dental College & Hospital; 2013(1) CPR 449 (NC)

Ss. 19, 21—Enhanced of compensation—Amount of compensation cannot be enhanced without any justifiable reasons

Petitioner/complainant and his wife used credit card of respondent/OP bank from 2001 to 2004 and after depositing final amounts of Rs. 6875/- and Rs. 1040/- on 1.10.2004 and 12.10.2004 respectively, closed credit card. On 19.7.2008, complainant received a phone from Delhi Police who apprised the complainant that non-bailable warrants have been issued against him and further directed him to contact Mr. Sunit Soni, Advocate for getting further details. Complainant contacted Mr. Soni and as per his advice complainant deposited Rs. 4422/- with ICICI Bank shown outstanding against him on the very day i.e. 19.7.2008. In spite of repeated requests, opposite party did not supply him details of outstanding payment, though, complainant had already cleared dues while closing credit card and as such, alleging deficiency, filed complaint before the District Forum. Opposite party contested complaint and submitted that account of outstanding amount due against the complainant as per statements Annexure C3 and C4 have already been provided to the complainant and complainant has deposited only outstanding amount on 19.7.2008. Allegation of information regarding non-bailable warrants was also denied. District Forum after hearing both the parties allowed complaint and directed OP/respondent to refund Rs. 4422/- along with Rs. 10,000/- as compensation and Rs. 5,000/- as litigation charges. Petitioner not satisfied with the compensation awarded to him filed appeal against the order of the District Forum which was also dismissed by impugned order.

Learned District Forum while allowing refund of Rs. 4422/- awarded compensation of Rs. 10,000/- and further awarded Rs. 5,000/- as cost of litigation. Learned State Commission has rightly observed that object of Consumer Protection Act is not enrich the complainant at the cost of the service provider and its object is only to adequately compensate the consumer. Learned State Commission observed that petitioner’s case was not a fit case in which punitive damages should be awarded to him and in such circumstances, appeal was dismissed. (Prof. Arun K. Lal vs. The Manager, Credit Card Section; 2013 (1) CPR 371 (NC)

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Contempt of Courts Act

S. 12 – Contempt proceeding when can be initiated

Mere availability of another legal proceeding does not debar invocation of the provisions of the contempt of Courts Act. Even where execution petitions are filed or an order of injunctions issued and if during the course of the proceedings, the act or conduct of a non-applicant may be such which would invite the proceedings under the Act then such proceedings would not be debarred. (Priya Gupta and Anr. V. Addl. Secy., Ministry of Health and Family Welfare and Ors.; 2013 Cr. LJ 732)

S. 12 – Apology – Acceptance by court - Consideration of

Consideration of an apology as contemplated under explanation to Section 12(1) of the Act is not a panacea to avoid action in law universally. While considering the apology and its acceptance, the Court inter alia considers the conduct of the contemnor prior and subsequent to the tendering of apology. If the conduct is contemptuous, prejudicial and has harmed the system and other innocent persons as a whole, it would be a factor which would weight against the contemnors; and the stage and time when such apology is tendered. (Priya Gupta and Anr. V. Addl. Secy., Ministry of Health and Family Welfare and Ors.; 2013 Cr. LJ 732)

S. 12 – Substantive judgement or general guidelines are law laid down by Supreme Court in terms of Art. 141 of the Constitution – Wilful violation of either will invite contempt proceeding

It is true that Section 12 of the Act contemplates disobedience of the orders of the Court to be wilful and further that such violation has to be of a specific order or direction of the Court. To contend that there cannot be an initiation of contempt proceedings where directions are of a general nature as it would not only be impracticable, but even impossible to regulate such orders of the Court, is an argument which does not impress the Court. As already noticed, the Constitution has placed upon the judiciary, the responsibility to interpret the law and ensure proper administration of justice. In carrying out these constitutional functions, the Courts have to ensure that dignity of the Court, process of Court and respect for administration of justice is maintained. Violations which are likely to impinge upon the faith of the public in administration of justice and the Court system must be punished, to prevent repetition of such behaviour and the adverse impact on public faith. With the development of law, the Courts have issued directions and even spelt out in their judgments, certain guidelines, which are to be operative till proper legislations are enacted. The directions of the Court which are to provide transparency in action and adherence to basic law and fair play must be enforced and obeyed by all concerned. The law declared by this Court whether in the form of a substantive judgment inter se a party or are directions of a general nature which are intended to achieve the constitutional goals of equality and equal opportunity must be adhered to and there cannot be an artificial distinction drawn in between such class of cases. Whichever class they may belong to, a contemnor cannot build an argument to the effect that the disobedience is of a general direction and not of a specific order issued inter se parties. Such distinction, if permitted, shall be opposed to the basic rule of law. (Priya Gupta & Anr. vs. Addl. Secretary, Ministry of Health & Family Welfare & Ors.; 2012(8) Supreme 693)

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Court Fees Act

S. 7 (IV-A) - Court Fees Act - Art. 17(iii) of Schedule II - Provisions under - Scope and Applicability of

(As amended by U. P. Amendment Act (Act XIX of 1938)

It is clear that Article 17(iii) of Schedule II of the Court Fees Act is applicable in cases where the plaintiff seeks to obtain a declaratory decree without any consequential relief and there is no other provision under the Act for payment of fee relating to relief claimed. Article 17(iii) of Schedule II of the Court Fees Act makes it clear that this article is applicable in cases where plaintiff seeks to obtain a declaratory decree without consequential reliefs and there is no other provision under the Act for payment of fee relating to relief claimed. If there is no other provision under the Court Fees Act in case of a suit involving cancellation or adjudging/declaring void or voidable a will or sale deed on the question of payment of court fees, then Article 17(iii) of Schedule II shall be applicable. But if such relief is covered by any other provisions of the Court Fees Act, then Article 17(iii) of Schedule II will not be applicable. On a comparison between the Court Fees Act and the U.P. Amendment Act, it is clear that Section 7(iv-A) of the U.P. Amendment Act covers suits for or involving cancellation or adjudging/declaring null and void decree for money or an instrument securing money or other property having such value. The suit, in this case, was filed after the death of the testator and, therefore, the suit property covered by the will has also to be valued. Since Section 7(iv-A) of the U.P. Amendment Act specifically provides that payment of court fee in case where the suit is for or involving cancellation or adjudging/declaring null and void decree for money or an instrument, Article 17(iii) of Schedule II of the Court Fees Act would not apply. The U.P. Amendment Act, therefore, is applicable in the present case, despite the fact that no consequential relief has been claimed. Consequently, in terms of Section 7(iv-A) of the U.P. Amendment Act, the court fees have to be commuted according to the value of the subject matter and the trial Court as well as the High Court have correctly held so.

Plaintiff, in the instant case, valued the suit at Rs.30 Lakhs for the purpose of pecuniary jurisdiction. However, for the purpose of court fee, the plaintiff paid a fixed court fee of Rs.200/- under Article 17(iii) of Schedule II of the Court Fees Act. Plaintiff had not noticed the fact that the above mentioned article stood amended by the State, by adding the words “not otherwise provided by this Act”. Since Section 7(iv-A) of the U.P. Amended Act specifically provides for payment of court fee in case where the suit is for or involving cancellation or adjudging/declaring void or voidable an instrument securing property having money value, Article 17(iii) of Schedule II of the Court Fees Act shall not be applicable. (Shailendra Bhardwaj vs. Chandra Pal; 2012(1) ARC 319)

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Criminal Procedure Code

Ss. 53 and 53-A—Constitution of India, Art. 20(3)—Voice sample of a person suspected of having committed an offence—Cannot be included in the expression “to be a witness and voice sample by itself not a testimony”

Section 53 applies to a situation where the examination of the person of the accused is likely to provide evidence as to the commission of an offence. Whether or not the examination of the person of the accused would afford evidence as to the commission of the offence undoubtedly rests on the satisfaction of the police officer not below the rank of Sub-Inspector. But, once the police officer makes a request to the registered medical practitioner for the examination of the person of the accused, what other tests (apart from those expressly enumerated) might be necessary in a particular case can only be decided by the medical practitioner and not the police officer referring the accused to him. In my view, Mr. Dave, learned Counsel for the appellant, is right in his submission that any tests other than those expressly mentioned in the Explanation can only be those which the registered medical practitioner would think necessary in a particular case. And further that in any event a registered medical practitioner cannot take a voice sample. The report then discussed where a provision for taking voice sample can be appropriately included; whether in the Identification of Prisoners Act or in the Evidence Act or in the Code of Criminal Procedure. It concluded that it would be appropriate to incorporate the provision by amending section 5 of the Identification of Prisoners Act as follows:

“(1) If a Magistrate is satisfied that, for the purpose of any investigation or proceeding under the Code of Criminal Procedure, 1973, it is expedient to direct any person—

(a) to allow his measurements or photograph to be taken, or

(b) to furnish a specimen of his signature or writing; or

The Magistrate may make an order to that effect, recording his reasons for such an order.

(2) The person to whom the order relates—

(a) shall be produced or shall attend at the time and place specified in the order, and

(b) shall allow his measurements or photograph to be taken by a police officer, or furnish the specimen signature or writing or furnish a specimen of his voice, as the case may be in conformity with the orders of the Magistrate before a police officer.

(3) No order directing any person to be photographed shall be made except by a Metropolitan Magistrate or a Magistrate of the first class.

(4) No order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding.

(5) Where a Court has taken cognizance of an offence a Magistrate shall not under this section, give to the person accused of the offence any direction which could, under section 73 of the Indian Evidence Act, 1872, be given by such Magistrate.”

The Report as noted was submitted in 1980. The Code of Criminal Procedure was amended in 2005 when the Explanation was added to section 53 and sections 53-A and 311-A were inserted into the Code. Voice sample was not included either in the Explanation to section 53 or section 311-A.

Should the Court still insist that voice sample is included in the definition of “measurements” under the Identification of Prisoners Act and in the Explanation to section 53 of the Code of Criminal Procedure? I would answer in the negative. (Ritesh Sinha vs. State of U.P.; 2013 (80) ACC 724 (SC)

S. 154 – FIR - Second FIR for same incident cannot be allowed to be registered

The opening words of Section 154 suggest that every information relating to commission of a cognizable offence shall be reduced to writing by the officer incharge of a Police Station. This implies that there has to be the first information report about an incident which constitutes a cognizable offence. The purpose of registering an FIR is to set the machinery of criminal investigation into motion, which culminates with filing of the police report in terms of Section 173(2) of the Code. It will, thus, be appropriate to follow the settled principle that there cannot be two FIRs registered for the same offence. However, where the incident is separate; offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered. The most important aspect is to examine the inbuilt safeguards provided by the legislature in the very language of Section 154 of the Code. These safeguards can be safely deduced from the principle akin to double jeopardy, rule of fair investigation and further to prevent abuse of power by the investigating authority of the police. Therefore, second FIR for the same incident cannot be registered. Of course, the investigating Agency has no determinative right. (Anju Chaudhary vs. State of U.P.; 2012 (2) ALJ 232)

S. 154 - FIR – Pre-registration hearing is not contemplated

The scheme of the Criminal Procedure Code does not provide for any right of hearing at the time of registration of the First Information Report. The registration forthwith of a cognizable offence is the statutory duty of a police officer in charge of the police station. The very purpose of fair and just investigation shall stand frustrated if pre-registration hearing is required to be granted to a suspect. It is not that liberty of an individual is being taken away or is being adversely affected, except by the due process of law. Where the Officer In-charge of a police station is informed of a heinous or cognizable offence, it will completely destroy the purpose of proper and fair investigation if the suspect is required to be granted a hearing at that stage and is not subjected to custody in accordance with law. There would be the pre-dominant possibility of a suspect escaping the process of law. The entire scheme of the Code unambiguously supports the theory of exclusion of audi alteram partem pre-registration of an FIR. Upon registration of an FIR, a person is entitled to take recourse to the various provisions of bail and anticipatory bail to claim his liberty in accordance with law. It cannot be said to be a violation of the principles of natural justice for two different reasons. Firstly, because the Code does not provide for any such right at that stage. Secondly, the absence of such a provision clearly demonstrates the legislative intent to the contrary and thus necessarily implies exclusion of hearing at that stage. It is true that law recognizes common trial or a common FIR being registered for one series of acts so connected together as to form the same transaction as contemplated under Section 220. It is not possible to enunciate any formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. Such things are to be gathered from the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action, commonality of purpose or design. Where two incidents are of different times with involvement of different persons, there is no commonality and the purpose thereof different and they emerge from different circumstances, it will not be possible for the Court to take a view that they form part of the same transaction and therefore, there could be a common FIR or subsequent FIR could not be permitted to be registered or there could be common trial. Similarly, for several offences to be part of the same transaction, the test which has to be applied is whether they are so related to one another in point of purpose or of cause and effect, or as principal and subsidiary, so as to result in one continuous action. Thus, where there is a commonality of purpose or design, where there is a continuity of action, then all those persons involved can be accused of the same or different offences “committed in the course of the same transaction”. (Anju Chaudhary vs. State of U.P.; 2012 (2) ALJ 232)

S. 154 – FIR – Is intimation about occurrence of incident - Need not contain all details of incident

Though it is stated that all the details as spoken to by PWs 1, 2 and were mentioned in the FIR, as rightly observed by the trial Court, FIR is not an encyclopaedia. It is just an intimation of the occurrence of an incident and it need not contain all the facts related to the said incident. (State of U.P. v. Munesh.; AIR 2013 SC 147)

Ss. 156, 173 - Re-investigation – Power to conduct does not lie in investigation agency, once it has filed report u/s 173(2) in respect of offence – Initial investigation, further investigation and re-investigation - Nature and Scope

No investigating agency is empowered to conduct a ‘fresh’, ‘de novo or ‘re-investigation’ in relation to the offence for which it has already filed a report in terms of Section 173(2) of the Code. It is only upon the orders of the higher Courts empowered to pass such orders that aforesaid investigation can be conducted, in which event the higher Courts will have to pass a specific order with regard to the fate of the investigation already conducted and the report so filed before the Court of the learned Magistrate.

Initial investigation is the one which the empowered police officer shall conduct in furtherance to registration of an FIR. Such investigation itself can lead to filing of a final report under S. 173(2) of the Code and shall take within its ambit the investigation which the empowered officer shall conduct in furtherance of an order for investigation passed by the Court of competent jurisdiction in terms of Section 156(3), of the Code. ‘Further investigation’ is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8). This power is vested with the Executive. It is the continuation of a previous investigation and, therefore, is understood and described as a ‘further investigation’. Scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the court even if they are discovered at a subsequent stage to the primary investigation. Further investigation does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind or continuation of the previous investigation. In the case of a ‘fresh investigation’, ‘reinvestigation’ or ‘ de novo investigation’ there has to be a definite order of the Court, the order of the Court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the investigating agency nor the Magistrate has any power to order or conduct ‘fresh investigation’. This is primarily for the reason that it would be opposed to the scheme of the Code. It is essential that even an order of ‘fresh,/ De novo’ investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul paly, the Courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary even by another independent investigating agency. This is a power of wide plenitude and, therefore, has to be exercised sparingly. The principle of rarest of rate cases would squarely apply to such cases. Unless the unfairness of the investigation is such that it pricks the judicial conscience of the Court, the Court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a ‘fresh investigation’. (Vinay Tyagi v. Irshad Ali alias Deepak and Ors.; 2013 Cr.LJ 754)

This Criminal Misc. Writ petition has been filed by the petitioner prayed to quash the orders of trial court & revisionist court rejecting the application for addition of an offence in Case Crime No. 1203 of 2011 during investigation by Concerned P.S.

Code of Criminal Procedure does not provide for any provision, under which complainant has any right to file such an application during the course of investigation. It would also be highly against the judicial prudence to allow such application as it will hamper the investigation as every informant will file such applications at different stages of investigation, which in turn will increase unnecessary pendency in both i.e. investigating agency and the courts. Even if, in far stretch of imagination, if it is allowed, then it would amount to directing the investigating agency to investigate a particular offence. If that be the case, then the police officer will have to confine himself to that particular offence as a result of which, if he finds evidence regarding some other offence committed by the accused in the same transaction or different transaction, the investigating authority cannot take into consideration these evidence related to other offence and this will be an obstacle to move further in the investigation and to consider other connecting link, which may involve other offences also.

Under section 156(3) of Cr. P.C., the Magistrate can give the order for fair and effective investigation as it comes under his ancillary and incidental powers to make his orders effective, however, as can be gathered from the above decision, Magistrate cannot give direction in reference to the particular definition of the offence i.e. particular section in the Indian Penal Code or in any special law, as incidental and ancillary powers.

Further Magistrate can give order of limited investigation in case of investigation ordered under section 202 of Cr. P.C. i.e. the cases of complaint by Magistrate to remove his doubts whether to issue process or not. Except few such examples, the Magistrate cannot give direction or interfere with the investigation conducted by the investigating agency. Petition dismissed. (Bhurey Vs. Raish Ahmad & Others; 2013 (1) AWC 2.2 (NOC)

S. 167 - Order of remand - Is judicial order - Passed in exercise of judicial function - Order not to be passed mechanically

The act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand. The purpose of remand as postulated under Section 167 is that investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner. (Manubhai Ratilal Patel Tr. Ushaben v. State of Gujarat and Ors; AIR 2013 SC 313)

Ss. 167(2), 173 (8) - Statutory bail - Entitlement - Petitioner arrested pursuant to FIR recorded by local police - Investigation conducted and charge-sheet filed by local police in stipulated time - Investigation so conducted not accepted by Supreme Court and fresh investigation by CBI ordered - CBI recorded fresh FIR - Claim for default bail made by petitioner on ground that with rejection of first investigation charge- sheet filed by local police also stood quashed - Not tenable - Mere undertaking of further investigation does not mean that charge-sheet already filed gets abandoned - Fact that CBI recorded fresh FIR does not make investigation done by CBI any the less fresh investigation

One of the most significant features of this case is that the prayer for default bail was made on behalf of the Petitioner in F.I.R.No.115 of 2006, lodged by the local police with the Ambaji Police Station, though the submissions in respect thereof were made in connection with the subsequent F.I.R. lodged by the C.B.I. It is obvious that the Petitioner was fully aware of the situation while making the application for grant of bail, knowing that he was under arrest in connection with the first F.I.R. and not under the second F.I.R. lodged by the C.B.I. since the prayer for default bail was made in connection with F.I.R.No.115 of 2006, in which charge-sheet had been filed within the stipulated period of 90 days, the argument with regard to the default bail was not available to the Petitioner. The other submission was that since a fresh investigation was directed to be conducted by this Court, the earlier charge-sheet must be deemed to have been quashed, has to be rejected also on the same ground.

Therefore, the submission of learned senior Advocate appearing for the petitioner, that the directions given by this Court earlier in Writ Petition (Criminal) No.115 of 2007 would necessarily mean that the charge-sheet submitted by the police stood implicitly rejected is without any basis in law and misconceived. Even the fact that the CBI purported to have registered a "fresh FIR", does not lead to conclusion in law that the earlier report or the material collected by the Gujarat Police (CID) on the basis of which they filed the charge-sheet ceased to exist. It only demonstrates the administrative practice of the CBI.

In court’s view, notwithstanding the practice of the CBI to register a "fresh FIR", the investigation undertaken by the CBI is in the nature of further investigation under Section 173 (8) of the CrPC pursuant to the direction of this Court. (Vipul Shital Prasad Agarwal v. State of Gujarat and Anr.; AIR 2013 SC73)

Ss. 190 and 482—Scope of interference under Sec. 482

In the year 2006, a First Information Report was filed against Virendra Singh Mahar, Smt. Sarita Pundir and Shanti Swaroop Mahar, who was then the Manager of the College. In that, it has been alleged that, in law, a relative of a member of the Managing Committee of the College could not be appointed and appointment of Smt. Sarita Pundir, D/o Virendra Singh Mahar, Principal of the College and a member of the Managing Committee, having been made, the same was made with an object of committing such crimes, which are punishable under various provisions of the Indian Penal Code, including section 420 of the Indian Penal Code. That First Information Report has led to investigation, which in turn, has resulted in filing of a charge-sheet, cognizance whereon has been taken and, aggrieved thereby, the present Application under section 482 of the Code of Criminal Procedure has been filed.

In the circumstances, I find no scope of interference under section 482 of the Code of Criminal Procedure to interfere with the First Information Report or investigation or the charge-sheet. Inasmuch as the charge-sheet disclosed commission of an offence, it was obligatory on the part of the Magistrate to take cognizance thereon. Accordingly, the Application fails and the same is dismissed. (Shanti Swaroop Mahar vs. State of Uttarakhand; 2013(80) ACC 825)

S.190 (1)(b)—Powers of Magistrate

In the case of Pakhando and others vs. State of U.P. and others, 2001 (43) ACC 1096, it is mentioned that Magistrate can issue the process under section 190(1)(b), Cr.P.C. without being bound by the conclusions of the investigating agency if he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed. Magistrate is not bound to follow the procedure of complaint case.

From the above judgments, it is apparent that Magistrate is not bound by the conclusion of the Investigating Agency. Investigating Officer submitted closure report. On the basis of material collected during investigating, he can summon the accused persons straightway under section 190(1)(b), Cr.P.C. For this he can rely on no other material except the material collected by the Police.

Cognizance under section 190(1)(b), Cr.P.C. cannot be taken on the basis of the extraneous material like affidavits files in support of the protest petition.

In these circumstances, it cannot be said that Magistrate has considered any extraneous material before proceeding under section 190(1)(b) of Cr.P.C. (Janki Verma vs. State of U.P.; 2013 (80) ACC 233 (All)

S. 204 - Issuance of process - Consideration of

The basis and parameters of issuing process have been provided for in Section 204 of the Code of Criminal Procedure. Section 204 aforementioned is extracted hereunder:

“204. Issue of process –

(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be –

(a) a summons-case, he shall issue his summons for the attendance of the accused, or

(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate of (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.

(4)When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

(5) Nothing in this section shall be deemed to affect the provisions of section 87.

The criterion which needs to be kept in mind by a Magistrate issuing process, have been repeatedly delineated by this Court. The Court shall therefore, first examine the declared position of law on the subject. Reference in this behalf may be made to the decision rendered by this Court in Cahndra Deo vs. Prokash Chandra Bose alias Chabi Bose and Anr.; AIR 1963 SC 1430, wherein it was observed as under :

“(8) Coming to the second ground, we have no hesitation is holding that the test propounded by the learned single judge of the High Court is wholly wrong. For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is “sufficient ground for proceeding” and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. A number of decisions were cited at the bar in which the question of the scope of the enquiry under Section 202 has been considered. Amongst those decisions are: Parmanand Brahmachari v. Emperor, AIR 1930 Pat 20; Radha Kishun Sao v. S.K. Misra, AIR 1949 Pat 36; Ramkisto Sahu v. State of Bihar, AIR 1952 Pat 125; Emperor v. J.A. Finan, AIR 1931 Bom 524 and Baidya Nath Singh v. Muspratt, ILR 14 Cal 141. In all these cases, it has been held that the object of the provisions of Section 202 is to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant’s evidence on oath. The courts have also pointed out in these cases that what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction. The learned Judges in some of these cases have been at pains to observe that an enquiry under Section 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial. No doubt, as stated in sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant.” (emphasis is mine) The same issue was examined by this Court in M/s. India Carat Pvt. Ltd. vs. State of Karnataka and Anr., (1989) 2 SCC 132, wherein this Court held as under:

“(16) The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.

(17) The fact that in this case the investigation had not originated from a complaint preferred to the Magistrate but had been made pursuant to a report given to the police would not alter the situation in any manner. Even if the appellant had preferred a compliant before the learned Magistrate and the Magistrate had ordered investigation under Section 156(3), the police would have had to submit a report under Section 173(2). It has been held in Tula Ram v. Kishore Singh; (1977) 4 SCC 459, that if the police, after making an investigation, send a report that no case was made out against the accused, the Magistrate could ignore the conclusion drawn by the police and take cognizance of a case under Section 190(1)(b) and issue process or in the alternative he can take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he is of opinion that the case should be proceeded with.”

(emphasis is mine)

The same issue was examined by this Court in Jagdish Ram vs. State of Rajasthan and Anr.; (2004) 4 SCC 432, wherein this Court held as under:

“(10) The contention urged is that though the trial court was directed to consider the entire material on record including the final report before deciding whether the process should be issued against the appellant or not, yet the entire material was not considered. From perusal of order passed by the Magistrate it cannot be said that the entire material was not taken into consideration. The order passed by the Magistrate taking cognizance is a well written order. The order not only refers to the witnesses recorded by the Magistrate under Sections 200 and 202 of the Code but also sets out with clarity the principles required to be kept in mind at the stage of taking cognizance and reaching a prima facie view. At this stage, the Magistrate had only to decide whether sufficient ground exists or not for further proceeding in the matter. It is well settled that notwithstanding the opinion of the police, a Magistrate is empowered to take cognizance if the material on record makes out a case for the said purpose. The investigation is the exclusive domain of the police. The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. (Dy. Chief Controller of Imports & Exports v. Roshanlal Agarwal; (2003) 4 SCC 139).”

All along having made a reference to the words “there is sufficient ground to proceed” it has been held by this Court, that for the purpose of issuing process, all that the concerned Court has to determine is, whether the material placed before it “is sufficient for proceeding against the accused”. The observations recorded by this Court extracted above, further enunciate, that the term “sufficient to proceed” is different and distinct from the term “sufficient to prove and established guilt”. (Nupur Talwar vs. Central Bureau of Investigation; 2012(2) ALJ 295)

S. 239—Discharge of accused—While considering application for discharge court may examine evidence on record

A plain reading of the above would show that the Court trying the case can direct discharge only for reasons to be recorded by it and only if it considers the charge against the accused to be groundless. The ambit of section 239, Cr.P.C. and the approach to be adopted by the Court while exercising the powers vested in it under the said provision fell for consideration of this Court in Onkar Nath Mishra and others vs. State (N.C.T. of Delhi) and another; (2008) 2 SCC 561. That too was a case in which a complaint under sections 498-A and 406 read with section 34 of the I.P.C. was filed against the husband and parents-in-law of the complainant-wife. The Magistrate had in that case discharged the accused under section 239 of the Cr.P.C., holding that the charge was groundless. The complainant questioned that order before the Revisional Court which directed the Trial Court to frame charges against the accused persons. The High Court having affirmed that order, the matter was brought up to this Court. This Court partly allowed the appeal qua the parents-in-law while dismissing the same qua the husband. This Court explained the legal position and the approach to be adopted by the Court at the stage of framing of charges or directing discharge in the following words:

“11. It is trite that at the stage of framing of charge the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the Court is not expected to go deep in the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence.”

Coming then to the case at hand, the allegations made against the appellants are specific not only against the husband but also against the parents-in-law of the complainant-wife. Whether or not those allegations are true is a matter which cannot be determined at the stage of framing of charges. Any such determination can take place only at the conclusion of the trial. This may at times put an innocent party, falsely accused of commission of an offence to avoidable harassment but so long as the legal requirement and the settled principles do not permit a discharge the Court would find it difficult to do much, conceding that legal process at times is abused by unscrupulous litigants especially in matrimonial cases where the tendency has been to involve as many members of the family of the opposite party as possible. While such tendency needs to be curbed, the Court will not be able to speculate whether the allegations made against the accused are true or false at the preliminary stage to be able to direct a discharge. Two of the appellants in this case happen to be parents-in-law of the complainant who are senior citizens. Appellant No. 1 who happens to be the father-in-law of the complainant-wife has been a Major General, by all means, a respectable position in the Army. But the nature of the allegations made against the couple and those against the husband, appear to be much too specific to be ignored at least at the stage of framing of charges. The Courts below, therefore, did not commit any mistake in refusing a discharge. (Sheoraj Singh Ahlawat vs. State of U.P.; 2013 (80) ACC 988 (SC) = AIR 2013 SC 52)

Ss. 300 & 403 - Principle of Issue estoppel is different from principle of double jeopardy

The principle of issue estoppels is also known as ‘cause of action estoppel’ and the same is different from the principle of double jeopardy or; autre fois acquit, as embodied in Section 403, Cr.PC. This principle applies where an issue of fact has been tried by a competent court on a former occasion, and a finding has been reached in favour of an accused. Such a finding would then constitute an estoppl, or re judiciata against the prosecution but could not operate as a bar to the trial and conviction of the accused, for a different or distinct offence. It would only preclude the reception of evidence that will disturb that finding of fact already recorded when the accused is tried subsequently, even for a different offence, which might be a permitted by Section 403 (2), Cr.PC thus, the rule of issue estoppel prevents re-litigation of an issue which has been determined in a criminal trial between the parties. (Ravinder Singh v. Sukhbir Singh and Ors.; 2013 Cr. LJ 1123)

S. 319 - Issuance of process - Hearing to accused at such stage - Not contemplated

Even in the cases where report under Section 173(2) of the Code is filed in the Curt and investigation records the name of a person in column (2), or even does not name the person as an accused at all, the Court in exercise of its powers vested under s. 319 can summon the person as an accused and even at that stage of summoning, no hearing is contemplated under the law. (Anju Chaudhary vs. State of U.P.; 2012(2) ALJ 232)

S. 321—Withdrawal of prosecution case—Consideration for—It is not the right of State Govt. or Public Prosecutor to withdraw any case without consent of the court concerned

It is settled position of law that it is not the right of State Government or Public Prosecutor to withdraw any case without consent of the Court concerned. Satisfaction of Court cannot be ignored. Letter of Government of U.P. does not mention any such ground upon which State Government was satisfied to withdraw the prosecution. Power of State Government or Public Prosecutor to withdraw prosecution is not unfettered power. Permission for withdrawal of prosecution cannot be granted mechanically or simply because State desires so. Withdrawal must be for proper administration of justice. Prosecution witnesses and defence witnesses as well as Court witnesses have been examined. Case was absolutely at final stage of hearing the arguments. It cannot be said that prosecution will not be able to adduce reliable evidence and no such ground disclosed before Court below. So Court below has considered all aspects of matter and has refused the consent. So, impugned order does not suffer from any error of law. (Smt. Noor Jahan vs. State of U.P.; 2013 (80) ACC 756 (All)

S. 389(1)—Prevention of Corruption Act, 1988, S. 13(2) r/w Sec. 13(1)(e)—Suspension of conviction—Power to be exercised with great circumspection and caution and record reason in writing for granting such relief

In Navjot Singh Sidhu vs. State of Punjab and another; 2007 (58) ACC 60 (SC), this Court held that the Appellate Court can suspend “an order appealed against”, i.e., an order of conviction, only if the convict specifically establishes the consequences that may follow if the operation of the said order is not stayed. Stay of conviction must be granted only in a rare case and that too, only under special circumstances.

Thus, in view of the aforesaid discussion, a clear picture emerges to the effect that, the Appellate Court in an exceptional case, may put the conviction in abeyance alongwith the sentence, but such power must be exercised with great circumspection and caution, for the purpose of which, the applicant must satisfy the Court as regards the evil that is likely to befall him, if the said conviction is not suspended. The Court has to consider all the facts as are pleaded by the applicant, in a judicious manner and examined whether the facts and circumstances involved in the case are such, that they warrant such a course of action by it. The Court additionally, must record in writing, its reasons for granting such relief. Relief of staying the order of conviction cannot be granted only on the ground that an employee may lose his job, if the same is not done.

The aforesaid order is therefore, certainly not sustainable in law if examined in light of the aforementioned judgments of this Court. Corruption is not only a punishable offence but also undermines human rights, indirectly violating them, and systematic corruption, is a human rights’ violation in itself, as it leads to systematic economic crimes. Thus, in the aforesaid backdrop, the High Court should not have passed the said order of suspension of sentence in a case involving corruption. (State of Maharashtra through C.B.I. Anti Corruption Branch, Mumbai vs. Balkrishna Dattatrya; 2013(80) ACC 217 (SC)

S. 432 – Remission – Exercise of powers u/s. 432(1) cannot be suo motu – A convict does not have indefeasible right to release on completion of either 14 years or 20 years imprisonment

In order to check all arbitrary remissions, the Code itself provides several conditions. Sub-sections (2) to (5) of Section 432 of the Code lay down basic procedure for making an application to the appropriate Government for suspension or remission of sentence either by the convict or someone on his behalf. Court are of the view that exercise of power by the appropriate Government under sub-section (1) of Section 432 of the Code cannot be suo motu for the simple reason that this is only an enabling provision and the same would be possible subject to fulfilment of certain conditions. Those conditions are mentioned either in the Jail Manual or in statutory rules. This Court in various decisions has held that the power of remission cannot be exercised arbitrarily. In other words, the decision to grant remission has to be well informed, reasonable and fair to all concerned. The statutory procedure laid down in Section 432 of the Code itself provides this check on the possible misuse of power by the appropriate Government. As rightly observed by this Court in Sangeet and Am. vs. State of Haryana, 2012 (11) Scale 140, there is misconception that a prisoner serving life sentence has an indefeasible right to release on completion of either 14 years or 20 years imprisonment. A convict undergoing life imprisonment is expected to remain in custody till the end of his life, subject to any remission granted by the appropriate Government under Section 432 of the Code which in turn is subject to the procedural checks mentioned in the said provision and further substantive a check in Section 433-A of the Code. (Mohinder Singh v. State of Punjab; 2013(1) Supreme 452)

S. 397 – Revision - Against order issuing process - Role of Revisional Court

Revisional Court cannot go into question whether reasons given by Magistrate were good or bad, sufficient or insufficient. It can only see whether there was material before Magistrate to take a view that there was sufficient ground for issuing process. (Napur Talwar vs. Central Bureauof Investigation; 2012(2) ALJ 295)

S. 397 (2) - Maintainability of revision petition Revision, not maintainable against interlocutory order

The provisions of section 397 (2) of the Code of Criminal Procedure prohibits the maintenance of revisional jurisdiction of Court against an interlocutory order. In both the two cases, i.e. Adalat Prasad and Subramanium Sethuraman referred to above, it was not specifically laid down that the order of summoning the accused persons to face trial is an interlocutory order, or that against such order the revision is not maintainable.

This issue was again decided by the Apex Court in the case of Dhariwal Tobacco Products vs. State of Gujarat, 2009 (2) SCC page 370. By this pronouncement, it was held by Hon'ble the Apex Court that,

“Indisputably issuance of summons is not an interlocutory order within the meaning of Section 397 of the Code. The order of summoning the accused is not an interlocutory order”.

Thus the controversy has been set at rest with the decision of Dhariwal Tobacco referred to above and it is now abundantly clear that an order summoning the accused to face the trial passed under section 204 Cr.P.C., is not an interlocutory order and against such order the revision is maintainable. Thus the initial objection put forth on behalf of the respondents does not gather any force and is liable to be discarded while holding that against the impugned order the revision is maintainable. (Rameshwar Singh vs. State of U.P.; 2013(2) ALJ 17)

S. 401—Revision—Whether complainant/informant of F.I.R. should be heard in revision—Held, “Yes”

In Babloo Pasi’s case Babloo Pasi was the appellant of the case and the accused was respondent No. 2. In para 11 of the said judgment the Apex Court has said that in its opinion having regard to the nature of controversy before the High Court and the scheme of the relevant statutory provisions whereunder the High Court was exercising its jurisdiction, the ‘fairness in action’ did demand that the complainant (appellant of the said case) should have been given an opportunity of hearing in the revision preferred by the accused (respondent No. 2 of the said case). It is true that the Apex Court has further said in the following lines that the appellant of the said case was impleaded as party respondent, but this by itself does not mean that if he did not appear before the Trial Court he should not be heard by the High Court when the revision was argued before it. From bare perusal of Para 11 of Babloo Pasi’s case it is evident that complaint of such type of cases should be heard in revision under Section 53 of the Act.

On the basis of the above discussions the Court is of the view that in such type of cases the complainant of the FIR is definitely an aggrieved person and must be given an opportunity of hearing before passing an order in such type of revisions.

Accordingly, the revisionist is directed to implead the complainant of the FIR of the case as respondent No. 2 in this revision. (Nihal vs. State of U.P.; 2012 (80) ACC 867 (All)

Non-examination of I.O.—Effect of—It does not in any way create any dent in prosecution case and would not be fatal to prosecution case

All the eye-witnesses have stated that Parmeshwari was on the road when the accused persons assaulted him with their respective arms. PW-1 has in cross-examination that the blood oozed from the injuries of his father had fallen on the road. According to PW-2, the deceased was on the road when shots were fired on him. He has categorically stated in cross-examination that the dead body of the deceased was on the road and it is incorrect to state that it was kept on the road by taking out from the pond. Similar is the statement PW-3. He has admitted that there is a pond near the place of incident in an area of about 1½bigha and has denied that the dead body of the deceased had been found in the pond. It appears that the investigating officer has deliberately created a controversy in this regard. Although in the site plan he has shown the place of assault on the road by point ‘A;, but has further noted a point by letter ‘B’ just six steps on its eastern side in the pond stating that the body of the deceased was kept by the villagers by taking out from the pond. We have also perused the statements of eye-witnesses recorded by the investigating officer under section 161, Cr.P.C. Neither the complainant nor any other eye-witness has stated that the dead body of the deceased was taken out from the pond and kept at point ‘A’. The investigating officer has not been examined by the prosecution, but it would not make any difference, because of inconsistent statements of eye-witnesses with regard the place of incident and manner of assault. It is always desirable for prosecution to examine I.O. However, non-examination of I.O. does not in any way create any dent in the prosecution case much-less affect the credibility of otherwise trustworthy testimony of eye-witnesses. If the presence of the eye-witnesses on the spot is proved and the guilt of the accused is also proved by their trustworthy testimony, non-examination of I.O. would not be fatal to the case of prosecution [vide Raj Kishore Jha vs. State of Bihar, 2003 (47) ACC 1068(SC)] Thus, we find that the prosecution has successfully proved the place of the incident as also the manner of assault. (Rameshwar vs. State of U.P.; 2013 (80) ACC 885 (All)

Medical evidence—Credibility of—Testimony of eye-witness would prevail over medical evidence in case of slight variation

The medical evidence should be of such character that it totally rules out the deposition of ocular witnesses. If there is slight variation in the testimony of eye-witnesses and medical evidence, the former would prevail. If the direct testimony of eye-witnesses is reliable, the same cannot be rejected on hypothetical medical evidence. Opinion given by a medical witness (doctor) need not be the last word on the subject. It is of only advisory character. Such an opinion shall be tested by the Court. If the opinion is bereft of logic or objectivity, the Court is not obliged to go by that opinion. If one doctor forms one opinion and another doctor forms a different opinion on the same fact, it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with the probability, the Court has no liability to go by the opinion merely because it is said by the doctor. Of course, due weight must be given to the opinions given by persons who are experts in the particular subject. (Rameshwar vs. State of U.P.; 2013 (80) ACC 885 (All)

S. 439—Cancellation of bail—Cancellation of bail would be justified where orders granting bail suffers from serious infirmities, important factors to be considered

Thus, section 439 of the Code confers very wide powers on the High Court and the Court of Sessions regarding bail. But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other Courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the ofence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the Court. The Court has to only opine as to whether there is prima facie case against the accused. The Court must not undertake meticulous examination of the evidence and premature comments are likely to deprive the accused of a fair trial. While cancelling bail under section 439 (2) of the Code, the primary considerations which weigh with the Court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the Court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the Court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this Court are much wider, this Court is equally guided by the above principles in the matter of grant or cancellation of bail. (Kanwar Singh vs. State of Rajasthan; 2013(80) ACC 153 (SC)

S. 439—Grant of bail—Relevant consideration

An FIR was lodged against two persons alleging that they had fired at the deceased, an RTI activist, from their revolver which resulted in his death. The occurrence allegedly took place at about 8.30 p.m. on a public road near the State Bar Council office. A police constable informed his superior inspector on his mobile phone about the incident. In the course of investigation, the appellant was arrested along with others for criminal conspiracy to commit murder. The investigating agency places the charge-sheet before the competent court. The material on record showed that the appellant, a dealer in mobile phones, had handed over the mobile phones to his friend who was a police constable and that a call had been traced from the mobile of the contract killer to the appellant. During the pendency of investigation, an application was filed before the Sessions Judge for grant of bail but the same was rejected. Thereafter, the appellant preferred a bail application under Section 439 CrPC before the High Court urging that the appellant for no justifiable reasons, had remained in custody for long and the charge-sheet had been filed under Sections 302, 201 and 120-B IPC solely on the basis of statement of a peon serving in the office of the appellant and that there was no material to rope him in the crime. The application for bail was resisted by the prosecution on the ground that the deceased had found the appellant to be involved in a number of illegal activities and the deceased had exposed the appellant in a number of ways as a consequence of which he had hatched the conspiracy with Accused 1 which ultimately resulted in hiring of Accused 2 as a contract killer to eliminate the deceased. The Single Judge of the High Court held that the conspiracy between Accused 4, the appellant and Accused 1 was obvious from the number of visits of Accused 1 to the office of Accused 4; that there was conversation between Accused 4, and the sharpshooter, a person who had absconded and that itself prima facie showed the involvement of the appellant-accused. The High Court taking note of all the aspects including the gravity of the offence declined to grant bail to the appellant. A Division Bench of the High Court in Bhikhalal Jatheva vs. State of Gujarat by its order dated 25.9.2012 expresses its dissatisfaction with regard to the investigation which it called as perfunctory. After ascertaining reasons it directed CBI to expeditiously undertake a comprehensive investigation.

It is true that liberty is a greatly cherished value in the life of an individual, and no one would like to barter it for all the tea in China, but it is obligatory on the part of the court to scan and scrutinise, though briefly, as regards the prima facie case, the seriousness and gravity of the crime and the potentiality of the accused to tamper with the evidence apart from other aspects before the restriction on liberty is lifted on imposition of certain conditions. (Pratapbhai Hamirbhai Solanki vs. State of Gujarat; (2013) 1 SCC (Cri) 579)

Ss. 439 and 437—Grant of Bail in non-bailable cases—Duty to give reasons therefore—Reiterated

The Court have gone through the impugned judgment and order dated 21.7.2011, and perused the record of the case. The learned counsel for the appellant has contended that without assigning any reason the High Court has passed the order granting bail to the respondents.

After considering the facts and circumstances of the case, Court are not satisfied with the manner in which the bail application has been disposed of by the High Court as no reason whatsoever has been assigned for grant of bail. In view of the above, the impugned order dated 21.7.2011 is set aside and we request the High Court to decide the bail application afresh within a period of six weeks from today. The respondents shall remain protected in the meantime. (State of A.P. vs. Awad Bin Younus Yafai; (2013) 1 SCC (Cri) 506)

S. 439—Grant of bail—Relevant consideration—Nature of accusation, the nature of evidence in support their of the severity of the punishment which conviction entail the character, behavior, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or the state and similar other considerations

The Court in State v. Capt. Jagjit Singh; AIR 1962 SC 253 and Gurcharan Singh v. State (Delhi Admn.; 1978 SCC (Cri) 41 has held that the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case are to be considered. The said principles have been reiterated in Jayendra Saraswathi Swamigal v. State of TN; 2005 SCC (Cri) 481.

In Prahlad Singh Bhati v. NCT, Delhi, the Court has culled out the principles to be kept in mind while granting or refusing bail. In that context, the two-Judge Bench has stated that: (SCC pp. 284-85, para 8)

"8. ... While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or the State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words 'reasonable grounds for believing' instead of 'the evidence' which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."

In State of UP. v. Amarmani Tripathi; 2005 SCC (Cri) 1960 (2), while emphasising on the relevant factors which are to be taken into consideration, this Court has expressed thus: (SCC p. 31,para 18)

"18 .... While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused."

In the said case, the Bench has also observed as follows: (Amarmani Tripathi case, SCC p. 32, para 21)

"21. Therefore, the general rule that this Court will not ordinarily interfere in matters relating to bail, is subject to exceptions where there are special circumstances and when the basic requirements for grant of bail are completely ignored by the High Court."

Recently, in Ash Mohammad v. Shiv Raj Singh, (2012) 3 SCC (Cri) 1172, this Court while dealing with individual liberty and cry of the society for justice has opined as under: (SCC p. 454, para 18)

"18. It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilised milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organised society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquillity and safety which every well-meaning person desires.”

Court are absolutely conscious that liberty is a greatly cherished value in the life of an individual, and no one would like to barter it for all the tea in China, but it is obligatory on the part of the court to scan and scrutinise, though briefly, as regards the prima facie case, the seriousness and gravity of the crime and the potentiality of the accused to tamper with the evidence apart from other aspects before the restriction on liberty is lifted on imposition of certain conditions. (Pratapbhai Hamirbhai Solanki vs. State of Gujarat; (2013) 1 SCC (Cri) 579)

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Criminal Trial

Act of absconding on part of accused—Effect of—Not necessarily to lead to a final conclusion regarding guilt of accused

The Court has considered this issue time and again and held that the mere act of absconding, on the part of the accused, alone does not necessarily lead to a final conclusion regarding the guilt of the accused, as even an innocent person may become panic stricken and try to evade arrest, when suspected wrongly of committing a grave crime; such is the instinct of self preservation. (Sunil Clifford Daniel vs. State of Punjab; 2013 (80) ACC 199 (SC)

Life imprisonment – Cannot be equivalent to imprisonment for 14 years or 20 years or even 30 years

Life imprisonment cannot be equivalent to imprisonment for 14 years or 20 years or even 30 years, rather it always means the whole natural life. This Court has always clarified that the punishment of a fixed term of imprisonment so awarded would be subject to any order passed in exercise of clemency powers of the President of India or the Governor of the State, as the case may be. Pardons, reprieves and remissions under Article 72 or Article 161 of the Constitution of India are granted in exercise of prerogative power. As observed in State of Uttar Pradesh vs. Sanjay Kumar; (2012) 8 SC 537, there is no scope of judicial review of such orders except on very limited grounds such as the non-application of mind while passing the order, non-consideration of relevant material, or if the order suffers from arbitrariness. The power to grant pardons and to commute sentences is coupled with a duty to exercise the same fairly, reasonably and in terms of restrictions imposed in several provisions of the Code. (Mohinder Singh vs. State of Punjab; 2013(1) Supreme 452)

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Employees' Provident Funds and Miscellaneous Provisions Act

Ss 7-A, 7-Q and 14-B - Interest and damages - Order passed by Commissioner and Tribunal - Held recoverable on account of delayed deposit of provident fund dues - Contentions raised by petitioner were not considered - The order passed by Tribunal is totally cryptic - Not speaking order - Hence, order set aside - Matter remitted back for fresh consideration - Petitioner is entitled to refund of excess amount deposited with interest

A bare perusal of the impugned orders shows that the contentions raised by the petitioner were neither considered by the Commissioner nor the Tribunal. The order passed by the Tribunal, which is the last fact finding authority, is totally cryptic.

If the order passed by the Tribunal is examined on the principles of the law laid down by Hon’ble the Supreme Court, it does not fall within the category of a speaking order, hence, deserves to be set aside on this score alone and the matter is to be remitted back to the Tribunal for fresh consideration after hearing both the parties. Ordered accordingly.

Doctrine- Of “audi alteram partem”- Has three basic essentials

The doctrine of audi alteram partem has three basic essentials. Firstly, a person against whom an order is required to be passed must be granted an opportunity of being heard. Secondly, the concerned authority should provide a fair and transparent procedure and lastly, the authority concerned must apply its mind and dispose of the matter by a reasoned or speaking order. (Bharat Sanchar Nigam Ltd. Vs. Employees’ Provident Funds Appellate Tribunal and another; (2013 (136) FLR 437) (P&H High Court).

S. 7-A, 7-Q and 14-B - Damages and interest - Imposed by EPF Authority - Review filed against it – Dismissed - Writ petition filed - However, review order is appealable - Hence, writ petition allowed but Court refrains from entering into merit of dispute-But petitioner can approach Appellate Forum

The order dated 31.5.2005 rejecting the application of review is an appealable order and there is provision of appeal under section 7(I) of the Act, 1952 where the aggrieved establishment has all the opportunity to raise the question of facts as well as of law with all supporting documents, which can be considered by the Appellate Authority in exercise of the appellate power while considering the correctness of the demand. However, this Court in exercise of power of judicial review is only required to see whether the decision making process in proper or not and not to decide correctness of the demand in the nature of an appeal. In the circumstances, this Court refrains from entering into the merit of the dispute which involves determination of question of facts involving liability of petitioner’s establishment to pay a sum of Rs. 1,09,77,455.00/- against the demand raised under the Act in exercise of power under sections 7-A, 7-Q and 14-B of the Act. (Lemos Cements Ltd., Ranchi Vs. Regional Provident Fund commissioner-II, Ranchi; (2013 (136) FLR 477) (Jharkhand High Court).

S. 11 - Companies Act, 1956 - Sections 456, 529, 529-A and 530 - Companies Court Rules, 1959 - Provincial Insolvency Act, 1920 - Section 61 -Presidency Towns Insolvency Act, 1909 - Section 49 - E.P.F. dues - Recovery of - Notices to show cause to petitioner as to why it should not be declared as deemed defaulter - For non-payment of lease rent and dues to EPF organization - Petitioner is a tenant of M/s. SBL Industries - It is apparent that EPF dues have a priority over all other debts - And for seeking payment of, a proper claim is required to be filed by organisation before the Company Court - Where the winding up proceedings of company in liquidation are pending - In the circumstances, the notice issued against the petitioner is misconceived - Cannot be sustained in law - Petitioner cannot be made liable to pay the same twice to two different authorities - Hence, impugned notices are set aside

It is apparent that the EPF dues have a priority over all other debts, but for seeking payment of the aforesaid debts a proper claim application is required to be filed by the Organization before the Company Court where the winding up operation of the company in liquidation are pending. In these circumstances, the notices dated 9^th August, 2007 issued against the petitioner, appear to be misconceived and cannot be sustained in law. The petitioner admittedly cannot be made liable to pay the same rental twice to two different authorities. (M/s. S.N.L. Bearing Ltd. Vs. Union of India and others; (2013 (136) FLR 691) (Jharkhand High Court).

Employees’ State Insurance Act, 1948 - Sections 95-B, 85-B and 82 – Damages - Imposed holding that there was delay in payment of contribution - Though it is a matter of delayed payment with interest - Therefore mens rea has to be seen - And it cannot be said that the provisions of section 85-B of Act and necessary ingredient like mens rea have been established for invoking and such discretion for levy of damages - Hence, order imposing damages is quashed

It is a matter of delayed payment with interest and therefore whether it would amount to any deliberate attempt requiring mens rea has to be seen.

It cannot be said that the provisions of section 85-B of the Act and necessary ingredient like mens rea have been established for invoking any such discretion for levy of damages. (Nitro Aromatics Vs. Reginal Director, ESI Corporation and others; (2013 (136) FLR 359) (Gujarat High Court).

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Evidence Act

Appreciation of – Income certificate given by BDO about agricultural income would be valid and acceptable

Income certificate issued by the BDO on agricultural income is a valid and accepted document in the State of Sikkim and the position is the same as regards validity while being presented to other authorities also. The BDO or the Block Development Officer in a State is a revenue authority and is competent under the State Government Rules to issue such certificates, a fact which this court takes judicial notice of.

In view of the above, objection raised on this account is clearly sustainable. (Branch Manager, Oriental Insurance co. Ltd. v. Meena Bania; 2013 ACJ 565)

S. 3 – Benefit of doubt against some person - Does not entitle others against whom where is cogent and reliable evidence

In the Court held agree that Surajit Sarkar cannot be absolved of his involvement in the death of Gour Chandra Sarkar merely because the other accused persons were either not identified by the eye-witnesses or had no role to play in the attack on Gour Chandra Sarkar. There is the cogent and reliable evidence of PW- 8 Achintya Sarkar to hold that Surajit Sarkar Attacked Gour Chandra Sarkar which ultimately resulted in his death. The contention of learned counsel for Surajit Sarkar is rejected. (Surajit Sarkar v. State of West Bengal; 2013 Cr.LJ. 1137)

Ss. 32 and 60—Doctrine of dying declaration—Meaning and exception

The doctrine of dying declaration is enshrined in the legal maxim ‘Nemo moriturus praesumitur mentire’, which means a man will not meet his maker with a lie in his mouth’. The doctrine of Dying Declaration is enshrined in section 32 of the Indian Evidence Act, 1872 (hereinafter called as, ‘Evidence Act’) as an exception to the general rule contained in section 60 of the Evidence Act, which provides that oral evidence in all cases must be direct i.e., it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases. In the incident deceased suffered burn injuries on 17.5.2003 at about 8 p.m. There is no eye-witness of the incident. She was admitted in S.R.N. Hospital, Allahabad on 18.5.2003 at 5.25 p.m. and the doctor has found that burn injuries found on her person were about one-day old. It means that in injured condition the deceased was kept at home by accused for one day. This shows their callous attitude and ill-intention. She had expired on 22.5.2003 at 7.20 a.m. in the aforesaid hospital. Her dying declaration was recorded on 20.5.2003 at 10 a.m. by PW 10. Thus, she remained alive for about five days after the incident. Although she was severely burnt but the above facts show that her condition was not overtly critical or precarious when her dying declaration was recorded by PW 10. In this connection we may usefully refer to the case of Munnawar and others vs. State of Uttar Pradesh and others, 2010 (70) ACC 853 (SC), wherein the Apex Court held as under:

“that a dying declaration can be relied upon if the deceased remained alive for a long period of time after the incident and died after recording of the dying declaration. That may be evidence to show that his condition was not overtly critical or precarious when the dying declaration was recorded.”

The dying declaration was recorded by Dy. Collector D.P. Singh PW 10, who has no animus with the accused or affinity with the deceased or the complainant’s family. (Km. Anita vs. State of U.P.; 2013 (80) ACC 46 (All)

S. 32(1)—Dying Declaration—Consideration for its admissibility

It is clear that the statement made by the deceased by way of a declaration is admissible in evidence under section 32(1) of the Evidence Act. It is not in dispute that her statement relates to the cause of her death. In that event, it qualifies the criteria mentioned in section 32 (1) of the Evidence Act. There is no particular form or procedure prescribed for recording a dying declaration nor it is required to be recorded only by a Magistrate. As a general rule, it is advisable to get the evidence of the declarant certified from a doctor. In appropriate cases, the satisfaction of the person recording the statement regarding the state of mind of the deceased would also be sufficient to hold that the deceased was in a position to make a statement. It is settled law that if the prosecution solely depends on the dying declaration, the normal rule is that the Courts must exercise due care and caution to ensure genuineness of the dying declaration, keeping in mind that the accused had no opportunity to test the veracity of the statement of the deceased by cross-examination. As rightly observed by the High Court, the law does not insist upon the corroboration of dying declaration before it can be accepted. The insistence of corroboration to a dying declaration is only a rule of prudence. When the Court is satisfied that the dying declarationis voluntary, not tainted by tutoring or animosity, and is not a product of the imagination of the declarant, in the event, there is no impediment in convicting the accused on the basis of such dying declaration. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assess independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variation in the other. (Ashabai vs. State of Maharashtra; 2013 (80) ACC 923 (SC)

S. 45—Opinion of Expert—Validity of—Expert opinion is only an opinion evidence on either side but did not aid in interpretation

In Forest Range Officer & others vs. P. Mohammed Ali and others; AIR 1994 SC 120, it was observed:

“The expert opinion is only an opinion evidence on either side and does not aid us in interpretation.”

In the context of opinion of Handwriting Expert, in Fakhruddin case, the Court held that the opinion of Handwriting Expert though is relevant in view of Section 45 of the Evidence Act, but that too is not conclusive. Reliance was placed on earlier decisions in Ram Chandra vs. State of Uttar Pradesh; AIR 1957 SC 381 (at page 388) and Ishwari Prasad Misra vs. Mohammad Isa; AIR 1963 SC 1728 where it was observed that expert evidence as to handwriting is an opinion evidence and it can rarely, if ever, take the place of substantive evidence. It cannot be conclusive because it is after all opinion evidence. In para 11 of the judgment in Fakhruddin (supra), the Apex Court further observed, where an expert’s opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witnesses. This has been relied upon in present case. (Abdul Rahman vs. District Judge, Mahoba; 2013 (1) ARC 111)

S. 68 - Execution of gift deed - Proof of

The plaintiff was the brother of Mohan. Mohan neither had a son nor a daughter and that during his life time his wife Smt. Tirthi has died. It was alleged that the defendant got a gift-deed executed through an imposter of Mohan, which was liable to be cancelled on the grounds: that Mohan did not at all execute the gift-deed; that the statement in the gift-deed that the defendant was daughter of Mohan was incorrect; that the gift deed was executed without a mental act of the donor; that there was no valid acceptance of the of the gift; that the defendant did not enter into possession of the property; and that even if the defendant is found to be daughter of Mohan, she does not have any such relationship as she herself is married and mother of many children.

The defendant contested the suit by denying the plaint allegations and claiming that she was the only daughter of Mohan and that Mohan had no son or other issue. It was claimed that the gift was voluntarily executed by Mohan, which was duly attested by the witnesses and registered in accordance with law of registration; and that the gift was duly accepted by her and that her name was duly recorded in the revenue records pursuant to the gift-deed. It was also claimed that the suit was barred by limitation as also by principles of estoppels and acquiescence.

As regards the second contention, that is with regards to the reliability of Paper No. 44 Ga, the Trial Court has considered the reliability of the document and came to a conclusion that the said death certificate was obtained in the year 2005 and the entry therein, with respect to the date of death of Mohan, was made with reference to the Parivar Register, but the Parivar Register did not disclose the date of death of Mohan as 25.5.1991. Accordingly, the correctness of the entry with regard to the date of death of Mohan, in Paper No. 44-Ga, was disbelieved. The Trial Court also took notice of the fact that the gift-deed has the photograph of Mohan pasted on it, which was not disputed by any of the witnesses including the plaintiff. Accordingly, the Trial court disbelieved the evidence led by the plaintiff of the effect that Mohan had died on 25.05.1991. The finding of the trial court was affirmed by the lower appellate court. Even otherwise, from the averments made in the plaint, which has been brought on records as an annexure on the affidavit in support of the stay application, court did not find that there is any averment to the effect that Mohan had died on 25.05.1991 or that he was not alive on the date of execution on the gift-deed. For this reason also, the second contention of the learned counsel for the appellant cannot be accepted.

Even if it is assumed that the defendant was minor on the date of execution of the gift deed, the gift would not be invalidated for lack of acceptance by another guardian or next friend, as acceptance can be implied by the conduct of the donee. In the case of K Balakrishnan V.K. Kamalam; (2004) 1 SCC 581 : 2004 SCFBRC 129, the apex court after noticed number of authorities, in paragraph 30 of its judgment, held as under;

“As seen above, the case of minor done receiving a gift from her parents, no express acceptance can be expected and is possible, and acceptance can be implied even by mere silence or such conduct of the minor donee and his other natural guardian as not to indicate any disapproval or repudiation of it.”

In the instant case, the counsel for the appellant has not been able to point out any material to show that the gift was repudiated by the donee or her natural guardian, or that she disapproved of it. (Chaudhary Ramesar vs. Smt. Prabhawati Phool Chand; 2013(1) 263)

S. 103 – Burden of proof and Onus of proof – There is a distinction – Burden of proving fraud, undue influence or misrepresentation lied on the person making it – While burden of proof never shifts, onus of proof shifts

In Krishna Mohan Kul v. Pratima Maity and others, [(2004) 9 SCC 468], it has been ruled thus: -

“When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation.”

The said aspect can be looked from another angle. Rules 3, 4 and 5 of Order 8 form an integral code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non-compliance. It is obligatory on the part of the defendant to specifically deal with each allegation in the plaint and when the defendant denies any such fact, he must not do so evasively but answer the point of substance. It is clearly postulated therein that it shall not be sufficient for a defendant to deny generally the grounds alleged by the plaintiffs but he must be specific with each allegation of fact (see Badat and Co., Bombay vs. East India Trading Co.; AIR 1964 SC 538). (Gian Chand & Brothers and another vs. Rattan Lal @ Rattan Singh; 2013(1) Supreme 322)

S. 114 - Court may presume existence of certain facts - Object and scope of

Relevant provision is Section 114, Illustration (e) and (f), Indian Evidence Act, 1872 which reads as under:

“114 Court may presume existence of certain facts. – The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustrations

The Court may presume-

…

(e) The judicial and official acts have been regularly performed;

(f) That the common course of business has been followed in particular cases.”

In Sukumar Guha Vs. Naresh Chandra Ghosh; AIR 1968 Cal. 49, a Single Judge referred to Section 114, Illustration (f) of Act, 1872, Section 106 of Act, 1882 and Section 27 of Act, 1897 said that presumption under Section 27 of Act, 1897 can arise only when a notice is sent by registered post while there may arise a presumption under Section 114 of Act, 1872 when notice is sent by ordinary post or under certificate of posting. Both the presumptions are rebuttable. When the cover containing notice has been returned to the sender by postal authorities, then that fact is direct proof of the fact that the notice sent by post was not delivered to the party to whom it was addressed. Whether it was tendered and, if so, to whom tendered, remains a matter to be ascertained on evidence. If acceptable evidence is available that it was tendered to the party personally, then such facts may bring the service of notice within the second mode, namely, tendered or delivered personally to such party. If however, tender or delivery is not to the party personally but to a member of his family or a servant, then it may be effective tender or delivery only when the notice was addressed to the residence of the party. Such personal tender or vicarious tender may be effective even if it was through the agency of post office, and proof of that tender comes from testimony of any person present at the event, and not only by examining the postman. Here what court found that when the Court talks of evidence, when court read it in the context of Section 114 of Act, 1872, a registered envelop received back from postal authority with the endorsement of postman of "refusal" will constitute a valid evidence to show that it was served upon the addressee but he refused to accept unless proved otherwise and for that purpose the examination of postman for constituting a prima facie evidence further would not be required in view of Section 14 of Act, 1898. This Section 14 of Act, 1898 has been omitted by the Court. (Santosh Kumari (Smt.) Vs. IVth ADJ Bareilly; 2013(1) ARC 308)

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General Clauses Act

S. 27 - Indian Post office Act, Section 3 and 14 - Meaning of Service by post - Explained

Section 27 of General Clauses Act, 1897 which read as under:

“27. Meaning of service by post.-Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, where the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

The Indian Post Office Act, 1898, Section 3 and 14 thereof, relevant for the purpose of present case, are reproduced as under:

“3. Meanings of "in course of transmission by post" and "delivery". - For the purposes of this Act,-

a) a postal article shall be deemed to be in course of transmission by the post from the time of its being delivered to a post office to the time of its being delivered to the addressee or of its being returned to the sender or otherwise disposed of under Chapter VII;

b) the delivery of a postal article of any description to a postman or other person authorized to receive postal articles of that description for the post shall be deemed to be a delivery to a post office; and

c) the delivery of a postal article at the house or office of the addressee, or to the addressee or his servant or agent or other person considered to be authorized to receive the article according to the usual manner of delivering postal articles to the addressee, shall be deemed to be delivery to the addressee.”

“14. Post Office marks prima facie evidence of certain facts denoted.-In every proceeding for the recovery of any postage or other sum alleged to be due under this Act in respect of a postal article,-

(a) the production of the postal article, having thereon the official mark of the Post Office denoting that the article has been refused, or that the addressee is dead or cannot be found, shall be prima facie evidence of the fact so denoted, and

(b) the person from whom the postal article purports to have come, shall, until the contrary is proved, be deemed to be the sender thereof.”

In the present case, the Revisional Court has taken a different view so as to reverse the finding of the Trial Court in respect to service of notice only on the ground that plaintiff-landlord ought to have examined postman and unless he is so examined, his endorsement of "refusal" cannot be treated to be an evidence to draw a presumption in favour of service upon the tenant when tenant simply deny service upon him. He has found that the address given on the registered letter was correct, yet only on the ground that postman having not been examined by the landlord, the Revisional Court, in holding that endorsement of "refusal" cannot be treated to be an evidence to draw presumption of service, has acted wholly illegally and the aforesaid view taken by Revisional Court, in view of exposition of law discussed hereinabove, cannot sustain. (Santosh Kumar (Smt.) vs. IVth ADJ Bareilly; 2012(1) ARC 308)

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Hindu Adoption and Maintenance Act

S. 18 – Word “wife” in section 18 of the Act - Does not include a divorcee - Divorcee not entitled to any maintenance

So far as legal position is concerned, admittedly a divorce decree was passed between the parties and an application to set aside that decree was also rejected. There is no documentary evidence produced by the plaintiff-respondent to show that the said divorce decree has been set aside or any proceeding is pending to set aside that divorce decree. Hence, for all purposes the plaintiff-respondent is a divorcee and according to section 18 of the Act the word ‘wife’ does not include a ‘divorcee wife’ and as such she is not entitled to any maintenance. The case laws fully support the contention of learned Counsel for the defendant- appellant.

So far as the merit of the appeal is concerned, the appellant has proved by documentary evidence that the plaintiff-respondent being a highly educated lady and engaged as lecturer in different colleges at different time, was receiving salary much more than the appellant.

The Bombay High Court has also held that the wife is not entitled to maintenance when it was clearly established that the income of the wife was better than the husband. It is also important to mention here that section 18 of the Act or section 25 of the Hindu Marriage Act deals with the situation where the wife is unable to maintain herself. The word ‘unable’ means that a person is not able to do what he is supposed to do. In the present matter, it is not a case that the wife is an illiterate lady or is not in a position to do any job on the contrary the wife is highly educated particularly more than the husband and is clearly in a position to earn more. This also disentitles her to get any maintenance. Therefore, in view of the legal and factual aspects of the matter, plaintiff-respondent is not entitled to any maintenance and the decree of maintenance awarded by the Trial Court is liable to be set aside and the appeal deserves to be allowed. (Vikas Pandey vs. Smt. Vandita Gautam; 2013 (118) RD 333)

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Hindu Marriage Act

Ss. 9, 13(1)(i-a) 26 and 27 – Suit filed by appellant wife for restitution of conjugal rights – Respondent husband field suit for dissolution of marriage, custody of the child and return of jewellery and other items

Family Judge jointly tried both the cases and, dismissed the application for restitution of conjugal rights preferred by wife and allowed the petition of the husband for dissolution of marriage-Appeals there against-Dismissed by Division Bench - However Division Bench apart from concurring with the grant of permanent alimony directed the respondent-husband to pay a sum of maintenance amounting to Rs.12,500/- to the appellant-wife and her son-Appeals-Instantly husband clearly deposed about the constant and consistent ill-treatment meted out to him by the wife inasmuch as she had shown her immense dislike to his “sadhna” in music and had exhibited total indifference and, in a way, contempt to the tradition of teacher and disciple-Appellant had not shown the slightest concern for the public image of her husband on many an occasion by putting him in a situation of embarrassment leading to humiliation-She had made wild allegations about the conspiracy in the family of her husband to get him re-married for the greed of dowry and there was no iota of evidence on record to substantiate the same. This, in fact, was an aspersion not only on the character of the husband but also a maladroit effort to malign the reputation of the family- Family Judge as well as High Court clearly analysed the evidence and recorded a finding that wife had treated the husband with mental cruelty-Husband had proved his case of mental cruelty which was the foundation for seeking divorce-Hence despite dislodging the finding of desertion, held that the respondent husband had rightly been granted a decree of divorce-Appeals dismissed. (U. Sree vs. U. Srinivas; 2012(8) Supreme 707)

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Indian Penal Code

Ss. 63 to 70—Sentence of fine—It should not be excessive save in exceptional cases, where substantial term of imprisonment is imposed

The term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment of fine. On the other hand, if sentence is imposed, an offender must undergo unless it is modified or varied in part or whole in the judicial proceedings. However, the imprisonment ordered in default of payment of fine stands on a different footing. When such default sentence is imposed, a person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. Accordingly, he can always avoid to undergo imprisonment in default of payment of fine by paying such an amount. In such circumstance, it is the duty of the court to keep in view the nature of offence, circumstances in which it was committed, the position of the offender and other relevant considerations such as pecuniary circumstances of the accused person as to character and magnitude of the offence before ordering the offender to suffer imprisonment in default of payment of fine. The provisions of Sections 63 to 70 IPC make it clear that an amount of fine should n be harsh or excessive. Where a substantial term of imprisonment is inflicted, an excessive fine should not be imposed except in exceptional case. (Shahejadkhan Mahebubkhan Pathan vs. State of Gujarat; (2013) 1 SCC (Cri) 558)

Ss. 120-A and 120-B r/w S. 302—Criminal conspiracy—Ingredients and proof

In Ram Narayan Popli vs. CBI, (2003) 3 SCC 641: 2003 SCC (Cri) 869, while dealing with the conspiracy the majority opinion laid down that: (SCC p. 778, para 342)

"342 .... The elements of a criminal conspiracy have been stated to be: (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt act."

It has been further opined that: (Ram Narayan Popli case, (2003) 3 SCC 641: 2003 SCC (Cri) 869 SCC p. 778, para 342)

"342 .... The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. . .. no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which coconspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design."

The two-Judge Bench proceeded to state that: (Ram Narayan Popli case, (2003) 3 SCC 641: 2003 SCC (Cri) 869, SCC p. 778, para 342)

"342 .... For an offence punishable under Section 120-B, the prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means."

In the said case it has been highlighted that in the case of conspiracy there cannot be any direct evidence. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. (Pratapbhai Hamirbhai Solanki vs. State of Gujarat; (2013) 1 SCC (Cri) 579)

S. 141 – All six accused coming together armed with dangerous weapons including fire arms – They formed an unlawful assembly

From the evidence of PW-2 Avtar Singh (son of deceased) as well as PW- 4 Ram Niwas (declared hostile) it transpires that the deceased and the party of the accused had a dispute over land and, in fact, some of the accused had made attempts to encroach upon land belonging to the deceased. All the three eyewitnesses, namely, PW-1, PW-13 and PW-19, as already noticed, had unequivocally and categorically stated in Court that the a
six accused persons had come together to the field of deceased Mukhtyar Singh armed with dangerous weapons including fire arms. If this is the manner in which the accused persons had come to the spot it cannot be said that the accused had not formed an unlawful assembly within the meaning of the said expression as appearing in Section 141 of the Indian Penal Code. While membership of an unlawful assembly itself is an offence under Section 143 IPC, use of force by members of the unlawful assembly gives rise to the offence of rioting which is punishable either under Section 147 or Section 148 IPC. Membership of the 4 accused in the unlawful assembly and use of force with dangerous weapons is borne out by the evidence on record. The said facts would make the acquitted accused liable for the offence under Section 148 of the Indian Penal Code. However, their liability under any other provision of the Indian Penal Code would depend on what can reasonably be understood to be the common object of the assembly in the present case. (Raju @ Rajendra & Anr. v. State of Rajasthan; 2013(1) Supreme 344)

Ss. 147, 148 and S. 308 read with S. 149

Prosecution of appellants for the offences under Sections 147, 148 and Section 308 read with Section 149-Conviction by Trial Court-Appeal-Dismissed by High Court-Appeal Plea of appellants that Trial Court having come to the conclusion that right of private defence was available to Appellants, ought not to have convicted and sentenced them for offences punishable under Sections 147, 148 and 308 read with Section 149 of the IPC – Trial Court, in the course of the order, had observed that the Appellants, although had right of private defence but, had exceeded the same and, hence convicted the Appellants for said offences. In the peculiar facts and circumstance of the case, while confirming the judgment passed by Trial Court and the High Court, held to be in the interest of justice to modify the sentence awarded by Trial Court by reducing the same from three years to one year and enhancing the fine amount from Rs.500/- to Rs.25000/- each for the offences punishable under Section 308 read with Section 149 of the IPC- Appeal partly allowed. (Lakhan & Ors. Vs. State of Madhya Pradesh; 2012(8) Supreme 734)

Ss. 147, 148, 302 read with S. 149

Prosecution of appellant accused persons six in number for forming an unlawful assembly with the common object of murdering deceased- Conviction by Trial Court-Appeal-Dismissed by High Court-Appeal-Held eyewitnesses narrated the incident in the sequence it occurred and corroborated each other- In their cross-examination, nothing was brought on record to indicate that said accused were not present at the scene of incident or had been falsely implicated- A concurrent reading of their evidence clearly depicted as to what transpired on the fateful day of the incident- Their statements were univocal and completed the jigsaw to bring out a neat picture of the incident- Perusal of evidence on record indicated that no other theory of commission of offence could possibly be attributed but for the one presented by prosecution and accepted by Courts below- Also, question of surmises of conjectures could not be drawn as neither the statements nor the cross-examination of eyewitnesses indicated anything but the truth of the prosecution story in respect of offence committed by A1 to A4- The evidence of eyewitnesses, was of sterling quality and thus could not be disbelieved- However on re appreciation of evidence presence of A5 and A6, at the time of the incident held to be doubtful and benefit of doubt extended to them- In the light of benefit of doubt extended to A5 and A6, conviction of A1 to A4 modified to Section 302 read with Section 34 of the IPC- Appeal partly allowed. (Jawahar Punekar & Ors. vs. State of Maharashra; 2012(8) Supreme 744)

S. 149 – Unlawful assembly - Determination of common object

Determination of the common object of an unlawful assembly or the determination of the question whether a member of the unlawful assembly knew the offence that was committed was likely to be committed is essentially a question of fact that has to be made keeping in view the nature of the assembly, the arms carried by the members and the behavior of the members at or near the scene and host of similar or connected facts and circumstances that cannot be entrapped by any attempt at an exhaustive enumeration. (Bharat Soni etc. v. State of Chhattisgarh; 2013 Cr.LJ 486)

S. 300 – Murder - Non explanation of injuries on accused - Not fatal to prosecution case

The injuries suffered by accused, though gun shot injuries, have been stated by DW-2, Dr.S.N. Mishra to be simple and superficial injuries. Occurrence of firing inside the house of accused Ram Vishambar after the main incident was over has been deposed to by the prosecution witnesses with a fair amount of clarity and consistency. Despite the above we would not venture into the reasons that had led to the aforesaid injuries on the accused inasmuch as the nature of the injuries on the accused being simple and superficial the same can be ignored on the basis of principles of law laid down by this Court which have virtually set at rest the issue raised on behalf of the accused. In this regard the observations of this Court in Para 40 of the report in Ram Pat v. State of Haryana would be significant and therefore may be usefully extracted below:

“40. It has furthermore well settled that whereas grievous injuries suffered by the accused are required to be explained by the prosecution, simple injuries need not necessarily be. Non explanation of simple injuries of the nature suffered by the accused would not be fatal. In Hari v. State of Maharashtra; 2009(4) SCALE103, this Court held:

30. On the other question, namely, non explanation of injury on the accused persons, learned Counsel for the appellant has cited a decision in Lakshmi Singh and Ors. v. State of Bihar; 1976 CriLJ 1736. In the said case, this Court while laying down the principle that the prosecution has a duty to explain the injuries on the person of an accused held that non explanation assumes considerable importance where the evidence consists of interested witnesses and the defence gives a version which competes in probability with that of the prosecution case.

31. But while laying down the aforesaid principle, learned Judges in paragraph 12 held that there are cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This would "apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries." Therefore, no general principles have been laid down that non explanation of injury on accused person shall in all cases vitiate the prosecution case. It depends on the facts and the case in hand falls within the exception mentioned in paragraph 12 in Lakshmi Singh (supra).”

In the present case, taking into account the evidence tendered by the prosecution witnesses and having regard to the nature of the injuries sustained by the accused, the Court is of the view that the absence of any explanation on the part of the prosecution with regard to the injuries suffered by the accused will not effect the core of the charges leveled against the accused-appellants. (Ram Vishambhar vs. State of UP; 2012) ALJ 90)

S. 302 – Death sentence – Every murder is brutal – Difference between the one from the other may be on account of mitigating or aggravating features surrounding the murder – Instantly convict did not harm his other daughter despite opportunity – Not a rarest of rare cases

Court have extracted the above reasons of the two courts only to point out that, in a way, every murder is brutal, and the difference between the one from the other may be on account of mitigating or aggravating features surrounding the murder.

One significant factor in this case, which we should not loose sight of is that he did not harm his other daughter, namely, Shallu (PW-2) even though he had a good chance for the same. Further, it was highlighted that he being a poor man and unable to earn his livelihood since he was driven out of his house by his deceased wife. It is also his claim that if he was allowed to live in the house, he could easily meet both his ends and means, as the money which he was spending by paying rent would have been saved. It is his further grievance that his deceased wife was adamant and he should live outside and should not lead a happy married life and that was the reason that their relations were strained. This also shows that the accused was feeling frustrated because of the attitude of his wife and children. Moreover, the probability of the offender's rehabilitation and reformation is not foreclosed in this case. Likewise, court can see from the affidavit filed by the sister of the accused that his family has not totally renounced as yet. This is also clear that pending the above appeals, the appellant-accused, through his sister - Pramjit Kaur, filed an application for modification of earlier orders of this Court dated 20.07.2009 and 16.07.2010 for widening the scope of the appeals and sought permission to raise all available grounds. For this application, only his sister - Pramjit Kaur has filed an affidavit strengthening the above points. As mentioned above, the affidavit of his sister shows that his family has not totally renounced him. Hence, there is a possibility for reformation in the present appellant. Keeping in mind all these materials, courts do not think that the present case warrants the award of the death penalty.

“Rarest of rare” dictum, as discussed above; hints at this difference between death punishment and the alternative punishment of life imprisonment. The relevant question here would be to determine whether life imprisonment as a punishment would be pointless and completely devoid of any reason in the facts and circumstances of the case. As discussed above, life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second aspect to the “rarest of rare” doctrine, the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme.

One significant factor in this case, which court should not loose sight of is that he did not harm his other daughter, namely, Shallu (PW-2) even though he had a good chance for the same. Further, it was highlighted that he being a poor man and unable to earn his livelihood since he was driven out of his house by his deceased wife. It is also his claim that if he was allowed to live in the house, he could easily meet both his ends and means, as the money which he was spending by paying rent would have been saved. It is his further grievance that his deceased wife was adamant and he should live outside and should not lead a happy married life and that was the reason that their relations were strained. This also shows that the accused was feeling frustrated because of the attitude of his wife and children. Moreover, the probability of the offender's rehabilitation and reformation is not foreclosed in this case. Likewise, we can see from the affidavit filed by the sister of the accused that his family has not totally renounced as yet. This is also clear that pending the above appeals, the appellant-accused, through his sister - Pramjit Kaur, filed an application for modification of earlier orders of this Court dated 20.07.2009 and 16.07.2010 for widening the scope of the appeals and sought permission to raise all available grounds. For this application, only his sister - Pramjit Kaur has filed an affidavit strengthening the above points. As mentioned above, the affidavit of his sister shows that his family has not totally renounced him. Hence, there is a possibility for reformation in the present appellant. Keeping in mind all these materials, courts do not think that the present case warrants the award of the death penalty. (Mohinder Singh v. State of Punjab; 2013(1) Supreme 452)

Ss. 302, 301 & 329/149 – Accused person forming unlawful assembly with common object of causing death of the members of complaint’s family – Conviction u/s. 302 etc. with the aid of S.149 – No infirmity

In the present case, taking into account the evidence tendered by the prosecution witnesses and having regard to the nature of the injuries sustained by the accused, Court is of the view that the absence of any explanation on the part of the prosecution with regard to the injuries suffered by the accused will not effect the core of the charges levelled against the accused-appellants. All the six accused on the day of the occurrence had assembled in front of the house of Rameshwar. They were armed with lethal weapons and were threatening to kill the family members of the complainant. Initially the accused persons had assaulted the family members of the complainant with lathis. Thereafter accused Manni Lal fired at PW-2 Ram Sanehi from the weapon he was carrying and injured him. Accused Raj Bahadur fired twice at PW-4 Sarju. Both the shots had missed the target and had instead, caused injuries to Kr. Sheela and one of the shots fired by the said accused Raj Bahadur had resulted in the death of Gayatri Devi. On the said facts, we can find no error in the conviction of the accused Raj Bahadur under Section 302 read with Section 301 IPC as well the conviction recorded against the said accused Raj Bahadur and accused Manni Lal under Section 307 IPC. Court are, further, of the view that the facts proved by the prosecution clearly establishes that the accused persons had formed an unlawful assembly the common object of which was to cause death of the members of the family of the complainant. The remaining accused, therefore, are liable under Section 149 IPC for the death of Gayatri Devi and also for the lesser offences committed under Section 307 and 323/149 IPC in the course of prosecution of the common object of the unlawful assembly. It is also considered view of the Court is that the conviction of the two sets of accused under Sections 147 and 148 IPC has been correctly made. As the sentences for the lesser offences have been directed to run concurrently with the sentence of life imprisonment imposed on each of the accused there will be no occasion for Court to cause any interference with any of the sentences imposed. (Ram Vishambhar & Ors. Vs. State of U.P. through Home Secretary; 2013(1) Supreme 311)

S. 302 - Prosecution of appellant accused for causing death of deceased by inflicting injuries on him by means of an axe

Conviction by Trial Court-Appeal-Dismissed by High Court-Appeal-From the prosecution evidence, it was not established that accused had the intention to kill the deceased or it was a premeditated crime-No dispute that accused came out with a tobru but, at the same time, it was also clear that this was the most easily available weapon in that part of the hills and was used regularly by the communities-Beyond this factor, there was no evidence of animosity, premeditation or intention to kill. The accused did give a blow by tobru on the head of the deceased which proved fatal- This was result of the grave and sudden provocation where father of both the deceased and the accused was being abused, assaulted and ill- treated by the deceased, who was in a drunken state. Hence held that in the facts of the instant case, a sudden and grave provocation took place which would bring the offence within the ambit of exception 1 of Section 300 IPC and hence under Section 304 Part 1 IPC as the accused had caused such bodily injury to the deceased which, to his knowledge, was likely to cause death as he had inflicted injuries on the head of the deceased-Accused held guilty of an offence under Section 304 Part I IPC Appeal disposed of. (Budhi Singh v. State of H.P.; 2012(8) Supreme 755)

S. 302 or 304, Part I (Sec. 300 Exception 4) – Single inquiry—Determination of—Principles reiterated

In view the fact that the appellant used a knife and chose the abdomen of the deceased for inflicting the injury as also keeping in view the nature of the injury itself which was sufficient in the ordinary course to cause death, it is a case that would squarely fall within Part I of Section 304 IPC. We may in this regard refer to the following passage from the decision of this Court in Jai Prakash v. State (Delhi Admn.; (1991) 2 SCC 32: (SCC p. 43, para 13)

"13 .... when a person commits an act, he is presumed to expect the natural consequences. But from the mere fact that the injury caused is sufficient in the ordinary course of nature to cause death it does not necessarily follow that the offender intended to cause the injury of that nature. However, the presumption arises that he intended to cause that particular injury. In such a situation the court has to ascertain whether the facts and circumstances in the case are such as to rebut the presumption and such facts and circumstances cannot be laid down in an abstract rule and they will vary from case to case. However, as pointed out in Virsa Singh cases the weapon used, the degree of force released in wielding it, the antecedent relations of the parties, the manner in which the attack was made that is to say sudden or premeditated, whether the injury was inflicted during a struggle or grappling, the number of injuries inflicted and their nature and the part of the body where the injury was inflicted are some of the relevant factors. These and other factors which may arise in a case have to be considered and if on a totality of these circumstances a doubt arises as to the nature of the offence, the benefit has to go to the accused. In some cases, an explanation may be there by the accused like exercise of right of private defence or the circumstances also may indicate the same. Likewise there may be circumstances in some cases which attract the first exception. In such cases different considerations arise and the court has to decide whether the accused is entitled to the benefit of the exception, though the prosecution established that one or the other clauses of Section 300 IPC is attracted.”

(Vijay Ramkrishan Gaikwad vs. State of Maharashtra; (2013) 1 SCC (Cri) 730)

S. 302 Cr.PC, S. 354 - Relevant consideration for imposition of death sentence - Ingredients relating to criminal and attendant circumstances - Both are relevant

Despite the paradigm shift in the criminal jurisprudence the ingredients relating to a criminal as well as the attendant circumstances of crime have to be considered in all events. The Court would have to consider each case on its own merits. It is neither possible not permissible to define or lay down any straightjacket formula which can universally be applied to all cases requiring Court’s determination in relation to imposition of death penalty. The Court, however, should, inter alia, consider the following points. First of all, the Court has to keep in mind that the prosecution has been able to prove its case beyond reasonable doubt and the accused is guilty of the offence where prescribed punishment is that of death. Secondly, the Court has to examine the cumulative effect of the prosecution evidence and the stand of the accused. This would include discussion on the manner in which the crime was committed, the intent and motive of the accused, situation and mental condition of the accused at the relevant time, attendant circumstances relating to the commission of offence and the possibility of the accused being reformed if permitted to join the mainstream society. As a corollary to this the Court would have to determine whether the accused would be a menace or an irreformable anti-social element to the society. Consideration of these aspects should automatically result in recording of special reasons where the Court is of the opinion that penalty of death should be imposed which is in line with the provisions of Section 354(3). (Sandesh alias Sainath Kailash Abhang v. State of Maharashtra; 2013 Cr.LJ 651)

S. 304 B – Ingredients of dowry death cruelty and harassment in connection with the demand of dowry - Death by burn or bodily injury with seven years of marriage

(a) To attract the provisions of Section 304-B, IPC the main ingredient of the offence to be established is that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry.

(b) The death of the deceased woman was caused by any burn or bodily injury or some other circumstance which was not normal.

(d) That the victim was subjected to cruelty or harassment by her husband or any relative of her husband.

(e) Such cruelty or harassment should be for or in connection with demand of dowry.

(f) It would be established that such cruelty and harassment was made soon before her death.

(g) The expression (soon before) is a relative term and it would depend upon circumstance of each case and no straightjacket formula can be laid down as to what would constitute a period of soon before the occurrence.

(h) It would be hazardous to indicate any fixed period and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act.

(i) Therefore, the expression “soon before” would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate or life link between the effect of cruelty based on dowry demand and the concerned death. In other words, it should not be remote in point of time and thereby make it a stale one.

(j) However, the expression “soon before” should not be given a narrow meaning which would otherwise defeat the very purpose of the provisions of the Act and should not lead to absurd results.

(k) Section 304-B is an exception to the cardinal principles of criminal jurisprudence that a suspect in the Indian Law is entitled to the protection Article 20 of the Constitution, as well as, a presumption of innocence in his favour. The concept of deeming fiction is hardly applicable to criminal jurisprudence but in contradistinction to this aspect of criminal law, the legislature applied the concept of deeming fiction to the provisions of Section 304-B.

(l) Such deeming fiction resulting in a presumption is, however, a rebuttable presumption and th husband and his relatives, can, by leading their defence prove that the ingredients Section 304-B were not satisfied.

(m) The specific significance to be attached is to the time of the alleged cruelty and harassment to which the victim was subjected to, the time of her death and whether the alleged demand of dowry was in connection with the marriage. Once the said ingredients were satisfied it will be called dowry death and by deemed fiction of law the husband or the relative will be deemed to have committed that offence.

(Kashmir Kaur and Anr. V. State of Punjab; 2013 Cr.LJ 689)

S. 324 r/w 149 – Common object of unlawful assembly not to cause murder of the deceased – Assault on PW 13 causing several injuries – Liable of conviction u/s. 324 r/w 149

The availability of fire arms in the hands of three of the acquitted accused, namely, Balwant Singh, his wife Shanti Bai @ Jaswant Kaur and daughter Gurjeet Kaur but absence of any fire therefrom or use thereof is a clear pointer to the fact that the common object of the unlawful assembly was definitely not to cause the murder of the deceased Mukhtyar Singh. Had the same been the object the fire arms available with the accused would have been surely used. However, from the depositions of PW-13 and PW-19 as well as from the evidence of PW-16 it clearly transpires that PW-13 had suffered several injuries due to the assault committed on him by the members of the unlawful as assembly, Having regard to the injuries suffered by PW-13, as evident from the evidence of PW-16, and our finding that the accused persons had formed an unlawful assembly, court are of the view that the four acquitted accused should also be held liable under Section 324 read with Section 149 IPC. (Raju @ Rajendra & Anr. V. State of Rajasthan; 2013(1) Supreme 344)

Ss. 396, 302 - Penology – Sentencing – Established Principles should be guiding factor

When sentence is imposed, it has to be based on sound legal principles, regard being had to the command of the statute, nature of the offence, collective cry and anguish of the victims and, above all, the “collective conscience” and doctrine of proportionality. Neither his vanity of Judge nor his pride of learning in other fields should influence his decision or imposition of sentence. He must practice the conscience of intellectual honesty and deal with the matter with all the experience and humility at his command. He should remain himself that some learning does not educate a man and definitely not a Judge. The learning has to be applied with conviction which is based on proper rationale and without forgetting that human nature has imperfect expression when founded bereft of legal principle. Judge, while imposing sentence, should not be swayed away with any kind of sensational aspect and individual predilection. If it is done, the same would tantamount to entering into an area of emotional labyrinth or arena of mercurial syllogism. Speeches or deliberations in any academic sphere are not to be taken recourse to unless they are in consonance with binding precedents. A speech sometimes may reflect a personal expression, a desire and, where a view may not be appositely governed by words, is likely to confuse the hearers. It can be stated with certitude that in a criminal trial, while recording the sentence, Judge should have been guided and governed by established principles and not by personal notions or even ideas of eminent personalities Binding judgments should be the Bible of a Judge and there should not be any deviation (OMA alias Omprakash and Anr. V. State of Tamil Nadu; 2013 Cr.LJ 997)

S. 406 – Complaint filed by complaint against appellant alleging that appellant was entrusted with several silver and sold articles belonging to temple so that he may propagate the S. 1

Complaints case that receipt of first set of articles was given by appellant but he did not give receipt of second set of articles-Evidence on record that whenever the case was about to be heard, appellant tried to put a spoke by filing an application for discharge. The Sessions Court and High Court had directed that the case should proceed expeditiously or on day-to-day basis- Even by the impugned order, High Court had directed that case shall commence on day-to-day basis- The appellant has challenged said order- Had the appellant not raised repeated challenges, the case would have proceeded and perhaps got over by now- Prima facie conduct of the appellant appears to be bad- No reason to hold that allowing the proceedings to continue would be an abuse of the process of the court- Direction given to trial court to take-up the case for final disposal, after receipt of this order by it and dispose it of within a period of four months from that date- Appeal dismissed with said directions. (Sudarshanacharaya v. Shri Purushottamacharya & Anr., 2012(8) Supreme 748)

Ss. 406 and 420—Offence of cheating—Necessary for prosecution to show that the person had fraudulent or dishonest intention at the time of making the promise.

In S.N. Palanitkar and others vs. State of Bihar and another, AIR 2001 SC 2960, it has been laid down that in order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating. (Arun Bhandari vs. State of U.P.; 2013 (80) ACC 929 (SC)

S. 482 - Grant of a works contract to Respondent 2, by “IFFCO” for the purpose of conducting repairs in their plant - Said work order was subsequently cancelled by IFFCO - Respondent. 2 filed complaint case under Ss 403 and 406 IPC for criminal breach of trust against appellants “IFFCO”

Magistrate after taking cognizance, issued summons to appellants and thereafter bailable warrants were issued against appellants -Application there against filed by appellants for quashing said criminal proceedings-Dismissed-Appeals-Held proceedings must be labeled as nothing more than an abuse of process of the court, particularly in view of the fact that, with respect to enact the same subject matter, various complaint cases had already been filed by respondent.2 and his brother, which were all dismissed on merits, after the examination of witnesses-In such a fact-situation, Complaint Case filed on 31 :5.2001 was not maintainable. Hence Magistrate concerned committed a grave error by entertaining the said case, and wrongly took cognizance and issued summons to appellants- Impugned judgment set aside and proceedings in Complaint Case held liable to be quashed-Appeals allowed. (Udai Shankar Awasthi vs. State of U.P. & Anr.; 2013(1) Supreme 590)

Ss. 482 & 195 – Complaint filed by complainant against respondents alleging commission of offences punishable under Sections 468 and 471 of IPC - Petition there against for quashing of FIR as also investigation in connection therewith Allowed by High Court

Appeal instantly it could not be said that allegations made in the complaint did not constitute any offence or that the same did not prima facie allege the complicity of the persons accused of committing the same. The complaint filed by the appellant sets out the relevant facts and alleged that the documents had been forged and fabricated only to be used as genuine to make a fraudulent and illegal claim over the land owned by complainant-Equally untenable was the view taken by High Court that bar contained in Section 195(1)(b)(ii) could be attracted to the case at hand- Section 195(1)(b)(ii) Cr.P.C. was attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in any court and during the time the same was in custodia legis- Bar contained in Section 195 against taking of cognizance was not attracted to the case at hand as sale deeds relied upon by GWL for claiming title to the property in question had not been forged while they were in custodian legis- High Court held unjustified in quashing the FIR -Impugned judgement of High Court set aside-Appeal allowed. (C.P. Subhash vs. Inspector of Police Chennal & Ors.; 2013(1) Supreme 603)

Doctrine of sudden and grave provocation – Scope and ambit of

The doctrine of sudden and grave provocation is incapable of rigid construction leading to or stating any principle of universal application. This will always have to depend on the facts of a given case. While applying this principle, the primary obligation of the Court is to examine from the point of view of a person of reasonable prudence if there was such grave and sudden provocation so as to reasonably conclude that it was possible to commit the offence of culpable homicide, and as per the facts, was not a culpable homicide amounting to murder. An offence resulting from grave and sudden provocation would normally mean that a person placed in such circumstances could lose self-control but only temporarily and that too, in proximity to the time of provocation- That provocation could be an act or series of acts done by the deceased to the accused resulting in inflicting of injury. (Budhi Singh vs. State of H.P.; 2012(8) Supreme 755)

Permanent Alimony – Determination of

The respondent husband himself asserted that he had earned name and fame in the world of music and had been performing concerts in various parts of India and abroad- Regard being had to the status of the husband, the social strata to which the parties belong held appropriate to fix the permanent alimony at Rs 50 lacs.

The respondent himself has asserted that he has earned name and fame in the world of music and has been performing concerts in various parts of India and abroad. He had agreed to buy a flat in Hyderabad though it did not materialise because of the demand of the wife to have a flat in a different locality where the price of the flat is extremely high. Be that as it may, it is the duty of the Court to see that the wife lives with dignity and comfort and not in penury. The living need not be luxurious but simultaneously she should not be left to live in discomfort. The Court has to act with pragmatic sensibility to such an issue so that the wife does not meet any kind of man-made misfortune. Regard being had to the status of the husband, the social strata to which the parties belong and further taking note of the orders of this Court on earlier occasions, Court think it appropriate to fix the permanent alimony at Rs 50 lacs which shall be deposited before the learned Family Judge within a period of four months out of which Rs.20 lacs shall be kept in a fixed deposit in the name of the son in a nationalized bank which would be utilised for his benefit. The deposit shall be made in such a manner so that the respondent wife would be in a position to draw maximum quarterly interest. We may want to clarify that any amount deposited earlier shall stand excluded. (U. Sree vs. U. Srinivas; 2012(8) Supreme 707)

Sentencing – Section 20 of NDPS Act, prescribing minimum sentence of 10 years – Awarding punishment less than the minimum not permissible

As per the amended provision of Section 20 of the Act, the minimum sentence that can be awarded, if there exists an order of conviction under the Act, is ten years and the said term was rightly awarded by the Trial Court and confirmed by the High Court. Court cannot modify the sentence, since the provisions do not permit this Court to award a punishment less than what is prescribed under the Act. In that view of the matter, the aforementioned contention of the learned counsel cannot be accepted by us. (Navdeep Singh vs. State of Haryana; 2013(1) Supreme 532)

BACK TO INDEX

Industrial Dispute Act

S. 2(cc) – Closure - Witness of petitioner has proved on record the letters to various authorities contradiction in testimony of witness and written statement - As per testimony of witness management has closed down by closing down stitching department-And management has closed down completely

MW1, the witness of the Petitioner has proved on record the letters to the various authorities like the Labour Conciliation Officer, Regional Provident Fund Commissioner and ESIC along with the acknowledgment due. Further there is no contradiction in the testimony of MW1 and the written statement. MW1 in his testimony has stated that the management closed down with effect from 7^th November, 2000 by closing down stitching department and on 1^st April, 2001, the management closed down completely.

Constitution of India, 1950-Article 226-Interference-Award-In a case of illegal termination-Closure of management done much later than illegal termination-No irregularity much less any illegality or perversity found-In the findings of Trial Court-No error found in granting compensation of Rs. 2.50 and 1.45 lacs to respondents-However, grant of interest at the rate of 18% is unwarranted-Thus the impugned award is modified to the extent that petitioner shall pay interest @ 9%

After hearing learned Counsel for the parties and perusal of the record, I find no irregularity much less any illegality or perversity in the above findings of the learned Trial Court on issues No.1 and 3. As regards the relief of compensation, I find no error in granting compensation to the tune of Rs. 2,50,000/- and Rs. 2,45,000/- to Respondent Nos. 1 and 2 respectively, however, grant of interest @ 18% p. a. is unwarranted. Thus, the impugned award is modified to the extent that the Petitioner shall pay interest @9% p.a. on compensation amount from the date of the award, besides a joint litigation cost of Rs. 10,000/- to the Respondents. (P.P. Associates Vs. Mohan Lal and others; (2013 (136) FLR 271) (Delhi High Court).

Ss 2(oo)(bb) and 25-F - Termination of Services - Labour Court by award held that the termination of workman was not legal and valid, termination was set aside directing the management to reinstate him with full back wages and all admissible consequential benefits - Labour Court has committed an error of law, while taking into account materials, which were not germane for determination of issued raised in reference before it - Labour Court has gone beyond the terms of reference - Which is an act beyond jurisdiction - Impugned award suffers from serious of law and facts - Unsustainable in law - Impugned award is therefore set aside

The learned Labour Court has committed an error of law while taking into account materials, which were not germane for the determination of the issues raised in the reference before it. Therefore, the impugned award suffers from serious error of law and facts. The Learned Labour Court has gone beyond the terms of the reference, which can be termed to be the act beyond jurisdiction, which is unsustainable in law as well as facts. In the aforesaid facts and circumstance and the reason recorded hereinabove, the impugned award requires interference in exercise of power of judicial review under certiorari jurisdiction of this Court. (Management of Tisco (Tube Division) Jamshedpur Vs. Presiding Officer, Labour Court, Patna and others; (2013 (136) FLR 928) (Jharkhand High Court).

S. 2(oo), 2(bb) and 25-F - Discontinuation of temporary service - Respondent No.1 workman employed on temporary basis for fixed period of three months - Appointment was renewed on same condition for three months in Mid-day-Meal – Scheme - Scheme was discontinued an respondent No. 1 was not working with petitioner – Organization -Dispute raised - Labour Court by award directed reinstatement with 60% back wages and consequential benefits - Labour Court has committed error in not considering the nature of appointment and for that special purpose of running the godown also diminished - When the scheme was discontinued and period of three months not, renewed - The appointment would fall within section 2(oo) more particularly Exception 4 - This vital fact was not considered by Labour Court - Hence, the judgment and award passed by Labours Court is set aside

The Labour Court has committed an error apparent on the face of the record in coming to the conclusion that the respondent workman has worked for more than 240 days between 1989 to 1992 and solely on that basis the Labour Court has applied the provisions of section 25-F of the I.D. Act and has thus committed an error in not considering the nature of appointment which was for a fixed period and for specific purpose. Secondly, as evident from the evidence on record, the special purpose of running the godown also diminished as is indicative from the record that Mid-day-Meal Scheme was discontinued from 28.2.1992 and therefore the period of three months which was to expire on 28.2.1992 was not renewed or continued by the petitioner-institution. Considering the nature of appointment the same would fall within the exception carved out in section 2(oo) more particularly Exception 4. This vital fact is not considered by the Labour Court. The Labour Court has also wrongly compared the case of the persons employed by District Panchayat in the present case wherein the petitioner-institution was a special purpose vehicle for the purpose of implementation of the particular scheme.

As the scheme was discontinued contract was not renewed. Hence, the contentions raised by the petitioner deserves to be upheld. The judgment and award passed in Reference (LCV) No 354 of 1992 dated 31.7.2001 deserves to be quashed and set aside. (Balvikas Yojana Adhikari Vs. Ahmedbhai Siddiqbhai Malek and others; (2013 (136) FLR 449) (Gujarat High Court)

S. 2 (oo) - Exception (c) - The termination of services - Petitioner was employed with management since 1988 an on 25.6.1989, he suffered an accident while on duty and both his hands got amputated below his femur bonus - Thus termination of services of workman would not be retrenchment on ground of continued ill health - He continued service for 10 years and there was no complaint against him – Hence - Termination of petitioner was illegal - However, as factory has virtually closed down and there are only 12 workers - Hence, no directions for reinstatement can be granted-A fit case for compensation

In view of the undisputed fact that despite disability the Petitioner continued to work with the Respondent for 10 years, the termination of the Petitioner vide letter dated 23^rd January, 1999 can be clearly stated to be illegal and a colourable exercise. During the course of arguments learned Counsel for the Respondent submitted that the factory has virtually closed down and there are only 12 workers who are working in view of the pending disputes pursuant to the orders passed by the Court. In this view of the matter no directions for reinstatement can be granted. However, it is a fit case for grant of compensation. (Munna Prasad Vs. Management of M/S. Sawhney Rubber; (2013 (136) FLR 268) (Delhi High Court)

S. 2(s) and 10 - Branch Manager of Bank - Dispute of transfer raised - Issue of maintainability of complaint on account of status of complainant raised - As to whether respondent complainant Branch Manager of Bank can be called a ‘workman’ - In such circumstances, the Industrial Court ought to have framed such issued as a preliminary issue and should have decided accordingly - And if respondents are held to be ‘workmen’ and if complaints are held to be maintainable - Then only complaints to be decided

The Industrial Court ought to have framed the issue as regard the maintainability of the complaints on account of the fact that the appellants herein claim that the respondents are not workmen. In our view, therefore, without interfering with the order passed by the Industrial Court which is dated 9^th July, 2010, we set aside the order passed by the learned single Judge of this Court and issue the following directions:

(i) The Industrial Court, Nashik, is directed to frame a preliminary issue as regard the maintainability of the complaints in view of the fact that the appellants herein challenge the same on the ground that the respondents are not workmen.

(ii) The parties would be entitled to lead oral evidence in that behalf. The parties would also be entitled to produce further documents, if necessary, which they will do by 24 August, 2011.

(iii) The interim order granted by the Industrial Court dated 9^th July, 2010 will be continued for a period of four weeks from date within which the preliminary issue would be considered by the Industrial Court. The continuance of the interim relief granted vide order dated 9^th July, 2010 would be contingent upon the decision of the Industrial Court on the said preliminary issue.

(Nashik Merchants’ Coop. Bank Ltd., Nashik and another Vs. Madhukar Bhaurao Hingmire and another; (2013 (136) FLR 730) (Bombay High Court).

S. 2(s) - Sales Promotion Employees (Conditions of Service) Act, 1976 - Industrial dispute - Petitioners were engaged to promote the brand name of respondent-company as an emblem and enhance the prestige of employer - They were sportsmen and hockey players - Not engaged in any work directly relating to promotion of sales or business or both - Promise of permanent employment cannot be read - Their remedy, if any, would not truly lie with the adjudicatory machinery established under the industrial disputes or related labour laws - Reference rightly answered against claimants

The petitioners were not engaged to do any work directly relating to promotion of sales or business or both but were engaged to promote the brand name of the respondent- company as an emblem and enhance the prestige of the employer. Court cannot read promise of permanent employment. At any rate no evidence was led in this behalf. In fact they were not engaged to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work in the industry at all. They specialized employment was beyond the pale of industrial employment strict sensu. They were definitely not part of the workforce engaged for the production of goods or services at Phagwara. Their remedy, if any, would not truly lie within the adjudicatory machinery established under the industrial disputes or related labour laws. Court, therefore, do not find any legal, factual or jurisdictional infirmity in the award dated 13.10.2011 passed by the Presiding Officer, Industrial Tribunal, Jalandhar which is upheld. (Hapreet Singh Vs. P.O., Industrial Tribunal, Jalandhar and others; (2013 (136) FLR 53) (P&H High Court).

S. 10(4) – Jurisdiction - Interim relief - Can be granted by Industrial Tribunal - As a matter incidental to the main question referred to the Tribunal

The primary contention raised by the Counsel for the petitioner that interim relief cannot be granted by the Industrial Tribunal, Ajmer, is not sustainable. The issue was considered by the Larger Bench of the Hon’ble Supreme Court, as back as in the year 1959, in the case of Hotel Imperial, New Delhi and others.

The contention raised by the petitioner that no interim relief can be granted by a Labour Court/Industrial Tribunal is not sustainable. The preliminary objection raised by the learned Counsel for the respondents with regard to maintainability of the writ petition deserves to be allowed.

Constitution of India, 1950-Article 226-Writ Petition-Against interim relief-Not maintainable

S. 11-A - Labour Court - Power to substitute lesser punishment - Workman, a record/Godown Keeper - Dismissed from service - For misconduct of unauthorisedly delivering stocks to borrowers disproportionate to misconduct - Exercised power under section 11-A of Act - Substituted the punishment of dismissal, with stoppage of five increments with cumulative effect and awarded reinstatement with full back wages - Labour Court has committed no illegality in modifying the order of punishment

Section 11-A of the Act confers power on the labour Court to evaluate the severity of misconduct and to assess whether the punishment imposed by the employer is commensurate with the gravity of misconduct. Thus, the Labour Court, while exercising the said power, found the punishment of dismissal too severe for the act of misconduct committed by the respondent-Workman and substituted the punishment of dismissal to stoppage of five increments with cumulative effect.

Keeping in view the facts and circumstances of the case, the Labour Court has committed no illegality while modifying the order of punishment and ordering reinstatement of the workman. (State Bank of Patiala Vs. P.O., Central Govt. Industrial Tribunal-Cum-Labour Court-1, Chandigarh and another; (2013(136) FLR 1006) (P&H High Court).

S. 11-A - Discretionary power - Labour Court while exercising powers under was required to apply its mind - Once it is proved that the respondent-conductor had not issued tickets to several passengers and that he had committed about 43 such defaults in past - Labour Court was not justified in reducing the penalty of dismissal - Powers under section 11-A are required to be exercised judicially and not mechanically

While exercising the powers under section-11-A of the Industrial Disputes Act, 1947, the Labour Court was required to apply its mind.

Once it is proved that the respondent-conductor had not issued tickets to several passengers, coupled with the fact that he had committed about 43 such defaults in the past, the Labour Court was not justified in reducing the penalty of dismissal, as imposed by the petitioner-S.T. Corporation, to lowering the respondent in two stages in his pay. The powers under Section 11-A of the Industrial Disputes Act, 1947, are required to be exercised judiciously and not mechanically. In the instant case, the Labour Court, apparently, committed an error, while exercising the powers under section 11-A of the Act, by reducing the penalty imposed on the respondent. Hence, the order of the Labour Court impugned in this petition cannot be sustained. (Gujarat State Road Transport Corporation Vs. Jamanagas Panchanabhai Bhilodia; (2013 (136) FLR 973) (Gujarat High Court).

S. 11-A - Constitution of India, 1950 - Articles 226 and 227 – Punishment - Exercise of discretion - Disciplinary Proceedings - Punishment of reduction of pay by three stages imposed on respondent - On raising claim of T.A. Bill - And revisional authority enhanced the punishment, to that of compulsory retirement - Industrial Tribunal interfered with under section 11-A - Tribunal has not committed any error - In interfering with such order and modify - Interference with such order discretion is not called for

In doing so, the discretion exercised by the learned Industrial Tribunal and the reasons given thereof cannot be termed as perverse, unreasonable or unjustified to such an extent that interference can be made by this Court. A power is conferred on the Tribunal under section 11-A of the Industrial Disputes Act, to interfere with such order and modify the orders and if such a power is exercised in a reasonable and justifiable manner without committing any statutory violation, interference into such discretion by this Court exercising limited jurisdiction in a petition under Article 226 and 227 of the Constitution is not called for.

It is a case where the punishment was already given effect to an when the employee accepted the punishment without any objection, it has been enhanced by the revisional authority that also without taking not of various important aspects of the matter, which have been highlighted by the Tribunal. The Tribunal has not committed any error in holding that the revisional authority himself wanted to impose punishment which would not deprive the employee of pension or other benefits, but the revisional authority having interfered into the matter without taking note of the consequence of this order, the Tribunal has interfered into the same. In doing so, Court is of the considered view that the Tribunal has not committed any error which warrants interference, particularly now when the employee has died and the parties before this Court are his widowed wife about 45 years of age and her minor daughters and an unemployed son about 20 years of age, who are only to get some monetary benefit after death of a low paid employee. (Union of India and others Vs. Sharda Bai and others; (2013 (136) FLR 541) (Madhya Pradesh High Court).

Ss 11-A and 10 – Award - Directing reinstatement with 20% back wages passed by Labour Court in favour of workman-respondent - Challenged by company by application - Employer company was no where concerned with incident of alleged offence attributed to the workman - As it was never a subject-matter of any complaint by any fellow employee of company - Incident of so called loot or loot of bus is purely in nature of criminal proceedings - Not the subject, jurisdiction of the company - Such incident not described in Model Standing Order as misconduct - Hence, enquiry proceedings were not justified - Incident alleged cannot be said to be an incident amounting to misconduct - Nor affected the company even remotely - Therefore application is rejected

The incident of so called loot or loot of bus is purely in the nature of criminal proceedings in the realm of competent investigating authority and the competent Court could not have been subject-matter of inquiry by the company when the company was in no way in the picture, nor was any company’s employees were harmed or hampered on account of commission of such act which is alleged to have been committed by respondent-workman.

It is the case of the workman whose services are governed by Model Standing Order and the principle of Industrial Disputes Act, 1947, does not prescribe such incident to be a misconduct, then, in my view, if the inquiry proceedings were themselves not justified in any manner and there was no requirement of issuance of charge-sheet against petitioner. The reliance placed upon the observation of the Apex Court in M/s. Glaxo Laboratories (I) Ltd. v. Presiding Officer, Labour Court, Meerut and others, on behalf of workman would be amply and effectively applicable in favour or workman as admittedly in the instant case, first of all the incident which is alleged committed in any manner affecting the company even remotely. Therefore the petition being bereft of merits deserve rejection and are accordingly rejected. (Apollo Tyres Ltd. Vs. Rakesh Kumar Pal and another; (2013 (136) FLR 470) (Gujarat High Court).

S. 11-B and 17-B - Implementation of Award - Execution petition - Petitioner by this petition, seeks a direction to number and entertain the execution petition in accordance with law - Court in a pendency of W.P. had granted interim suspension of the Award subject to a condition of compliance of section 17-B of Act - But second respondent-company did not choose to abide by this conditional order - Interim suspension of Award was subject to a condition and such condition was not complied with - Inevitable consequence was that the interim suspension no longer continued - Hence the Industrial Tribunal-cum-Labour Court is directed to entertain the said E.P. and if same is found to be in order otherwise it shall number the E.P. and proceed with same in accordance with law

As the interim suspension of the Award was subject to a condition and such condition was not complied with, the inevitable consequence was that the interim suspension on longer continued. The fall-out thereof was that the impugned Award was then freed of the suspension and became executable. The understanding of the Industrial Tribunal-cum-Labour Court, Anantapur, however, is completely opposed and contrary to this legal position.

Viewed thus, the action of the Industrial Tribunal-cum-Labour Court, Anantapur, in returning the E.P. filed by the petitioner on this mistaken understanding of the legal position cannot be sustained. The docket order passed by the said Court on 27.06.2012 in the un-numbered E.P. filed by the petitioner in I.D. No. 300 of 2005 is accordingly quashed. The Industrial Tribunal-cum-Labour Court, Anantapur, is directed to entertain the said E.P. and if the same is found to be in order otherwise, it shall number the E.P. and proceed with the same in accordance with law. (Chakali Narayanappa Vs. Industrial Tribunal-cum-Labour Court, Anantapur and another; (2013 (136) FLR 822) (Andhra Pradesh High Court).

S. 17-B - Payment of full wages - To workman - During pendency of proceeding in higher Court - Though workman was not gainfully employed yet the workman in the case was self-employed, namely a practicing advocate and earning as well - Hence he is not entitled to benefit of section 17-B of Act - Appeal allowed and order passed under section 17-B by learned Single Judge is set aside

Going by these considerations, it can safely be said that the workman had been earning sufficient income to make him disentitled to the benefit under section 17-B of the ID Act.

It the workman is having professional income/self-employment or even from any other vocation etc. and is making a decent income there from, he would not be entitled to invoke the provisions of section 17-B of the Act. (Shriram Institute for Industrial Research Vs. Rajesh Kumar Gandhi; (2012 (136) FLR 12) (Delhi High Court).

Ss 25(F), 25(G) and 25(H) – Retrenchment - Petitioner’s claim that he was engaged on 1.4.1991 and has continuously worked upto 31.12.1997 - Denied by respondent department - He was actually engaged in year 1997 and not on 1.4.1991 - He has not completed 240 days preceding his retrenchment - Persons junior to him were also retrenched - Therefore there is no merit in the petition challenging the award and same is dismissed - In case the petitioner has additional material with him, he should have approached the Labour Court - The material could be seen by Labour Court

The Industrial Tribunal-cum-Labour Court has to answer the reference made by the State Government and in case the petitioner has additional material with him, he should have approached the Industrial Tribunal-cum-Labour Court seeking its permission to lead additional evidence. The material could be seen by the Industrial Tribunal-cum-Labour Court.

The Industrial Tribunal-cum-Labour Court is required to discuss the entire oral as well as documentary evidence. All the legal issues are to be adjudicated upon on the basis of evidence adduced by the parties. (Balbir Singh Vs. State of Himachal Pradesh and others; (2013 (136) FLR 539) (HP High Court).

S. 25-F - Daily wages-Continuous working-Counting of days - Appellant was working on daily wages - But for Sunday and other holidays he was not being paid salary - He has worked only for 222 days in a calendar year - Then management before retrenching his service, not required to comply with section 25 of Act - Therefore the appellant has no case on merits - No interference required with impugned order

Undisputedly, the appellant was working on daily wages and for Sundays and other holidays, he was not being paid salary. The decision of the Full Bench of the Court, the appellant has no case on merits. Since as per the finding of fact recorded by the Labour Court, the appellant had worked only for 222 days in a calendar year, therefore, the management, before retrenching his service, was not required to comply with the provision of section 25-F of the Act. (Ram Gopal Vs. P.O., Industrial Tribunal-cum-Labour Court, Faridabad and another; (2013 (136) FLR 1003).

Ss 25-Q and 25-M - Industrial Dispute Rules, 1957 - Rule 75-B (1), (2), (3) - U.P. Industrial Disputes Act, 1947 - Section 6-K - Criminal Procedure Code, 1973 - Section 482 – Lockout - Lay off - Complaint - Under section 25-Q - For prosecution of applicant under section 25-M read with Rule 75-B (1), (2), (3) - Filed against the applicants occupier and Factory Manager of unit 2 at C-54, Phase II, Noida, Ghaziabad - Provisions of State Act and Central Act are inconsistent to each other regarding lay off of workmen - In case of applicants, section 6-K of State Act being applicable - And applicants had absolute powers to resort to lay off the workmen subject to certain conditions mentioned therein - Applicants in pursuance of which had resorted to such power and laid off the workmen after paying their dues - Which were received by them and none of the workmen have complained against the applicants for their services being terminated against the provisions of law - Management in view of section 6-K of U.P. Act resorted to lay off of workmen and section 6-K of State Act does not require any approval prior or subsequent of any authority including the State Government -Hence, the proceedings against applicants are liable to be quashed in the complaint -They are accordingly quashed - Application under section 482 Cr.P.C. stands allowed

From a perusal of two provisions of the State Act as well as Central Act, it is apparent that they are inconsistent to each other regarding lay off of the workmen. The contention of learned Counsel for the applicant appears to be correct that in the case of the applicants section 6-K of the State Act being applicable and the applicants had absolute powers to resort to lay off the workmen subject to certain conditions mentioned therein and the applicants in pursuance of which had resorted to such power and lay of the workmen after paying their dues which were received by them and none of the workmen have complained against the applicants for their services being terminated against the provisions of law.

The submission of learned Counsel for the applicant that the State Act would prevail over the Central Act which was applicable in the present case and no prior or subsequent approval of any authority including the State Government is required find force and the same is also justified in the light of the judgment of the Apex Court in the case of Engineering. Kamgar Union v. Electro Steels Castings Ltd. and another.

Hence the proceedings against the applicant are liable to be quashed in the aforesaid complaint case, hence they are accordingly quashed. (N.K. Kejriwal and another Vs. State of U.P. and another; (2013 (136) FLR 352) (All HC)

Ss 33(2) (b) and 33-A - Complaint under section 33-A - By workman - In absence of any application under section 33(2) (b) by employer for approval of order of dismissal of workman - The Industrial Tribunal would go into question as to whether there was compliance of section 33(2) (b) by employer - Not to go into question whether dismissal of workman was good or bad on merits - Non-compliance of mandatory provision of section 33(2) (b), would by itself amount to order of dismissal being void or inoperative

A plain reading of section 33(2) (b) would suggest that during the pendency of any proceeding in respect of a industrial dispute, the employer has been permitted under certain circumstances, to discharge or punish, whether by dismissal or otherwise, the workman with whom there is pending dispute. However, there is proviso attached to the same. The said proviso requires that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.

The non-compliance of the mandatory provisions of section 33(2) (b) of the said Act would by itself amount to the order of dismissal being void or inoperative. If this happens, it is not at all necessary for an employer to file a complaint under section 33-A to have the order of dismissal/termination set aside following an adjudication on merits.

The employer may file a complaint with regard to the relief that is required to be given to the employee in respect of the contravention of the provisions of section 33. In other words, where no application seeking an approval under section 33(2) (b) of the said Act is made by the employer, the employee may yet make a complaint under section 33-A seeking relief of reinstatement and payment of back wages. It is that dispute which will be taken up by the Industrial Tribunal which will obviously go into the question as to whether there has been or there has not been compliance with the mandatory provisions of section 33(2) (b) of the said Act. One the Tribunal comes to the conclusion that the mandatory provisions have been contravened, the only thing that needs to be done by the Tribunal is to direct that the employee be given an appropriate relief by way of reinstatement and by making an order with regard to back wages. The Tribunal is not required to go into the question of as to whether the dismissal was good or bad, on merits. (Tops Security Ltd. Vs. Subhash Chander Jha and another; (2013 (136) FLR 17) (Delhi High Court).

S. 33-C (2) - Proceedings under - Is in nature of execution proceedings - And powers of Labour Court are limited - There has to be an existing right in favour of employee - Entitlement of applicants was neither adjudicated upon, nor was there any mention of 12 months lock-out wages or 20 months wages in form of ex gratia payment ‘towards settlement of general Charter of Demands in settlement of 1996 - Application clearly falls outside the scope of section 33-C(2) of Act - Thus the impugned directing the grant of 12 months wages for lockout period cannot be sustained and required to be set aside.

It is by now trite that the scope of proceedings under section 33-C (2) of the I.D. Act is in the nature of execution proceedings and the powers of the Labour Court are limited. There has to be an existing right in favour of the employee. In the present case, there is nothing in the Settlement of 1996 to suggest that the employees who were on the roll of the Company at the relevant time, were paid 12 months wages for the lock-out period or 20 months wages in the form of ex gratia payment towards settlement of general Charter of Demands.

It cannot be assumed that the payments made are towards any particular claim. In the facts and circumstances of the present case, when the very basis of the entitlement is disputed, if cannot be said that the claim of the Applicants of 12 months wages for lock-out period and 20 months wages in the form of ex gratia payment by way of settlement of general Charter of Demands was an incidental claim and in absence of any existing right and/or adjudication of the Applicants’ entitlement thereto, the impugned order directing the grant of 12 months wages for lock-out period cannot be sustained and is required to be set aside. (Abbott Laboratories (I) Ltd. Vs. C.T.D.’ Costa and others; (2013 (136) FLR 179) (Bombay High Court).

S. 33 and 33(2)(b) - Law – Well settled - That when an application under section 33 is made before the Tribunal - Tribunal initially has a limited jurisdiction

Law is well settled that when an application under section 33 of the Act whether for approval or for permission is made before the Tribunal, the Tribunal initially has a limited jurisdiction only to see whether a prima facie case is made out in respect of the misconduct charged. (Indian Rare Earths Ltd. Vs. Presiding Officer, Industrial Tribunal, Orissa, Bhubanaswar; (2013 (136) FLR 205) (Orissa High Court).

Ss 33-C(1) and section 33-C(2)-Corresponding to section 6-H(1) and 6-H(2) of U.P. Industrial Disputes Act, 1947-Jurisdiction of Labour Court-Under section 33-C(1) corresponding to section 6-H(1) - Supreme Court has held that where amount due to workmen flowing from obligations under a settlement is predetermined and ascertained - Or can be arrived at be arithmetical calculations or simplicitor verification-Only enquiry required to be made is whether the said amount is due to workmen or not - In such cases recourse to summary proceedings under section 33-C(1) and 6-H(1) is not only appropriate but desirable to prevent harassment of workmen - Therefore petitioner’s claim for arrears of salary, could have been arithmetically determined by Labour Court in proceedings under section 6-H(1) of U.P. Act - Hence, the impugned order rejecting the claim of petitioner by Labour Court is not sustainable in law and quashed- Matter remitted back for redetermination of salary due

While interpreting the jurisdiction exercisable by the Labour Court under section 33-C(1) corresponding to section 6_h(1) the Supreme Court has held that where the amount due to the workmen flowing from the obligations under a settlement is predetermined and ascertained or can be arrived at by arithmetical calculations or simplicitor verification and the only enquiry that is required to be made is whether the said amount is due to the workmen or not in such cases recourse to summary proceedings under section 33-C (1) [(6-H (1)] is not only appropriate but also desirable to prevent harassment to the workmen.

Therefore, the petitioner’s claim for arrears of salary as already discussed hereinabove could have been arithmetically determined by the Labour Court in the proceedings under section 6-H(1) of the U.P. Industrial Disputes Act, 1947 and the Labour Court having failed to do so and rejected the claim of the petitioner arbitrarily the impugned order dated 18.3.1999 is not sustainable in law and is therefore quashed. (Sharda Prasad Singh Vs. State of U.P. and others; (2013 (136) FLR 347) (All HC).

S. 33-C (2) - Industrial Disputes (Central) Rules, 1957 - Rule 62 (2) – Arbitration – Dispute - Of payment of earned wages - Raised by Pilots employees - Common question of law arises for consideration is whether an industrial dispute or an obligation created under the Act is arbitrable i.e. capable of being adjudicated by a private forum of an Arbitrator - Respondent employee have filed applications under section 33-C(2) read with Rules 62(2) for recovery of their earned wages - Adjudication of industrial disputes is reserved by legislature exclusively for authorities established under the Act, as a matter of public policy - Therefore by necessary implication the same stands excluded from purview of Arbitrator - Consequently the industrial dispute is rendered in arbitrable outside the Act - Hence the Court must refuse to refer the parties to arbitration - Moreover the dispute is not arbitrable, because O.P. No. 2 to 4 are not parties to arbitration agreement

Adjudication of Industrial Disputes is reserved by the legislature exclusively for the authorities established under I.D. Act, as a matter of public policy for. Therefore, by necessary implication the same stands excluded from the purview of the private fora of the Arbitrator. Consequently, the Industrial Dispute is rendered inarbitrable outside the I.D. Act. In such a case, the Court where the dispute is pending, must refuse to refer the parties to arbitration, under section 8 of the Arbitration Act, even if they have agreed upon arbitration as the forum for settlement of disputes between them.

The liability of opponent Nos. 2 to 4 to pay the dues to the Respondents would be a matter of enquiry by the Court.

Therefore, for this another also, it be held that the dispute raised by the Respondents in the complaints filed by them is not arbitrable. (Kingfisher Airlines Ltd Vs. Capt. Prithci Malhotra, Instructor and others; (2013 (136) FLR 733) (Bombay High Court).

Reinstatement - Award passed by Industrial Tribunal-cum-Labour Court - Whereby it directed for reinstatement in service with 50% back wages-Respondent No. 2 not produced any appointment letter - On failure of petitioner to produce record - An adverse inference could be drawn - He was paid salary by the contractor - He cannot be termed as an employee of petitioner to entitle him to raise an industrial dispute with it -Hence, Award suffers from patent illegality - And set aside

On failure of the petitioner to produce the record, an adverse inference could be drawn. His only case was that he had been working with the petitioner and he even sought to take a stand that he was not paid any salary from May, 2000 till January 22, 2002, whereas from the facts and the circumstances it can be inferred that respondent No. 2 had been employed by contractor-M/s Hari Tractors to carry out the job assigned to him. He was paid salary by the contractor and that is the reason that he was working.

Once respondent No. 2 had failed to discharge the buden cast on him as he failed to lead any evidence to show that he was paid salary directly by the petitioner and further he was working directly under the control and supervision of the petitioner, he cannot be termed to be an employee of the petitioner to entitle him to raise an industrial disputes with it.

The impugned awards in both the petitions passed by the Tribunal suffer from patent illegality. The findings recorded being preverse, are set aside. (Mahindra and Mahindra Vs. Presiding Officer and another; (2013 (136) FLR 483) (Punjab and Haryana High Court).

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Interpretation of Statute

Criminal Law - Retrospective effect of any provision - Shall not be given unless legislative intent and expression is clear beyond ambiguity

It is a settled principle of interpretation of criminal jurisprudence that the provisions have to be strictly construed and cannot be given a retrospective effect unless legislative intent and expression is clear beyond ambiguity. The amendments to criminal law would not intend that there should be undue delay in disposal of criminal trials or there should be retrial just because the law has changed. Such an approach would be contrary to the doctrine of finality as well as avoidance of delay in conclusion of criminal trial. (Sukhdev Singh v. State of Haryana; 2013 Cr.LJ 841)

Object of—A Court only interprets law and could not legislate—Accordingly legislative causes omissions could not be supplied by judicial interpretative process

When the legislature has used different words in the same provision or statute and in the same provision it has chosen to use two words at one place but only one word at another place, it means that legislature intended to make a distinction in respect of cases covered by two words or phrases, as the case may be, and such intention has to be given effect in its entirety without assuming or presuming any mistake or lapse, that is called casus omissus. A casus omissus cannot be supplied by the Court. There is no presumption that a casus omissus exists and language permitting the Court should avoid creating a casus Omissus where there is none. It would be appropriate to recollect the observations of Devlin, L.J. in Gladstone vs. Bower, (1960) 3 All ER 353 (CA):-

“The Court will always allow the intention of a statute to override the defects of working but the Court’s ability to do so is limited by recognized canons of interpretation. The Court may, for example, prefer an alternative construction, which is less well fitted to the words but better fitted to the intention to the Act. But here, there is no alternative construction; it is simply a case of something being overlooked. We cannot legislate for casus omissus.”

The Hon’ble Apex Court in Bangalore Water Supply and Sewerage Board vs. Rajappa and others, 1978 (36) FLR 266 quoted with approval the following observation of Lord Simonds in the case of Magor & St. Mellons R.D.C. vs. Newport Corporation, (1951) 2 All ER 839 (841):-

“The duty of the Court is to interpret the words that the Legislature has used. Those words may be ambiguous, but, even if they are, the power and duty of the Court to travel outside them on a voyage of discovery are strictly limited.”

It would be appropriate at this stage to remind another principle that though a Court cannot supply a real casus omissus, it is equally evident that it should not so interpret a statute as to create casus omissus when there is really none. Recently in Vemareddy Mumaraswamy Reddy and another vs. State of Andhra Pradesh; 2006 (2) SCC 670, the Court reiterated that while interpreting a provision the Court only interprets the law and cannot legislate. If a provision of law is misused and subject to the abuse of process of law, it is for the legislature to amend, modify or repeal it if deemed necessary. The legislative casus omissus cannot be supplied by judicial interpretative process. (Ram Lakhan @ Lakhan Lal vs. Sri Awdhesh Kumar Bajpai; 2013 (1) ARC 105)

Penal provisions – Harsher punishment and clear intendment of definite compliance - Should be strictly construed

The language of Section 42 does not admit any ambiguity. These are penal provisions and prescribe very harsh punishments for the offender. The question of substantial compliance of these provisions would amount to misconstruction of these relevant provisions. It is a settled canon of interpretation that the penal provisions, particularly with harsher punishments and with clear intendment of the legislature for definite compliance, ought to be construed strictly. The doctrine of substantial compliance cannot be called in aid to answer such interpretations. The principle of substantial compliance would be applicable in the cases where the language of the provision strictly or by necessary implication admits of such compliance. (Kishan Chand v. State of Haryana; 2013 Cr.LJ 723)

Principle—Provision of Law should be understood and taken in its plain and simple sense unless there is any scope for interpretation of same

It is the established position of law that the provisions of law should be understood and taken in its plain and simple sense unless there is any scope for interpretation of the same. There should not be any unnecessary stretching of terms and jugglery of words to complicate a matter to arrive at a conclusion which may suit a person competent in doing such stretching or jugglery. (Nihal vs. State of U.P.; 2013 (80) ACC 867 (All)

Statutory provision – Even if a statutory provision causes hardship to some people, it was not for the Court to amend the law – A legal enactment must be interpreted in its plain and literal sense, as that was the first principle of interpretation

In Bengal Immunity Co. Ltd. v. State of Bihar and others, AIR 1955 SC 661, it was observed by a Constitution Bench of this Court that, if there is any hardship, it is for the legislature to amend the law, and that the Court cannot be called upon, to discard the cardinal rule of interpretation for the purpose of mitigating such hardship. If the language of an Act is sufficiently clear, the Court has to give effect to it, however, inequitable or unjust the result may be. The words, ‘dura lex sed lex’ which mean “the law is hard but it is the law,” may be used to sum up the situation. Therefore, even if a statutory provision causes hardship to some people, it is not for the Court to amend the law. A legal enactment must be interpreted in its plain and literal sense, as that is the first principle of interpretation.

In Mysore State Electricity Board v. Bangalore Woolen, Cotton & Silk Mills Ltd. and others, AIR 1963 SC 1128, a Constitution Bench of this Court held that, “inconvenience if not” a decisive factor to be considered while interpreting a statute.

In Martin Burn Ltd. v. The Corporation of Calcutta, AIR 1966 SC 529, this Court, while dealing with the same issue observed as under:

“A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not.”

(See also: The Commissioner of Income Tax, West Bengal 1, Calcutta v. M/s. Vegetables Products Ltd., AIR 1973 SC 927; and Tata Power Company Ltd. v. Reliance Energy Limited and others, (2009) 16 SCC 659).

Therefore, it is evident that the hardship caused to an individual, cannot be a ground for not giving effective and grammatical meaning to every word of the provision, if the language used therein, is unequivocal. (Rohitash Kumar vs. Om Prakash Sharma and others; 2013(1) ESC 6 (SC)

False affidavit – It is established that petitioner had knowingly and deliberately filed a false affidavit to seek appointment to post of Constable - There is no pleading or proof as to how depriving him of an opportunity of being heard has prejudice him - It is not a case of bona fide mistake, but petitioner is audacious enough even to have filed a false affidavit before High Court denying fact of lodging of criminal case, his arrest etc. - Registrar General of High Court is directed to lodge a F.I.R. against petitioner for having filed a false affidavit and committing fraud in trying to mislead Court under relevant sections of IPC

In the writ petition, the petitioner in paragraph after paragraph has repeated that he did know about the case, he was never arrested and the affidavit filed by him was true, but in the end he has stated in paragraph 13 that “............by the grace of God he has been saved and the entire case was found to be false, fake, untrue and imaginary...........” He seems to have learnt no lessons from the age old adage that "once bitten twice shy”. Despite the termination for filing false affidavit, he did not "burn his fingers" and is repeating it before this Court in filing false affidavit. Such litigants do not deserve “kid glove” handling but stern action lest it sends out a wrong message that even in such cases only “rap on the knuckles” is what one gets. The Supreme Court in the case of Dhananjay Sharma v. State of Haryana and others, 1995 (3) SCC 757, gave a clarion call to keep the stream of Justice clear and pure, in the following words in paragraph 38 of the report:

“The swearing of false affidavits in judicial proceedings not only has the tendency of causing obstruction in the due course of judicial proceedings but has also the tendency to impede, obstruct and interfere with the administration of justice. The filing of false affidavits in judicial proceedings in any Court of law exposes the intention of the party concerned in perverting the course of justice. The due process of law cannot be permitted to be slighted nor the majesty of law be made a mockery of by such acts or conduct on the part of the parties to the litigation or even while appearing as witnesses. Anyone who makes an attempt to impede or undermine or obstruct the free flow of the unsoiled stream of justice by resorting to the filing of false evidence, commits criminal contempt of the Court and renders himself liable to be dealt with in accordance with the Act. Filing of false affidavits or making false statement on oath in Courts aims at striking a blow at the rule of law and no Court can ignore such conduct which has the tendency to shake, public confidence in the judicial institutions because the very structure of an ordered life is put at stake. It would be a great public disaster if the fountain of justice is allowed to be poisoned by anyone resorting to filing of false affidavits or giving of false statements and fabricating false evidence in a Court of law. The stream of justice has to be kept clear and pure and anyone soiling its purity must be dealt with sternly so that the message percolates loud and clear that no one can be permitted to undermine the dignity of the Court and interfere with the due course of judicial proceedings or the administration of justice.”

Accordingly, considering all the aforesaid facts and the reasons given herein above, the writ petition does not deserve a simple rejection, but something more, so that it acts as a deterrent to others that filing of false affidavit would prove costly. Thus, the writ petition is dismissed with costs and the Registrar General of this Court is directed to lodge a first information report against the petitioner for having filed a false affidavit and committing fraud in trying to mislead the Court under the relevant Sections of the Indian Penal Code within four weeks from today. (Shimbhu Singh vs. State of U.P. and others; 2013(1) ESC 39 (All)

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Juvenile Justice (Care & Protection of Children) Act

S.7-A—Claiming to be less than 18 yrs on the date of occurrence—Burden of prove is on, who claim juvenility

Application under section 7-A of Juvenile Justice (Care and Protection of Children) Act, 2000 has been moved on behalf of appellant Surender Singh claiming himself to be less than 18 years on the date of alleged occurrence.

No evidence in support of application has been given by the appellant. The application has been moved after 28 years of presenting the appeal by the appellant. Merely on the basis of affidavit wherein neither any documentary proof of age nor age assessed on the basis of medical examination has been brought on record. Burden to prove that appellant was juvenile in conflict with law in view of provisions contains in Juvenile Justice (Care and Protection of Children) Act, 2000, is on the appellant, in which he failed. (Raghuraj Singh vs. State of U.P.; 2013 (80) ACC 256 (All)

Ss. 7-A, 33, 492(y)—Juvenality—Determination of

Consequently, the procedure to be followed under the JJ Act in conducting an inquiry is the procedure laid down in that statute itself i.e. Rule 12 of the 2007 Rules. We cannot import other procedures laid down in the Code of Criminal Procedure or any other enactment while making an inquiry with regard to the juvenility of a person, when the claim of juvenility is raised before the court exercising powers under Section 7 -A of the Act. In many of the cases, we have come across, it is seen that the criminal courts are still having the hangover of the procedure of trial or inquiry under the Code as if they are trying an offence under the penal laws forgetting the fact that the specific procedure has been laid down in Section 7-A read with Rule 12.

The Court also remind all courts/Juvenile Justice Boards and the Committees functioning under the Act that a duty is cast on them to seek evidence by obtaining the certificate, etc. mentioned in Rules 12(3)(a)(i) to (iii). The courts in such situations act as a parens patriae because they have a kind of guardianship over minors who from their legal disability stand in need of protection.

"Age determination inquiry" contemplated under Section 7-A of the Act read with Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates or the date of birth certificate from the school first attended, the court needs to obtain the date of birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the abovementioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year. (Ashwani Kumar Saxena vs. State of M.P.; (2013) 1 SCC (Cri) 594)

Ss. 209, 204—Committal to Court of Session—Duty of Magistrate—Reasons for committal given by Magistrate, if any

The incident involving the twin murders of A and H are triable by a Court of Session. The authority of the Magistrate was limited to taking cognizance and issuing process. A Magistrate in such a situation, on being satisfied, has the authority to merely commit the case for trial to a Court of Session under Section 209 CrPC.

It was essential for the Magistrate to highlight, for the perusal of the Court of Session, reasons which had weighed with her in not accepting the closure report submitted by CBI as also for not acceding to the prayer made in the protest petition for further investigation. It was also necessary to narrate what prompted the Magistrate to summon the complainant as an accused. For it is not necessary that the Court of Session would have viewed the matter from the same perspective as the Magistrate. The Court of Session would in the first instance discharge the responsibility of determining whether charges have to be framed or not. Merely because reasons have been recorded the Court of Session will have an opportunity to view the matter in the manner of understanding of the Magistrate. If reasons had not been recorded, the Court of Session may have overlooked what had been evaluated, ascertained and comprehended by the Magistrate. A Court of Session on being seized of a matter after committal, being the competent court, as also, a court superior to the Magistrate, has to examine all the issues independently within the four corners of law without being influenced by the reasons recorded in the order issuing process.

It was befitting for the Magistrate to pass a well-reasoned order, explaining why she was taking a view different from the one prayed for in the closure report. It is also expedient for the Magistrate to record reasons why the request made by the complainant for further investigation, was being declined. Even the fact that the complainant was being summoned as an accused necessitated recording of reasons. An order passed in the circumstances without outlining the basis therefor would have been injudicious. The Magistrate’s painstaking effort needs a special commendation. (Nupur Talwar vs. Central Bureau of Investigation; (2013) 1 SCC (Cri) 689)

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Limitation Act

SLP Filed by Appellants against the decision of Division Bench of Delhi High Court reversing the trial court Judgment granting the decree of specific performance on the ground that the Plaintiffs' suit is barred by limitation. It is contended that the said conclusion has been reached on an apparent misinterpretation of the provisions of Section 15(5) of the Limitation Act, 1963

On due application of the provisions of Section 15(5) of the Limitation Act of 1963, the suit filed by the Plaintiff was well within time as the period of the absence of the Defendant from India has to be excluded while computing the limitation for filing of the suit- The principle of business efficacy is normally invoked to read a term in an agreement or contract so as to achieve the result or the consequence intended by the parties acting as prudent businessmen. Business efficacy means the power to produce intended results- The business efficacy test, therefore, should be applied only in cases where the term that is sought to be read as implied is such which could have been clearly intended by the parties at the time of making of the agreement.

No straitjacket formula can be laid down and the test of readiness and willingness of the Plaintiff would depend on his overall conduct i.e. prior and subsequent to the filing of the suit which has also to be viewed in the light of the conduct of the Defendant.

The discretion to direct specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the Specific Relief Act, 1963 cannot be entrapped within any precise expression of language and the contours thereof will always depend on the facts and circumstances of each case. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the experienced judicial mind can perceive without any real difficulty. It must however be emphasized that efflux of time and escalation of price of property, by itself, cannot be a valid ground to deny the relief of specific performance. Appeal allowed (Satya Jain (D) Thr. L.Rs. and Ors. Vs. Anis Ahmed Rushdie (D) Thr. L.Rs. and Ors.; 2013 (1) AWC 625 (SC)

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Minimum Wages Act

S. 2(h) - “Wages’ - Employer is paying total sum - Which is higher than minimum wages fixed under the Act - Which includes the D.A. calculated - As such the employer is not required to pay VDA separately

It would emerge that employer is paying total sum which is higher than minimum rates of wages fixed under the Minimum Wages Act which includes the DA calculated by taking into consideration cost of living index and as such the employer is not required to pay VDA separately. Since VDA forms part and parcel of the component, of wages and same having been taken into consideration by the employer while paying wages, question of paying VDA separately or as an independent component as prescribed under the notification does not arise at all in the instant case.

Industrial Disputes Act, 1947 - Section 11 - Payment of Dearness Allowance - Even in case of consolidated wages being higher than minimum wages fixed - Question of - To be answered by holding that management is not liable to pay D.A. separately - For reasons, impugned award is set aside as being erroneous

The Court is of the considered view that point No. 2 is to be answered by holding that in the instant case, the management is not liable to pay Dearness Allowance separately when the consolidated wages i.e., being paid to workmen is higher than what is prescribed under the notification. For the reasons aforesaid point No. 3 has to be answered in favour of petitioner by setting aside the impugned awards being erroneous.

Industrial Tribunal-Reference - Industrial Tribunal has no jurisdiction - To go beyond the terms of reference

Industrial Tribunal has no jurisdiction to go beyond the terms of reference and to enquire into the question which is not involved in a reference. If the Tribunal travels beyond the terms of the reference, the award is nullity and would not confer any right upon the party. There cannot be any dispute with regard to this proposition of law. As to whether factually the Industrial Tribunal in the instant case has travelled beyond the scope of reference of not, is required to be examined by referring to the point of dispute referred to by the appropriate Government to the Industrial Tribunal for its adjudication and its finding thereon. (M/s. Sunrise Industries, Banglore Vs. Sunrise Industrial Unit, AITUC; (2013 (136) FLR 488) (Karnataka High Court).

Back Wages - By award the Labour Court set aside the order of termination and directed reinstatement of respondent in service with entire salary and back wages - However in absence of any pleading on part of workman that he was not gainfully employed anywhere after termination of his services - Labour Court could not have awarded back wages

In view of the settled proposition of law, Court is of the view that the Labour Court could not have been awarded back wages to the respondent No. 2, workman in absence of any pleading on the part of the workman that he was not gainfully employed anywhere after termination of his service on 31.7.1991. Moreover, the provisions of section 17-B of the Industrial Disputes Act, 1947 (Central Act) do not find place in the U.P. Industrial Disputes Act, 1947 and therefore, applying the law laid down by the Supreme Court in the case of U.P.S.R.T.C. v. Surendra Singh, direction No. 3 in the interim order also could not have been given.

Industrial Disputes Act, 1947 - Section 17-B - U.P. Industrial Disputes Act, 1947 - Provisions of - Since provisions of section 17-B, do not find place or mention in U.P. Industrial Disputes Act - Hence, no such direction for paying wages under section 17-B could have been given

Since, the provisions of section 17-B of the Industrial Disputes Act, 1947 (Central Act) do not find any place or mention in the U.P. Industrial Disputes Act, 1947 and no such direction No. 3 for paying wages under section 17-B of the Industrial Disputes Act, 1947 could have been given. (M/s. Swadeshi Cotton Mills Vs. Labour Court II, U.P., Kanpur and others; (2013 (136) FLR 379) (Allahabad High Court).

Wages - Arrears of wages - Payment of - Writ petition filed by registered trade union of employees - Seeking a direction to respondents for making payment of arrears of wages from 1992 of 1996 - Pursuant to settlement and award of competent Tribunal dated 30.5.1996 in Reference - There was no requirement of any specific approval to the settlement or term of settlement in any manner from Government of India - Settlement was not in any manner, contrary to those guidelines, rather guidelines were complied in letter and spirit - Therefore arrears of wages could not be denied to workmen - The Court, therefore, directed the respondent that demand for arrears may not be denied - Solely on ground of non availability of funds - Constitution of India, 1950 - Article 226 - Industrial disputes Act, 1947

When the settlement was executed between the parties on 23.5.1996, there was no obligation on the part of the management to seek any specific approval at all from the Government of India and it was well within its power, authority and competence to enter into any settlement, if in case, the broad guidelines and criteria mentioned in the communication of 1993 and 1994 was fulfilled.

Government of India did not require be consulting, much less, requesting for approval in terms of the communication and guidelines dated 12.4.1993 and subsequent clarification of 1994. Moreover, it is required to be noted at this stage that, the letter dated 10.7.1996 is self sufficiently indicative of the fact that board criteria and guidelines envisaged in the communication dated 12.4.1993 and 17.1.1994 were fulfilled and the settlement as it is, was not, in any manner, contrary to those guidelines and sufficient agreement was demanded to see to it that the guidelines is complied in its letter and spirit.

Therefore, the arrears for the period from 1.1.1992 to 30.6.1996 could not be denied and when the society has been would up and the liquidator is appointed, the availability of fund is also a factor, which cannot be said to be a factor, which is not required to be taken into consideration. The claim of the wages cannot be denied in any manner, the workmen cannot be even said to have waived their right, in any manner. (Gujarat Petrofills Employees Congress and others Vs. Union of India and others; (2013 (136) FLR 615) (Gujarat High Court).

S. 20(5)(b) - Application under - Filed for implementation of orders passed by authority - It can be treated as an execution petition - There is no prohibition in law for the employer to straight away comply with order passed by the authority - Not necessary to deposit the amount into Court or with the authority itself - If workmen have accepted that the order has been complied with - Court should not proceed to direct recovery of amount - Proceedings must halt there

If the authority under the Act passed an order determining the amount to be paid either as difference of wages or penalty, there is no prohibition in law for the employer to straight away comply with it by paying the amount to the workmen. It is not necessary that the amount must be deposited into the Court or with the authority itself.

Once a workman appears before the Court and states that he has received the wages that were determined by the authority, the proceedings must halt there. Carrying out the matter further, despite such a plea, brings about a situation where the order passed by the authority tends to become a decree in his favour. That was not at all in the contemplation of the Legislature, when it enacted the Act. (Potta Bharati Vs. Assistant Labour Officer, Parvathipuram, Vizianagaram; (2013 (136) FLR 821) (Andhra Pradesh High Court).

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Motor Vehicles Act

S. 147 – Motor insurance – Goods vehicle – Gratuitous passenger – Liability of Insurance Company – Determination of

In all these case, the only point urged is that the deceased and injured persons were travelling in a goods carriage as gratuitous passengers and there was no policy of insurance to cover the risk to such persons. The Tribunal did not consider such a plea by the insurance company nor did it frame any issue for consideration with reference to such a defence. However, I will no take that to be material since the parties went to trial knowing what the status was. The admissions in the petitions themselves were that all of them had boarded the goods carriage to mourn the death of one Deep Chand. I will take the defence taken by the insurance company to be fundamental to cast the liability on the insurer and will not getter this court to consider whether a right of claim could be enforced against an insurer under such a circumstance. The law is too well laid down through the decisions of the Hon’ble Supreme Court and by a statutory interdict and a statutory provision for compulsory insurance as available only to owners of goods travelling along with the goods. The insurance company could not have been made liable particularly in view of the law laid down by the Hon’ble Supreme Court in New Indian Assurance Co. Ltd. v. Asha Rani, 2001 ACJ 1847 (SC).

A case of a gratuitous passenger in a goods carriage is not a situation of merely a violation of terms of policy, Here, the ground to reject a claim by the claimant against an insurer is by resort to section 147 and not by reference to section 149. Section 147 refers to the situations where insurance is statutorily provided for. While an owner or an authorised representative of the owner of the goods is protected, a passenger in a goods carriage is not required to be covered for risk for accidental injury or death. In such a situation, the principle of pay and recover does not arise. (New India Assurance Co. Ltd. v. Ram Avtar; 2013 ACJ 443)

S. 147 (1) – Motor insurance – Pillion rider - Third party risk – Whether risk of pillion rider is covered as “third party risk” in terms of notification dated 18.3.1978 issued by the Tariff Advisory Committee and insurance co. is liable – Held, “Yes”

In this case the victim Davinder was the pillion rider of the driver Lakshman; there is no dispute to the fact that a pillion rider is covered as a ‘third party risk’ and if the claim is otherwise found to be in order the appellant insurance company in liable to pay the compensation to the legal heirs of the deceased pillion rider, Further, in terms of notification [dated 18.3.1978 effective from] 25.3.1977 issued by the Tariff Advisory Committee, insurance companies have been made liable even in the case of pillion rider. (National Insurance Co. Ltd. v. Sheela; 2013 ACJ 290)

S. 147(1)(b)(i) – Quantum – Fatal accident multiplier – Choice

The claims against the driver, owner and insurer of mini lorry No. AP 7-V 1341 by the legal representatives/dependants of the three deceased for a compensation of Rs. 1,70,200, Rs. 2,00,000 and Rs. 2,00,000 respectively were on the basis that the three deceased, who were agriculturists, purchased fertilizers along with some others on 3.11.1997 at Eluru and engaged the mini lorry for carrying the goods to their village. The deceased also travelled along with their goods in the vehicle which fell into tammileru Canal at about 8.30 p.m. due to rash and negligent driving by the respondent No. 1. The load and the lorry fell on the deceased resulting in their death and hence, the claims.

While the driver and owner of the lorry did not file any written statements, the insurer contested the claims denying the manner of the accident or the ownership of the fertilizer bags with the deceased or the valid driving licence of the respondent No. 1 of compliance with the terms and conditions of the insurance policy or the existence of an insurance policy. The compensation claimed respectively was contested as excessive.

The assessment of compensation by the Tribunal in each of the three cases is based on an annual income of Rs. 15,000 for the deceased and the same is the income adopted by the statute in its Second Schedule to the Motor Vehicles Act, 1988, even in respect of non-earning persons. There could have been taken as the probable income of the agriculturists and the deduction of 1/3^rd for the personal and living expenses of the deceased or the application of the multiplier to the persons aged 38 years and 40 years respectively at 16 need not be interfered with at this distance of time for the difference of one number in the multiplier between that adopted by the Tribunal and that laid down by the decision in Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC), as adoption of multiplier is only in approximation and not in exactitude. (New India Assurance co. Ltd. v. Tottikolla Chkkamma; 2013 ACJ 689)

S. 149 (2) – Motor insurance – Defences available to insurance co. – Whether insurance co. can challenges the quantum in appeal – Held “No”

On a plain reading of the prevision it becomes amply clear that the only defence that an insurer can take against a claim is on the grounds enumerated under clause (a) and sub-clauses there under and clause (b) of sub-section (2) of section 149 of the Act. No ground is permissible. Court may in this regard usefully refer to the case of United India Insurance Co. Ltd. v. Shaik Saibaqtualla, 1992 ACJ 858 (AP), para 11 of which reads as under:

“(ii) It is now well-established that an insurer cannot take pleas beyond the scope of section 96(2) of the Act. British India Genl. Ins. Co. Ltd. v. Captain Itbar Singh, 1958-65 ACJ 1 (SC) is an authority for this, it should be remembered that it is not open to the insurance company to question the quantum of compensation. Raddipalli Chinnarao v. Reddi Lorurdu; 1980 ACJ 470 (AP), which a Division Bench decision, is an authority for this proposition.”

The case of Chinnamma George v. N.K. Raju, 2000 ACJ 777 (SC), may also be referred to in which the Apex Court re-emphasizes the very same principle.

Under such circumstances, grounds raised to assail the judgment of the learned Claims Tribunal are not sustainable and, therefore, stand rejected accordingly. (Branch Manager, Oriental Insurance Co. Ltd. v. Meena Bania; 2013 ACJ 565)

S. 149 (2)(a)(i)(c) – Permit – Liability of insurance co. – Pay and recover order – Validity of

The case of claimant-respondent No. 1 was that on 23.2.2007, Dilshad Malik and Bilal (claimant-respondent No.1) were going from Meerut to Hapur on a motor cycle bearing registration No. UP 14 AF 6136 being driven by the said Dilshad Malik, and that at about 3.45 p.m. when the said Dilshad Malik and Bilal on the said motor cycle reached near Dhanauta Bus Stand on Meerut-Hapur Road, a Roadways bus bearing registration No. UP 12 J 5519 coming from the opposite direction and being driven by its driver rashly and negligently, hit the said motor cycle as a result of which the driver of the said motor cycle, namely, Dilshad Malik and pillion rider of the said motor cycle, namely, Bilal sustained serious injuries and said motor cycle was also heavily damaged and that on account of injuries sustained by the claimant- respondent No. 1 in the said accident, he suffered from total permanent disablement.

It was, inter alia, further stated on behalf of the claimant-respondent No.1 that the said Roadways bus was owned by U.P. State Road Transport Corporation (respondent No. 2 herein), and the name was insured with the appellant insurance company.

The said Roadways bus has hereinafter been also referred to as ‘the vehicle in question’.

The claim petition was contested by the respondent No. 2 (owner of the vehicle in question) as well as by the appellant insurance company by filing written statements.

The Tribunal held that the claimant-respondent No.1 was entitled to get compensation amounting to Rs. 1,05,098 with interest at the rate of 6 per cent per annum with effect from the date of filing of the claim petition till the date of actual payment. The tribunal further held that the liability for payment of compensation would be on the appellant insurance company, However, as the vehicle in question was being plied without valid permit, and thus appellant insurance company (sic owner of the vehicle in question) violated the terms of the insurance policy, therefore, after making payment of compensation, the appellant insurance company would be entitled to recover the same from the owner of the vehicle in question (i.e. respondent No. 2 herein).

In view of the above provisions, court’s opinion that the directions given by the Tribunal requiring the appellant insurance company to make the deposit of compensation awarded under the impugned award and thereafter recover the same from the owner of the aforesaid vehicle in question, in accordance with law, and the same does not suffer from any infirmity.

It was evident that the directions given by the Tribunal requiring the appellant insurance company to deposit the amount awarded under the impugned award in the first instance, and thereafter, recover the same from the owner of the vehicle in question, are valid and legal.

In court’s opinion, the directions contemplated in the above decisions may be sought by the appellant insurance company before the executing court when the appellant insurance company, after depositing the amount awarded under the impugned award, moves appropriate application before the executing court to recover the said amount from the insured persons, i.e., the owner of the vehicle in question (i.e. the respondent No. 2 herein), while the claimant files and application for the execution of the award or for the release of the amount deposited by the appellant insurance company. (Oriental Insurance Co. Ltd. v. Bilal; 2013 ACL 462)

S. 149(2)(a)(i)(c) – Motor insurance - Permit liability of insurance co. Insurance co. disputes its liability on the ground that offending vehicle was insured as a passenger vehicle but was carrying goods – Policy covers use only for carriage of passengers in accordance with permit – Determination of

The grounds pressed on behalf of the appellant at the time of hearing are the following:

(i) That the ill-fated vehicle which met with accident was carrying commercial materials when the vehicle was insured as a passenger vehicle and, therefore, the insured having violated one of the principal conditions of the policy, the award was not permissible.

(ii) That one of the claims allowed being the agricultural income based on the certificate of income, Exh. 16, issued by the Block Development Officer (in short BDO) in erroneous as the competence of the BDO to issue such certificate has not been established.

(iii) That the learned Tribunal awarding compensation against love and affection, pain and suffering deserves to be set aside as being impermissible under the law.

Learned advocate appearing on behalf of the appellant insurance company, seriously contended that the award is against the glaring evidence that vehicle was carrying goods at the time of the accident and, therefore, not covered under the insurance policy. It was submitted that in any case, provisions in the Motor Vehicles Rules permitting carriage of goods by passenger vehicles was by itself illegal and, therefore, the award of compensation by application of such impermissible rule was liable to be set aside.

Routine permits are issued under the Sikkim Motor Vehicles Rules, 1991, framed under section 111 of Motor Vehicle Act, 1988. This clearly falls within the meaning of the terms “Permits issued within the meaning of Motor Vehicles Act provided in the insurance policy, Exh. 14. Therefore, the contention stands rejects.

As regards the case of National Insurance Co. Ltd. v. Baljit Kaur, 2004 ACJ 428 (SC), referred to by the learned counsel, the decision in that case was rendered on the question as to whether under the provisions of section 147 of the Motor Vehicles Act, 1988, persons other than the owner of the goods or the authorised representatives, i.e., gratuitous passengers, would be covered in respect of the goods vehicle or not. In the present case, that is not the question. The only issue that requires consideration here is as to whether the articles carried in the accident vehicle, which is a passenger vehicle, were permissible under the rules, and if so, whether the insurance policy covered that aspect. Court has already answered the question in the affirmative and this court does not find any reason to interfere with that finding. (Branch Manager, Oriental Insurance Co. Ltd. v. Meena Bania; 2013 ACJ 565)

S. 149 (2)(a) (ii) - Driver did not have valid driving licence on the date of the accident - Held, the appellant (insurer) shall be liable to pay compensation award but he will have option to recover the same from the owner of the vehicle

This is an appeal under Section 173 of the Motor Vehicles Act against the impugned award dated 29.5.2002 passed by the Motor Accident Claims Tribunal, Faizabad in Motor Accident Claims Case No. 189 of 1999.

Appellant herein raised a specific plea that he was not driving the vehicle and one Diwan Singh was driving the same. The said fact was within his special knowledge. Burden of proof, therefore, to prove the same was on him. He did not examine Diwan Singh.

In the present case, since the licence of the vehicle was renewed on 21.9.2009 after three years almost accident in question be shown that the driver had not represented valid deriving licence in certain proposition of law. Though the appellant shall be liable to pay compensation award but he will have option to recover the same from the owner of the vehicle.

Subject to the aforesaid observations, the appeal is allowed in part. Amount awarded is modified giving representation to the appellant to recover the compensation in terms of award paid to the complainant from the owner of the vehicle. Let appellant be deposited entire compensation before the Tribunal within two months. (The Oriental insurance Co. Ltd., Faizabad Vs. Anand Vikram Singh; (2013 (31) LCD 71) (Allahabad High Court (Lucknow Bench).

Ss. 163-A and 149(2)(A)(ii) – Motor insurance – Defences available to insurance co. – whether mere plea of absence of valid driving licence of motor cyclist would entitled insurance co. to avoid its liabilities – Held “No”

In a judgment of Gujarat High Court in New India assurance Co. Ltd. v. Muna Maya Basant, 2001 ACJ 940 (Gujarat), Bench of Gujarat High Court has noted that in a claim petition under section 163-A of the Motor Vehicles Act the scope of raising a plea in defence about the challenge to the driving licence is not permissible.

Thus a mere plea that there was absence of a valid driving licence of the driver would not by itself entitle the insurance company to avoid its liability. (National Insurance Co. Ltd. v. Sheela; 2013 ACJ 290)

Ss. 166 and 163-A – Claim petition conversion of – Whether claim u/s 166 can be converted as under Sec. 163-A if it is more advantageous to the claimant, Held, “Yes”

Just compensation under section 166 cannot in any view of the matter fall below or be lesser than the amount payable under section 163-A, contends the learned counsel. The claim may thus be considered as one under section 163-A, submits counsel. Court found merit in that contention. That principle has been accepted in Muneer (supra). In R.K. Malik v. Kiran Pal, 2009 ACJ 1924 (SC), the Supreme Court has also accepted the same. This aspect has been referred to in detail in the decision in Sree Devi v. Kerala State Road Transport Corporation, 2012 ACJ 1901 (Kerala). The right of the claimant to stake the claim for compensation under section 163-A in a pending claim under section 166 is also recognized by the decision of this court in United India Insurance Co. Ltd. v. Madhavan, 2012 ACJ 1986 (Kerala). In these circumstances, court satisfied that the claim can be considered at this juncture as one under section 163-A, if that would be more advantageous to the claimant. The request of the claimant has to be accepted. (Sumathi Kutty v. Manoj; 2013 ACJ 418)

Fatal Accident – Age of claimant – Determination of

It would be relevant to refer to the affidavit of Ram Rati Devi (the claimant). She gave her age as 50 years and deposed that her son was earning Rs. 6,000 per month and sent her Rs. 5,000 per month. The Claims Tribunal’s finding of taking the deceased’s income to be Rs. 5,000 per month has not been challenged. The claimant produced on record her identity card issued by the mukhia of gram Champaran, Dumaria, which showed the age of the respondent No. 1 (the claimant) to be 50 years on 11.9.2004. There is another document, i.e. voter identity card, issued on 24.9.2005 which shows her age to be 68 years as on 1.1.2005. Since the Claimant’s testimony that she was 50 years was not challenged in cross-examination, in view of the contradictory documentary evidence, the age favourable to the claimants has to be considered for grant of compensation as the provision of section 166 is a piece of social legislation. (National Insurance Co. Ltd., v. Ram Rati Devi; 2013 ACJ 583)

Quantum – Principles of assessment – Pain and suffering – Whether any compensation for paid and suffering is permissible where deceased had died instantaneously – Held, “No”

The claim awarded against pain and suffering has been fairly conceded by Mr. Tsewang Namgyal as not permissible, since the deceased had died instantaneously on the spot at the time of the accident. This being the correct position in law, as it would generally apply in cases of injuries causing permanent disability or when death occurs after an interval from the time of the accident, the amount awarded against the claim stands set aside. (Branch Manager, Oriental Insurance co. Ltd. v. Meena Bania; 2013 ACJ 565)

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Muslim Law

(a) Muslim Law - Will, execution of by a Mislim - Held, a Muslim can bequeath his property upto the extent of 1/3- Will if executed in favour of an heir, all co-heirs must consent to it

(b) Provincial Small Cause Courts Act, 1987, Section 23 - Title of Plaintiff in a suit between Landlord and Tenant - Held, factum of ownership is foreign to the scope of Judge, Small Causes Court - One Co-owner alone would be competent to sign such application. 1987 (1) ARC 281 (FB) ref

(c) Abuse of the process of Law - Landlord and tenant disputes - Conduct of litigants deprecated - Petition dismissed with a cost of Rs. 25000/-

The admitted facts between the parties are that the petitioners are tenants of the disputed premises. The opposite party no. 3, claiming himself to be landlord filed a small cause case for eviction and recovery of rent and damages for use and occupation before the learned Trial Court. Opposite party no.2 filed written statement and challenged the ownership of opposite party no. 3, who was plaintiff before the Judge, Small Causes Court. Replication was also filed by opposite party no.3. The suit was filed on 2.9.1992. Written statement was filed by the petitioners on 21.10.1993. The replication was filed on 22.3.1994, against which the defendants/petitioners filed another application on 22.08.1996. On the same date, the petitioners moved application before the learned Judge, Small Causes Court under Section 23 of the Provincial Small Cause Court Act, 1887, for returning the plaint on the ground that intricate question of ownership is involved in this case, which was numbered as Paper No. 116-C. It was rejected vide order dated 26.10.1998. The petitioners filed S.C.C. Revision No. 21 of 1998, which was also dismissed vide judgment and order dated 16.12.2003. Aggrieved by both the orders, petitioners have knocked the door of the Court.

On the basis of discussions made above, writ petition deserved to be dismissed. Writ petition is accordingly dismissed with a cost of Rs. 25,000/- to be paid by the petitioners to opposite party no.3 within thirty days from today or in case of refusal by opposite party no. 3 the same shall be deposited before the learned Judge, Small Causes Courts within stipulated time, which shall be a condition precedent for the petitioners to participate in the proceeding of S.C.C. Suit No. 22 of 1992. Both the order under challenge are hereby confirmed. Learned Judge, Small Causes Court, Bahraich, where the suit is pending is directed to proceed on with the case, on day to day basis, in such a fashion, that it is decided within three months from the date of production of a certified copy of this order. (Niyamatullah and others Vs. 1^st Additional District Judge, Bahraich and others; (2013 (31) LCD 125) (Allahabad High Court (Lucknow Bench).

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Narcotics Drugs & Psychotropic Substances Act

Ss. 36 & 36A – Proceedings - Establishment of special NDPS Court has directed

Considering fact that many States do not have Special NDPS Courts and even where they are significant, time of NDPS courts is expended in dealing with bail and other criminal matters, the Court issued following directions:

(i) Each State, in consultation with the High Court, particularly the States of Uttar Pradesh, West Bengal and Jammu and Kashmir (where the pendency of cases over five years is stated to be high), is directed to establish special courts which would deal exclusively with offences under the NDPS Act.

(ii) The number of these Courts must be proportionate to, and sufficient for, handling the volume of pending cases in the State.

(iii) Till exclusive Courts for the purpose of disposing of NDPS cases under the NDPS Act are established, these cases will be prioritized over all other matters; after the setting up of the special Courts for NDPS cases, only after the clearance of matters under the NDPS Act will an NDPS Court be permitted to take up any other matter.

(Thana Singh v. Central Bureau of Narcotics; 2013 Cr.LJ 1262)

S. 50 – Scope and ambit of

It is imperative on the part of officer to apprise the person intended to be searched of his right under Section 50 of the NDPS Act, to be searched before a Gazetted Officer or a Magistrate – It is mandatory on the part of the authorized officer to make the accused aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance – The suspect may or may not choose to exercise the right provided to him under the said provision, but so far as the officer concerned, an obligation is cast on him under Section 50 of the NDPS Act to apprise the person of his right to be searched before a Gazetted Officer or a Magistrate. (Ashok Kumar Sharma vs. State of Rajasthan; 2013(1) Supreme 128)

S. 50—Search of person—Non observance of provision—It vitiates the conviction and sentence recorded on basis of mere possession of the contraband

The Court reiterate that sub-section (1) of section 50 makes it imperative for the empowered officer to “inform” the person concerned about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate, failure to do so vitiate the conviction and sentence of an accused where the conviction has been recorded only on the basis of possession of the contraband. The Court also reiterate that the said provision is mandatory and requires strict compliance. (Suresh vs. State of M.P.; 2013 (80) ACC 994 (SC)

S. 50(1)—Non compliance of requirement under section—Effect of

Section 50(1) of the NDPS Act makes it imperative for the empowered officer to “inform” the person concerned about the existence of his right under Section 50(1) of the NDPS Act, that if he so requires, he shall be searched before a gazette officer or a Magistrate. Failure to do so vitiate the conviction and sentence of an accused where the conviction has been recorded only the basis of possession of the contraband. It is also reiterated that the said provision is mandatory and requires strict compliance. (Suresh vs. State of M.P.; (2013) 1 SCC (Cri) 541)

Ss. 173 (2) (8), 156(3) - Further Investigation – Power of magistrate to direct for - However no power to order re-investigation

Magistrate has the power to direct ‘further investigation’ after filing of a police report in terms of Section 173(6) of the Code. Neither the scheme of the Code not any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be constructed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8). The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the Court to the extent that even where the facts of the case and the ends of justice demand, of the Court can still not direct the investigating agency to conduct further investigation which it could do on its own. The settled view that the police as a matter of procedural propriety has to seek permission of the Court to continue ‘further investigation’ and file supplementary charge-sheet clearly supports the view that the magistrate has power to direct further investigation. The magistrate however has no power to direct ‘reinvestigation’ or ‘fresh investigation’ in the case initiated on the basis of a police report. (Mohammad Khalid Chisti v. State of Rajasthan; 2013 Cr.LJ 637)

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National Security Act

S. 3(2) - Preventive Detention on ground that detenu was trying/making efforts for being released on bail

In the present case one of the ground of passing the impugned order that petitioner was trying/making the efforts for releasing on bail but the Detaining Authority was not satisfied that there were possibilities of releasing the petitioner on bail, it may not be a proper ground for passing the impugned order. The mere apprehension that the petitioner was likely to be released on bail because he was trying for the same may not be a justified ground for passing the impugned order as held by the Apex Court in the case of Yumman Ongbi Lembi Leima Vs. State of Manipur and others reported (2012) 1 SCC (Criminal) 701.

In its paragraph 25 it reads as under:

"When the courts thought it fit to release the appellant's husband on bail in connection with the cases in respect of which he had been arrested, the mere apprehension that he was likely to be released on bail as a ground of his detention, is not justified.”

In such circumstances, Court came to the conclusion that paper as of cross case has not be sent by sponsoring authority before the Detaining Authority for his subjective satisfaction. The ground passing the impugned order that the petitioner was trying to release on bail is not a good ground, therefore, the impugned order dated 10.2.2012 passed by District Magistrate, J.P. Nagar is illegal, the same is hereby set aside. (Tahseen vs. Union of India; 2013(2) ALJ 396)

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Negotiable Instruments Act

Ss. 138, 142 - Limitation of filing complaint for starting – Is date of filing of complaint is not date of taking cognizance

In the light of the scheme of the Act and various provisions of the Code, Court hold that the crucial date for computing the period of limitations is the date of filing of the complaint or initiating criminal proceedings and not the date of taking cognizance by the magistrate. In the case on hand, as pointed out earlier, the complaint was filed on Judge, which is well within the time and on the direction of the Magistrate, verification was recorded by solemn affirmation by authorized representatives of the complainant and after recording the statement and securing his signature, the learned magistrate passed an order issuing summons against the accused under Section 138/142 of the Act (Indra Kumar Patodia and Anr. V. Reliance Industries ltd. And Ors.; 2013 Cr. LJ 1179)

Ss. 138, 141, 142 – Complaint of dishonour of cheque - Need not necessarily be signed by complainant - Complaint sans signature of complainant is maintainable

The complaint of dishonour of cheque need not necessarily be signed by complainant. The only requirement that S. 142 provides is that the complaint must necessarily be in writing and the complaint can be presented by the payee or holder in due course of the cheque. The definition of complaint as stated in Section 2(d) of Cri. P.c. provides that the same needs to be in oral or in writing. The non obstante clause in Section 142 (a) is restricted to exclude two things only from the Code i.e. (a) exclusion of oral complaints and (b) exclusion of cognizance on complaint by anybody other than the payee or the holder in due course. None of the other provisions of the Criminal P.c. are excluded by the said non obstante clause. The Magistrate is therefore required to follow the procedure under Section 200 of the Criminal P. C. once he has taken the complaint of the payee/holder in due course and record statement of the complainant and such other witnesses as present at the said date. Here, the Code specifically provides that the same is required to be signed by the complainant as well as the witnesses making the statement. Mere presentation of the complaint is only the first step and no action can be taken unless the process of verification is complete. The Magistrate thereafter has to consider the statement on oath that is, the verification statement under Section 200 and the statement of any witness, and then decide whether there is sufficient ground to proceed. No prejudice is caused to the accused for non-signing the complaint as the statement made on oath and signed by the complainant safeguards the interest of the accused.

Apart from the above writing does not presuppose that the same should be signed. This becomes clear when S. 2 (d) of CrPC is contrasted with provisions such as Ss. 61, 70, 154, 164, 281 of Code. A perusal of these sections show that the legislature has made it clear that wherever it required a written document to be signed, it should be mentioned specifically in the section itself, which is missing both from Section 2 (d) of Criminal P.C. as well as section 142 of Act. Even General Clauses Act, 1897 too draws a distinction between writing and signature and defines them separately. If the legislature intended that the complaint under the Act, apart from being in writing, is also required to be signed by the complainant, the legislature would have used different language and inserted the same at the appropriate place. (Indra Kumar Patodia and Anr. v. Reliance Industries Ltd. and Ors.; AIR 2013 SC 426)

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Payment of Gratuity

S. 7(3-A) – Interest - At the rate of 10% on delayed payment of Gratuity - Application for - Given with calculations of additional sum of amounts as interest becomes due and payable by the respondent-school - Once the applicant is held to be entitled to Gratuity from respondent under the Act - Then all provisions of Act apply-Applicant received the amount of Gratuity on 9.8.2011 - Therefore till this date, the applicant is entitled to interest - Even though the applicant could not withdraw the amount because of restraining order from the Court - Payment of interest under the Act is a liability of respondent and that is upto the date of payment - Filing execution for recovery of said amount is not necessary - Applicant is entitled to 10% interest on account of gratuity payable till the date of payment

Admittedly, applicant at present, is entitled to Gratuity from respondent Nos. 1 and 2. Once it is held by this Court in Civil Application No. 1181 of 2011 that applicant is entitled to the benefit under the provisions of Payment of Gratuity Act, 1972 then all the provisions of Payment of Gratuity Act, 1972 are applicable.

The applicant received the amount on 9.8.2011. Therefore, till this date, the applicant is entitled to interest. The authorities cited by the applicant in the matters of H. Gangahanume Gowda v. Karnataka Agro Industries Corporation Ltd., and Principal Vidarba Ayurved Mahavidyalaya and Hospital Amravati and another v. Kausalyabai W/o Prahaladrao Raghuvanshi and another, fully covered the issue involved in the present Civil Application i.e. payment of interest under the said Act is liability of respondent Nos. 1 and 2 and that is up to the date of payment.

It is not necessary for the applicant to file execution for recovery of the said amount because the present writ petition is still pending before this Court and the present Civil Application is preferred in the pending Writ Petition. (Mrs. Ananta Vishwanathan Vs. Shri Narayana Guru High School and others; (2013 (136) FLR 550) (Bombay High Court).

S. 7(3-A), 4 and 14 - Punjab National Bank (Employees) Pension Regulations, 1995 - Regulation 46 - Gratuity Act - By virtue of section 14 of Gratuity Act, granted superior status, vis-a-vis, any other enactment (instrument or contract) inconsistent therewith - Therefore, in so far as the entitlement of an employee to gratuity is concerned, provisions of Gratuity Act are vested superiority over all other enactments/provisions - However an employee has right to make a choice to receive better terms of gratuity

A perusal of section 14 leaves no room for any doubt, that a superior status has been vested in the provisions of the Gratuity Act, vis-à-vis, any other enactment (including any other instrument or contract) inconsistent therewith. Therefore, insofar as the entitlement of an employee to gratuity is concerned, it is apparent that in cases where gratuity of an employee is not regulated under the provisions of the Gratuity Act, the legislature having vested superiority to the provisions of the Gratuity Act over all other provisions/enactments (including any instrument or contract having the force of law), the provisions of the Gratuity Act cannot be ignored. The term “instrument” and the phrase “instrument or contract having the force of law” shall most definitely be deemed to include the 1995 Regulations, which regulate the payment of gratuity to the appellant.

First and foremost, Court have concluded on the basis of section 4 of the Gratuity Act that an employee has the right to make a choice of being governed by some alternative provision/instrument, other than the Gratuity Act, for drawing the benefit of gratuity. If an employee makes such a choice, he is provided with a statutory protection, namely, that the concerned employee would be entitled to receive better terms of gratuity under the said provision/instrument, in comparison to his entitlement under the Gratuity Act. This protection has been provided through section 4(5) of the Gratuity Act. Furthermore, from the mandate of section 14 of the Gratuity Act, it is imperative to further conclude, that the provisions of the Gratuity Act would have overriding effect, with reference to any inconsistency therewith in any other provision or instrument. Thus viewed, even if the provisions of the 1995, Regulations, had debarred payment of interest on account of delayed payment of gratuity, the same would have been inconsequential. (Y.K. Singla Vs. Punjab National Bank and others; (2013 (136) FLR 1087) (SC).

Ss 7(4) and 7(7) – Appeal - Not within 120 days - Hence the appeal was rejected by order dated 15.1.2011 - Stating that the Court has no power to condone this delay - Order was challenged which was rejected by learned Single Judge by order dated 11.10.2011 - No error was committed by learned Single Judge in dismissing the writ petition and confirming the orders passed by Appellate Authority as well as the Controlling Authority

Any person aggrieved by an order, under sub-clause (4) of section 7, may within 60 days from the receipt of the order, prefer an appeal to the Appellate Authority. Then the Appellate Authority is at liberty, if sufficient cause is shown, to extend the period of 60 days for further period of 60 days. The second proviso of section 7(7) provides that no appeal by an employer shall be admitted unless, at the time of preferring and appeal, the appellant either produce a certificate of controlling authority to the effect that the appellant has deposited with him an amount equal to the amount of gratuity.

The Appellate Authority as well as the learned Single Judge of this Court rightly upheld the preliminary objection of respondent No. 2 regarding maintainability of the appeal and there is no reason to interfere in the said findings. Accordingly we find no error is committed by the learned Single Judge in dismissing the writ petition and confirming the orders passed by the Appellate Authority as well as the Controlling Authority under the Gratuity Act. (Bhavnagar Municipal Corporation Vs. Vasantben B. Baraya and others; (2013 (136) FLR 966) (Gujarat High Court).

Ss. 7, 4 and 4-A - Pension Rules - Rules 45-A(1)(C) and 14-B(2)(b)(ii) -Constitution of India, 1950 - Article 226 - Writ Petition - Challenged the order passed by Appellate Authority, by which the appeal was dismissed and order passed by Controlling Authority was confirmed - The Controlling Authority has directed the payment of amount of gratuity with 10% interest - Gist of reasoning of Controlling Authority that the respondent was allowed to retire honourably and gratuity could not be withheld - Respondent would therefore be entitled to payment of gratuity - Gratuity had become due and payable to respondent within one month of his retirement on 31.5.2010 - But the same was deposited at appellate stage as pre-condition for filing appeal - Therefore, direction to pay gratuity amount at 10% cannot be faulted

The Payment of Gratuity Act being a beneficial piece of legislation, on the employer not complying with the mandate of the said provision, he would be required to pay the amount with interest.

The direction by the Controlling Authority for payment of the said amount at 10% cannot be faulted with as the said rate of interest has been arrived at considering the rate at which repayment is made as notified by the Central Government from time to time for payment of long term deposits. (Municipal Corporation of Greater Mumbai Vs. Vitthal Anna Kamble; (2013 (136) FLR 957)(Bombay High Court).

S. 13 - Claim of gratuity - Objection under - By petitioner - In application of respondent before Competent Authority for a direction to Railway administration to make payment of gratuity due to him - Objection of petitioner - Railway was rejected and claim of respondent for gratuity allowed - On ground that objection not maintainable - Objection under section 13 of Act will no longer come in the way of petitioners from recovering the Government dues from the gratuity dues of respondent - Question not considered and decided by Controlling Authority in impugned order -Therefore, the same is absolutely illegal and quashed-Matter remitted back to reconsider

The objections under section 13 of the Payment of Gratuity Act will no longer come in the way of the petitioners from recovering the Government dues from the gratuity dues of the respondent No. 1. But the question still remains whether the respondent No. 1 was in unauthorized occupation and whether the amount of Rs. 21,376.80 and electricity dues to the extent of Rs. 5,520.26/- was actually a Government due against the respondent No. 1. This question having not even been considered and decided by the Controlling Authority-respondent No. 1 in the impugned order dated 16.1.1996, therefore, the same is absolutely illegal and without application of mind and is contrary to the law laid down by the Supreme Court. (Union of India and another Vs. Satya Narain and another; (2013 (136) FLR 120) (Allahabad High Court).

Gratuity - Withholding of - Because the employee though retired, but failed to vacate the company quarter and he had taken bank loan which fell due -Impugned order denying the employer to deduct the penal rent from outstanding dues of employee - Is contrary to decision laid down by Hon’ble Supreme Court - As such the impugned order is not sustainable - Impugned order is modified to that extent - Employer is entitled to deduct/adjust the outstanding penal rent due for period of unauthorised occupation of official quarters - The rest should be paid to him

It appears that the impugned order denying the employer to deduct penal rent from the outstanding dues of the employee is contrary to the decision laid by Hon’ble Supreme Court of India and as such the impugned order is not sustainable. However, instead of quashing the impugned order it is modified to the extent that the employer is entitled to deduct/adjust the outstanding penal rent due from the employee-respondent No. 1 for the period of unauthorized occupation of the official quarters from his outstanding dues and the rest, if any, should be paid to the employee-respondent No. 1. (Project Officer, S.D.O.-3 Bokaro Vs. Rajaram Singh and others; (2013 (136) FLR 713) (Jharkhand High Court).

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Penology

Fine—Default sentence—Court under duty to take into consideration relevant circumstances regarding offence and offender

Principles for sentencing—Extent and nature of involvement in offence—When relevant

In this case, there is no evidence to suggest any premeditation on the part of the appellants to assault the deceased leave alone evidence to show that the assailants intended to kill the deceased. There was no previous enmity between the parties who were residents of the same locality except that there was a minor incident in which some hot words were exchanged between the deceased and Sudhir. Even on the following day i.e. on 22.5.2001 the incident near the drain involved the appellant Bishnu Sarkar and the complainant Debabrato Mazumder, the son of the deceased. It was only when the deceased noticed the incident and intervened to save the complainant, that Madhab Sarkar started assaulting the deceased and inflicted injuries on his body that resulted in his death.

Both the courts below have no doubt believed the prosecution case that appellant Bishnu Sarkar was exhorting appellant Madhab Sarkar to assault the deceased and, therefore, convicted him under Section 304 Part I with the help of Section 34 IPC. A distinction has, however, to be made in the facts and circumstances of the case between the sentence awarded to the appellant Bishnu Sarkar who is over sixty-five years old and that to be awarded to appellant Madhab Sarkar.

In the totality of the circumstances to which Court have referred above, Court are of the view that a rigorous sentence of three years to Appellant 1 Bishnu Sarkar and seven years to Appellant 2 Madhab Sarkar would meet the ends of justice. The sentence of fine and imprisonment in default of payment thereof will, however, remain unaltered. (Bishnupada Sarkar vs. State of W.B.; (2013) 1 SCC (Cri) 734)

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Prisoners Act

S. 29—Transfer of prisoner—Ground for consideration—Obligatory for the court to apply its mind and objectively to circumstances in which transfer is prayed

The Court may make on a request for transfer of a prisoner is bound to affect him prejudicially, Court cannot but hold that it is obligatory for the Court to apply its mind fairly and objectively to the circumstances in which the transfer is being prayed for and take a considered view having regard to the objections which the prisoner may have to offer. There is in that process of determination and decision making an implicit duty to act fairly, objectively or in other words to act judicially. It follows that any order of transfer passed in any such proceedings can be nothing but a judicial order or at least a quasi-judicial one. Inasmuch as the Trial Court appears to have treated the matter to be administrative and accordingly permitted the transfer without issuing notice to the undertrials or passing an appropriate order in the matter, it committed a mistake. A communication received from the prison authorities was dealt with and disposed of at an administrative level by sending a communication in reply without due and proper consideration and without passing a considered judicial order which along could justify a transfer in the case. Such being the position the High Court was right in declaring the transfer to be void and directing the retransfer of the undertrials to Bombay jail. (State of Maharashtra vs. Saeed Sohail Sheikh; 2013 (80) ACC 169 (SC)

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Protection of Women from Domestic Violence Act

S. 12 - Application by aggrieved person - Against whom can be maintain

In the petition filed by respondent No. 2, apart from arraying her husband and her parents-in-law as parties to the proceedings, has included all and sundry, as respondents. To say the least, she has even alleged certain actions said to have been done by the tenant whose name is not even known to her.

In a matter of this nature, Court is of the opinion that the High Court at least should have directed that the petition filed by respondent No. 2 be confined to her husband as also her parents-in-law and should not have allowed the Impleadment of respondent Nos. 4 to 12.

In view of the above, while allowing this appeal in part, Court quash the proceedings as against appellant Nos. 4 to 12 in Case No. 240 of 2007. (Ashish Dixit vs. State of U.P.; 2013(2) ALJ 231)

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Provincial of Small Cause Courts Act

S. 23—Return of plaint in suit involving questions of title—Legality of

Section 23 of SCC Act, 1887 has been considered at umpteen times by the Court and on some occasions by the Apex Court also. The interpretation and mischief covered by Section 23 has been explained and clarified time and again. In Court’s view it is no more res integra.

In Jiya Lal vs. XIth Additional District Judge, Meerut and others 1994 (1) ARC 280, in paragraphs 7 & 9 of the judgment the Court held:-

“7. A suit by a landlord against a tenant is cognizable by Judge Small Causes Court on limited questions. The Judge, Small Causes Court cannot decide the question of title. He has to decide the limited question as to whether there is a relationship of landlord and tenant between the plaintiff and defendant. The right of the plaintiff is based on the relationship of landlord and tenant. In case the plaintiff has based his right on the basis of a title, then the Court has to return the plaint as provided under Section 23 of the Provincial Small Causes Courts Act, 1887.

9. The Judge, Small Causes Court has to decide the only question as to whether the defendant was let out the disputed shop and his possession at the time of letting was that of a tenant. The controversy as to whether the plaintiff or the father of the defendant and his uncle are owners of the property in dispute is outside the jurisdiction of the Judge, Small Causes Court. The possession of a tenant is the possession of his landlord.”

In Smt. Sughra Begum vs. Additional District Judge XIIth, Lucknow and others; 1999 (1) ARC 582, this Court in paragraphs 11 & 12 said as under:-

“11. In Court’s opinion, under the facts and circumstances of the present case, the provisions of Section 23 of the Act referred to above were fully attracted. Otherwise also to avoid multiplicity of proceedings and to cut-short the litigation, it was necessary either to return the plaint for representation to a Court of competent jurisdiction or to transfer the suit giving rise to the present petition to the Court of Civil Judge, Mohanlalganj, as the Judge Small Causes Court has no jurisdiction to decide the question of title.

12. It is settled law that when in a suit in Small Causes Court, the question of title is raised, it is expedient for the Court to return the plaint for presentation before a Court competent to decide such a question. It is not necessary that plaintiff-defendant should be rival claimants to the immovable property. The object of Section 23 is to meet cases in which Judge is satisfied that the question is so intricate that it should not be decided summarily and that it should return a plaint for presentation to a proper Court. A reference in this regard is made to a decision in Noola vs. S. Chaman Lal, AIR 1935 All 148.”

In Pratap Singh vs. IXth ADJ, Fatehpur and others, 2000(2) ARC 41, in paragraphs 5, 6 & 7 of the judgment the Court said—

“5.The object of the Section is to enable the Small Cause Court to decline to exercise its jurisdiction in small causes suit when the right of the plaintiff and the relief claimed by him depend upon the proof or disproof of a title to an immovable property or other title which the Small Causes Court cannot finally determine and to return the plaint to be presented to a Court having jurisdiction to determine the title. In effect, the rights to, or interests in immovable property are elaborately excluded, but as questions of this character may arise incidentally in Small causes suits, a facultative provision is made by Section 23 enabling the Small Causes Court to send the matter to ordinary Civil Court but not obliging it to do so.

A Small Causes Court is expected to try suits of a comparatively simple character and, therefore, suits involving question of title should not be entertained by that Court. Section 23 is intended to enable the Courts of Small Causes to save their time by returning the plaints in suits which involve enquiry into the question of title. This Section is designed to meet the cases in which Judge, Small Causes Court is satisfied that the question of title raised is so intricate and difficult that it should not be decided summarily but in ordinary Court in which evidence is recorded in full and the decision is open to appeal. The underlying principle under Section 23 seems to be that where it is considered advisable by a Small Causes Court that a final decision on a question of title, which decision would, if given by an Original Court, ordinarily be subject to appeal and even to second appeal and which decision would ordinarily be res judicata between the parties, should be given in the particular case before a Small Causes Court, by an Original Court, the Small Causes Court though competent to decide incidentally the question of title in that particular case might exercise with discretion, the power of returning the plaint to be presented to the Original Court which would have jurisdiction to so decide on that title finally. Obviously, the section is designed to meet the cases, in which the judge, Small Causes Court is satisfied that the question of title raised is so intricate and difficult that it should not be decided summarily but in an ordinary Court in which evidence is recorded in full and decision is open to appeal.

7. Section 23 is framed in optional terms giving discretion to the Court to Act in the matter or not, and therefore, in suits involving question of title, the Small Causes Court has discretion either to decide the question of title or to Act under this section and return the plaint. It is not always bound to return the same. Nevertheless, when any complicated question of title arises, it would be the wiser course for Small Causes Court in the exercise of its discretion to Act under Section 23 and return the plaint.

In Mahendra Pal Singh and others vs. District Judge, Jhansi and another, 2004 (1) ARC 697, this Court said:

“since intricate question of title is involved in the present case, the revisional Court, had rightly exercised its discretion under Section 23 of the Act in directing the trial Court to return the plaint for presentation to the proper Court”.

The Apex Court also had occasion to consider Section 23 in Budhu Mal vs. Mahabir Prasad and others, 1988 (2) ARC 260 (SC). It held that Section 23 does not make it obligatory on the Court of Small Causes to invariably return the plaint once a question of title is raised by the tenant but if the suit cannot be construed to be one between landlord and tenant, they would not be cognizable by the Court of Small Causes, and, it is for these reasons, in such cases, the plaint ought to have been returned for presentation to appropriate Court so that none of the parties are prejudiced.

The aforesaid discussion leaves inescapable conclusion that a Small Cause Court is a Civil Court and has jurisdiction over suits of civil nature. Since the procedure to be followed is slightly summary in nature than that followed by Civil Courts in regular suits, on the intricate questions of civil nature, the law requires, to some extent, that they should be decided by Civil Courts following detail intricate procedure. But one thing cannot be disputed that a Small Cause Court is a Civil Court. (Moti Lal vs. Trust Sri Thakur Kishori Raman Ji Maharaj; 2013(1) ARC 753)

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Public Premises (Eviction of Unauthorized Occupants) Act

S. 2(2) (g) - Unauthorized occupant - Meaning and scope

In present case Counsel for the petitioner submitted that even otherwise he was not an unauthorized occupant of the premises in dispute within the meaning of section 2(2) (g) of the Public Premises Act. This question has also been answered in the case of M/s Jain Ink Manufacturing Company the judgment read as under:

“5. It would be seen that before a person could be said to be in an unauthorized occupation, the Act required the following conditions:-

(1) that the occupant had entered into possession before or after the commencement of the Act.

(2) that he has entered into such possession otherwise than under and in pursuance of any allotment, lease or grant. That Act, therefore, laid special stress on only one point, namely, the entry into possession. Thus, if the entry into possession had taken place prior to the passing of the Act, then obviously the occupant concerned would not be an unauthorized occupant. What made the occupancy unauthorized was his entry into possession at a particular point of time. It was in construing these provisions that this Court held that if the appellants in that case were in possession before the sale of the property to the Government, their entry into possession could not be said to be unauthorized. These observations, however, would have absolutely no application to the instant case where S.2(2)(g) defines unauthorized occupation thus:-

“Unauthorized occupation’, in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever.”

The petitioner was given a legal notice dated 10.6.1985 terminating his tenancy w.e.f. 16.7.1985. The period of notice expired on 15.7.1985 as admitted by him in paragraph 2 of the writ petition. Thus from the expiry of the period of 30 days of the notice dated 10.6.1985 the petitioner became an unauthorized occupation of the premises in dispute as defined in section 2(2) (g) of the Act 1971. (Vishnu Dutt Tripathi vs. VIth A.D.J.; 2013(1) ARC 275)

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Rent Laws

Release application – Allowed - Appeal against released order also allowed - Sustainability of – Scope of judicial review very limited and narrow

In this case counsel for the petitioner submitted that view taken by lower Appellate Court on technical aspect that all legal heirs in respect to shop in question which was in joint tenancy, where not impleaded or that co-landlord were not impleaded therefore release application was incompetent, is illegal, incorrect and therefore the impugned appellate order cannot sustain.

Even if on the aforesaid two aspects view taken by lower Appellate Court may not be strictly in accordance with law, the fact remain that lower Appellate Court has also found that neither need of petitioner- landlord was genuine nor comparative hardship lie in her favour. It has recorded a finding of fact that landlord has already purchase another shop in Shiv Sahai Market which could have been utilized for the business, which the petitioner claim to shift from the existing shop in which it is already running by her husband but instead of that the said shop was let out to another person and this shows that alleged need of landlord is neither genuine nor bona fide. Similarly on the question of comparative hardship also it has recorded a finding of fact against petitioner which learned counsel for the petitioner could not shop reverse or contrary to record? The scope of judicial review under Article 227 is very limited and narrow as discussed in detail by this Court in Civil Misc. Writ Petition No.11365 of 1998 (Jalil Ahmad vs. 16^th Addl. District Judge, Kanpur Nagar & ors.) decided on 30.7.2012 reported in 2012 (3) ARC 339. There is nothing which may justify judicial review of order impugned in this writ petition in the light of exposition of law, as discussed in the above judgment.

In the circumstances, court not find any error apparent on the face of record in the impugned order ultimately coming to the conclusion that release application of the petitioner being devoid of merit, on the question of bona fide need and comparative hardship, the same deserve to the dismissed. (Karuna Devi (Smt.) vs. Vijai Kumar; 2013(1) ARC 214)

Time to vacate—Consideration of—Failure to abide by the terms shall liable for contempt

In this case, the petitioner is allowed time till 30.6.2012 to vacate the suit premises and handover possession thereof to respondent Nos. 1 and 2. This would be subject to his filing usual undertaking in this Court within a period of four weeks from today.

During the intervening period, the petitioner shall not induct any other person in the suit premises in any capacity whatsoever.

If the petitioner fails to abide by the terms of the undertaking of the condition specified, hereinabove, then he shall make himself liable to be punished under the Contempt of Courts Act, 1971. (Mohd. Shafeeq vs. Mirza Mahmood Hussain; 2013 (1) ARC 159 (SC)

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Service Laws

Appointment - Cancellation of - Petitioners were appointed after selection on 25.7.1997 - But on 26.7.1997, their appointments were cancelled, without notice and opportunity of hearing to them - However advertisement for the appointment, had been published in only one newspaper having circulation within local limits of Azamgarh only - Hence advertisement was not in conformity with provisions of Articles 14 and 16 of Constitution - So the appointments made, were in violation of Articles 14 and 16 of Constitution - And also in teeth of specific directions issued by senior authority - Hence the appointments of petitioners was per se illegal and therefore compliance of natural justice, affording opportunity was an empty formality - Appointments were rightly cancelled - No interference made with - Constitution of India, 1950, Articles 14 and 16

The Court has, therefore, no hesitation to record that advertisement in question is not in conformity with the provisions of Articles 14 and 16 of the Constitution of India, more so when the appointments were to be made on posts in a department of the State Government. The manner in which Dr. Ram Lal, Deputy Director had offered appointments despite there being direction of the Director not offer such appointment.

Not only the appointment of the petitioners was in violation of Articles 14 and 16 of the Constitutions of India, it was also in teeth of the specific directions issued by the superior authority.

Principles of natural justice are not straight jacket formula. In the facts of the case only one conclusion is possible i.e. the appointment of the petitioners was per se illegal and therefore, affording opportunity of hearing to the petitioners as has been prayed for would have been an empty formality. (Yogendra and another Vs. Director of Animal Husbandry, U.P., Lucknow and others; (2013 (136) FLR 512) (Allahabad High Court).

Appointment - Date of birth - Incumbent, at the time of joining in 1986, not producing birth certificate allegedly issued by Municipal Corporation in 1970 - Instead producing decree of trial court declaring his date of birth as 15.1.1948 suppressing the fact that the decree was reversed by the first appellate court - Writ petition rightly rejected - Division Bench erred in reversing the same

There is another reason for Court’s inclination to set aside the impugned judgment. At the time of joining as Lower Division Clerk in the office of Commissioner, Settlement and Director of Land Records, Madhya Pradesh, the respondent did not produce any evidence showing his date of birth as 15.01.1948. At the time of his appointment in 1986 as Personal Assistant in the employment of appellant No.1, the respondent did not produce birth certificate dated 25.2.1970 issued by the Corporation. Rather, he got the date of birth entered in the service book by producing copy of the judgment of the trial Court, which had already been set aside by the lower appellate Court on 27.7.1977. If the respondent was possessed with the certificate issued by the Corporation under the 1969 Act, then there was no earthly reason for not producing the same for the purpose of recording of date of birth in the service book. However, the fact of the matter is that instead of relying upon the birth certificate, the respondent produced copy of the judgment of the trial Court and got his date of birth recorded as 15.1.1948 by suppressing the fact that the lower appellate Court had reversed the judgment of the trial Court. Therefore, the Division Bench of the High Court committed serious error by setting aside the orders passed by learned Single Judge. (Lakshmibai National Institute of Physical Education and another v. Shant Kumar Agrawal; 2013 (1) Supreme 679)

Compulsory Retirement - Respondent employees of Corporation are retired compulsorily, after completion of 20 years of service or on attaining 50 years of age in public interest - There is no such provision providing compulsory retirement - In absence of any provisions in M.P.S.R.T.C. Employees’ Service Regulations, 1950, M.P. Industrial Employment (Standing Orders) Act, 1961 -For compulsory retirement - The instructions issued by State Government for retiring employees were void ab initio and order is set aside - Appellants is entitled to 50% back wages from the date of compulsory retirement till the order and thereafter full wages till he attains the age of superannuation

In absence of any provisions in the Act for compulsory retirement, the instructions issued by the State Government for retiring the employees were void ab initio and affirmed the order passed by the Single Bench.

The appellant is entitled for 50% back wages from the date of his compulsory retirement till the order passed by the Single Bench and thereafter full wages till he attained the age of superannuation. (M.P. Road Transport Corporation and another Vs. Bhagwat Singh Thakur and another; (2013 (136) FLR 291) (MP High Court).

Contract Labour - Employee/workman was employed by contractor -Contractor was engaged by principal employer - Termination of services of workman - Contractor would be liable and not the principal employer -Labour Court has rightly held that onus to prove master servant relationship was upon petitioner-workman and he has failed - There was no master servant relationship - Therefore, working of more than 240 days in establishment is of no consequence

A careful perusal of the documents filed before the Labour Court clearly establishes that the petitioner was employed through contractor and more so in view of his own admission that the work of washing of bottles, loading unloading which was being done by him in the respondent-establishment was entrusted to him through contractors.

There cannot be any dispute to the well settled principle of law that in any proceedings the burden to prove a fact lies on the party which pleads the same and not on the party who denies it.

It is settled law that the Court can find as to whether the contract between the principal employer and the contractor is a sham, nominal or merely camouflage to defy an employee. In the event, it finds the same, it can grant relief to the employee by holding that he is in direct employment of principal employer.

The employer has come out with the clear assertion that the factory was registered under the Contract Labour (Regulation and Abolition) Act, 1970. The registration certificate contains the names of the contractors who were engaged to carry out the work of washing of bottles, loading and unloading etc. The petitioner workman admitted in his statement that he was doing the work of cleaning of bottles, labelling, loading etc, and also admitted that the contractors were engaged for the purpose. The documents filed by the petitioner, namely W-5 and W-7 contain names of contractors.

The findings recorded by the Labour Court are based on the consideration of the evidences on record and in view of the above discussion, the inevitable conclusion is that Labour Court has rightly held that onus to prove master-servant relationship was upon the petitioner and he has failed to discharge the same, and there was no master-servant relationship.

There is no question of drawing adverse inference against the employer, as the working of more than 240 days in the establishment is of no consequence. (Subodh Kumar Vs. Presiding Officer, Labour Court-II, Meerut and another; (2013 (136) FLR 113) (Allahabad High Court).

Delay - Inordinate delay in filing writ petition - Challenging the award of Trial Court - Award of Trial Court passed on 22.11.2002 and writ petition filed on 12.1.2006 - Almost after a delay of three years and two months -Clearly beyond the time prescribed for filing the civil remedy - Failed to give sufficient cause/reason for such delay - Petitioner cannot be allowed to take advantage of his own wrong/delay - Delay defeats equity - Hence the petition is dismissed

The present writ petition was filed clearly beyond the time prescribed for filing the civil remedy, that is, after a delay of three years and two months. Further, the management/petitioner has failed to give a sufficient cause/reason for the delay. Although, there is no period prescribed for invoking the writ jurisdiction under Article 226 of the Constitution, however, it does not mean that the said jurisdiction can be invoked as and when desired by the party. A party who is not vigilant about his rights cannot be allowed to take advantage of his own wrong/delay. It is well settled that “delay defeats equity”. (D.T.C. Vs. Shri Bhagat Singh; (2013 (136) FLR 605) (Delhi High Court).

Date of birth - Higher Secondary Board Certificate issued on 17.6.1963 showing date of birth of respondent as 20.2.1942 - Respondent appointed as Lower Division Clerk on 27.5.1965 - After 5 years, respondent applying for change of date of birth to 15.1.1948 on basis of birth certificate issued by Municipal Corporation in 1970 - Rejected by authorities - Accepting the claimed date of birth would mean respondent's appointment to government service at age of 17 years 4 months - Contrary to rules - Claim rightly rejected

The Court have considered the respective arguments and carefully scanned the record. It is not in dispute that the action taken by the management of the appellants, which became subject matter of challenge in the writ petition filed by the respondent was preceded by full compliance of the rule of audi alteram partem. The respondent was issued notice and was given opportunity to explain as to why the date of birth recorded in the service book on the basis of the decree passed by the trial Court in O.S.No.165-N1974 may not be changed because the lower appellate Court had reversed the judgment of the trial Court. In the reply filed by him, the respondent did rely upon the birth certificate issued by the Corporation but the same was not accepted by the management for cogent reason. If 15.1.1948 was to be treated as correct date of birth of the respondent, then he could not have been appointed as Lower Division Clerk on 27.5.1965. However, the fact of the matter is that he was appointed as Lower Division Clerk and served in that capacity for about one year. Learned counsel for the respondent could not explain as to how her client, who claims to have been born on 15.1.1948, could be appointed in Government service at the age of 17 years and 4 months. She also failed to draw our attention to any provision in the service rules which postulate appointment of a minor in the Government service. Therefore, the entry made in the birth certificate issued on 25.2.1970 cannot be made foundation of a declaration that the respondent's correct date of birth was 15.1.1948. (Lakshmibai National Institute of Physical Education and another v. Shant Kumar Agrawal; 2013 (1) Supreme 679)

Date of Birth - Recorded as 10.2.1933 in service records - Corrections sought in-Petitioner employee claims that his date of birth should have been treated as 15.1.1939 - Since in all service records and other official records, the date of birth was recorded as 10.2.1933 - There was no reason at all to consider and accept the claim of concerned workman for reference to Apex Medical Board for age determination - Dispute also raised at the fag end of his service -Therefore the claim of petitioner employee was rightly rejected - No interference required with award

Since in all service records and other official records the date of birth of the concerned workman was recorded as 10.2.1933, there was no reason at all to consider the claim of the concerned workman for reference to the Apex Medical Board for age determination. In view of the said finding of fact recorded on the basis of the evidence adduced by the parties, it does not appear that it suffers from any error apparent on the face of record or of law or a case of illegality or perversity has been made out on the part of the petitioner. The petitioner also appears to have been raised the dispute regarding the date of birth almost at the fag end of his service. (Nageshwar Prasad Vs. P.O. Central Government Industrial Tribunal No. 2, Dhanbad and others; (2013 (136) FLR 715) (Jharkhand High Court).

Delayed Payment - Petitioner, a retired employee, ran from pillar to post for payment of amount which he was entitled to be paid - Payment of petitioner’s amount with much delay after several rounds of litigation - Petition for direction to respondents to pay interest for delayed payment - Sustainability of - No explanation given by respondents as to why such delay caused -Petitioner entitled to payment of interest for delayed period as petitioner unnecessarily dragged into litigation and compelled to file several petitions -Directions issued

This is an unfortunate case where a retired employee has to run from pillar to post for payment of the amount for which he is entitled to be paid. After several round of litigation, the petitioner has been paid the amount but with much delay and, thus, this writ petition has been filed with a prayer for a direction to the respondents to pay interest at the rate of 18 % per annum for the delayed payment.

In view of aforesaid fact, Court allow the writ petition and direct the respondents to pay interest at the rate 10% on the amount of Rs. 1,55,000/- for a period of 10 years (delay being from 1998 to 2008) and the same interest at the rate of 10% on the amount of Rs. 8,34,000/- for a period of four years (delay being from 2005 to 2009). Such payment shall be made to the petitioner within a period of four months from today, failing which respondents shall be liable to pay interest at the rate of 18% per annum instead of 15% per annum. (Dr. Harihar Upadhyay Vs. State of U.P. and others; (2013(136) FLR 804) (Allahabad High Court).

Industrial Disputes Act, 1947 - Section 25-G - Provision of - Section is not absolute in its application - Relief to be granted under section 25-G cannot be indefinite

As far as section 25-G is concerned firstly it states that ordinarily junior most workman must be retrenched. The said section is not absolute in its application. Secondly, if a relief is to be granted under section 25-G then it cannot be indefinite it shall be confined only until the workman junior to the workman concerned are retrenched. Thirdly, the workman did not give the date of first engagement of the two persons i.e. Raju and Ayub Ansari. Last but not the least it was not possible for petitioner to produce the records after about 10 years. (Union of India and another Vs. Mohd, Israr and another; (2013 (136) FLR 867) (Allahabad High Court).

Fundamental Rules - Rule 56 - Central Civil Services (Pension) Rules, 1972 -Rules 5(1),(2) and 83 (1) - Retiral benefits - Government servant retiring on the last day of month i.e. as on 31.3.1995 on superannuation - Can claim death gratuity or retirement gratuity as available and operative on 31.3.1995 i.e. as on the date of retirement - Not w.e.f. the subsequent date from 1.4.1995

Due to F.R. 56 and Rule 5(2) of Pension Rules, they could continue till 31.3.1995; which day in reality was beyond their actual completion of the age of superannuation. It follows, therefore, that, only by fiction, that date or day of retirement has been constituted as their last working day. Legally, respondents retired on the last working day. Entire exercise by the Full Bench of CAT militates against this legal position and wipes out it by artificially making distinction between the last working day and date of retirement.

The CAT erred in importing the date which is relevant under Rule 83(1) for the purpose of Rule 5(2) by overlooking the absence of need to invoke any interpretative exercise.

The Government Servant retiring on superannuation on the last day of the month i.e. as on 31.3.1995 can claim death gratuity or retirement gratuity as was available and operative on 31.3.1995 i.e. as on the date of retirement and not with effect from the subsequent date. In other words, when the Office Memorandum was made applicable to the Government servants who retire on or after 1.4.1995, the Government servants who retired on 31.3.1995 were not entitled to the enhanced benefits as they were made available with effect from the subsequent or later date i.e. with effect from 1.4.1995. Such benefits which were available with effect from the later operative date i.e. 1.4.1995, but wrongly granted by the Tribunal to the respondents who retired on and with effect from the previous date i.e. 31.3.1995 in the present case, were not only undeserved and unwarranted, but also were detrimental to the State Exchequer/Revenue. The retired employees, on the basis of their meritless, unreasonable and excessive claim, cannot be allowed to make money and enrich themselves unjustly by causing undue financial loss to the State Exchequer. (Union of India and others Vs. Venkatran Rajagopalan; (2013 (136) FLR 251) (Bombay High Court Nagpur Bench).

Once the Court sets aside an order of punishment for an employee, on the ground that the enquiry was not properly conducted, Court cannot reinstate the employee. It must remit the concerned case to the disciplinary authority, for it to conduct the enquiry from the point that it stood vitiated, and conclude the same

In view of the issues raised by the learned counsel for the parties, the following questions arise for Court’s consideration:

(i) When a Court/tribunal sets aside the order of punishment imposed in a disciplinary proceeding on technical grounds, i.e., non-observance of statutory provisions, or for violation of the principles of natural justice, then whether the superior Court, must provide opportunity to the disciplinary authority, to take up and complete the proceedings, from the point that they stood vitiated and;

(ii) If the answer to question No. 1 is, that such fresh opportunity should be given, then whether the same may be denied on the ground of delay in initiation, or in conclusion of the said disciplinary proceedings.

It is a settled legal proposition, that once the Court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the Court cannot reinstate the employee. It must remit the concerned case to the disciplinary authority, for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide: Managing Director, ECIL, Hyderabad etc. etc. v. B. Karunakar etc. etc., AIR 1994 SC 1074; Hiran Mayee Bhattacharyya v. Secretary, S.M. School for Girls and others, (2002) 10 SCC 293; U.P. State Spinning Co. Ltd. v. R.S. Pandey and another, (2005)8 SCC 264 and Union of India v. Y.S. Sandhu, Ex-Inspector, AIR 2009 SC 161). (Chairman, LIC of India and others vs. A. Masilamani; 2013(1) ESC 1 (SC).

Once an employee appointed after facing the selection process prevalent at that time, subsequent charge in the selection process could not be made basis for asking the incumbent to go through the screening test again failing which his service would be terminated. Screening test might be held for granting higher pay. Merely non-participation in the screening test of failure in the screening test could not entail termination

In Court’s opinion screening test may legally be held for granting higher pay/pay-scale. However, once an employee is appointed after facing the selection process prevalent at the time of the appointment, subsequent change in the selection process cannot be made basis for asking the incumbent to go through the screening test again failing which his services would be terminated. Service conditions cannot be changed to the detriment of existing employees. However for fresh appointments service conditions can very well be changed. Similarly for granting higher benefits screening test of existing employees can very well be provided. However, merely non-participation in the screening test or failure in the screening test cannot entail termination. (Rajesh Kumar Srivastava vs. State of U.P. and others; 2013(1) ESC 214 (All)

Recruitment - Relaxation of age - Prayer for relaxation of age of appellant petitioner declined by learned Single Judge - Age relaxation for direct recruitment beyond rules and as prescribed - Cannot be claimed as a matter of right - In the existing scheme of Rules, the petitioner was not entitled to relief as claimed - Hence, the learned Single Judge cannot be faulted in dismissing the writ petition - And validity of Rules not challenged - Rajasthan Secretariat Ministerial Service Rules, 1970 - R.P.S.C. Rules and Regulations, 1999

In view of Court, the claim as made for age relaxation for the entire period recruitment has not taken place, cannot be countenanced for being not in accord with the Rules.

In the ultimate analysis, age relaxation for the direct recruitment, if to be granted, would be a matter for the Government to prescribe in the relevant Rules, and beyond what has been prescribed, cannot be claimed as a matter of right.

The Government, in its wisdom, if has chosen to restrict the relaxation to 3 years beyond the age as prescribed, it cannot be said that anything unreasonable or irrational has been provided.

As the validity of Rules was not in challenge in the writ petition filed by the petitioner. In the existing scheme of Rules, the petitioner was not entitled to the relief as claimed; and hence, the learned Single Judge cannot be faulted In dismissing the writ petition. (Prem Ratan Modi Vs. State of Rajasthan and others; (2013 (136) FLR 212) (Rajasthan High Court).

Salary - Claim of minimum of pay scales - Order by which petitioners are denied minimum of pay scales as they were appointed illegally on daily wages - Challenged in writ petition - Petitioners were engaged on daily wages for some work available with respondents - Petitioners were already found fit to be regularized by a committee but they were not regularised, only because for them the posts were not available - This being so the show cause issued was defective - They cannot be denied the benefit of regularization or at least the minimum of pay scale of post on which they were working - They were not afforded the proper opportunity of hearing - Impugned order is quashed -Respondents are directed to look into the entire facts on record and to issue a proper show cause notice and afford due opportunity of hearing - Till such exercise is completed they are entitled to get the salary in minimum pay scale

Once they have been considered, how have they not been found fit for regularization is not clear, they cannot be denied the benefit of regularization or at least the minimum of the pay scale of the post on which they were working. There is nothing on record to indicate that any such documents were made available to the petitioners and they were granted an opportunity of hearing in appropriate manner. Thus, it is clear that the petitioners were not afforded the proper opportunity of hearing.

Mere issuance of a show cause giving certain facts relating to consideration subsequence done would not satisfy the requirement of grant of due and appropriate opportunity of hearing.

In view of this, the order impugned is quashed. The respondents are directed to look into the entire facts as have come on record, indicated hereinabove, and to issue proper show-cause notice to the petitioners in case it is found that the petitioners are not entitled to the minimum of the pay scale of the post against which they are working. Only after affording the due opportunity of hearing as is indicated hereinabove in appropriate manner, proper orders be passed. Till the said exercise is completed, the petitioners would be entitled to get the salary in the minimum of the pay scale as per the orders of the Division Bench of this Court. (Umesh Tiwari and others Vs. State of M.P. and others; (2013(136) FLR 297) (MP High Court).

Services - Post retrial benefits, withholding of - Held, penadency of criminal case would not be a ground to detain the release of pensionary benefits to the employee

It appears from the pleadings of writ petition that the petitioner was appointed on 1.11.1975 as a Medical Officer by the U.P. Public Service Commission and joined as such on 12.12.1975. He was superannuated on 31.5.2011 from the post of Joint Dirctor, Health Service, Government of U.P. His service conditions are governed by the provisions of U.P. Medical and Health Services, Rules, 2004 and the amended provisions of the Act as well as Rules framed there under. In the month of May, 2005, he was promoted as Joint Director and on 28.4.2010 he was given further promotion to the post Additional Director. Thus on promotion to the post of Additional Director, he relinquished the charge and submitted the charge certificate. On that date there was no pending disciplinary proceeding whatsoever against him. However, the said charge certificate was not counter signed by the Director (Administration), Department of Health. On an oral inquiry it was informed to the petitioner that in some disciplinary proceedings a censure entry was recorded for the year 2009-10 against him. It was also informed to the petitioner that a criminal case had been registered in respect of the same allegations on 14.1.2009 under Section 384/304 IPC vide crime no. 45 of 2009. On investigation, a final report was submitted on 31.3.2010.

Hon’ble the Apex Court as well as this Court in the judgments on this issue has held that pendency of criminal case would not be a ground to detain the release of pensionary benefits to the employee.

Thus, the writ petition is disposed of with direction to respondents-State to release the pensionary benefits to the petitioner after completing necessary procedural formalities, within a period of four weeks from the date of receiving a copy of this order. Moreover, the disciplinary proceedings initiated against the petitioner as referred to hereinabove was only on account of the allegations made in the criminal case wherein a final report has already been submitted.

Writ Petition is disposed of with directions to release the post retiral dues including the pension to the petitioner. (Dr. Chandra Prakash Vs. State of U.P. and others; (2013 (31) LCD 392) (Allahabad High Court).

Transfer - Petitioner was transferred from Mahoba to Sonebhadra - In public interest and enquiry initiated against him - Which is not a correct approach -Mere fact that a complaint was made by MLA against petitioner - Does not by itself vitiates the transfer order - However, the transfer order was passed on a false complaint on which no preliminary enquiry made - Consequently the transfer order cannot be sustained

The mere fact, a complaint has been made by the MLA against the petitioner does not by itself vitiates the transfer order. It is the duty of the representative of the people to express the grievances of the people and place it before the Authority concerned. However, merely because a complaint has been made by an MLA does not mean that the Authority would blindly follow the said complaint and transfer the incumbent. The complaint of the MLA is required to be looked into, for which purpose, a preliminary enquiry must be held.

The Court is of the opinion that the transfer order was passed on a false complaint on which no preliminary enquiry was made. Consequently, the transfer order cannot be sustained and is quashed. (Pramod Kumar Vs. State of U.P. and others; (2013 (136) FLR 516) (Allahabad High Court)

Termination of Services - Civil Court jurisdiction - Suit Challenging termination of services of Bank Manager - Termination without following Rules - Non-compliance of provisions of disciplinary action - Violation of service rules - He being a manager not a workman - Remedy under Industrial Disputes Act not available - It is not a case of enforcement of contract - Suit not barred under section 14(1) of Specific Relief Act - Suit for declaration and injunction maintainable in Civil Court - Application under Rule 11 of order 7 C.P.C. rightly rejected

Admittedly, the terms and conditions of service of the respondent is governed by the provision. It appears from the facts that there is total non-compliance of the provisions with regard to disciplinary action, therefore, it cannot be said that it is a case of enforcement of contract.

The remedy of raising industrial dispute is also not available to respondent-plaintiff because he was appointed on the post of Manager and post of Manager does not fall under the definition of “workman” as defined in the Industrial Disputes Act, 1947. It is also worthwhile to observe that the decision for terminating the services of the plaintiff-respondent cannot be challenged by way of filing writ petition before this Court because the petitioner-defendant Bank is not State within the meaning of Article 12 of the Constitution of India. In view of the above, the only remedy available to the respondent-plaintiff is to file civil suit. (M/s. Hong Kong & Shanghai Banking Corporation Ltd. and another Vs. Ms. Neeti Bhatnagar; (2013 (136) FLR 657) (Rajasthan High Court).

Termination of services of workman - Some damages may be awarded to workman - Even if employer is not at all at fault and workman is not entitled to any relief - Accordingly, the Court directed to pay Rs. Rs. 2,50,000/- by petitioner to each workman

Even if employer is not at all fault and workman is not entitled to any relief still some damages may be awarded to the workman after taking into consideration the facts and circumstances of the case. Accordingly Court direct that each workman shall be paid Rs. 2,50,00/- by the petitioner. As far as Murari respondent No. 3 in writ petition No. 59196 of 2006 is concerned he has been paid Rs. 606266/-. Petitioners are entitled to recover additional amount of Rs. 356266/- from him.

Daily wager-Salary or other monetary benefits as admissible to regular employees-May be given to daily wager, muster roll employee or any other kind of employee-Only if he is actually working.

Salary or other monetary benefits as admissible to regular employees may be given to daily wager, muster roll employee or any other kind of employee only if he is actually working.

Termination-Of services-Even if it is assumed that termination since August, 1982 was illegal and only oral-Still unless that was challenged and set aside-Petitioner could not ask for payment pursuant to award.

Even if it is assumed that termination since August 1982 was illegal and only oral still unless that was challenged and set aside, petitioner No. 3 in each writ petition could not ask for payment pursuant to the award dated 14.11.1983. (U.P. State Electricity Board (Now UPPCL) and another Vs. State of U.P. and others; (2013 (136) FLR 198) (Allahabad High Court).

U.P. Secondary Education Services Selection Board Act, 1982 – Whether a dependant can claim appointment against a post of teacher even after the post has been requisitioned to Selection Board

In this case, Court’s answer to the questions (a) and (c) referred to Court is as follows:

(A) The claim of a dependant as per the. third proviso to Section 16 of the 1982 Act read with Regulations 101 to 107 of Chapter III of the Regulations framed under the 1921 Act can be considered for compassionate appointment on the post of an Assistant Teacher (TGT grade) against a vacancy that has been notified for being filled up by direct recruitment under the 1982 Act read with the 1998 Rules framed thereunder upto the stage of the last date for receipt of application forms under the advertisement, but not thereafter till the selections are completed by the Board followed by appointments under the provisions aforesaid.

(B) The law regarding the claim of compassionate appointment as expounded in the case of Ved Prakash (supra) is overruled to extent as indicated above in (A) and explained in the body of the judgment.

(C) The view taken by the learned Single Judge in the case of Raja Ram (supra) and affirmed by the division bench in the case of U.P. Secondary Education Services Selection Board, Allahabad (supra) stands modified to the extent as indicated in (A) herein above in so far as it relates to compassionate appointments only.

(D) The view expressed by the learned Single Judge in Raja Ram’s case (supra) and affirmed by the division bench in U.P. Secondary Education Services Selection Board (supra) in so far as it relates to other modes of appointment is approved and the judgments to that extent are affirmed,

(E) The interpretation, the scope and applicability of Rule 13(5) of the 1998 Rules as affirmed in the case of U.P. Secondary Education Services Selection Board (supra) is upheld as laying down the law correctly by confirming its applicability to the vacancies that are subject matter of the same advertisement and not to such vacancies that were notified but not subject matter of the same advertisement.

Let the papers be now placed before the learned Single Judge for proceeding to decide the petitions accordingly. (Prashant Kumar Katiyar vs. State of U.P. and others; 2013(1) ESC 221) (All)(FB)

Claim of OBC Quota in service - Daughter of Class I Officer, who after marriage with person of O.B.C. category, applied for service under O.B.C. quota

In view of the law relating to ‘creamy layer' laid down by the Apex Court and the provisions of the Office Memorandum dated 8.9.1993, we find that the proviso (b) is the proviso to clause II-A, Column 3 of the Office Memo which relates to ‘Service Category’ of Group AI Class I Officers of Indian Central and State services (‘Direct Recruits’). The only interpretation which can be given to the said proviso is that a lady belonging to OBC category, if otherwise, does not belong to ‘creamy layer’, under Clause II-'A' can apply for a job for herself under OBC category even if she is married to a Class I officer. The only reason which the Court finds for inclusion of this proviso is that ‘merely because the husband of a lady is a Class I Officer, she can not be excluded from the benefit of reservation and does not come under the ‘creamy layer’, if she originally does not belong to the same.

However, the said provision would not be applicable in the case of a lady i.e. female whose parents or parent happen to be class I officer as in that eventuality she would belong to socially advanced class of society and the rule of exclusion shall apply.

Considering the entire scheme and the purpose for exclusion of ‘Creamy layer’ from (Backward Class), if interpretation as suggested by the learned counsel for the respondent No. 3 is given to proviso (b) to clause 11 ‘A’ Column 3 of the Schedule, then it would result in ‘absurdity which could never be intended by the Government while issuing Office Memorandum dated 8.9.1993.

It is well established law of interpretation of Statute that no words used in an enactment can be read de hors the context in which it is used. If a statutory provision is open to more than one interpretation, the Court has to choose that interpretation which represents the true intention of the legislature. In order to arrive at a reasonable interpretation of a word used in a provision, the Court must examine the scheme of the Act and the context in which it has been used.

In the case of M. Pentiah v. Veerumallappa Muddala, AIR 1961 SC 1007, it was held that the Courts will reject that construction which will defeat the plain intention of the Legislature even though there may be some inexactitude in the language used.

In the case of C.W.S. (India) Limited v. Commissioner of Income Tax, JT 1994 (3) SC 116, it has been laid down that where a literal interpretation of the language used in an enactment leads to an absurd or unintended result, the language of the statute can be modified to accord with the intention of Parliament and to avoid absurdity.

In view of the above discussion the inescapable conclusion is that respondent No. 3 being daughter of a ‘Class I Officer is excluded as per the provisions of Clause II.A. (b) in Column 3 of Schedule appended to the Office Memorandum dated 8.9.1993 as she has received all the amenities of education and opportunities and rose to the status of socially advanced class. Her marriage with a class II officer or class I officer would not change her status in so far as the application of rule of exclusion provided in Column 3 of the Office Memorandum dated 8.9.1993 is concerned. Infact Proviso (b) Clause II.A in Column 3 of the Schedule appended to Office Memorandum dated 8.9.1993 has no application in the facts and circumstances of the present case.

Consequently, Court set aside the judgment and order dated 26.2.2004 passed by the Tribunal quashing the order dated 1.10.1996 canceling the appointment of respondent No. 3. The impugned order of the petitioner before the Tribunal dated 4.8.1996 is upheld and affirmed. (Indian Council of Agricultural, Research vs. Union of India and others; 2013(2) ESC 578 (All)(DB)

Date of Birth - Of deceased - At the time of entry into Government service -Date of birth as recorded in Service Book was 15.9.1956 which is still standing even after his death - Nor was there any foundation to change it - Consequently rejecting the claim of petitioner for appointment on compassionate ground, taking another date of birth of deceased - Based on perverse reasoning - Petitioner being son of deceased, is entitled to be considered for appointment on compassionate ground

Consequently, the action of the respondents in rejecting the claim of the petitioner for appointment on compassionate ground is based on perverse reasoning.

The petitioner No. 1 father has died-in-harness and the Rules of 1974 will automatically come into place, the petitioner No. 1, being his son is a member of the family and is entitled to be considered for appointment under the Rules of 1974. (Pravesh Kumar and another Vs. State of U.P. and others; (2013(136) FLR 676) (Allahabad High Court).

Constitution of India, Arts. 14 and 16 – Central Civil Services (Temp. Services) Rules, R. 5 – Compassionate appointment – Consideration of

It is the case of appellants now that the mistake of appointment to excess of the prescribed quota was detected and vide letter dated 12^th March, 2003 it was communicated that it was not possible to adjust the candidates who were recommended in excess of the quota because the recommendation for compassionate appointment was to be made on the basis of five per cent of the approved vacancies cleared by the Screening Committee. In furtherance to this, a decision was taken on 17thMay, 2004 to select only the most indigent persons against the available vacancies within the prescribed ceiling of 5 per cent of the vacancies finally cleared by the Screening Committee. In furtherance to the decision taken by the competent authority, a meeting of the Special Circle Relaxation Committee was convened and appointment of total 21 candidates on the basis of five percent approved vacancies cleared by the Screening Committee was approved. The remaining 48 candidates were terminated/not permitted to continue/dropped in 12^th October, 2004. On 12^th January, 2005, the appellants noticed that the candidates, whose names had been cleared for compassionate appointment on 13-15^th March, 2002 or in the year 2002, were still temporary servants. 48 names were in excess of the quota, therefore, a notice of termination under rule 5 of the Central civil Services (Temporary Services) Rules, 1965 was issued and as already noticed, the services of the 48 persons whose names were recommended in excess of the quota, were terminated. These appointees, including the respondent in the present appeal, challenged the said order of termination before the Central Administrative Tribunal (for short ‘CAT’). The CAT granted an interim stay during the pendency of the hearing of the application vide its order dated 8^th February, 2005. The present appellants also point out that two other applications, being OA No. 434/2005 and OA No. 761/2005 filed by similarly situated employees, came to be dismissed vide orders of the CAT.

The application filed by the present respondent came up before the CAT for hearing on 31^st October, 2007. While allowing the application of the respondent, the CAT held that the appointment of the respondent-applicant before it was not liable to be terminated inter alia.

Being aggrieved from the judgment of the Tribunal, the appellant filed a writ petition, being W.P.(C) No. 20655/2008 before the High Court. The High Court by that time had already disposed of W.P. (C) No.15820 of2008 filed by the Government Department entitled Superintendent of Post Offices, Anantpur Division, Anantpur vs. R.S. Madan Lal vide its judgment dated 23^rd July, 2008, the subject matter in SLP(C) No. 19872/2009 which is also listed along with the present bunch of matters. While the High Court upheld the order of the CAT, it not only accepted its reasoning but in addition thereto.

The Ministry of Personnel, Public Grievances and pension, Government of India had issued a circular on 9^th October, 1998 declaring its policy in the form of a scheme for compassionate appointment under the Central Government. This scheme provided that the policy shall be applicable to the family members of a government servant who dies while in service including death by suicide or is retired on medical grounds, but subject to fulfillment of the conditions stated therein. It is not necessary for us to go into other clauses of this Scheme inasmuch as there is dispute to other clauses except the clause relating to prescription of percentage in relation to direct recruitment for the purposes of compassionate appointment. It may be noticed that this Scheme of Compassionate Appointment can be applied only to the following:

(i) The post should be falling in Group ‘C’ and ‘D’ posts.

(ii) It should be in relation to direct recruitment as specified.

Before court proceed to analyse the above clause as well as examine its impact in view of the amended OMs of the Government of India, court must notice that under the clause 16(c) of this scheme, it was specifically noticed that scheme of compassionate appointment was conceived by the Government of India as far back as 1958. Since then, a number of welfare schemes have been introduced by the Government which has made a significant difference in the financial position of the families of the government servants dying harness/retired on medical grounds.

Finally on 14^th June, 2006, Scheme for Compassionate Appointment under the Central Government Determination of Vacancies’ was clarified. In this office memorandum, an attempt was made to clarify the optimization of direct recruitment to civilian posts as contained in the Office Memorandum dated 16^th May, 2001 to say that the recruitment does not exceed 1% of the total sanctioned strength of the department. It notices that there had been a continuous reduction in the number of vacancies for direct recruitment, thus, very few vacancies or, in fact, no vacancies were available for compassionate appointment. In light of this, the earlier instructions including the instructions dated 9^th October, 1998 stood modified to the extent mentioned therein.

From the above scheme and office memorandum, it is clear that where on the one hand, the State had formulated a welfare scheme for compassionate appointments, there on the other, because of limitations of its financial resources it decided to take economic measures by reducing the extent of appointment by direct recruitment from the financial year 2001-2002. Both these matters falling in the domain of the Government and being matters of policy, the court is hardly called upon to comment upon either of them. These are the acts which fall in the domain of the State and do not call for any judicial interference. All that court proposed to hold is that State has to abide by the Scheme it has floated for compassionate appointment. The 1998 scheme floated by the Government should receive a liberal construction and application as it is stated to be a social welfare scheme and largely tilted in favour of the members of the family of the deceased employee. The purpose appears to be to provide them with recruitment on a regular basis rather than circumvent the same by adopting any other measure. That is the reason why the Government specifically states in its scheme that efforts should made to appoint the members of a distressed family to the post provides e/she satisfied the other parameters stated in the scheme. (Director General of Posts v. K. Chandrashekar Rao; 2013 (1) SLR 721)

Constitution of India, Arts. 16 and 226 – Rajasthan Non-Governmental Educational Institution Act, 1989, Sec. 29 – Section Scale – Whether the benefit of selection pay scale is available to the employees of Non Govt. Educational Institution – Held, “Yes”

The petitioner-respondent no. 1, having education qualification of M.A., B.Ed. was initially appointed on the post of Teacher Grade-Ill on 6th October, 1977 in Gyan Jyoti Senior Higher Secondary School, Sri Karanpur, District Sri Ganganagar. Thereafter he was promoted the post of Teacher Grade-II vide order dated 26th May, 1992 subject to the production of original certificate of I.G.D. (Intermediate Grade Darwin) Examination. The appellant submitted a representation to the appellant Managing Committee of Gyanjyoti School stating that he was having the requisite qualification of M.A., B.Ed., but the condition of producing the original certificate of I.G.D. was uncalled for. Despite that the appellant respondent no.2 cancelled his promotion order dated 26th May, 1992 vide order dated 10th July, 1992 merely on the ground that he had failed to produce the original certificate of I.G.D. examination. The petitioner- respondent no.2, reiteratedly stated before the appellant that the certificate of IGD for promotion on the post of Teacher Grade-Il was not at all required and yet, arbitrarily, he was reverted to the post of Teacher Grade-III. The appellant- respondent no.2 also did not grant the selection scale to the petitioner- respondent no. I. The petitioner-respondent No.1 submitted an application before the Rajasthan Non Government Educational Institutions Tribunal (here-in-after to be referred to for short as "Tribunal”) against reversion order and for providing benefit of selection pay-scales after completion of 9, 18 and 27 years of service under Circular dated 25.1.1992 issued by the State Government. The Tribunal allowed the prayer of providing the benefit of selection pay-scale, but declined to grant the arrears of selection pay - scale with effect from the date of entitlement and further declined to provide the benefit of promotion on the post of Teacher Grade-II. Aggrieved with the said order of the Tribunal, the petitioner-respondent no. 1 filed a writ petition in the High Court, which was decided by the learned Single Judge in his favour. Dissatisfied with the order of the learned Single Judge, the appellant has preferred this intra-court appeal after 703 days of the expiry of period of limitation.

The appellant is found to have filed an application under Section 5 of Limitation Act, whereby he has beseeched to condone the delay of 703 days in filing the instant appeal

The controversy as to whether the benefit of selection pay scale is available to the employees of Non Government Educational Institutions or not, stood resolved by a judgment of this Court delivered in the case of S.R. Higher Secondary School and Another Versus Rajasthan Non Government Educational Institutions Tribunal, Jaipur and 23 others reported in Western Law Cases (Raj.) 2002 (3) 586 : [2003(4) SLR 33 (Raj.)], wherein it was held that as per Section 29 of the Rajasthan Non Government Educational Institutions Act, 1989 and Rule 34 of the Rajasthan Non Government Educational Institutions (Recognition, Grant-In-Aid and Service Conditions, etc.) Rules, 1993, the teachers working even in Non Governmental Institutions would also be entitled to selection scale as was payable to the teachers working in Government schools. The, State Government approached the Supreme Court by way of Special Leave to Petition, wherein the Non-Government Educational Institutions also represented. Hon'ble Supreme Court in the case of State of Rajasthan & Another Versus Senior Higher Secondary School, Lachhmangarh and others reported in (2005) 10 SCC 346 upheld the Division Bench judgment, but in so far as claim of the Non Government Educational Institutions for Grant-In-Aid against payment of selection grade was concerned, It was directed that it should not be
claimed as a matter of right, but opportunity was given to such institutions to
represent the Government. In the light of the judgments of this Court as also of the Hon’ble Apex Court, the learned Single Judge held the petitioner-respondent no. 1 entitled to the benefit of selection scale with effect from 25th January, 1992, the date on which scale became due to the petitioner/respondent no. 1. The impugned order of the learned Single Judge was found to be just and proper and based on sound and cogent reasoning. It suffers from no infirmity and thus, the same warrants no intervention. (Managing Committee v. Tejpal Singh Tyagi; 2013 (1) SLR 494) (Raj HC (DB)

Constitution of India, Art. 16 - Belated claim for regularization - Claimant not entitled to regularization

The petitioner claims that he was appointed as 'Mali' in Veer Bahadur Singh Sports College, Gorakhpur with effect 12.10.1989. Although the copy of the appointment letter has not been filed but it appears from the pleadings that his appointment was purely temporary in nature. He further alleges that all the employees of the college were told by the Principal orally that the college shall be closed for ever with effect from 15.5.1992 and thus they need not come to perform their duties. Certain employees along with the petitioner filed writ petition no. 20301 of 1992 (Km. Anshu Kapoor & others vs. State of U.P. & others) in which a counter affidavit was filed on behalf of respondent no. 2.

The writ petition was dismissed on 10.1.1995. An application dated 9.2.1995 was filed for recall of the order which was also dismissed on 10.3.1995.

The petitioner again approached this Court by filing writ petition no. 73656 of 2011 which was disposed of vide order dated 19.12.2011 with a direction to the competent authority to decide the representation of the petitioner expeditiously preferably within a period of three months from the date of filing a certified copy of the order.

The prayer in this petition for regularizing the services of the petitioner and to pay salary accordingly has been made after two decades of having left the employment suo moto.

In view of the law laid down by the Hon'ble Apex Court, the order dated 27.3.2012 made on the representation of the petitioner in pursuance of a simpliciter direction issued by this Court to decide the representation will not cure the laches. The original cause of action accrued to the petitioner about 20 years back and the order dated 27.3.2012 passed in compliance of the direction issued by this Court cannot be considered furnishing of fresh cause of action. (Bikau Yadav vs. State of U.P.; 2013(2) ALJ 252)

Constitution of India, Art. 16 - Compassionate appointment - Nature of - It is not a vested right but a discretionary right

In Umesh Kumar Nagpal vs. State of Haryana and others, 1994(4) SCC 138, the Supreme Court held, that the appointment on compassionate ground cannot be a source of recruitment, and that, it is merely an exception to the requirement of law keeping in view the fact of the death of the employee while in service leaving his family without any means of livelihood. The Supreme Court held, that the object of compassionate appointment was to enable the family to get over the sudden financial crisis. The Supreme Court went further to hold, that compassionate appointment could not be granted after a long lapse of reasonable period and that the very purpose of compassionate appointment was to meet the immediate financial problem being suffered by the members of the family of the deceased.

In the light of the aforesaid judgment, the mere fact, that the petitioner has survived from 1989 till the age of majority, is an indication by itself that there was no financial crisis in his family which would warrant consideration for an appointment on compassionate ground. The appointment on compassionate ground is not a vested right of the family of the deceased, but, is only a discretionary right given to the employers to given an appointment to a member of the family of the deceased in order to tide over the family crisis.

In the instant case, no such financial crisis has been shown nor was in existence. From the record, the Court also finds, that the mother of the petitioner was offered an appointment, but, she declined to accept. Consequently, no relief can be given to the petitioner. (Santi Devi Rajeshwar Prasad Tripathi vs. State of U.P.; 2013(2) 352)

Constitution of India, Art. 311 – U.P. Legal Remembrancer’s Manual, Charter 7 – Termination of Services – Non renewal of appointment of District Government counsel – Validity of

In this case Mr. Ashok Kumar Nigam, respondent herein was appointed as District government Counsel on 17^th September, 2004 vide a notification issued by the State Government. The term of the said respondent was renewed on 3^rd March, 2006 for a period of one year and as such his term came to an end of 5^th March 2007. The respondent submitted his application for renewal of his term on 19^th January, 2007. The district Judge, Lucknow on 26^th February, 2007 gave his report and the District magistrate also submitted his report on 5^th March, 2007 recommending the renewal of the term of the respondent. However, the State Government, appellant herein, vide order dated 3^rd April, 2008 refused his renewal which resulted in cancellation of engagement of the said respondent.

Aggrieved from the above order, the respondent filed writ petition before the High Court of Allahabad, Lucknow Bench. In the writ petition, the sand taken by the respondent was that in terms of the rule, the petitioner has a right to continue and in any case for consideration of renewal of his term, the impugned order does not state any reasons and, in fact, does not take into consideration the recommendations made by the District and Sessions Judge and the district Magistrate, who had recommended renewal of the term of the respondent. The high Court after hearing the counsel appearing for the parties, vide its judgment dated 14^th October, 2009, allowed the writ petition, setting aside the order dated 3^rd April, 2008 and even granting further relief to the appellant.

Aggrieved from the above judgment of the High Court, the State of Uttar Pradesh has filed the present appeal before the Court. The challenge to the impugned order is, inter alia, but primarily on the following grounds:-

A) In terms of the relevant rule, the State Government has discretion to terminate the term of the District Government Counsel (Criminal) and in any case, the term of the respondent had come to an end by efflux of time, and therefore, the High Court has exceeded its jurisdiction in setting aside the order dated 3^rd April, 2008.

B) At best, if allowing the writ petition, the High Court could set aside the impugned order, but could not direct that they be retained or continued till the age of 60 or 62 years as the case may be. The respondent would only have a right of consideration and nothing more, therefore, the judgment of the High Court suffers from apparent errors,. The High Court gave no reasons much less valid reasons for setting aside the order dated 3^rd April, 2008.

The order dated 3^rd April, 2008 is even liable to be quashed on another ground, that it is a non-speaking order also suffering from the vice of non-application of mind. As already discussed, the government has taken an enblock decision, without recording any reason, not to renew the term of any of the government counsel. That itself shows that there is no application of mind. In the case of Kumari Shrilekha, this court expressed the opinion that it would be alien to the Constitutional Scheme to accept the argument of exclusion of Article 14 in contractual matters. The arbitrary act of the state cannot be excluded from the ambit of judicial review merely on the ground that it is a contractual matter. The expression ‘At any time without assigning any cause’, can be divided into two portions, one “at any time”, which merely means the termination may be made even during the subsistence of the term of appointment and second, “without assigning any cause” to the appointee whose appointment is terminated. However, “without assigning any cause” is not to be equated with “without existence of any cause”.

So, the order dated 3^rd April, 2008, which court his reproduced above, clearly shows non-application of mind and non-recording of reasons, which leads only to one conclusion, that the said order was an arbitrary exercise of power by the State. Court cannot find any fault with the reasoning of the High Court in that behalf. But court do find some merit in the contention raised on behalf of the appellant State that the High Court should not have directed appointments while regulating the age, as has been done by the High Court in operative part of its judgment. There is right of consideration, but none can right to appointment. Para 7.06 states that renewal beyond 60 years shall depend upon continuous good work, sound integrity and physical fitness of the counsel. These are the considerations which have been weighed by the competent authority in the State Government to examine whether renewal/extension beyond 60 years should be granted or not. That does not ipso facto means that there is a right to appointment up to the age of 60 years irrespective of work, conduct and integrity of the counsel. The rule provides due safeguards as it calls for the report of the District Judge and the District Officer granting renewal.

Thus, for the above-recorded reasons, while declining to interfere in the judgment of the High Court, court direct that the government shall consider cases of the respondents in these petitions for renewal in accordance with the procedure prescribed and criteria laid down under Para 7.06 to 7.08 of the LR Manual. (State of U.P. v. Ashok Kumar Nigam; 2013 (1) SLR 790)

Constitution of India, Art. 311 - Termination of service of probationer - Simpliciter or punitive - Test to determine

A probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general suitability for the post held by him. If the competent authority holds an inquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such inquiry is the basis for taking decision to terminate his service, than the action of the competent authority cannot be castigated as punitive. However, if the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice. (State Bank of India vs. Palak Modi; 2013(2) ALJ 127)

Constitution of India, Art. 311(2)—Second proviso Cl. (b)—Dismissal without giving reason to hold enquiry—Legality of—It would not legal

In the order of dismissal, the Superintendent of Police has not disclosed any reason as to why it was not reasonably practicable to hold regular departmental enquiry. The learned Additional Advocate General fairly stated that the order of dismissal does not contain the reasons as to why it was not reasonably practicable to hold regular departmental enquiry against the appellant. He also admitted that no other record has been made available to him which would have revealed that the Superintendent of Police had recorded reasons for forming an opinion that it was not reasonably practicable to hold regular departmental enquiry for proving the particular charge(s) against the appellant.

In view of the above, Court hold that the learned Single Judge and the Division Bench of the High Court committed serious error by negating the appellant's challenge to her dismissal from service without enquiry. The Division Bench of the High Court did not examine the issue in the correct perspective and made general observations that each case is required to be decided on its own facts and no straitjacket formula can be adopted to decide whether it is reasonable and practicable to hold regular enquiry for imposing major penalty of dismissal from service. Such general observations could not have been made basis for approving her dismissal from service without enquiry. (Reena Rani vs. State of Haryana; (2013) 1 SCC (Cri) 612)

Adverse entry – Promotion – Non communication of – Effect of – On this basis promotion should be given to appellant

The Hon’ble Court has observed that the judgment of Supreme Court in Union of India v. K.V. Jankiraman was considered by Division Bench of the Court in para 9 in Nishi Kant Biswas’s case and held that the same is not applicable. In court’s view also, looking to the facts of the present case, the said judgment is not applicable in the facts and circumstances of the present case also.

Similarly, the judgment of Hon’ble Apex Court in State of Kerala v. E.K. Bhaskaran Pillai is also not applicable in the facts and circumstances of the present case. The Hon’ble Apex Court in this judgment has laid down a principle that so far as situation with regard to monetary benefits with retrospective promotion is concerned that depends upon case to case. In the present case, court finds that there were adverse entries against the petitioner during the period 1984-85, 1985-86 and 1986-87 and he was rightly denied the promotion, but since these entries were not communicated to the petitioner before 1988, therefore, this Court directed to consider his case for promotion ignoring the adverse entries, which have not been communicated to him. But this fact has not been disputed that there were adverse entries against the petitioner during this period. Since this Court directed, to ignore the adverse entries, which were not communicated to him and to consider his case for promotion. Therefore, his case was considered and he was promoted and his pay has been fixed notionally but has not been paid arrears of the promotional post for the period during which he did not work.

The Hon’ble Apex Court in Union of India v. Tersem Lal’s case while dealing with the case of a person, who lost the promotion on account of administrative error and the provisions contained in paragraph 2 to 8, held that he did not actually shoulder the duties and responsibilities of the higher post is not entitled to arrears. This judgment applies fully to the facts of the present case. There were adverse entries against the petitioner, but the same were not communicated due to administrative error. In these circumstances, court was satisfied that learned Single Judge was absolutely right in directing that promotion be given to the petitioner from the date his junior person was promoted but he may not be given monetary benefits. Court does not found any infirmity or illegality in the order passed by Singh Bench. (Shyam Prasad Sharma v. Raj Coop. Dairy Federation; 2013 (1) SLR 505) (Raj)

Compassionate appointment – Dependent – A married/unmarried son who has already separated from family of deceased – Employee even his life time cannot categorized or qualified as dependant of family member

In this case, the scheme of compassionate appointment applicable to Government employees, which has now been extended to temple employees, speaks of one of the dependent family members of a deceased-employee, who dies in harness, being provided compassionate appointment. A married/unmarried son who has already separated from the family of the deceased-employee can hardly be categorized as a dependent family member. It is the specific case of the petitioner that his two brothers separated from the family even during the life-time of the father and were working in the 2^nd respondent temple as contract carpenters since then. Certificates issued by the Tahsildar, Srisailam Mandal, support the stand of the petitioner in this regard as the two brothers are shown to be residents of a house different from that occupied by the petitioner along with his mother and younger brother. No material is placed on record by the Endowments Department or by the 2^nd respondent temple to the contrary. Ergo, by no stretch of imagination can it be said that the petitioner’s two brothers would qualify as ‘dependent family members’ of the deceased father. (K. Brahmaiah v. Commissioner; 2012 (1) SLR 663) (AP)

Reinstatement—Entitlement to

Mere acquittal of an employee by a criminal court has no impact on the disciplinary proceedings initiated by the Department. The respondent was not honourably acquitted by the criminal court, but only due to the fact that PW 1 and PW 2 turned hostile and other prosecution witnesses were not examined. (Dy. Inspector General of Police vs. S. Samuthiram; (2013)1 SCC (Cri) 566)

Daily Wages Labour - Do not have any right to a post-termination when services no required - Not improper

In the instant case, the appellants were temporarily appointed on daily wages as and when work was available and they were not posted on regular basis against sanctioned post, Court does not find any reason and justification to interfere with the orders passed by the two courts. However, Court is of the view that the direction for payment of Rs. 10,000/- each to the appellants will not compensate the appellants. Hence, the appellants who approached for the conciliation after 8 to 10 years from the date of termination are entitled to a sum of Rs. 50,000/- each whereas one of the appellants namely Rajkumar Rohitlal who has approached the Conciliation Officer within 2 to 3 years shall be entitled to get a sum of Rs. 1,00,000/- (Rajkumar S/o Rohitlal Mishra v. Jalagaon Municipal Corporation; 2013 (1) Supreme 620)

Promotion – Seniority-cum-merit - Means that given the minimum necessary merit requisite for efficiency of administration, the senior, though less meritorious, shall have priority - The candidates’ service record should be considered in totality - In case of promotion on “seniority-cum-merit”, a person lower in the seniority list, can be promoted, ignoring claim of senior person, who failed to achieve the benchmark

A Seven Judge Bench of this Court in State of Keral & Anr. v. N.M. Thomas & Ors; AIR 1976 SC 490, held-

“Seniority cum merit’ means that given the minimum necessary merit requisite for efficiency of administration, the senior, though less meritorious, shall have priority. This will not violate Articles 14, 16 (1) and 16(2) of the Constitution of India”

Thus, it is apparent that the Court has provided for giving weightage to seniority, without any compromise being made with respect to merit, as the candidate must possess minimum requisite merit. Efficiency of administration is of paramount importance, and therefore, whilst adequate weightage is given to seniority, merit must also be duly considered.

In Union of India & Ors. v. Lt. Gen R,ajendra Singh Kadyan & Anr.; AIR 2000 SC 2513, it was observed as under:-

“Seniority-cum-merit" postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed. Subject to fulfilling this requirement the promotion is based on seniority. There is no requirement of assessment of comparative merit both in the case of seniority-cum-merit.”

The said principle has also been approved, reiterated and followed by the Court in Syndicate Bank Scheduled Castes and Scheduled Tribes Employees Association. (Regd.) & Ors. v. Union of India & Ors., 1990 Supp. SCC 350; Govind Ram Purohit v. Jagjiwan Chandra & Ors., 1999 SCC (L&S) 788; The Central Council for Research in Ayurveda & Siddha & Another. v. Dr. K. Santhakumari; (2001) 5 SCC 60; and Bibhudatta Mohanty v. Union of India & Ors.; (2002) 4 SCC 16.

In view of the aforesaid judgments of the Court, it is evident that even if a promotion is to be made on the basis of "seniority-cum- merit", a person who is lower in the seniority list, can in fact be promoted, ignoring the claim of the senior person, who failed to achieve the benchmark i.e. minimum requisite merit. (Balbir Singh Bedi v. State of Punjab & Ors.; 2013 (1) Supreme 673)

Promotion Seniority–cum-merit criteria - Executive instruction - Codifying directions of Supreme Court - Binding nature - Even in absence of the executive instructions, State/employer has right to adopt any reasonable and bona fide criteria to assess merit for promotion on “seniority-cum-merit” – Issuance of such instructions subsequent to date of vacancy - Immaterial

If, the instant case is examined in light of the settled legal propositions, it becomes evident that even in the absence of the executive instructions, the State/employer has the right to adopt any reasonable and bonafide criteria to assess the merit, for the purpose of promotion on the principle of "seniority-cum- merit". The aforesaid executive instructions are nothing but codification of directions issued by this Court in the cases referred to hereinabove. Therefore, a challenge made to the executive instructions on the' ground that they were issued at a date subsequent to the date on which the vacancy arose, is meaningless. The present case is not the one where, Respondent No. 5 was found to be more meritorious, in fact, the same is admittedly a case, where the appellant was unable to achieve the benchmark set, as it is evident from the record that his ACRs were average, and the benchmark fixed by the State was ‘Good’. (Balbir Singh Bedi v. State of Punjab & Ors.; 2013 (1) Supreme 673)

School education – Bogus admissions - Ways and means to check - Education department have their mechanism for checks and investigation, though inadequate - High Court directing Secretary Education department to involve police in checking bogus admission -Not proper – Alternative - UID technology as proposed accepted

The Court is of the view even though the Division Bench was not justified in directing police intervention, the situation that has unfolded in this case is the one that we get in many aided schools in the State. Many of the aided schools in the State, though not all, obtain staff fixation order through bogus admissions and misrepresentation of facts. Due to the irregular fixation of staff, the State exchequer incurs heavy financial burden by way of pay and allowances. The State has also to expend public money in connection with the payment of various scholarships, lump-sum grant, noon-feeding, free books etc. to the bogus student A great responsibility is, therefore, cast on the General Education Department to curb such menace which not only burden the State exchequer but also will give a wrong signal to the society at large. The Management and the Headmaster of the school should be a role model to the young students studying in their schools and if themselves indulge in such bogus admissions and record wrong attendance of students for unlawful gain, how they can imbibe the guidelines of honesty, truth and values in life to the students. The Court is, however, of the view that the investigation by the police with regard to the verification of the school admission, register etc., particularly with regard to the admissions of the students in the aided schools will give a wrong signal even to the students studying in the school and the presence of the police itself is not conducive to the academic atmosphere of the schools. In such circumstances, Court are inclined to set aside the directions given by the Division Bench for police intervention for verification of the students’ strength in all the aided schools Court are, however, inclined to give a direction to the Education Department, State of Kerala to forthwith give effect to a circular dated 12.10.2011 to issue UID Card to all the school children and follow the guidelines and directions contained in their circular. Needless to say, the Government can always adopt, in future, better scientific methods to curb such types of bogus admissions in various aided schools. (State of Kerala and Others v. President, Parent Teacher Assocn. SNVUP and others; 2012 (1) Supreme 732)

S. 292 r/w 34 - Exhibition of blue films - Does not warrant any leniency in sentence

The provision was amended in 1969 whereby a dichotomy of penal treatment was introduced for dealing with the first offenders and the subsequent offenders. The intention of the Legislature while amending the provision is to deal with this type of offences which corrupt the mind of the people to whom objectionable things can easily reach and need not be emphasized that corrupting influence is more likely to be upon the younger generation who has got to be protected from being easy prey. Exactly, a similar question was considered by this Court in the case of Uttam Singh vs. The State (Delhi Administration}! 1974 (4) SCC 590. In that case the accused was convicted under Section 292 IPC on the charge of selling a packet of playing cards portraying on the reverse luridly obscene naked pictures of men and women in pornographic sexual postures. A similar argument was advanced by the counsel to give benefit of Section 4 of the Probation of Offenders Act. The Court rejecting the submission observed:

“There are certain exceptions to this section with which Court is not concerned. This section was amended by Act XXXVI when apart from enlarging the scope of the exceptions, the penalty was enhanced which was earlier up to three months or with fine or with both. By the amendment a dichotomy of penal treatment was introduced for dealing with the first offenders and the subsequent offenders. In the case of even a first conviction the accused shall be punished with imprisonment of either description for a term which may extend to two years and with fine which may extend to two thousand rupees. The intention of the legislature is, therefore, made clear by the amendment in 1969 in dealing with this type of offences which corrupt the minds of people to whom these objectionable things can easily reach and it needs not be emphasized that the corrupting influence of these pictures is more likely to be upon the younger generation who has got to be protected from being easy prey to these libidinous appeals upon which this illicit trade is based. The Court is, therefore, not prepared to accept the submission of the learned counsel to deal with the accused leniently in this case.”

A similar view was taken by Punjab and Haryana High Court in the case of Bharat Bhushan vs. State of Punjab reported in 1999 (2) RCR (Criminal) 148 refusing to give benefit of probation for exhibiting blue film punishable under Sections 292 and 293 of the IPC. The Court held that:

"exhibiting blue film in which man and woman were shown in the act of sexual intercourse to young boys would definitely deprave and corrupt their morals. Their minds are impressionable. On their impressionable minds anything can be imprinted. Things would have been different if that blue film had been exhibited to mature minds. Showing a man and a woman in the act of sexual intercourse tends to appealing to the carnal side of the human nature. Petitioner is the first offender and is a petty shopkeeper, maintaining a family and as such the High Court feel that he should be dealt with leniently in the matter of sentence. He cannot be released on probation of good conduct as the act imputed to him tended to corrupt and deprave the minds of immature and adolescent Boys.”

(Gita Ram & Anr. v. State of H.P.; 2013 (1) Supreme 617)

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Specific Relief Act

S. 39 – Suit for Permanent Injunction - Defendant constructed the wall, Encroached the land in dispute, Plaintiff was the owner of the land Encroachment has to be removed - It cannot be compensated by way of damages

The contention of the defendant-appellant is that the decree for demolition should not have been passed and that the Court below should have awarded compensation of damages. In support of his contention, the learned Counsel has placed reliance in the case of U.P. State Electricity Board v. R.Wheeler, AIR 1983 All. 8, wherein the Court held that in view of the provision of 39 of the Specific Relief Act, the question of the compensating the plaintiff can be considered by the Trial Court.

In the opinion of the Court, damages can be awarded for illegal use of the land in question but the encroachment has to be removed and that an encroachment upon the land of the plaintiff cannot be compensated by this way of damages.

In the light of the aforesaid, the Court does not find that any substantial question of law arising in the appeal. The Court has found that illegal possession has been taken by the defendant and, this being a finding of fact, the Appellate Court rightly directed the defendant to remove the encroachment. (Sheo Das vs. Ram Jiyawan Ram; 2013 (118) RD 799)

On due application of the provisions of Section 15(5) of the Limitation Act of 1963, the suit filed by the Plaintiff was well within time as the period of the absence of the Defendant from India has to be excluded while computing the limitation for filing of the suit - The principle of business efficacy is normally invoked to read a term in an agreement or contract so as to achieve the result or the consequence intended by the parties acting as prudent businessmen. Business efficacy means the power to produce intended results- The business efficacy test, therefore, should be applied only in cases where the term that is sought to be read as implied is such which could have been clearly intended by the parties at the time of making of the agreement.

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Stamp Act

Ss 47-A (U.P.) 24, 2(10) – S. 1B, Art. 18 - Sale in execution stamp duty leviable on sale deed– Stamp duty chargeable only an amount mentioned in sale deed

For purpose of this case Section 24 of the Stamp Act would be read as where the property is transferred in consideration of any debt hence such debt is deemed to be the consideration in respect where of the transfer is chargeable with ad valorem duty. Article 18 of Schedule 1B of the Stamp Act deals with an instrument relating to a certificate of sale granted to a purchaser of property sold by public auction by a court and the proper stamp duty would be the same duty as a conveyance (Article 23 Schedule 1 in its application to the State of Uttar Pradesh) for a consideration equal to the amount of the purchase money only. The substance of the above referred provisions of the Transfer of Property Act and the Indian Stamp Act is that;

Thus, (a) the provisions of the Transfer of Property Act do not affect any transfer by operation of law or by, or in execution of a decree or order of a court of competent jurisdiction.

(b) 'transfer of property' as defined in the Transfer of Property Act is an act inter vivos.

(d) a transfer when made in consideration of debt then such debt is to be deemed as the consideration whereof the transfer is chargeable with ad valorem duty.

(e) in a property sold by public auction by a court in consideration of any debt the consideration would be the purchase money only and that is the consideration which would be chargeable to stamp duty.

Clearly the provision of S. 2(d) of the Transfer of Property Act will prevail over the definition of ‘transfer of property’ given in S.5 of the Act.

Once S.24 of the Stamp Act applies then the consideration would be the value of the debt which stands discharged of paid up, irrespective of the market value of the property mentioned in the sale deed.

Where property was sold in execution of sale deed, the stamp duty could be charged only on the amount mentioned in the sale deed which was the amount of debt discharged by the auction purchasers in pursuance of the decree. The sale deed was clearly covered under S.2(d) of the Transfer of Property Act and it was not a conveyance within the meaning of S.2(10) of Stamp Act so as to attract the provision of S. 47-A of the Stamp Act. It was not a transaction inter-vivos hence ‘transfer of property’ as defined under S.5 of the Transfer Property’ as defined under S.5 of the Transfer of Property Act would not apply to a case of transfer in consideration of debt falling within the ambit of S. 24 of the Stamp Act. (Lalji Agarwal vs. State of U.P.; 2012(2) ALJ 198)

Market value of the property has to be determined on the date the document was executed and registered

Next question which calls for determination is what is date on which the market value of the property has to be determined. The determination of the market value depends on different situations relating to the property, which ultimately means what a willing buyer pays for purchase of the property. The Stamp Act is a taxing statute. What is clearly said is that there is no room for intendment. There is no equity about a tax. There is no presumption as to tax. Nothing is to be read in" nothing is to be implied. While construing the provisions of section 47-A of the Act and other provisions, the duty chargeable on the instrument is the date of its execution. Consequently, the market value has to be determined on the date the said document has been executed/registered. The stand of the learned Counsel for the petitioners is that the agreement to sell came into existence in the year 1966 on account of failure on the part of the landlord to execute the sale-deed. The suit had to be filed by the petitioners. It is none of his fault, as such the value given in the instrument should be taken into consideration while determining the market value of the property. The delay in execution of the sale-deed was on account of failure on the part of the owner to execute the sale-deed. Even if, during this period, the value of the property has shoot up that should not impel the petitioner to pay the stamp duty on the market value to be determined on the date the said sale-deed was executed. It is true that no one should suffer on account of litigation. Learned Counsel for the petitioners invited attention of the Court to the principle that no person shall suffer on account of litigation for a long time. There is no dispute with the principle that the person should not suffer on account of litigation going on for a long time. However, the fact remains that the market value of the property is to be determined on the date when the sale deed was executed. The Act clearly provides that market value of the property has to be determined on the date the document was executed and registered. (Shanti Bhushan vs. State of U.P.; 2013 (118) RD 756)

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Succession Act

S.2 (h)—“Will”—Meaning and scope

Will is an instrument whereunder a person makes a disposition of his properties to take effect after his death and which is in its own nature ambulatory and revocable during his lifetime. It has three essentials:

(1) It must be a legal declaration of the testator’s intention;

(2) That declaration must be with respect to his property; and

(3) The desire of the testator that the said declaration should be effectuated after his death.

The essential quality of a testamentary disposition is ambulatoriness of revocability during the executants’ lifetime. Such a document is dependant upon executants’ death for its vigor and effect.

Section 2(h) of the Indian Succession Act says “Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death”. In the instant case, the executants were Indian Christians, the rules of law and the principles of construction laid down in the Indian Succession Act govern the interpretation of Will. In the interpretation of Will in India, regard must be had to the rules of law and construction contained in Part VI of the Indian Succession Act and not the rules of the Interpretation of Statutes. (Mathai Samuel vs. Eapen Eapen (dead) by Lrs. & Ors.; 2013 (1) ARC 1 (SC)

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Tort

Res ipsa loquitur – Negligence in maintaining swimming pool – Applicability of principle

The plaintiff stated in her testimony that she had gone to take a swim on 5.5.1978 in the swimming pool at Akbar Hotel at about 5 O’clock. According to her, it had been a hot day and they had gone down to the pool; her father, mother, her younger brother and herself. Whey they got to the pool side area, her father, brother and mother went ahead to get into the pool and she stopped that the edge of the pool to take of her robe and her sandals. Thereafter, she stated that she remembered that her hair got entangled in the strap of her swimming costume. She took time to fix that up and to untangle it. Then she walked over to the shallow end of the pool and she jumped into the pool. She stated that when she jumped in the pool she felt that her feet touched the bottom of the pool and immediately they slid forward throwing her backwards against the side of the pool. She felt her head strike the side of the pool. Then her brother and father came over and supported her in the pool and they, with the help of another person, whom she did not know, lifted heron to the side of the pool. She stated that she remembered that her father was being very careful in lifting her and he supported her very gently but very strongly and her head was very stable in the lifting. She stated that when her feet touched the bottom of the pool, she found it to be very slippery and immediately both her feet slid forward. She stated that her body was tingling at that time, right from her shoulders down to her feet. And, then her body started to go numb. She stated that she also had a small cut on the back of her head where it struck the side of the pool and there was a bit of blood in the water of the pool. She stated that while they were waiting for the ambulance, they transported her on a stretcher-like thing to the manger’s room where they waited for about two hours. Thereafter, she was transported to Holy Family Hospital in the said ambulance. Dr. Arjun Sehgal was present at the Holy Family Hospital and he took charge of the case. He arranged to have the X-rays taken. etc.

From the testimony of G.L. Beer, PW 2, also it is apparent that the plaintiff suffered the injury in the manner indicated by her, that is, when she jumped into the pool in the shallow end, her feet slipped on the floor of the pool and slid forward and in the process she hit the back/top of her head on the side of the pool which ultimately resulted in the fracture of her cervical column around the 6^th/7^th cervical vertebra. This is what caused her to be paralyzed from chin down.

As mentioned above, both Dr. J.A.Smith and Dr. Arjun Dass Sehgal were subject to extensive cross-examination on the point as to whether the injury was a flexion injury or a compression injury. From the testimonies of both these witnesses, it is apparent that they have not been shaken from their stand that the injury was a flexion injury caused by forward hinging of the head. In such a situation, the hypothesis of the plaintiff having dived into the pool is clearly contraindicated.

As a result of the aforesaid discussion, it has been established on the part of the plaintiff that the cause of injury was the fact that the plaintiff jumped into the pool at the shallow end and that her feet slid forward on account of the bottom of the pool being slippery. This resulted in her head hitting the side of the pool which ultimately resulted in her becoming a quadriplegic. The theory and hypothesis of diving into the pool which had been put forward by the learned counsel for the defendant, both in the course of cross-examination of the plaintiff’s witnesses as well as by the defendant’s witnesses and in the course of arguments before this court, is clearly not established. it is not established on account of the evidence on record nor is it established on account of probabilities The plaintiff, admittedly, was an expert swimmer. She would not have dived into the pool vertically downwards at the shallow end knowing the water to be only 2-1/2 to 3 feet deep. In any case, even if she had dived into the pool, she could have avoided impact on her head by pushing away with her hands which are normally extended in the case of a dive. There is evidence of her swimming coach to indicate that she was well trained in all swimming manoeuvres which include diving and if she were to dive, she would have adopted the correct posture namely, with the hands extended ahead to protect from the impact of the water. All these facts clearly establish that the assertion made by the plaintiff with regard to the manner in which the injury was caused stands established and the hypothesis propounded by the defendant stands disproved.

The plaintiff’s case is that glazed tiles were used in the swimming pool. The fact has not been denied by the defendant. The plaintiff’s case further is that not only were glazed tiles used in the swimming pool but that those tiles had become slippery on account of lime accumulating thereon as a result of algal growth because the pool was not properly maintained by the defendant. The defendant, however, has denied that the pool was not properly maintained. The defendant also denied that the tiles were slippery.

All these factors couples with the testimony of the plaintiff and that of her father G.L. Beer and her mother P.J. Beer point in the direction of the tiles in the floor of the swimming pool being slippery on account of improper maintenance of the swimming pool. This could, course, be countered by the defendant by leading evidence to establish and show that the pool was properly maintained.

The fact of the matter is that there is evidence to indicate that the floor of the swimming pool was slippery and it is because of that the plaintiff suffered the injury. The floor of the swimming pool would not have been slippery had the pool been properly maintained. It is at this juncture hat the principle of res ipsa loquitur can also be employed. That is a rule of evidence which is employed when there is otherwise no direct material on a particular aspect of the matter. Since the floor of the swimming pool was not examined on the date of the incident itself and samples were not taken on that date, there is no direct evidence to indicate that there was algal growth in the pool or that there was other slimy material on the floor of the pool; It is in circumstances such as this that the principle of res ipsa loquitur is applied as a rule of evidence because the things speak for themselves. Res ipsa loquitur is a Latin phrase which is defined in Black’s Law Dictionary in the following words; ‘The thing speaks for itself’. The doctrine of res ipsa loquitur is described in detail in a decision of this court in Klaus Mittelbachert v. East India Hotels, 1999 ACJ 287 (Delhi) which reads as under:

“52...... Under the doctrine of res ipsa loquitur a plaintiff establishes a prima facie case of negligence where (1) it is not possible for his to prove precisely what was the relevant act or omission which set in train the events leading to he accident, and (2) on the evidence as it stands at the relevant time it is more likely than not that the effective cause of the accident was some act or omission of the defendant or of someone for whom the defendant is responsible, which act or omission constitutes a failure to take proper care for the plaintiff’s safety. There must be reasonable evidence of negligence. However, where the thing which causes the accident is shown to be under the management of the defendant or his employees, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from what of care. Three conditions must be satisfied to attract applicability of res ipsa loquitur: (i) the accident must be of a kind which does not ordinarily occur in the absence of someone’s negligence; (ii) it must be cause by an agency or instrumentality within the exclusive control of the defendant; (iii) it must not have been due to any voluntary action or contribution on the part of the plaintiff. [See Rattanlal & Dhirajlal on Law of Torts, edited by Justice G.P. Sing, 22^nd Edn. 1992, pp. 499-501 and the Law of Negligence by Dr. Chakraborti, 1996 Edn., pp 191-192].”

In the light of the aforesaid decision, it needs to be examined as to whether the above conditions apply to the present case. First of all, it has to be determined as to whether the accident is of a kind which does not ordinarily occur in the absence of someone’s negligence. It is common knowledge that people and most particularly younger persons jump into the swimming pool. Unless and until there is some negligence, the injury of the kind indicated in the present case would not ordinarily occur. When one jumps into the swimming pool in the shallow end, one does not expect that on the feet reaching the floor of the swimming poor, the same would slip on account of the floor being slippery.

It is therefore, clear that all the three conditions necessary for application of the doctrine of res ipsa loquitur stand satisfied. (Susan Leigh Beer v. Indian Tourism Development Corporation Ltd.; 2013 ACJ 605)

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Transfer of Property Act

Ss. 106 and 114—Provision under—Applicability of—Provisions of Sec. 114 of the Act would not be applicable when the tenancy is terminated by given one months notice U/s. 106

The question as to when Section 114 of Act, 1882 would be attracted is no more res-integra, have been considered and decided in a number of cases.

In Mohammad Nasir vs. District Judge, Nainital and others 1999(1) AWC 550 this Court elaborately examined whether the provisions of Section 114 of the Act, 1882 would not be applicable when the tenancy is terminated by giving one months notice under Section 106 and it was observed:

“Section 114 of the Act confers a power on the Court to grant an equitable relief to the defaulting lessee. In order to claim benefit under this section, it has to be shown by the tenant that one of the terms of the lease was that the landlord will have a right of re-entry if the rent for any specified period remained unpaid and he has to show further that forfeiture has been incurred as provided under Section 111(g). Section 114, of the Act thus postulates existence of determination of lease by forfeiture as a condition precedent and provisions contained in this section will have no application where the lease has been determined by serving a notice to quit under Section 106, of the Act. The relief under Section 114 of the Act is confined to those cases only which are strictly covered under Section 111(g) and not to those cases which fall under Section 106 of the Act. A monthly tenancy is determinable by one month’s notice by either party and if the tenancy is terminated by serving one month’s notice under Section 106 of the Act, there is no forfeiture of tenancy and in that event, Section 114 cannot be applied. Thus, a notice under Section 106, of the Act by no means could be treated as one under Section 111(g).

Section 114 applies to those cases where the landlord invokes his rights under what is known as forfeiture clause and determines the lease by forfeiture and sues for the ejectment of the tenant. I may illustrate it by an example which will make the picture more clear. Suppose there is a lease for a fixed term of five years containing a clause that the landlord will be entitled to determine the lease and to re-enter upon the demised premises even during the period of five years if the tenant does not pay rent for more than three months. But for this clause, the lease must run for the entire period of five years and the landlord during the said period will have no right to eject the tenant before the expiry of the fixed period of five years. If the tenant fails to pay rent for more than three months, forfeiture clause enables the landlord to determine the lease before its expiration. In such a case, the subsisting tenancy cannot be determined by serving a notice simpliciter under Section 106 of the Act and it can only be determined where the landlord forfeits the tenancy by serving a notice under Section 111(g). In such an event, Section 114 can be pressed into service but where the tenancy runs from month to month and the same has been determined by a valid notice under Section 106 of the Act, Section 114 of the Act shall have no application.

In view of above exposition of law and the discussion made hereinabove, Court do not find any illegality, legal or otherwise, in the orders impugned in this writ petition so as to warrant interference. (Nizamuddin vs. Smt. Bushra Khatoon and others; 2013 (1) ARC 746)

S. 106 - Non-maintaining reason in quit notice for termination of tenancy - Effect of - Section 106 does not contemplate to mention any reason for termination of tenancy

Section 106 of the Transfer of Property Act 1882 does not contemplate the mentioning of any reason for terminating the tenancy. This question has been adequately considered and answered by the Supreme Court in the case reported in (1994) Supp (3) SCC 694 Zeevan Das vs. Life Insurance Corporation of India and another. Paragraph 4 of the said judgement reads as under:

“4. Section 106 of the T.P. Act does indicate that the landlord is entitled to terminate the tenancy by giving 15 days' notice, if it is a premises occupied on monthly tenancy and by giving 6 months' notice if the premises are occupied for agricultural or manufacturing purposes, and on expiry thereof proceedings could be initiated. Section 106 of the T.P. Act does not contemplate of giving any reason for terminating the tenancy. Equally the definition of the public premises 'unauthorised occupation' under Section 2(g) of the Act postulates that the tenancy "has been determined for any reason whatsoever". When the statute has advisedly given wide powers to the public authorities under the Act to determine the tenancy, it is not permissible to cut down the width of the power by reading into it the reasonable and justifiable grounds for initiating action for terminating the tenancy under section 106 of the T.P. Act. If it is so read Section 106 of T.P. Act and Section 2(g) of the Act would become ultra vires. The statute advisedly empowered the authority to act in the public interest and determine the tenancy or leave or licence before taking action under Section 5 of the Act. If the contention of the appellant is given acceptance he would be put on a higher pedestal than a statutory tenant under the Rent Act. Take for example that a premises is let out at a low rent year back like the present one. The rent is unrealistic. With a view to revise adequate market rent, tenant became liable to ejectment. The contention then is, action is violative of Article 21 offending right to livelihood. This contention too is devoid of any substance. An owner is entitled to deal with his property in his own way profitable in its use and occupation. A public authority is equally entitled to use the public property to the best advantage as a commercial venture. As an integral incidence of ejectment of a tenant/licensee is inevitable. So the doctrine of livelihood cannot indiscriminately be extended to the area of commercial operation. Therefore, we do not find any substance in the contentions of the appellant. The appeal is accordingly dismissed. No costs.”

(Vishnu Dutt Tripathi vs. VI Addl. District Judge, Kanpur Nagar; 2012(2) ALJ 148)

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U.P. Consolidation of Holdings Act

(a) U.P. Consolidation of Holdings Act, 1953, Sections 48 and 11 - Order passed in appeal, remanding the case to the Consolidation Officer - Revision against, Maintainability of - Held, order remainding the case to the Consolidation Officer is not an interlocutory order - Revision is not barred against such order

(b) “Interlocutory order” - Meaning of explained

Brief facts of the case, which are necessary to be noted for deciding the above two questions, are; proceedings under the U.P. Consolidation of Holdings Act, 1953 were stated in the village in which objections under Section 9-B of the U.P. Consolidation of Holdings Act, 1953 were filed by respondent No. 2. The said objections were allowed by order dated 18^th January, 2005 against which an appeal under Section 11(1) of the U.P. Consolidation of Holdings Act, 1953 was filed by the petitioners before the Settlement Officer of Consolidation. The Settlement Officer of Consolidation allowed the appeal by judgment and order dated 27^th September, 2007 setting aside the order of Consolidation Officer dated 18^th January, 2005 and remanding the matter before the Consolidation Officer for deciding the objections afresh. Against the order dated 27^th September, 2007 passed by the Settlement Officer of Consolidation, revision under Section 48 of U.P. Consolidation of Holdings Act, 1953 was filed by respondent No. 2. An objection was raised on behalf of the writ petitioners, who were respondent in the revision, that revision under Section 48 of the U.P. Consolidation of Holdings Act, 1953 is not maintainable since the order of Settelment Officer of Consolidation dated 27^th September, 2007 remainding the matter to the Consolidation Officer was an “interlocutory order”, the revision against an interlocutory order is not maintainable. The said objection was considered by the Deputy Director of Consolidation and vide order dated 13^th February, 2008 the Deputy Director of Consolidation held that revision is maintainable. This writ petition has been filed challenging the order dated 13^th February, 2009 passed by the Deputy Director of Consolidation.

The petitioners in the writ petition claim that revision under Section 48 of the U.P. Consolidation of Holdings Act, 1953 was not maintainable hence the order of Deputy Director of Consolidation is liable to be setaside. In the writ petition reliance was placed by the petitioners on three judgments of this Court rendered by different learned Single Judges taking the view that revision against an interlocutory order of remand is not maintainable. The said judgements are Ajab Singh and others v. Jt. Director of Consolidation and others, reported in 1996 R.D. 104 Rajbir v. Dy. Director of Consolidation, repoted in 1999 (90) R.D. 313, Rajit Ram Singh and others v. Mahadev Singh and others, reported in 2002 (93) R.D. 224. Expressing doubt over the Correctness of the aforesaid judgments, two questions, as noted above, have been referred for consideration.

In view of the foregoing discussions, Court were of the view that the order of the Settlement Officer of Consolidation by which appeals were finally decided was not an interlocutory order and the revision under Section 48 of U.P. Consolidation of Holdings Act, 1953 was clearly maintainable.

Our answers to the questions are as follows:-

(1) an order passed in appeal under section 11 of the U.P. Consolidation of Holding Act by the Settlement Officer Consolidation deciding the appeal finally by setting aside the order of the Settlement Officer Consolidation and remaining the matter to the Consolidation Officer is not an interlocutory order within the meaning of section 48 of the U.P. Consolidation of Holdings Act and revision is not barred against such order under section 48.

(2) the law down in Ajab Singh and others v. Jt. Director of Consolidation and others, reported in 1996 R.D. 104 Rajbir v. Dy. Director of Consolidation, repoted in 1999 (90) R.D. 313, Rajit Ram Singh and others v. Mahadev Singh and others, reported in 2002 (93) R.D. 224 do not lay down the correct law.

After answer to the above two questions nothing more remains to be decided in the writ petition. The order of Deputy Director of Consolidation dated 13^th February, 2008 holding the revision to be maintainable against the order of remand passed by the Settlement Officer of Consolidation is fully justified. Thus Court decides the entire writ petition by this order.

The writ petition is dismissed. Parties shall bear their own costs. (Deena Nath and others Vs. Deputy Director of Consolidation; (2013 (31) (LCD 358) (Allahabad High Court).

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U.P. Cooperative Societies Act

S. 122 - Punishment of Reverting delinquents to his basic pay scale and recording two entries against him in service book without proving the charge by expert - Effect of - Punishment would be improper

On 29.3.1976 the petitioner was appointed on the post of Clerk in the Uttar Pradesh Sahkari Ganna Samiti. Allegations of misconduct have been levelled against him as a result of which an inquiry was initiated against him. The Inquiry Officer was nominated who initiated inquiry against the petitioner. As many as ten charges were framed against him. The charge against the petitioner is that he forged signatures of the Cane Officer, Ghaziabad and also some of the employees working in the Sahkari Sangh and has withdrawn money and misappropriated the same. He was also charged for non-compliance of the order in not furnishing document on the record submitted by the higher authorities.

Reply was filed by the petitioner against the charge sheet denying the allegations. Specific stand taken by the petitioner is that he had not forged any signatures and therefore, the same may be sent for verification by an expert. The Inquiry Officer did not accede to the request of the petitioner and held that the petitioner has forged signatures of the officers and the other employees. Witnesses were examined by the Inquiry Officer who proved the charges against the petitioner. The Inquiry Officer submitted inquiry report to the appointing authority who issued show cause notice to the petitioner. In reply to the show cause notice, petitioner put a specific plea that the forged signatures stated to have been made by the petitioner may be referred to an expert.

The appointing authority reverted the petitioner to his basic pay scale and two entries were also recorded against the petitioner in his service book. The petitioner preferred appeal against this order which was also dismissed. Under these circumstances, the present writ petition has been filed. (Mahesh Chand Singh Sharma vs. State of UP; 2013(2) ALJ 50)

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U.P. Municipal Corporation Act

S. 541 (42) – Framing of – Power of corporation – Bye-law - Power of corporation - Bye-laws for levy of user charge framed in exercise of power vested in corporation

From the bye-laws annexed as Annexure-2 to the writ petition, it appears that the same has been framed in exercise of the power vested in the corporation under Sections 296, 298, 302 and 541 (42) of the Act for levy of user charge. By Resolution no.1, after the approval of the Municipal Commissioner dated 28.1.2006, draft bye laws were framed and the notice of the intention of the corporation to make such bye laws was made public for its consideration, suggestions and objections were invited after due publication. By a resolution of the corporation being resolution no.2 on 11.3.2006 the said draft bye laws were approved and were sent for publication in the official gazette which was to be enforced from the day of its publication in the official gazette. The said bye laws were finally published in the official gazette on 22.7.2006 and are enforced since then.

Considering the provisions of the Act, the procedure prescribed for framing bye laws to Court’s view, appears to have been complied with and Court hold that the corporation was well within its rights to frame the aforesaid bye laws. (Tempo Taxi Sewa Samiti vs. State of U.P.; 2012(2) ALJ 156)

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U.P. Urban Buildings (Regulation of Letting Rent & Eviction) Act

S. 3(i)—“Landlord”—Definition of

In instant case, the Court observed that respondent/landlord had purchased disputed house, therefore, rent being payable to him, hence, satisfied to definition under Section 3 (j) of Act. (Sukh Lal vs. Ashok Kumar Raghuwansi; 2013 (1) ARC 776)

S. 20(4)—Unconditional deposit—Consideration of

The only question up for consideration is if a tenant while complying with the requirement of Section 20(4) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as “Act, 1972”) disputed the rate of rent, can it be treated to be an unconditional deposit or not.

In Smt. Vijai Laxmi Gangal Vs. Mahendra Pratap Garg, 1985 (2) ARC 298 where in the Apex Court’s decision in Mangal Sen case has been considered and distinguished and it has been clearly held that mere fact that tenant did not admit the rate of rent claimed by landlord and has disclosed another figure as rate of rent, does not mean that the deposit was made conditionally.

In view of above and the exposition of law laid down by Apex Court in Smt. Vijai Laxmi Gangal (supra), Court finds no merit in writ petition. (Sheo Kumar vs. XIth A.D. & Sessions Judge; 2013 (1) ARC 150)

S. 21(i)(a) - Release application on the ground of Need of setting landlord’s Son is shop is dispute - Application allowed - Appeal against dismissed - Litigants of

In present case, the need set up in the release application was for settling Nafees son of the landlord in business. Petitioner contended that he was tenant for 40 years and was doing business of selling vegetables from the shop in dispute. Rate of rent is Rs.400/- per month. It was stated in the release application that Nafees, landlord's son was not doing anything and sitting idle and he wanted to do the business of general merchandise from the shop in dispute.

The tenant contended that adjoining shop also belonged to the landlord and that Nafees for whose need application was filed was running a hotel known by the name of Lucky Hotel in partnership with someone and that landlord was doing business from a shop which he had taken on rent from a mosque. Landlord denied that he was doing business from a tenanted shop belonging to the mosque. The Secretary of the mosque filed affidavit that landlord respondent was not tenant in any shop belonging to the mosque. Raeesudeen also filed affidavit stating therein that he was sole owner of Lucky Hotel and Nafees son of the landlord was not his partner in the said business.

In respect of comparative hardship Prescribed Authority held that the four sons of the tenant were carrying on their separate business and his daughter in laws were earning money from stitching the clothes and embroidery. Courts below held that these allegations were not specifically denied. In any case the tenant-petitioner did not show that he made any effort to search alternative accommodation.

As far as findings of bonafide need are concerned, court did not found any error therein. Firstly petitioner failed to prove that landlord was carrying on business from anywhere. Secondly even if landlord was doing business he was fully entitled to release of the shop in dispute for settling his son in independent separate business vide Sushila vs. A.D.J. A.I.R. 2003 S.C. 780, 2003(1) ARC 256.

Hence absolutely no fault can be found in the impugned order of the lower appellate court in rejecting the inspection application. Moreover no reason was given as to why the said application was not filed before the trial court/prescribed authority. (Mangan Lal vs. Kalim Ullah; 2012(1) ARC 217)

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U.P. Z.A. & L.R. Act

S. 20(4) - Benefit of Section 20(4) - Entitlement

It has also recorded the finding of fact that there was default in payment of rent, arrears and other amount which was also not deposited by tenant on the first date of hearing. Hence, sub-section (4) of Section 20 would not help the tenant. Before the revisional court, it appears that the tenant raised only one ground i.e. his entitlement for benefit of Section 20 sub-section (4) which has been considered by Revisional Court. It has held that tenant is not entitled for such benefit having failed to deposit requisite amount on the first date of hearing. (Laxmi Prasa vs. Special Judge, Gorakhpur; 2013(2) ALJ 30)

S. 122-B - Civil Procedure Code, Section 9 Suit for injunction - Jurisdiction of Civil Court to Decide

On the day of filing of the suit plaintiff was recorded as bhumidhar of the land in dispute, hence on that time there was no need for filing of suit in the revenue court.

The learned court below has while deciding this issue held that the suit has been filed for injunction and under specific relief Act only civil court is empowered to grant injunction.

In the case of Ram Awalamb and others vs. Jata Shanker and others 1968 RD 470. a Full Bench decision of this Court it has been held that:-

“in each and every case, the cause of action of the suit shall have to be strictly scrutinised to determine whether the suit is solely cognizable by a revenue court or is impliedly cognizable only by a revenue court, or is cognizable by a civil court. Where in a suit, from a perusal only of the reliefs claimed, one or more of them are ostensibly one relief is cognizable only by the revenue court, further questions which arise are whether all the reliefs are based on the same cause of action and, if so, (a) whether the main relief asked for on the basis of that cause of action is such as can be granted only by a revenue court, or (b) whether any real or substantial relief (though it may not be identical with that claimed by the plaintiff) could be granted by the revenue court. There can be no doubt that in all cases contemplated under (a) and (b) above the jurisdiction shall vest in the revenue court and not in the civil court. In all other cases of a civil nature the jurisdiction must vest in the civil court.

The determination of the question as to which out of the several reliefs arising from the same cause of action is the main relief will depend on the facts and circumstances of each case. Where, on the basis of a cause of action.

(a) the main relief is cognizable by a revenue court the suit would be cognizable by the revenue court only. The fact that the ancillary reliefs claimed are cognizable by civil court would be immaterial for determining the proper forum for the suit;

(b) the main relief is cognizable by the civil court the suit would be cognizable by the civil court only and the ancillary reliefs, which could be granted by the revenue court may also be granted by the civil court.

The above principle will apply also to a suit for injunction and demolition relating to agricultural land and brought against a trespasser. Where the revenue court was not competent to grant all the reliefs arising out of one and the same cause of action and the main relief was that of injunction and demolition the suit would lie in the civil court.”

In the instant case only one relief of injunction has been sought so the civil court has jurisdiction to decide the suit. (State of U.P. vs. Ram Prasad Saxena; 2013(2) ALJ 38)

S. 122-C - Cancellation of Allotment of plot – Applicability of principle of estoppels - If allotment found contrary to law i.e. against provisions of Sec. 122, No plea of estoppels against State Machinery i.e., Collector in cancelling irregular Patta Allotted

Court considered its opinion that since the petitioner cannot dispute aforesaid factual position regarding her non-eligibility for allotment of the land of Gaon Sabha for house site under Section 122-C (3) of U.P.Z.A. & L.R. Act and by getting further opportunity of hearing before the Collector, she would not be able to improve her case on merit, therefore, providing further opportunity of hearing to the petitioner, would be abuse of process of law and would be an exercise in futility under Article 226 of the Constitution. Not only this, but by doing so, this court would restore the irregular allotment of land of Gaon Sabha made in favour of the petitioner by Asstt. Collector, Salempur, Deoria on 27.3.1993 and would perpetuate illegality. therefore, court inclined to exercise discretionary writ jurisdiction in favour of the petitioner in the above factual back drop of the case.

So far as submission of the learned counsel for the petitioner that the land of Gaon Sabha was allotted to her in lieu of her sterilization under which the petitioner had under gone operation of Tubecto my, and the respondent State functionaries are bound by the principle of estoppel is concerned, it is to be noted that since the petitioner's allotment was found to be contrary to the law i.e. against the provisions of Section 122-C of the Act, therefore, no plea of estoppel is operative against State machinery i.e. the Collector in cancelling the irregular Patta allotted to the petitioner which was contrary to the provisions of Section 122-C of the Act. (Shanti Deve Rajeshwar Prasad Tripathi vs. State of U.P.; 2012(2) ALJ 353)

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Words and Phrases

“Deceit”—Meaning

“Deceit”, in the law, has a broad significance. Any device or false representation by which one man misleads another to his injury and fraudulent misrepresentations by which one man deceives another to the injury of the latter, are deceit. Deceit is a false statement of fact made by a person knowingly or recklessly with intent that it shall be acted upon by another who does act upon it and thereby suffers an injury. It is always a personal act and is intermediate when compared with fraud. Deceit is sort of a trick or contrivance to defraud another. It is an attempt to deceive and includes any declaration that misleads another or causes him to believe what is false. (Ram Chandra Bhagat vs. State of Jharkhand; (2013) 1 SCC (Cri) 551)

“Honourable acquittal” and “Technical acquittal”—Meaning of

The meaning of the expression “honorable acquittal” came up for consideration before this Court in RBI vs. Bhopal Singh Panchal; (1994) 1 SCC 541. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions “honourable acquittal”, “acquittal of blame”, “fully exonerated” are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression “honourably acquitted”. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.

In R.P. Kapur vs. Union of India, AIR 1964 SC 787, it was held that even in the case of acquittal, departmental proceedings may follow where the acquittal is other than honourable. In State of Assam vs. Raghava Rajgopalachari, 1972 SLR 44 (SC), this Court quoted with approval the views expressed by Lord Williams, J. in Robert Stuart Wauchope vs. Emperor, ILR (1934) 61 Cal 168 which is as follows: (Raghava case, SLR p. 47, para 8)

“8…. ‘The expression “honourably acquitted” is one which is unknown to courts of justice. Apparently it is a form of order used in courts martial and other extrajudicial tribunals. We said in our judgment that we accepted the explanation given by the appellant, believed it to be true and considered that it ought to have been accepted by the government authorities and by the Magistrate. Further, we decided that the appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what government authorities term “honourably acquitted’. (Dy. Inspector General of Police vs. s. Samuthiram; (2013)1 SCC (Cri) 566)

“Inquiry” an “Enquiry”—Meaning

The meaning of the words “inquiry”, “enquiry”, “investigation” and “trial” as Court see in the Code of Criminal Procedure and their several meanings attributed to those expressions. “Inquiry” as defined in Section 2(g) CrPC reads as follows:

“2. (g) ‘inquiry’ means every inquiry, other than trial, conducted under this Code by a Magistrate or court;”

The word “enquiry” is not defined under the Code of Criminal Procedure which is an act of asking for information and also consideration of some evidence, may be documentary. (Ashwani Kumar Saxena vs. State of M.P.; (2013) 1 SCC (Cri) 594)

“Perverse”- Meaning of – Defined as deliberately departing from what being normal and reasonable in other words, it obviously means unreason ableness and irrational

The word ‘perverse’ has been defined as deliberately departing from what is normal and reasonable. It obviously means unreasonableness and irrational.

Lord Diplock explained “irrationality” as follows:

In other words, to characterize a decision of the administrator as “irrational” the Court has to hold, on material, that it is a decision ‘so outrageous’ as to be total defiance of logic or moral standards. Adoption of “proportionality” into administrative law was left for the future. (Abhay Sood vs. Babu Bauk Nath; 2012(1) ARC 252)

“Possession”—Concept and meaning

“Inhering” defines possession, “whenever a person looks like an owner in relation to a thing he has possession, unless possession is denied to him by rules of law based on convenience.” Apparently this definition does not give any explicit idea on the subject. It only states that the concept of possession is an ever changing concept having different meaning for different purposes and different frames of law.

“Pollock” says, “In common speech a man is said to be possession of anything of which he has the apparent control or from the use of which he has the apparent powers of excluding others.” The stress laid by Pollock on possession is not an animus but on de facto control.

“Savigny” defines possession, “intention couples with physical power to exclude others from the use of material object.” Apparently this definition involves both the elements namely, corpus possession is and animus domini.

The German Jurist “Savigny’ laid down that all property is founded on adverse possession ripened by prescription. The concept of ownership accordingly as observed by him involve three elements-Possession, Adverseness of Possession, (that is a holding not permissive or subordinate, but exclusive against the world), and Prescription, or a period of time during which the Adverse Possession has uninterruptedly continued.

“Holmes” opined that possession is a conception which is only less important than contract.

The possession consisted of a “corpus possessions” and “animus possidendi”. The former comprised both, the power to use the thing possessed and the existence of grounds for the expectation that the possessor’s use will not be interfered with. The latter consisted of an intent to appropriate to oneself the exclusive use of the thing possessed.

Another facet of possession is “immediate” or “mediate possession”. The possession held by one through another is termed “mediate” while that acquired or retained directly or personally can be said to be “immediate or direct”.

Then comes “incorporeal possession”. It is commonly called the possession of a right and is distinct from the “corporeal possession” which is a possession of the thing.

The essentials of possession in the first instance includes a fact to be established like any other fact. Whether it exists in a particular case or not will depend on the degree of control exercised by the person designated as possessor. If this control is such that he effectively interference by others then he has possession. Thus the possession in order to show its existence must show “corpus possessionis” and an “animus possidendi”.

In “Oxford English-English-Hindi Dictionary” published by Oxford University Press, first published in 2008, 11^th Impression January 2010, at page 920:

“possession-1. The state of having or owning something. 2. Something that you have or own”

In “The New Lexicon Webster’s Dictionary of the English Language” (1987), published by Lexicon Publications, Inc. at page 784:

“possession” a possessing or being possessed II that which is possessed II (pl.) property II a territory under the political and economic control of another country II (law) actual enjoyment of property not founded on any title of ownership to take possession of to begin to occupy as owner II to affect so as to dominate.”

In “Chambers Dictionary” (Deluxe Edition), first published in India in 1993, reprint 1996 by Allied Publishers Limited, New Delhi at page 1333 defines ‘possess’ and ‘possession’ as under”

“possess poz-es’, vt to inhabit, occupy (obs.); to have or hold as owner, or as if owner; to have as a quality; to seize; to obtain; to attain (Spenser); to maintain; to control; to be master of; to occupy and dominate the mind of; to put in possession (with of, formerly with in); to inform, acquaint; to imbue; to impress with the notion of feeling; to prepossess (obs)”.

“possession the act, state or fact of possession or being possessed, a thing possessed; a subject foreign territory”

In “Corpus Juris Secundum”, A Complete Restatement of the Entire American Law as developed by All Reported Cases (1951), Vol. LXXII, published by Brooklyn, N.Y., The American Law Book Co., at pages 233-235:

“Possession expresses the closet relation of fact which can exist between a corporeal thing and the person who possesses it, implying an actual physical contact, as by sitting or standing upon a thing; denoting custody coupled with a right or interest of proprietorship; and “possession” in inclusive of “custody” although “custody” is not tantamount to “possession”. In its full significance, “possession” connotes domination or supremacy of authority. It implies a right and a fact; the right to enjoy annexed to the right of property, and the fact of the real detention of thing which would be in the hands of a master or of another for him. It also implies a right to deal with property at pleasure and to exclude other persons from meddling with it. Possession involves power of control and intent to control, and all the definitions contained in recognized law dictionaries indicate that the element of custody and control is involved in the term “possession”.

In “Black’s Law Dictionary” Seventh Edition (1999), published by West Group, St. Paul, Minn., 1999, at page 1183:

“possession. 1. The fact of having or holding property in one’s power; the exercise of dominion over property. 2. The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material object. 3. (usu. pl.) Something that a person owns or controls; PROPERTY (2) 4. A territorial dominion of a state or nation.”

Possession, therefore, has two aspects. By itself it is a limited title which is good against all except a true owner. It is also prima facie evidence of ownership. In Hari Khandu vs. Dhondi Nanth, (1906) 8 Bom.L.R. 96, Sir Lawrence Jenkins, C.J. observed that possession has two fold value, it is evidence of ownership and is itself the foundation of a right of possession. The possession, therefore, is not only a physical condition which is protected by ownership but a right itself. (Sukh Lal vs. Ashok Kumar Raghuwansi; 2013 (1) ARC 776)

“Soon before her death”—Meaning

Though language used is "soon before her death", no definite period has been enacted and the expression "soon before her death" has not been defined in both the enactments (Section 304-B IPC and Section 113-B, Evidence Act). Accordingly, determination of period which can come within term "soon before her death" is to be determined by courts, depending upon facts and circumstances of each case. However, the said expression would normally imply that interval should not be much between cruelty or harassment concerned and death in question. There must be existence of a proximate and live link between effect of cruelty based on dowry demand and death concerned. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of woman concerned, it would be of no consequence. (Mustafa Shahadal Shaikh vs. State of Maharashtra; (2013) 1 SCC (Cri) 664)

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Workmen’s Compensation Act

S. 2(n) - Relationship of employer-employee - Witnesses produced by the management support the status as an employee - Payment of compensation of Rs. 75,000/- admitted - Though on humanitarian consideration finding of Commissioner regarding status of employer-employee is eminently possible from the evidence - Not a perverse conclusion

Workmen’s Compensation-Fixation of-An examination of the Medical Officer or one of the Medical officer constituting the Board is not always essential-1984 amendment specifically provided that the loss of earning capacity in the case of permanent total disablement should be assessed by the qualified medical practitioner-Section 11 of the W.C. Act, 1923 conferred a right on the employer to subject the employee to a medical examination by a qualified medical practitioner of the employer’s choice, free of charge-No attempt on the part of employer to seek such examination overwhelming evidence based on two medical certificates issued by two different competent Boards in consonance with the claims of the employee are clear-No requirement for the examination of a medical officer to prove the certificate and the loss of earning capacity. (Joseph K.S. Vs. Prasanna; (2013 (136) FLR 73) (Kerala High Court).

S. 3 and 30 - Indian Succession Act, 1925 - Section 306 – Compensation -Appeal for enhancement of compensation - Claimant driver died while appeal was pending - Cause of action survives to his heirs, respondent Nos. 1 to 3 - And no fault can be found with findings reached by learned Commissioner on issue of extent of disability suffered by deceased - Therefore, the appeal is dismissed

“Provisions of section 306 of the Act of 1925 not only provide that causes qua property would devolve on the legal heirs of the deceased plaintiff but also saves some of the actions of personal nature those expressly excluded therein.”

The cause of action survives to respondent Nos. 1 to 3.

In that view of the matter, no fault can be found with the findings reached by the learned Commissioner on the issue of extent of disability having been suffered by the deceased. (New India Assurance Co. Ltd., Nagapur Vs. Sheikh Rizwan Shekh Rashid and others; (2013 (136) FLR 191) (Bombay High Court-Nagpur Bench).

Ss 3, 4 and 30 – Compensation - Deceased Rashid working as a driver in truck owned by respondent No. 4 met with an accident-In accident Rashid injured resulting in permanent disability to the extent of 35% - He died during pendency of petition - Therefore the cause of action survivers to his legal heirs - Commissioner admitted the disability certificate signed by three Doctors - No fault can be found with findings reached by the Commissioner on the issue of extent of disability suffered by the deceased - Whereby the Commissioner passed an award for grant of compensation directing the appellant and owner to pay total amount of compensation

Loss of income for the period from the accident to the death of the injured amounts to loss of the estate. What cannot be claimed is loss of income for the period subsequent to the death of the victim.

The cause of action survives to respondent Nos. 1 to 3.

In that view of the matter, no fault can be found with the findings reached by the learned Commissioner on the issue of extent of disability having been suffered by the deceased. (New India Assurance Co. Ltd. Vs. Sheikh Rizwan Sheikh Rashid and others; (2013 (136) FLR 555) (Bombay High Court- Nagpur Bench).

Ss 3,4, 4-A and 30 – Compensation - Award of compensation with interest - Deceased was cleaner of insured vehicle - He was engaged in loading mud from hillock to tipper - When mud was being loaded - A portion of hillock caved in and deceased was buried under mud and stones and he was found dead - Mere fact that the insured vehicle was stationary when accident took place and deceased was not doing any work as a cleaner - Would not exonerate the insurance company from its liability - The word “cleaner” covers the risk of cleaner - Interest becomes payable after 30 days from date of accident - Not from date of award

Mere fact that the insured vehicle was stationary when the accident took place and the deceased was not doing any work as a cleaner will not exonerate the insurance company from its liability. The word ‘cleaner’ of the vehicle has to be given extended meaning to cover the risk of cleaner who is primarily engaged for use and maintenance of vehicle. (National Insurance Co. Ltd. Vs. Devu Poojari and others; (2013 (136) FLR 648) (Karnataka High Court).

S. 3(1) - Claim of compensation - Award by Commissioner - There is however no clear evidence as to how the deceased lost his life - There is a serious contest between parties - Crucial aspect of case - Not considered by Commissioner - Awarded compensation with interest - Evidence being deficient - Case is remanded to Commissioner with direction to decide it afresh

There is no clear evidence as to how the deceased lost his life. There is a serious contest between the parties as to whether the deceased was carrying out the duties as assigned by the first respondent or was acting on his own volition and two FIRs on the record did not lead to any direct conclusions. But the most crucial aspect would be as to whether the deceased was actually transporting some unknown person(s) or acting on the instruction of respondent No.1, which was crucial to the entire case. If it is established as a fact that the deceased was, in fact, working on the directions of the first respondent there can be no manner of doubt that he would be discharging his duties during the course of his employment. The evidence being deficient, the case is remanded to the Commissioner with the direction that he shall readmit the case on its record and to proceed with trial after granting an opportunity to both the parties to place their respective evidence on the record. (Oriental Insurance Company Ltd. Vs. Shankar and other; (2013 (136) FLR 923) (Himachal Pradesh High Court).

Ss 4, 30, 2(1)(1), 2(1)(g) and Part I and II of Schedule I - Serial Nos. 20 and 21 – Appeal - For enhancement of compensation and for penalty and interest on amount of compensation - Appellant driver met with accident, while driving truck of employer respondent No. 1 - Appellant sustained multiple injuries which resulted in amputation of his right leg below knee and fracture of shaft of Femur - Hospital assessed 70% disability - Compensation of Rs. 1,87,764/- awarded to appellant treating a case of 50% disability -Appellant became, in capacitated to drive the vehicle, unable - It is a case of “permanent disablement and total disablement” - He can claim compensation more than as specified in schedule - Impugned order is set aside -Compensation of appellant is enhanced to Rs, 3,75,528/- from Rs. 1,87,764/.

Nothing contrary is placed on by the respondent to rebut the same. It is a clear case of “permanent disablement”. On the basis of evidence on record, the present is a case of total disablement as such he is not debarred from claiming compensation more than what is specified in the Schedule for the loss of earning capacity.

Accordingly, the impugned order is set aside and compensation of the appellant is enhanced to Rs. 3,75,528/-. Accordingly, appellant is entitled to Rs. 3,75,528/- as amount of compensation. (Avtar Singh Vs. Bijendra Singh and another; (2013 (136) FLR 280) (Delhi High Court).

S. 4 - A(3)(a) – Interest – From when due – Interest become due from the date of accident

The said issue is covered by the precedent rendered by the Division Bench of this court in Oriental Insurance Co. Ltd. v. Padmini N.V., M.F.A.No. 59 of 2011, following Hon’ble Supreme Court decision in Pratap Narain Singh Deo v. Shrinivas Sabata, 1976 ACJ 141 (SC), rendered by a Bench of four Judges; and also in view of the subsequent Division Bench decisions of this court to hold that the interest on the compensation granted by the Commissioner would run from the date of accident. Hence, the said question also is answered against the insurer. (New India Assurance Co. Ltd. v. Jayalakshmi Latha; 2013 ACJ 655)

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Statutory Provisions

English translation of Kar Evam Nibandhan Anubhag-7, Noti. No. K.N.-7-791XI-2012-312(98)-2012, dated December 5, 2012, published In the U.P. Gazette, Extra., Part 4, Section (Kha), dated 5th December, 2012, pp. 3-4

In exercise of the powers under clause (a) of sub-section (1) of Section 9 of the Indian Stamp Act, 1899 (Act No. 2 of 1899) as amended from time to time in its application to Uttar Pradesh read with Section 21 of the General Clauses Act, 1897 (Act No. 10 of 1897) the Governor is pleased to remit with effect from the date of publication of this notification in the Gazette, the stamp duty to the extent shown in Column 3 of the Schedule below, chargeable in respect of the instruments as shown in Column 4 of the said Schedule for the purpose provided in Paragraph 5.1.1 and 5.1.2 of the Infrastructure and Industrial Investment Policy, 2012, of the State as mentioned in Column 2 of the said Schedule.

SCHEDULE

Paragraph number of the Infrastructure and industrial investment policy, 2012

Purpose and other details

Extent of remission

nature of instrument and Article number of Schedule 1-b

5.1.1

5.1.2

The exemption of stamp duty on the instrument, of purchase or lease of land, shed or industrial tenement, executed by the Central or State Government or a Corporation, Board, Company or an Institution owned by the Central or the State Government in favour of a new industrial unit or an unit making extension or diversification thereof, in the following manner-

(a) for the units to be established in Purvanchal Madhyanchal and Bundelkhand

(b) for the units of Information
Technology, Bio Technology,
Business Processing Outsourcing,
Call Centres, Agro Processing units,
Food Processing Units, Food parks,
Solar Energy and Alternative Energy
Sources within the whole of Uttar
Pradesh

(c) for the purchase of land for the development of infrastructure facilities (such as road, Bridges,
Over-bridge, Wholesale Market, Trans-Shipment Centres, Unified Transport and Commercial Centres, generation, transmission and distribution of electricity, water supply, water drainage, Exhibition centre, Warehouse, Cold Storage, Airport, Sewage Treatment Plants, Solid Waste Management Plants, Railway Commercial Centres, Cargo Hub, Fire Station, Gas Boosters and Feeder Station, Establishing the Affluent Treatment Plant) within the whole of Uttar Pradesh by private sector except by the public private partnership (PPP) mode;

(d) for the units other than those specified in clauses (a), (b) and (c) above;

For the purchase of land from the private sources- (a) by an unit falling under sub-clauses (a), (b) or (c) of Para 5.1.1,
(b) by an unit other than those mentioned in clause (a)

100%

75%

100%

50%

Conveyance, under
clause (a) of Article 23 and lease under Article 35 Conveyance, under
clause (a) of Article 23 and lease under Article 35

Conveyance, under clause (a) of Article 23

Conveyance, under clause (a) of Article 23 and lease under Article 35

Conveyance, under clause (a) of Article 23 Conveyance, under clause (a) of Article 23

English translation of Karagar Evam Sudhar Anubhag-S, Noti. No. 104 JU 22·3·2013· 21G/1989, dated January 29, 2013, published In the UP Gazette, Extra., Part 4, Section (Kha), dated 29th January, 2013, pp. 3-4 [A.P. 739]

In exercise of the powers conferred by sub-section (5) of Section 432 of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974) read with Section 21 of the General Clauses Act, 1897 (Act No.10 of 1897) the Governor is pleased to make the following rules with a view to amending the Uttar Pradesh (Suspension of Sentences of Prisoners) Rules, 2007 (2007·LLT· V·57(40)-

1. Short title and commencement.-(1) These rules may be called the Uttar Pradesh (Suspension of Sentences of Prisoners) (First Amendment) Rules, 2012.

(2) They shall come into force with effect from the date of their publication in the Gazette.

2. Amendment of Rule 3.- In the Uttar Pradesh (Suspension of Sentences of Prisoners) Rules, 2007 for Rule 3, the following rule shall be substituted, namely-

"3. (1) The Government may suspend the sentences of a prisoners up to one month on the following grounds-

(a) Illness of prisoner's parents, husband or wife, son, daughter, brother or sister, or

(b) Death of anyone of the relative mentioned in sub-clause (a); or

(c) Marriage of son, daughter, brother or sister;

(d) For sowing or harvesting of agricultural crops on his own land provided no other alternative arrangement for the same is available.

(e) For the essential repair of his house provided no other alternative arrangement for the same is available;

(2) The Government may in special circumstances extend the period of suspension of sentence referred to in sub-rule (1) for a period not exceeding one month.

(3) The District Magistrate of the district to which prisoner belongs may suspend the sentence of a prisoner up to 72 hours on the following grounds-

(a) Death of mother, father, husband or wife, son, daughter, brother or sister;

(b) Marriage of son, daughter, brother or sister."

English translation of Parivaban Anubhag-4, Noti. No. I04SIXXX-4·2012-4(S)·2009, dated December 7,2012, published In the U.P. Gazette, Extra., Part 4, Section (Ka), dated 7th December, 2012, p. 2

In exercise of the powers under clause (k) of sub-section (2) of Section 28 of the Motor Vehicles Act, 1988 (Act No. 59 of 1988) read with clause (11) of Rule 4 and clause (e) of sub-rule (1) of Rule 47 of the Central Motor Vehicles Rules, 1989 and Section 21 of the General Clauses Act, 1897 (Act No. X of 1897), the Governor is pleased to make the following rules with a view to amending the Uttar Pradesh Motor Vehicles Rules, 1998 after previous publication in Government Notification No. 7571XXX·4 2012-4(5)-2009, dated July 13,2012 as required under sub-section (1) of Section 212 of the said Act of 1988. 1. Short title and commencement.-(I) These rules may be called the Uttar Pradesh Motor Vehicles (Twelfth Amendment) Rules, 2012. (2) They shall come into force with effect from the date of their publication in the Gazette. 2. Insertion of new Rule 18-A.-In the Uttar Pradesh Motor Vehicles Rules, 1998, after Rule 18, the following rule shall be inserted, namely-

"18-A. Documents for the proof of address and age.-For issue of Motor Driving License and Vehicle Registration Certificate the following documents, other than those specified in Rule 4 of the Central Motor Vehicles Rules, 1989, may also be accepted by the Licensing Authority as evidence of address and age, namely-

(1) Voter Identity Card, (2) Pension Pass Book, (3) Arms License, (4) An Identity Card (in case of Central Government or State Government employees, issued by the employer) ",

English translation of Krishi Vip ran Evam Krlshl Vldesh Vyapar Anubhag-I, Notl. No. 170/LXXX-I-2013-600-(46)-88, dated January 28, 2013, published In the U.P. Gazette, Extra., Part 4, Section (Kha), dated 28th January, 2013, p. 2 [A.P. 736]

In exercise of the powers under sub-clause (b) of clause (iii) of Section 17 of the Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964 (U.P. Act No. 25 of 1964) read with Section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act No. 1 of 1904) and in partial modification of Notification No. 4565(I)/xII-5-94-600(108) (1)-88, dated December 15, 1994, the Governor is pleased to notify that with effect from the date of publication of this notification in the Gazette, the rate of market fee payable on transactions of sale of all type of herbs and mints of Mentha family, their oils and solid material extracted from the oils and the residue left after extraction of solid produce, in the market area shall be one percentum of the price of specified agricultural produce so sold in the market area subject to the following conditions-

1. This notification shall be subject to the final orders passed by Hon'ble High Court as well as Supreme Court in the pending petitions.

2. Deposited or due market fee at the rate of two percentum (2%) prior to the date of this notification shall be deposited. Any amount so deposited shall neither be adjusted nor refunded. The trader writ petitioners shall have to give undertaking in this respect.

3. Mentha products are mainly export oriented. Therefore, the policy implemented for it and rate of fee shall not be applicable on other scheduled agricultural produce and shall not be treated as example.

The rate of market fee on all specified agricultural produce except all type of herbs and mints of Mentha family, their oils and solid material extracted from the oil and the residue left after extraction of solid produce, shall continue to be two percentum of the price of agricultural produce so sold in the market area as before.

Development cess at the rate of half percentum (0.5%) as provided for under sub-clause (b) of clause (3) of Section 17 of Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964 on all specified agricultural produce including all type of herbs and mints of Mentha family, their oils and solid material extracted from the oils and the residue left after extraction of solid produce shall remain unchanged.

The Uttar Pradesh Municipalities (Amendment) Ordinance, 2012
[U.P. ORDINANCE No. 10 OF 2012]

(Promulgated by the Governor in the Sixty-third Year of the Republic of India)
An Ordinance further to amend the Uttar Pradesh State Municipalities Act, 1916

Whereas, the State Legislature is not in session and the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action;

Now, therefore, in exercise of the powers conferred by clause (1) of Article 213 of the Constitution of India, the Governor is pleased to promulgate the following Ordinance:-

1. Short title.- This Ordinance may be called the Uttar Pradesh Municipalities (Amendment) Ordinance, 2012.

2. Insertion of new Section 13-DD of U.P. Act No. 2 of 1916.-After Section 13-D of the Uttar Pradesh Municipalities Act, 1916 the following section shall be inserted, namely-

"13-DD. Bar to legislators becoming or continuing as President or Member.-
Notwithstanding anything to the contrary contained in any other provision of this Act,-

(a) a person shall be disqualified for being elected as, and for being a President
or Member, if he is a Member of Parliament or of the State Legislature;

(b) if a person, after his election as President or Member, is subsequently elected or nominated to anv of the offices referred to in clause (a) he shall on the date of first publication in the Gazette of India or of the Uttar Pradesh of the declaration of his election or nomination, within a period of fourteen days from such notification, intimate by notice in writing signed by him and delivered to any person authorised by the Government in this behalf, submit his option, in which office he wishes to serve and any choice so intimated shall be conclusive, failing which he shall upon the expiry of the said period cease to hold the office of the President or Member and a casual vacancy shall thereupon occur in the office of the president or Member as the case may be.

The Uttar Pradesh Municipalities (Amendment) Ordinance, 2013

[U.P. ORDINANCE No. 3 OF 2013]

(Promulgated by the Governor in the Sixty-third Year of the Republic of India)

An Ordinance further to amend the Uttar Pradesh Municipalities Act, 1916

Whereas the State Legislature is not in session and the Governor is satisfied that circumstances exits which render it necessary for him to take immediate action;

Now, therefore, in exercise of the powers conferred by clause (1) of Article 213 of the Constitution of India, the Governor is pleased to promulgate the following Ordinance-

1. Short title and commencement.-(l) This Ordinance may be called the Uttar Pradesh Municipalities (Amendment) Ordinance, 2013.

(2) It shall be deemed to have come into force on November 8, 2012.

2. Insertion of new Section 13-DD of V.P. Act No. 2 of 1916.-After Section l3-D of the Uttar Pradesh Municipalities Act, 1916 hereinafter referred to as the principal Act, the following section shall be inserted, namely-

"13-DD. Bar to legislators becoming or continuing as President or Member.-
Notwithstanding anything to the contrary contained in any other provision of this Act,-

(a) a person shall be disqualified for being elected as, and for being a President or Member, if he is a Member of Parliament or of the State Legislature;

(b) if a person, after his election as President or Member, is subsequently elected or nominated to any of the offices referred to in clause (a) he shall on the date of first publication in the Gazette of India or of the Uttar Pradesh of the declaration of his election or nomination, within a period of fourteen days from such notification, intimate by notice in writing signed by him and delivered to any person authorised by the Government in this behalf, submit his option, in which office he wishes to serve and any choice so intimated shall be conclusive, failing which he shall upon the expiry of the said period, cease to hold the office of the President or Member and a casual vacancy shall thereupon occur in the office of the President or Member as the case may be.".

3. Repeal and Saving.-(l) The Uttar Pradesh Municipalities (Amendment) Ordinance, 2012 (U.P. Ordinance No. 10 of 2012) is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the provisions of the principal Act as amended by the Ordinance referred to in sub-section (1) shall be deemed to have been done or taken under the corresponding provision of the principal Act as amended by this Ordinance as if he the provisions of this Ordinance where in force at all material times.

The Uttar Pradesh Revenue Code, 2006

[U.P. Act No. 8 of 2012]

(As passed by the Uttar Pradesh Legislature)

An Act to consolidate and amend the law relating to land tenures and
land revenue in the State of Uttar Pradesh, and to provide for
matters connected therewith and incidental thereto

It is hereby enacted in the Fifty-seventh Year of the Republic of India as follows-

Prefatory Note-Statement of Objects and Reasons.-At present as many as 39 Acts relating to revenue law are enforced in the State of Uttar Pradesh. Out of these Acts, Uttar Pradesh Zamindari Abolition and Land Reforms Act. 1950 and U.P. Land Revenue Act. 1901 are the important Acts. Several enactments were enacted during the British Regime. Most of the provisions of those have become obsolete. Some of the provisions of those enactments are inconsistent with each other. On account of different provisions in different enactments relating to revenue law, the revenue litigations have considerably increased. Consequently the revenue cases are pending for disposal for a very long period. Under these circumstances it has become necessary to consolidate with modifications of relevant provisions of all these enactments into single enactment. It has, therefore, been decided to provide for consolidating and amending the laws relating to land-tenures and land revenue in the State and for matters connected therewith and incidental thereto. The U.P. Revenue Code Bill, 2006 has, therefore, been prepared to fulfil the above mentioned requirements.

The Uttar Pradesh Revenue Code Bill, 2006, is introduced accordingly.

CHAPTER
PRELIMINAR

1. Short title, extent and commencement.-(1) This Act may be called the Uttar Pradesh Revenue Code, 2006.

(2) It extends to the whole of Uttar Pradesh.

(3) It shall come into force on such date as the State Government may, by notification, appoint and different dates may be appointed for different areas or for different provisions of this Code.

2. Applicability of the Code.- The provisions of this Code, except Chapter VIII and IX shall apply to the whole of Uttar Pradesh, and Chapter VIII and IX shall apply to the areas to which any of the enactments specified at Serial Numbers 19 and 25 of the First Schedule was applicable on the date immediately preceding their repeal by this Code.

3. Extension of the Code to new areas.-(1) Where after the commencement of this Code, any area is added to the territory of Uttar Pradesh, the State Government may, by notification, extend the whole or any provision of this Code, to such area.

(2) Where any notification is issued under sub-section (1), the provisions of any Act, rule or regulation in force in the area referred to in the said sub-section, which are inconsistent with the provisions so applied, shall be deemed to have been repealed.

(3) The State Government may, by a subsequent notification, amend, modify or alter any notification issued under sub-section (1).

English translation of Nyaya Anubhag-z (Adhlnastha Nyayalaya), Noti. No. 960NVII· Nyaya.2.2012.202(15)n6, dated August 14, 2012, published In the U.P. Gazette, Extra., Part 4, Section (Kha), dated 14th August, 2012, pp. 2·3

In exercise of the powers under Sections 4, 13 and sub-section (1) of Section 14 of the Bengal and Agra, Assam Civil Courts Act, 1887 (Act No. Xll of 1887) and Section 5 of the Provincial Small Causes Courts Act, 1887 (Act No. IX of 1887) read with Section 21 of the General Clause Act, 1897 (Act No. X of 1897), the Governor in consultation with the High Court of Judicature at Allahabad and in supersession of notification No. 958NII-Nyaya-2- 2011·202(15)76, dated August 13, 2012, is pleased to create a separate Court of Civil Judge (Junior Division) at Tehsil Lalganj Ajhara in the district of Pratapgarh with effect from the date of taking over charge by the Presiding Officer of respective court to fix the local limits of jurisdiction and the place of sitting of such court and to make the following amendment in the Schedule appended to Notification No. A-ll04NVII-71O/53, dated April 12, 1956 as amended from time to time.

AMENDMENT

In the Schedule to the foresaid notification,

(1) For the existing entry at Serial No. 229, the following new entry shall be substituted, Namely—

Sl. No.	Name of Courts	Revenue areas forming limits of jurisdiction	Place or place of sittings	Combined officer	Title
1	2	3	4	5	6
229	Civil judges (junior Division	Entire revenue area of Tehsils Sadar, Patti and Raniganj of District Pratapgarh excluding the revenue area of Tehsil Lalganj Ajhara in the District of Pratapgarh	Pratapgarh	--	Civil Judges (Junior Division Pratapgarh

(2) After entry at Serial No. 229, the following new entry at Serial No. 229-A shall column wise be inserted, Namely—

Sl. No.	Name of Courts	Revenue areas forming limits of jurisdiction	Place or place of sittings	Combi-ned officer	Title
1	2	3	4	5	6
229-A	Civil Judges (Junior Division	Entire revenue area of Tehsils Tehsil Lalganj Ajhara of District Pratapgarh	Lalganj Ajhara	--	Civil Judges (Junior Division Pratapgarh

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Legal Quiz

Q.1 Whether the bail application filed before Court of Sessions under the provisions of SC/ST(PA) Act, 1989 specially nominated by Hon’ble Court u/s 14 of the Act and in view of Sec. 20 of the Act which overrides the provisions of other Act or by the District & Sessions Judge of the District.

Whether District & Sessions Judge of a particular District is bound to hear and disposed of the bail applications under different offense mentioned in SC/ST (PA) Act, 1989 irrespective of the fact that Special Court SC/ST (PA) Act, has been nominated and is functioning in that District.

Ans. Both the queries are inter-connected and being answered as follows:-

S. 14 of the SC/ST (PA) Act, 1989 provides that the State govt. for the purpose of providing speedy trial shall with the concurrence of the Chief Justice of High Court by notification in the official gazette, specify for each district a court of session to be a special court to try the offences under this Act. So, S. 14 of the said Act says in clear terms that creation of special court is for the purpose of providing speedy trial and it is only for the trial of offences under the SC/ST (PA) Act, 1989, that a particular court of sessions in each district is sought to be specified as a special court. So, the Act contemplates only the trial to be conducted by the special court. In this context kindly refer to the law laid down by Apex court in Gangula Ashok v. State of A.P., AIR 2000 SC 740. Regarding your query pertaining to the disposal of Bail Applications regarding offences under SC/ST (PA) Act, 1989, please see State v. Mahalingu & ors, 2001 CrLJ 237 (Kar. HC), wherein your query has been answered substantially and effectively.

Q.2 There is a G.O. that an officer in charge of another court work in that capacity for more than 10 days is entitled for 10% of his basic pay for working as such.

My question is, I was in charge of a court for more than 5 months. Court was having pendency of file both civil and criminal; can I get 10% of basic pay for being in charge/link officer?

Ans. As per G.O. No. 6058/DO-4-05-45(12)/91 TC dated 27/1/2006 amd G.O. No. 2123/DO-4-2010-45/91 TC-6 dated 16.10.2010, a judicial officer is entitled to ‘Concurrent charge allowance’. The relevant portion is as follows:-

''अतिरिक्त प्रभार भत्ता
न्यायिक अधिकारियों को किसी दूसरे न्यायिक अधिकारी का प्रभार यदि इस कार्य दिवसों से अधिक अवधि के लिये दिया जाता है तथा न्यायिक अधिकारी इस अवधि में अतिरिक्त पद के न्यायिक कार्य का निष्पादन करते है तो उसे अतिरिक्त प्रभार के पद के वेतनमान के न्यूनतम के 10 प्रतिषत के बराबर अतिरिक्त प्रभार भत्ता अनुमन्य होगा।

G.O. No. 2811/DO-4-2008 dated 10.6.2009 also prescribes procedure of its payment which is as follows:-

'' इस सम्बन्ध में शासन को यह परामर्ष प्राप्त हुआ है कि न्यायिक अधिकारियों को प्रदत्त अतिरिक्त प्रभार भत्ता एक आकिसिमक सुविधा है जो निर्धारित मानकों के अंतर्गत अतिरिक्त कार्य करने पर ही अनुमन्य है। अत: उक्त सुविधा अनुमन्य कराने हेतु सम्बनिधत न्यायिक अधिकारी के जो नियंत्रक अधिकारी है, उन्हीं के द्वारा निर्धारित मानकों के पूरा होने की पुषिट करते हुए प्राधिकार पत्र निर्गत किया जायेगा।

Q.3 In reference to the Hon’ble High Court’s ruling Ms. PEPSICO INDIA HOLDINGS PVT. LTD. vs. State of U.P., the common problem being faced in day to day working in subordinate courts in U.P. is that of passing orders regarding those accused who are brought for remand u/ss. 272 and 273 of the IPC by Police. Whereas the Hon’ble High Court, Lucknow Bench has in the above noted ruling stated that after coming into force of the “The Food Safety and Standards Act, 2006” vide notification dated 29^th July, 2010. The authorities can take action under the ‘FSSA’ as it postulates an over riding effects over all other food related laws including PFA Act and further said that invoking Sec. 272 and 273 IPC in the matter relating adulteration of food pursuant to impugned Govt. order is wholly inju8stified and non-est – whereas the state government on its part has not changed the set up and provision of food adulteration department. The department seems to be working under the old Act. There is also a gray area regarding the fate of cases and remand under Sections 272 and 273 of IPC due to which course of action of the Magistrate’s are not clear at the time of remand.

Guidance may kindly be provided regarding the matter.

Ans. The judgment aforesaid passed by Hon’ble Allahabad High Court (Lucknow Bench) in W.P. No. 8254 (MB) of 2010 M/s PepsiCo India Holdings Pvt. Ltd. & another v. State of U.P. ad others on 8.9.2010, specifically says that in view of the specific provisions under the Food safety and Standards Act, 2006, the offences relating to Adulteration of Foods that are governed under the Food Safety and Standards Act, 2006 after July, 2010 are to be treated as per the procedure to be followed for drawing and analysis of samples as has been provided in the said Act. It also states that, for adulteration of Food or misbranding, after coming ino force he provisions of Food Safety and Standards Act, 2006 vide notification dated 29.7.2010, the authorities can take action only under the Food Safety and Standards Act, 2006 as this Act postulates an overriding only under the Food Safety and Standards Act, 2006 as this Act postulates an overriding effect over all food relating laws including the prevention of Food Adulteration Act.

Further there appears to be no gray area regarding the remand of cases falling u/s. 272& 273 IPC as the Hon’ble Court itself says in para 1 at page 11 of the judgment that “Section 272 IPC, reproduced hereinabove, is attracted when a person adulterates an article of food with the intention to sell such an article or knowing that it is likely that the article will be sold as good or drink. In the instant case, there is no allegation in the FIR that the petitioner-company or its employees or agents had kept its products with the intention to sell the same or knowing that the products are likely to be sold as food or drink or that the said products were exposed or offered for sale. The definite stand of the company was the articles seized were kept in the godown where even a board ‘not for sale’ was also hanging at the time when the search was conducted.”

Query answered, however it is advised that while deciding related matters the referred judgment be carefully and thoroughly studied and a view be formed accordingly.

Q.4(i) If there is any set standard for getting concurrent charge allowance?

Ans. No such standard has been set in G.O. dt. 27.1.2006.

Q.(ii) Where a link officer performing the work of another court like signing order sheets, exemption application, making recommendation in MAC refund voucher etc. will he be entitled for concurrent charge allowance?

Ans. The concurrent charge allowance has been granted to judicial officer on the recommendations of Shetty Commission which are as follows ....... 19.155 ------

“We recommend that charge allowance be paid to the juridical officer when he is placed in charge of another court continuously beyond the period of ten working days and if he performs appreciable judicial work of that court.”

The Controlling Authority i.e. District Judge is competent to grant such allowance if he is satisfied that, ‘appreciable judicial work’ has been performed by such juridical officer. For further clarification of G.O., you may approach to government or appropriate authority.

Q.5 In a Civil case judgment of three pages the presiding officer has signed every page of the judgment except the operative and declaratory part of it. Later a decree also drawn on the basis of this judgment, duly signed by the same presiding judge. An appeal has been preferred against the judgment and decree. Neither of the parties pointed out the above defect in the judgment, and nor the same is taken as ground in the memorandum of appeal.

I solicit the answer of the following –

1. Whether the judgment and decree is valid in the eye of law.

2. In what way this defect will effect the appeal.

Ans. The judgment is valid in the eyes of law and this defect will not effect the appeal on merits unless it is shown that no such judgment was ever delivered by the Court. The judgment appears to be authenticated by the decree drawn on its basis which is signed by the same judge.

See – Surendra Singh v. State of U.P., AIR 1954 SC 194, Vinod Kumar Singh v. Banaras Hindu University, AIR 1988 SC 371.

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