Hon’ble Mr. Justice
Bhanwar Singh
Chairman
[Patron]
EDITOR-IN-CHIEF
U.S.
Awasthi
Director
EDITOR-IN-CHARGE
ANUPAM
GOYAL, Additional Director (Research)
EDITORS
P.K. SRIVASTAVA,
Additional Director
Dr.
RAJESH SINGH, Additional Director (Administration)
RAJEEV
BHARTI, Additional Director (Training)
MAHENDRA
SINGH, Dy. Director
PUSHPENDRA SINGH, Dy. Director
AKHILESHWAR PRASAD MISHRA, Dy. Director
RAVINDRA
KUMAR DWIVEDI, Dy. Director
FINANCIAL ADVISOR
SARAN
PIARIE VARMA
Additional Director (Finance)
ASSOCIATES
B.K.
MISHRA, Research Officer
WEB
ASSISTANCE
PRAVEEN SHUKLA, Computer Supervisor.
Advocates Act
S. 38 – Professional
misconduct committed by an Advocate punishment – Determination of
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)
BACK TO INDEX
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)
BACK TO INDEX
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)
BACK TO INDEX
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)
BACK TO INDEX
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)
BACK TO INDEX
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)
BACK TO INDEX
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)
BACK TO INDEX
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)
BACK TO INDEX
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)
BACK TO INDEX
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
(c)
to furnish a specimen of his voice by uttering the specified words
or making the specified sounds.
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)
BACK TO INDEX
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)
BACK TO INDEX
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 9th
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).
BACK TO INDEX
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)
BACK TO INDEX
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)
BACK TO INDEX
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)
BACK TO INDEX
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)
BACK TO INDEX
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.
(c)
Such death occurs within seven years from the date of her
marriage.
(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 7th November,
2000 by closing down stitching department and on 1st
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 23rd 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 9th 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 9th 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 9th 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
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. (Chief Manager, Ajmer Vs. Hitlar Prasad and another;
(2013 (136) FLR 660) (Rajasthan HC Jaipur Bench)
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).
BACK TO INDEX
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)
BACK TO INDEX
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)
BACK TO INDEX
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)
BACK TO INDEX
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).
BACK TO INDEX
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 1/3rd 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)
BACK TO INDEX
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. 1st Additional District Judge, Bahraich
and others; (2013 (31) LCD 125) (Allahabad High Court (Lucknow
Bench).
BACK TO INDEX
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)
BACK TO INDEX
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)
BACK TO INDEX
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)
BACK TO INDEX
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).
BACK TO INDEX
Penology
Fine—Default sentence—Court under duty to
take into consideration relevant circumstances regarding offence and
offender
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)
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)
BACK TO INDEX
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)
BACK TO INDEX
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)
BACK TO INDEX
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)
BACK TO INDEX
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)
BACK TO INDEX
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. 16th 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)
BACK TO INDEX
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 12th 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 12th October, 2004. On 12th
January, 2005, the appellants noticed that the candidates, whose
names had been cleared for compassionate appointment on 13-15th
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 8th
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 31st
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 23rd 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 9th 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 14th
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 16th 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 9th
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 17th September, 2004 vide a notification
issued by the State Government. The term of the said respondent was
renewed on 3rd March, 2006 for a period of one year and
as such his term came to an end of 5th March 2007. The
respondent submitted his application for renewal of his term on 19th
January, 2007. The district Judge, Lucknow on 26th
February, 2007 gave his report and the District magistrate also
submitted his report on 5th March, 2007 recommending the
renewal of the term of the respondent. However, the State
Government, appellant herein, vide order dated 3rd 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 14th October, 2009, allowed the writ
petition, setting aside the order dated 3rd 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 3rd
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 3rd April,
2008.
The order dated 3rd
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 3rd
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 2nd 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 2nd 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)
BACK TO INDEX
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)
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)
BACK TO INDEX
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.
(c) under the Stamp Act a
conveyance is a transfer 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)
BACK TO INDEX
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)
BACK TO INDEX
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 6th/7th
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, 22nd 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)
BACK TO INDEX
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)
BACK TO INDEX
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 18th
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 27th September, 2007 setting aside the order of
Consolidation Officer dated 18th January, 2005 and
remanding the matter before the Consolidation Officer for deciding
the objections afresh. Against the order dated 27th
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 27th 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 13th
February, 2008 the Deputy Director of Consolidation held that
revision is maintainable. This writ petition has been filed
challenging the order dated 13th 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 13th
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).
BACK TO INDEX
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)
BACK TO INDEX
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)
BACK TO INDEX
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)
BACK TO INDEX
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)
BACK TO INDEX
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:
“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
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, 11th 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)
BACK TO INDEX
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)
BACK TO INDEX
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 |
1 |
2 |
3 |
4 |
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%
100%
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 |
BACK TO INDEX
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 29th 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.
BACK TO INDEX
|