Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
(January-March, 2013)
Vol. XXX, Issue No. 1
CONSTITUTIONAL, CIVIL, CRIMINAL & REVENUE LAWS
(Covering important judgments of Supreme Court and Allahabad High Court)
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)
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Allahabad High Court Rules
Rule 7—Second writ petition on same facts would be barred
Rule 7 of the Allahabad High Court Rules, 1952, is crystal-clear which says that
second writ petition on the same facts would be barred. The Apex Court in Forward
Construction Col vs. Prabhat Mandal (Regd), Andheri, AIR 1986 391, was pleased to rule that
the orders dismissing the first writ petition operates as res judicata between the parties and no
second petition on the same facts is maintainable. (Brahm Pal Panchal vs. Union of India;
2013 (80) ACC 753 (All)
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Arms Act
S. 17(3)—Arms licence—Cancellation of—Mere involvement in a criminal case shall not
create ground of cancellation of arms licence
Settled law is, mere involvement in a criminal case without finding that such
involvement shall be detrimental to public peace and tranquility shall not create the ground for
cancellation of arms licence. (Raj Kumar Verma vs. State of U.P.; 2013 (80) ACC 231 (All)
S. 17(3)(h)—Mere involvement in a criminal case is no ground for cancellation of fire
arms licence
The provision of sub-sections (3) and (4) of Section 17 of the Arms Act provides
various conditions for variation/cancellation or suspension of the arms licence.
The question as to whether mere involvement in a criminal case or pendency of a
criminal case can be a ground for revocation of licence under the Arms Act, has been dealt
with by a Division Bench of this Court in (Sheo Prasad Mishra vs. District Magistrate, 1978
AWC 122). The Division Bench relied upon the earlier decision of another Division Bench of
this Court in the case of Masi Uddin vs. Commissioner, Allahabad, 1972 ALJ 573, wherein it
has been held:--
“A licence may be cancelled, inter-alia, on the ground that it is “necessary for
the security of public peace or for public safety, to do so. The District Magistrate has
not recorded a finding that it was necessary for the security of the public peace or for
public safety to revoke the licence. The mere existence of enmity between a licencee
and another person would not establish the “necessary” connection with security of the
public peace or public safety.
In the case before Court also the District Magistrate has not recorded any
finding that it was necessary to cancel the licence for the security of public peace or for
public safety. All that he has done is to have referred to some applications and reports
lodged against the petitioner. The mere fact that some reports had been lodged against
the petitioner could not form basis for cancelling the licence. The order passed by the
District Magistrate and that passed by the Commissioner cannot, therefore, be upheld
on the basis of anything contained in section 17(3)(b) of the Act.”
(Mulayam Singh vs. State of U.P.; 2013 (80) ACC 786 (All)
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Bar Council of India Rules
R. 49 - Constitution of India, Article 233 (2) – Appointment – Post of Distt. Judges –
Eligibility – Consideration of – Full time salaried public prosecutors rendered ineligible
for appointment to the post of Distt. Judge under Article 233 (2)
The reference before the Full Bench arose in view of the fact that the Division Bench
of this Court while considering the Petition, found itself unable to agree with the view
expressed by an earlier Division Bench in Ayub Pathan vs. High Court of Judicature at
Bombay. [Writ Petition 1848 of 2011 decided on 3 March, 2011] The Petitioners before the
Court in that case were in the service of the Union of India or, as the case may be, the State of
Maharashtra as Public Prosecutors on a salaried basis. They challenged an advertisement of
this Court dated 18 February, 2011 inviting applications for the post of a District Judge to the
extent to which full time salaried Public Prosecutors, Assistant/Additional Public Prosecutors
and Law Officers to the Central or State Government or of any public corporation or body
constituted by statute were not eligible for appointment as District Judges. It was urged that (i)
This amounted to a discrimination because all Public Prosecutors whether salaried or not
constitute one class; and (ii) A condition had been inserted in the advertisement without a
corresponding provision in the Judicial Service Rules. There was obviously no merit in the
second contention that there was no prohibition in the Judicial Service Rules because as noted
in the earlier part of this judgment, the rules were specifically amended on 31 December, 2010
to incorporate such a prohibition. On the first submission, the Division Bench relied upon the
judgment of the Supreme Court in Satish Kumar Sharma (supra) in support of the proposition
that salaried Public Prosecutors constitute a class different from' those who were not salaried
employees. In that regard, reliance was placed on paragraph 23 of the decision in Satish
Kumar Sharma. Now, it is undoubtedly true that the discrimination that was urged before the
Supreme Court in Satish Kumar Sharma was by a full time salaried Law Officer of the State
Electricity Board who claimed that he has been discriminated against qua prosecutors and
government pleaders. Dealing with that submission, the Supreme Court held that the duty,
nature of work and service conditions of the Appellant there were substantially different from
those of a prosecutor or government pleaders, particularly in relation to acting in Court and
that hence, the Appellant stood on a different footing. The observations in paragraph 23 of the
decision in Satish Kumar Sharma do not therefore, deal with the nature of the discrimination
that was urged before the Court in Ayub Pathan's case. To that extent, the Division Bench in
Ayub Pathan's case has not; with great respect, correctly construed the context in which the
observations in paragraph 23 of the decision in Satish Kumar Sharma's case were made.
Having said this, we must still come to the conclusion that the provisions by which full time
salaried Public Prosecutors have been rendered ineligible for appointment to the post of
District Judge, cannot be regarded as discriminatory. Court has dealt with this aspect in
considerable amount of detail in the earlier part of this judgment. To recapitulate, court has
emphasized two facets. Firstly, as a consequence of the deletion of the second and third
paragraphs of Rule 49 of the Rules framed by the Bar Council of India, there is now an
absolute prohibition on an Advocate accepting full time salaried employment with a person,
Government, firm corporation or concern and upon accepting such employment, the Advocate
has to notify the Bar Council and shall thereupon cease to practise as an Advocate. Secondly,
Article 233(2) which contemplates that a person will be eligible to be appointed as a District
Judge “If he has been for not less than seven years an Advocate or a pleader" must be
construed to mean a person who is on the rolls of the Bar Council and entitled to practise
under the provisions of the Advocates Act. Where under the rules framed under the Advocates
Act, there is a prohibition on an Advocate accepting full time salaried employment - a
prohibition which has been upheld - an Assistant Public Prosecutor appointed under Section
25 of the Code of Criminal Procedure, 1973 and in the full time salaried employment of the
State would not meet the description of a person eligible to be appointed as a District Judge
within the meaning of Article 233(2). In the circumstances, while court accepted the
submission that the reason which was indicated by the Division Bench in Ayub Pathan was not
correct, Assistant Public Prosecutors in the position of the Petitioners appointed on a civil post
on the establishment of the State and in full time salaried employment would not be eligible
for being, appointed as District Judge under Article 233(2) of the Constitution. (Sunanda
Bhimrao Chaware v. High Court of Judicature; 2013 (1) SLR 588 (Bom)
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Civil Procedure Code
S. 3 – Court and Tribunal – Distinction - Tribunals are created to reduce burden of
Courts - Perform quasi judicial function- And can exercise only certain powers under
Civil or Criminal Procedure Codes - Fact that tribunal is headed by judicial officer does
not make it Court
In a regular Court, the Codes, in their entirety, civil as sell as criminal, must be strictly
adhered to. Therefore, it is evident that the terms ‘Court’ and ‘tribunal’ are not
interchangeable. Tribunals have primarily been constituted to deal with cases under special
laws and hence provide for specialized adjudication alongside the Court. (State of Gujarat
and Anr. v. Gujarat Revenue Tribunal Bar Association and Anr.; AIR 2013 SC 107)
S. 24 - Transfer Application - Ground for
The applicant has applied under Section 24 C.P.C. for the transfer of Civil Appeal
No.108 of 2002 (Shakeela Vs. Mehbood Ali Siddiqui) from the court of Additional District
Judge Court No.22, Allahabad to some other competent court within the same judgeship.
The aforesaid appeal arises out of judgment, order and decree dated 23.5.2002 passed
in Original Suit No329 of 1986 which is said to be for cancellation of a sale deed.
The applicant had previously filed an application before the District Judge for transfer
of the proceedings which was rejected by the District Judge vide order dated 22.8.2012.
In the above circumstances, the applicant by the aforesaid transfer application is not
only seeking transfer of the proceedings from one court to another but has also prayed for
setting aside the order of the District Judge 22.8.2012.
Thus, the mere bald allegation that the applicant will not get justice from the court
concerned for the person that the court is proceeding with the matter expeditiously, is not a
ground for getting the proceedings transferred. (Shakeela vs. Mehboob Ali Sidiqul; 2012(1)
ARC 290 (All HC)
S.100—Concurrent finding—Reversability of
Supreme Court has observed that the opinion of the High Court in Second Appeal was
not justified in reversing the concurrent findings arrived at by the Trial Court and the first
Appellate Court. Accordingly, Court set aside the orders passed by the High Court and restore
the orders passed by the Trial Court. (Ghisalal M. Agrawal (Dead) through L.Rs. and
others vs. Rameshwar @ Ramu Jawahar; 2013 (1) ARC 11 (SC)
S. 103 - Powers of High Court to determine issue on facts
Even though the lower appellate court has not discussed the question of bonafide need
and comparative hardship however on the principle of Section 103 C.P.C. defining the powers
of the High Court in Second appeal, even in writ petition High Court may if the evidence on
record is sufficient determine any issue necessary for the disposal of the writ petition which
has not been determined by the lower appellate court or even by both the courts below.
Supreme Court in R.E.V. Gounder v. V.V.P. Temple, 2004 ACJ 304 (S.C.); 2004 SCFBRC
66: 2004 (1) ARC 137 and R.C. Kesarvani v. Dwarika Prasad, 2002 (2) ARC 298, has held
that when the matter is pending for long remand must be avoided. Supreme Court in its
authority reported in Shail v. Manoj Kumar, 2004 ACJ 1213, placing reliance upon Surya Dev
Rai v. R.C. Rai, 2003 (6) SCC 675,: 2003 (2) ARC 385 has held that in exercise of writ
jurisdiction High Court has the jurisdiction also to pass itself such a decision or direction as
the inferior Court or tribunal should have made. (Udai Pratap Singh and ors vs. IV
Additional D.J. Varanasi and ors.; 2013(2) ALJ 279)
S. 115 – Revision - Scope of - Scope of jurisdiction which fall within purview of Section
115 - Determination of
It is noteworthy that, if a clever drafting has created the illusion of a cause of action, it
is incumbent upon the Trial Judge to nip in the bud, at the first hearing, by examining the party
searchingly under Order 10 C.P.C.
An application for rejection of the plaint can be filed if the allegations made in the
plaint even if given face value and taken to be correct in their entirety appear to be barred by
any law. The question as to whether a suit is barred by limitation or not would, therefore,
depend upon the facts and circumstances of each case. For the said purpose, only the
averments made in the plaint are relevant. At this stage, the court would not be entitled to
consider the case of the defence.
On the other score, in view of the law laid down by a full Bench of the Hon'ble Apex
Court in the case of Pandurang Dhoni Chougule vs Maruti Hari Jadhav reported in AIR 1966
SC, 153, in which it has been held, "It is well-settled that a plea of limitation or a plea of res
judicata is a plea of law which concerns the jurisdiction of the Court, which tries the
proceedings. A finding on these pleas in favour of the party raising them would oust the
jurisdiction of the Court, and so, an erroneous decision on these pleas can be said to be
concerned with questions of jurisdiction which fall within the purview of Section 115 of the
Code. But an erroneous decision on a question of law reached by the subordinate court which
has no relation to questions of jurisdiction of that Court, cannot be corrected by the High Court
under Section 115.", the revision is not maintainable. (B.P. Singh vs. Ramesh Chandra Rai;
2012(1) ARC 244 (All HC, Lucknow-Bench)
S. 115 – Revisions – Against order rejecting the application to examine the value and
directing plaintiff to pay additional Court fee and make amendment
Secondly, the Court has to decide a case on the strength of the evidence led by the
parties. A .court of law cannot function as an “assessor”. Assessmert by a Court of law is
nothing short of introduction of a third case, which is not permissible under Indian Judicial
System. On one hand, the learned Trial Court has rejected the application of the defendant to
examine the valuer report which is on the records and which report has been rejected by the
Court on the ground that the valuer has valued the property in suit in the year 2010, though the
suit was filed in the year 1996. On the other hand, learned Trial Court has enhanced the value
of the property to the detriment of the plaintiff, without any substance or evidence, as if the
learned Trial Court is a “Judge” of a country where there is no judicial system or law or where
there is no constitutional mechanism. The perversity is apparent on the face of the record.
There is no material on the record nor there is any law which empowers the Court to make its
own assessment irrespective of what are the pleadings of the parties.
The word “perverse” has been defined as deliberately departing from what is normal
and reasonable. It obviously means unreasonableness and irrational.
“10. Lord Dipock explained ‘irrationality’ as follows:
“By ‘irrationality’ I mean what can by now be succinctly referred to as
Wednesbury unreasonableness’. It applies to a decision which is to outrageous in its
defiance of logic or of accepted moral standards that no sensible person who had
applied his mind to the question to be decided could have arrived at it.”
“In other words, to characterize a decision of the administrator as “irrational”
the Court has to hold, on material, that it is a decision “so outrageous” as to be in total
defiance of logic or moral standards. Adoption of “proportionality” into administrative
law was left for the future.
These principles have been noted in aforesaid terms in Union of India and another v.
G.Ganayutham, (1997)7 SCC 463. In essence, the test is to see whether there is any infirmity
in the decision making process and not in the decision itself. (See Indian Railway Construction
Co. Ltd. V. Ajay Kumar, 2003(5) AIC 129 (SC)= (2003)4 SCC 579= 2003(97) FLR
411(SC).”
Another aspect of the case is that, at the most the learned Trial Court
might have considered it to be equitable to but equity cannot be enforced by a Court of law,
when it is opposed by the law on the point; equity cannot chew the law. The law on the point
is crystal clear that “when there is a conflict between law and equity, it is the law which is to
prevail. Equity can only supplement the law when there is a gap in it, but it cannot supplant
the law. The Court cannot legislate under the garb of interpretation.
Hence, there should be judicial restraint in this connection, and the temptation to do
judicial legislation should be eschewed by the Courts. In fact, judicial legislation is an
oxymorn. The literal rule of interpretation really means and there should be no interpretation.
By the impugned order, the learned Trial Court has chewed all rules of procedure as
enshrined in the Code of Civil Procedure and all the provisions relating to burden of proof as
provided in Chapter VII of the Evidence Act, 1872. Only thing, which is appreciable, is that
the learned Trial Court is really concerned about disposal of old cases but that concern should
be subject to judicial norms, rules of procedure and application of law.
In the view of the facts as mentioned above, impugned order has rightly made both the
parties to the suit aggrieved and due to this reason both the parties have approached this.
Court to invoke its jurisdiction under Section 115 the Code of Civil Procedure.
Since the learned Trial Court has directed the plaintiff to pay additional Court fee,
make amendment etc., the finality can well be attached to the order in question because the
suit shall have to be dismissed if the plaintiff fails to succumb to the impugned order which
shows deliberate and obstinate desire to behave in a way that is unreasonable or unacceptable
and contrary to the accepted standards or practice of judicial institution.
Revisions are accordingly allowed Impugned order is set aside and the learned Trial
Court is directed to decide the application paper No. 130-C/133-C and issue relating to
valuation, strictly in accordance with law and settled norms of justice. (Abhay Sood vs. Babu
Batuk Nath; 2013 (118) RD 648)
O.2 and R. 2—Provisions under—Scope and object
The provisions of Order 2 Rule 2 of the CPC:
“ORDER 2
2. Suit to include the whole claim.
(1) Every suit shall include the whole of the claim which the plaintiff is
entitled to make in respect of the cause of action; but a plaintiff may
relinquish any portion of his claim in order to bring the suit within the
jurisdiction of any Court.
(2) Relinquishment of part of claim- Where a plaintiff omits to sue in
respect of, or intentionally relinquishes, any portion of his claim he shall
not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs- A person entitled to more
than one relief in respect of the same cause of action may sue for all or
any of such reliefs; but if he omits; except with the leave of the Court,
to sue for all such reliefs, he shall not afterwards sue for any relief so
omitted.
Explanation- For the purposes of this rule an obligation and a collateral security for its
performance and successive claims arising under the same obligation shall be deemed
respectively to constitute but one cause of action.”
The object behind enactment of Order II Rule 2(2) and (3) of the CPC is not far to
seek. The Rule engrafts a laudable principle that discourages/prohibits vexing the defendant
again and again by multiples suits except in a situation where one of the several reliefs,
through available to a plaintiff, may not have been claimed for a good reason. A later suit for
such relief is contemplated only with the leave of the Court which leave, naturally, will be
granted upon due satisfaction and for good and sufficient reasons. The situations where the bar
under Order II Rule 2(2) and (3) will be attracted have been enumerated in a long line of
decisions spread over a century now. Though each of the aforesaid decisions contain a clear
and precise narration of the principles of law arrived at after a detailed analysis, the principles
laid down in the judgment of the Constitution Bench of this Court in Gurbux Singh vs.
Bhooralal, AIR 1964 SC 1810 may be usefully recalled below:
“In order that a plea of a bar under O. 2 r. 2(3), Civil Procedure Code should succeed
the defendant who raises the plea must make out (1) that the second suit was in respect
of the same cause of action as that on which the previous suit was based, (2) that in
respect of that cause of action the plaintiff was entitled to more than one relief, (3) that
being thus entitled to more than one relief the plaintiff, without leave obtained from the
Court, omitted to sue for the relief for which the second suit had been filed. From this
analysis it would be seen that the defendant would have to establish primarily and to
start with, the precise cause of action upon which the previous suit was filed, for unless
there is identity between the cause of action on which the earlier suit was filed and that
on which the claim in the later suit is based there would be no scope for the application
of the bar.”
The cardinal requirement for application of the provisions contained in Order 2 Rule
2(2) and (3), therefore, is that the cause of action in the later suit must be the same as in the
first suit. It will be wholly unnecessary to enter into any discourse on the true meaning of the
said expression, i.e. cause of action.
In the instant case though leave to sue for the relief of specific performance at a later
stage was claimed by the plaintiff in C.S. Nos. 831 and 833 of 2005, admittedly, no such leave
was granted by the Court. The question, therefore, that the Court will have to address, in the
present case, is whether the cause of action for the first and second set of suits is one and the
same. Depending on such answer as the Court may offer the rights of the parties will follow.
The learned Single Judge of the High Court had considered, and very rightly to be
found to follow an earlier Division Bench order in the case of R. Vimalchand and M.
Ratanchand vs. Ramalingam, T. Srinivasalu & T. Venkatesaperumal holding that the
provisions of Order II Rule 2 of the CPC would be applicable only when the first suit is
disposed of. As in the present case the second set of suits were filed during the pendency of
the earlier suits, it was held, on the ratio of the aforesaid decision of the Division Bench of the
High Court, that the provisions of Order 2, Rule 2(3) will not be attracted. Judicial discipline
required the learned Single Judge of the High Court to come to the aforesaid conclusion.
However, Court is unable to agree with the same in view of the object behind the enactment of
the provisions of Order 2 Rule 2 of the CPC as already discussed by us, namely, that Order 2
Rule 2 of the CPC seeks to avoid multiplicity of litigations on same cause of action. If that is
the true object of the law, on which do not entertain any doubt, the same would not stand fully
subserved by holding that the provisions of Order 2 Rule 2 of the CPC will apply only if the
first suit is disposed of and not in a situation where the second suit has been filed during the
pendency of the first suit. Rather, Order II, Rule 2 of the CPC will apply to both the aforesaid
situations. (Virgo Industries (Eng.) P.Ltd. (M/s) vs. M/s. Venturetech Solutions P. Ltd.;
2013 (1) ARC 711 (SC)
O. 6, R. 17—Amendment in written statement—Rejection of—Legality of
Order 6, Rule 17 CPC provides that the Court may at any stage of the proceedings
allow either party alter or amend his pleadings in such manner and on such terms as may be
just, and all such amendments shall be made as may be necessary for the purpose of
determining the real questions in controversy between the parties. However, in view of the
proviso, no application for amendments is liable to be allowed after the trial has commenced,
unless the Court comes to the conclusion that parties seeking amendment could not have
raised the matter before the commencement of trial inspite of due diligence.
The object of the rule is that Court should try and adjudicate the case on merits and
allow all amendments that may be necessary for determining the real question in controversy
between the parties, provided it does not cause injustice or prejudice to other side.
It is, no doubt, correct that Hon’ble Apex Court in series of decision has held that the
power to allow the amendments is wide and can be exercised at any stage of the proceedings
in the interest of justice. Even in the case of Abdul Rehman and another vs. Mohd. Ruldu and
others (supra) relied upon by the learned counsel for the petitioner, the same view has been
expressed. it may be relevant to quote paragraph 7 of the said reports:
“It is clear that parties to the suit are permitted to bring forward amendment of their
pleadings at any stage of the proceedings for the purpose of determining the real
question in controversy between them. The Courts have to be liberal in accepting the
same, if the same is made prior to the commencement of the trial. If such application is
made after the commencement of the trial, in that event, the Court has to arrive at a
conclusion that in spite of due diligence, the party could not have raised the matter
before the commencement of trial.”
(Gopal Chandra vs. Kundan Lal Gulati; 2013 (1) ARC 807)
O. 6, R. 17—Rejection of amendment of plaint at appellate stage—Legality of
Petitioner’s application for amendment of the plaint at the fag end of the hearing of the
appeal has been rejected. The suit of the petitioner was for partition which was dismissed and
in appeal when a date for hearing was fixed, the amendment was filed.
The court below in rejecting the amendment has come to the conclusion that no case
for accepting the amendment at such a belated stage as per the proviso to Order 6 Rule 17
C.P.C. has been made out.
In view of the above, the Court find no case for interference in exercise of writ
jurisdiction. (Lalit Mohan vs. Madan Mohan; 2013 (1) ARC 151)
O. 6, R. 17 Proviso - Amendment of plaint - After commencement of trial - Permissibility
of
A bare perusal of above Rule 17 would show that an amendment is permissible by the
Court at any stage of proceedings, of course, in such manner and in such terms as the Court
may find just, but, such an amendment is required to be necessary for the purpose of
determining the real question in controversy between the parties. It gives very wide power to
the Court for allowing amendment but the proviso added therein restricts such wide power of
the Court simultaneously by observing that no application for amendment shall be allowed
after the Trial has commenced unless the Court comes to the conclusion that in spite due
diligence, party could not have raised the matter before the commencement of Trial. Now
there is an embargo on an application for amendment to be allowed once the Trial has
commenced. The embargo is complete. The only scope, thereafter is that the Court comes to
the conclusion that despite due diligence such matter could not have been raised by the parties
concerned before the commencement of Trial. Therefore the party seeking amendment, after
commencement of Trial, is bound to first plead and then prove that the amendment it has
sought could not have been pleaded by it before commencement of Trial despite its due
diligence. After the Trial has commenced, an amendment cannot be sought and allowed as a
matter of course unless conditions of due diligence is found to have existed therein since it is
prohibited by proviso to Order 6 Rule 17 C.P.C.
In the present case, the parties could not dispute that the Trial has commenced long
back. Neither in the application the plaintiff-respondent ever pleaded that despite due diligence
he could not have raised the issue which he has sought by virtue of amendment earlier nor
there is any such finding recorded by the Trial Court while allowing the amendment.
Unfortunately, even the Revisional Court has not looked into this aspect of the matter. The
impugned orders passed by Courts below, therefore, are wholly illegal and cannot sustain.
(Suraj Prakash vs. Waqf Khudaband Tala Mausooma; 2012(2) ALJ 275)
O. 7, R. 11 Rejection of plaint - Validity - Earlier suit filed by defendants for ejectment
and delivery of possession - Matter pending since long - Defendants/decree holders not
allowed by plaintiff to reap fruits of decree - Prayer made for framing additional issue
rejected by trial Court holding that identity of property was not in dispute - Plaintiff did
not claim to be in possession of any property other than property in regard to which he
had suffered an eviction decree - Plaintiff's conduct not equitable - For same property,
earlier he claimed adverse possession against different individuals - Rejection of plaint,
held proper
The matter is pending since 1987 and till now the respondents/decree holders were not
allowed by the plaintiff to reap the fruits of the decree. A prayer was made by the plaintiff
under Order 14 of the C. P. C. for framing of additional issues 'whether the Khasra number of
the suit property is 17/2 or 18', which was rejected by the trial Court and this Court in para - 6
of its order has also held that the identity of the property is at all not in dispute.
Apart from the above, the plaintiff nowhere in the plaint claims to be in possession of
any property other than the property in regard to which he had suffered an eviction decree.
The plaintiff's conduct, on the face, is also not equitable. For the same property, earlier he was
claiming adverse possession against respondents No. 2 to 4 and now he is claiming adverse
possession against respondent No.1 with a specific prayer to restrain respondents No. 2 to 4
from interfering in possession over the suit property, for which, they have already obtained a
decree. Considering every aspect of the matter, the trial Court has rightly rejected the plaint
under Order 7 Rule 11 of the C.P.C. The appeal, being devoid of merit, is liable to be and is
hereby dismissed. (Jagdish Sahu v. State of Chhattisgarh and others.; AIR 2013 Chha 27)
O. 8, R. 6A (1) - Counter Claim by defendant can only be raised against claim of plaintiff
that too in respect of cause of action accruing to defendant against plaintiff
A plain reading of Order VIII Rule 6A(1) makes it clear that a defendant in a suit is
entitle to set up by way of counter-claim, a claim against the plaintiff in respect of the cause of
action accruing to the defendant against the plaintiff.
In view of the plain and simple language used in the aforesaid provision it is ample
clear that a counter-claim by the defendant in the suit can only be raised against the claim of
the plaintiff that too in respect of cause of action accruing to the defendant against the
plaintiff. It does not permit filing of a counter claim against the other defendants to the suit.
In other words the counter-claim by a defendant has to be against the claim of the
plaintiff and in respect of the cause of action accruing to the defendant against the plaintiff.
Thus no counter claim against the co-defendants in the suit is permissible in law. (Man Singh
vs. D.J. Ghazipur and ors.; 2013 (2) ALJ 323)
O. 14, R. 2 & O. 41, R. 23 - Court passing Appelable orders - To decide lis on all issues -
Such course would avoid necessity to make order of remand and consequential delay
The court said that it deems it necessary to reiterate a fundamental principle of law that
all courts whose orders are not final and appealable, should take notice of. All such courts
should decide the lis before it on all issues as may be raised by the parties though in its
comprehension the same can be decided on a single or any given issue without going into the
other questions raised or that may have arisen. Such a course of action is necessary to enable
the next court in the hierarchy to bring the proceeding before it to a full and complete
conclusion instead of causing a remand of the matter for a decision on the issue (s) that may
have been left undetermined as has happened in the present case. The above may provide a
small solution to the inevitable delays that occur in rendering the final verdict in a given case.
(Chandradhoja Sahoo v. State of Orissa and Ors.; AIR 2013 SC 367)
O. 16, R. 1 - Summoning of witnesses - By dasti process - Validity - Suit for divorce -
Notices issued by Court to witnesses returned with endorsement that witnesses were not
residing in given addresses - Petitioner wife failed to supply correct address - It was duty
of respondent husband to prove allegation of illicit relationship between his wife and one
of witness - Rejection of application for issuing summons to witnesses through Court by
Family Court, held proper - Directing petitioner wife to serve witnesses by dasti process,
held proper
In the instant case the Principal Judge, Family Court issued notices to the witnesses but
same were returned with the endorsement that they are not residing in the given addresses.
Since these two witnesses are the witnesses of the petitioner, it was the duty of the petitioner
to supply their correct address, which-the petitioner did not supply. In such circumstances, the
Principal Judge, Family Court, Dehradun rightly passed order asking the petitioner to serve the
summons on witnesses by dasti process. The application filed by the petitioner for issuing
summons to the witnesses through Court has rightly been rejected. Were the witnesses were
crucial witnesses or not, it is the duty of the plaintiff/respondent to prove the al1egation which
he has levelled against the petitioner/defendant. If these witnesses are not examined, the
plaintiff/respondent will also not be benefited. Neither the Principal Judge, Family Court
exceeded his jurisdiction vested in him under the law nor his order is without jurisdiction
(Smt. Archana Garg v. Vineet Kumar Jain; AIR 2013 Utr 18)
O. 19, R. 3 – Evidence Act, S. 3 Affidavit – Not evidence
Affidavits are not included within the purview of the definition of “evidence” in S. 3 of the
Evidence Act, and the same can be used as “evidence” only if, for sufficient reasons, the Court
passes an order under O 19 of the Code of Civil Procedure, 1908. Thus, the filing of an
affidavit of one’s own statement, in one’s own favour, cannot be regarded as sufficient
evidence for any Court or Tribunal, on the basis of which it can come to a conclusion as
regards a particular fact-situation. However, in a case where the deponent is available for cross
examination, and opportunity is given to the other side to cross-examine him, the same can be
relied upon. Such view stands fully affirmed particularly, in view of the amended provisions
of O. 18, Rules 4 and 5 CPC. (Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and
Ors.; AIR 2013 SC 58)
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
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)
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The claim awarded against pain and suffering has been fairly conceded by Mr. Tsewang
Namgyal as not permissible, since the deceased had died instantaneously on the spot at the
time of the accident. This being the correct position in law, as it would generally apply in
cases of injuries causing permanent disability or when death occurs after an interval from the
time of the accident, the amount awarded against the claim stands set aside. (Branch
Manager, Oriental Insurance co. Ltd. v. Meena Bania; 2013 ACJ 565)
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Muslim Law
(a) Muslim Law - Will, execution of by a Mislim - Held, a Muslim can bequeath his
property upto the extent of 1/3- Will if executed in favour of an heir, all co-heirs must
consent to it
(b) Provincial Small Cause Courts Act, 1987, Section 23 - Title of Plaintiff in a suit
between Landlord and Tenant - Held, factum of ownership is foreign to the scope of
Judge, Small Causes Court - One Co-owner alone would be competent to sign such
application. 1987 (1) ARC 281 (FB) ref
(c) Abuse of the process of Law - Landlord and tenant disputes - Conduct of litigants
deprecated - Petition dismissed with a cost of Rs. 25000/-
The admitted facts between the parties are that the petitioners are tenants of the
disputed premises. The opposite party no. 3, claiming himself to be landlord filed a small
cause case for eviction and recovery of rent and damages for use and occupation before the
learned Trial Court. Opposite party no.2 filed written statement and challenged the ownership
of opposite party no. 3, who was plaintiff before the Judge, Small Causes Court. Replication
was also filed by opposite party no.3. The suit was filed on 2.9.1992. Written statement was
filed by the petitioners on 21.10.1993. The replication was filed on 22.3.1994, against which
the defendants/petitioners filed another application on 22.08.1996. On the same date, the
petitioners moved application before the learned Judge, Small Causes Court under Section 23
of the Provincial Small Cause Court Act, 1887, for returning the plaint on the ground that
intricate question of ownership is involved in this case, which was numbered as Paper No.
116-C. It was rejected vide order dated 26.10.1998. The petitioners filed S.C.C. Revision No.
21 of 1998, which was also dismissed vide judgment and order dated 16.12.2003. Aggrieved
by both the orders, petitioners have knocked the door of the Court.
On the basis of discussions made above, writ petition deserved to be dismissed. Writ
petition is accordingly dismissed with a cost of Rs. 25,000/- to be paid by the petitioners to
opposite party no.3 within thirty days from today or in case of refusal by opposite party no. 3
the same shall be deposited before the learned Judge, Small Causes Courts within stipulated
time, which shall be a condition precedent for the petitioners to participate in the proceeding
of S.C.C. Suit No. 22 of 1992. Both the order under challenge are hereby confirmed. Learned
Judge, Small Causes Court, Bahraich, where the suit is pending is directed to proceed on with
the case, on day to day basis, in such a fashion, that it is decided within three months from the
date of production of a certified copy of this order. (Niyamatullah and others Vs. 1st
Additional District Judge, Bahraich and others; (2013 (31) LCD 125) (Allahabad High
Court (Lucknow Bench).
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Narcotics Drugs & Psychotropic Substances Act
Ss. 36 & 36A – Proceedings - Establishment of special NDPS Court has directed
Considering fact that many States do not have Special NDPS Courts and even where
they are significant, time of NDPS courts is expended in dealing with bail and other criminal
matters, the Court issued following directions:
(i) Each State, in consultation with the High Court, particularly the States of Uttar
Pradesh, West Bengal and Jammu and Kashmir (where the pendency of cases
over five years is stated to be high), is directed to establish special courts which
would deal exclusively with offences under the NDPS Act.
(ii) The number of these Courts must be proportionate to, and sufficient for,
handling the volume of pending cases in the State.
(iii) Till exclusive Courts for the purpose of disposing of NDPS cases under the
NDPS Act are established, these cases will be prioritized over all other matters;
after the setting up of the special Courts for NDPS cases, only after the
clearance of matters under the NDPS Act will an NDPS Court be permitted to
take up any other matter.
(Thana Singh v. Central Bureau of Narcotics; 2013 Cr.LJ 1262)
S. 50 – Scope and ambit of
It is imperative on the part of officer to apprise the person intended to be searched of
his right under Section 50 of the NDPS Act, to be searched before a Gazetted Officer or a
Magistrate – It is mandatory on the part of the authorized officer to make the accused aware of
the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so
required by him and this mandatory provision requires strict compliance – The suspect may or
may not choose to exercise the right provided to him under the said provision, but so far as the
officer concerned, an obligation is cast on him under Section 50 of the NDPS Act to apprise
the person of his right to be searched before a Gazetted Officer or a Magistrate. (Ashok
Kumar Sharma vs. State of Rajasthan; 2013(1) Supreme 128)
S. 50—Search of person—Non observance of provision—It vitiates the conviction and
sentence recorded on basis of mere possession of the contraband
The Court reiterate that sub-section (1) of section 50 makes it imperative for the
empowered officer to “inform” the person concerned about the existence of his right that if he
so requires, he shall be searched before a gazetted officer or a Magistrate, failure to do so
vitiate the conviction and sentence of an accused where the conviction has been recorded only
on the basis of possession of the contraband. The Court also reiterate that the said provision is
mandatory and requires strict compliance. (Suresh vs. State of M.P.; 2013 (80) ACC 994
(SC)
S. 50(1)—Non compliance of requirement under section—Effect of
Section 50(1) of the NDPS Act makes it imperative for the empowered officer to
“inform” the person concerned about the existence of his right under Section 50(1) of the
NDPS Act, that if he so requires, he shall be searched before a gazette officer or a Magistrate.
Failure to do so vitiate the conviction and sentence of an accused where the conviction has
been recorded only the basis of possession of the contraband. It is also reiterated that the said
provision is mandatory and requires strict compliance. (Suresh vs. State of M.P.; (2013) 1
SCC (Cri) 541)
Ss. 173 (2) (8), 156(3) - Further Investigation – Power of magistrate to direct for -
However no power to order re-investigation
Magistrate has the power to direct ‘further investigation’ after filing of a police report in terms
of Section 173(6) of the Code. Neither the scheme of the Code not any specific provision
therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2)
cannot be constructed so restrictively as to deprive the Magistrate of such powers particularly
in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact,
such power would have to be read into the language of Section 173(8). The Code is a
procedural document, thus, it must receive a construction which would advance the cause of
justice and legislative object sought to be achieved. It does not stand to reason that the
legislature provided power of further investigation to the police even after filing a report, but
intended to curtail the power of the Court to the extent that even where the facts of the case
and the ends of justice demand, of the Court can still not direct the investigating agency to
conduct further investigation which it could do on its own. The settled view that the police as a
matter of procedural propriety has to seek permission of the Court to continue ‘further
investigation’ and file supplementary charge-sheet clearly supports the view that the
magistrate has power to direct further investigation. The magistrate however has no power to
direct ‘reinvestigation’ or ‘fresh investigation’ in the case initiated on the basis of a police
report. (Mohammad Khalid Chisti v. State of Rajasthan; 2013 Cr.LJ 637)
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National Security Act
S. 3(2) - Preventive Detention on ground that detenu was trying/making efforts for being
released on bail
In the present case one of the ground of passing the impugned order that petitioner was
trying/making the efforts for releasing on bail but the Detaining Authority was not satisfied
that there were possibilities of releasing the petitioner on bail, it may not be a proper ground
for passing the impugned order. The mere apprehension that the petitioner was likely to be
released on bail because he was trying for the same may not be a justified ground for passing
the impugned order as held by the Apex Court in the case of Yumman Ongbi Lembi Leima
Vs. State of Manipur and others reported (2012) 1 SCC (Criminal) 701.
In its paragraph 25 it reads as under:
"When the courts thought it fit to release the appellant's husband on bail in connection
with the cases in respect of which he had been arrested, the mere apprehension that he
was likely to be released on bail as a ground of his detention, is not justified.”
In such circumstances, Court came to the conclusion that paper as of cross case has not be sent
by sponsoring authority before the Detaining Authority for his subjective satisfaction. The
ground passing the impugned order that the petitioner was trying to release on bail is not a
good ground, therefore, the impugned order dated 10.2.2012 passed by District Magistrate,
J.P. Nagar is illegal, the same is hereby set aside. (Tahseen vs. Union of India; 2013(2) ALJ
396)
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Negotiable Instruments Act
Ss. 138, 142 - Limitation of filing complaint for starting – Is date of filing of complaint is
not date of taking cognizance
In the light of the scheme of the Act and various provisions of the Code, Court hold
that the crucial date for computing the period of limitations is the date of filing of the
complaint or initiating criminal proceedings and not the date of taking cognizance by the
magistrate. In the case on hand, as pointed out earlier, the complaint was filed on Judge, which
is well within the time and on the direction of the Magistrate, verification was recorded by
solemn affirmation by authorized representatives of the complainant and after recording the
statement and securing his signature, the learned magistrate passed an order issuing summons
against the accused under Section 138/142 of the Act (Indra Kumar Patodia and Anr. V.
Reliance Industries ltd. And Ors.; 2013 Cr. LJ 1179)
Ss. 138, 141, 142 – Complaint of dishonour of cheque - Need not necessarily be signed by
complainant - Complaint sans signature of complainant is maintainable
The complaint of dishonour of cheque need not necessarily be signed by complainant.
The only requirement that S. 142 provides is that the complaint must necessarily be in writing
and the complaint can be presented by the payee or holder in due course of the cheque. The
definition of complaint as stated in Section 2(d) of Cri. P.c. provides that the same needs to be
in oral or in writing. The non obstante clause in Section 142 (a) is restricted to exclude two
things only from the Code i.e. (a) exclusion of oral complaints and (b) exclusion of
cognizance on complaint by anybody other than the payee or the holder in due course. None
of the other provisions of the Criminal P.c. are excluded by the said non obstante clause. The
Magistrate is therefore required to follow the procedure under Section 200 of the Criminal P.
C. once he has taken the complaint of the payee/holder in due course and record statement of
the complainant and such other witnesses as present at the said date. Here, the Code
specifically provides that the same is required to be signed by the complainant as well as the
witnesses making the statement. Mere presentation of the complaint is only the first step and
no action can be taken unless the process of verification is complete. The Magistrate thereafter
has to consider the statement on oath that is, the verification statement under Section 200 and
the statement of any witness, and then decide whether there is sufficient ground to proceed.
No prejudice is caused to the accused for non-signing the complaint as the statement made on
oath and signed by the complainant safeguards the interest of the accused.
Apart from the above writing does not presuppose that the same should be signed. This
becomes clear when S. 2 (d) of CrPC is contrasted with provisions such as Ss. 61, 70, 154,
164, 281 of Code. A perusal of these sections show that the legislature has made it clear that
wherever it required a written document to be signed, it should be mentioned specifically in
the section itself, which is missing both from Section 2 (d) of Criminal P.C. as well as section
142 of Act. Even General Clauses Act, 1897 too draws a distinction between writing and
signature and defines them separately. If the legislature intended that the complaint under the
Act, apart from being in writing, is also required to be signed by the complainant, the
legislature would have used different language and inserted the same at the appropriate place.
(Indra Kumar Patodia and Anr. v. Reliance Industries Ltd. and Ors.; AIR 2013 SC 426)
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Payment of Gratuity
S. 7(3-A) – Interest - At the rate of 10% on delayed payment of Gratuity - Application
for - Given with calculations of additional sum of amounts as interest becomes due and
payable by the respondent-school - Once the applicant is held to be entitled to Gratuity
from respondent under the Act - Then all provisions of Act apply-Applicant received the
amount of Gratuity on 9.8.2011 - Therefore till this date, the applicant is entitled to
interest - Even though the applicant could not withdraw the amount because of
restraining order from the Court - Payment of interest under the Act is a liability of
respondent and that is upto the date of payment - Filing execution for recovery of said
amount is not necessary - Applicant is entitled to 10% interest on account of gratuity
payable till the date of payment
Admittedly, applicant at present, is entitled to Gratuity from respondent Nos. 1 and 2.
Once it is held by this Court in Civil Application No. 1181 of 2011 that applicant is entitled to
the benefit under the provisions of Payment of Gratuity Act, 1972 then all the provisions of
Payment of Gratuity Act, 1972 are applicable.
The applicant received the amount on 9.8.2011. Therefore, till this date, the applicant
is entitled to interest. The authorities cited by the applicant in the matters of H. Gangahanume
Gowda v. Karnataka Agro Industries Corporation Ltd., and Principal Vidarba Ayurved
Mahavidyalaya and Hospital Amravati and another v. Kausalyabai W/o Prahaladrao
Raghuvanshi and another, fully covered the issue involved in the present Civil Application i.e.
payment of interest under the said Act is liability of respondent Nos. 1 and 2 and that is up to
the date of payment.
It is not necessary for the applicant to file execution for recovery of the said amount
because the present writ petition is still pending before this Court and the present Civil
Application is preferred in the pending Writ Petition. (Mrs. Ananta Vishwanathan Vs. Shri
Narayana Guru High School and others; (2013 (136) FLR 550) (Bombay High Court).
S. 7(3-A), 4 and 14 - Punjab National Bank (Employees) Pension Regulations, 1995 -
Regulation 46 - Gratuity Act - By virtue of section 14 of Gratuity Act, granted superior
status, vis-a-vis, any other enactment (instrument or contract) inconsistent therewith -
Therefore, in so far as the entitlement of an employee to gratuity is concerned, provisions
of Gratuity Act are vested superiority over all other enactments/provisions - However an
employee has right to make a choice to receive better terms of gratuity
A perusal of section 14 leaves no room for any doubt, that a superior status has been
vested in the provisions of the Gratuity Act, vis-à-vis, any other enactment (including any
other instrument or contract) inconsistent therewith. Therefore, insofar as the entitlement of an
employee to gratuity is concerned, it is apparent that in cases where gratuity of an employee is
not regulated under the provisions of the Gratuity Act, the legislature having vested superiority
to the provisions of the Gratuity Act over all other provisions/enactments (including any
instrument or contract having the force of law), the provisions of the Gratuity Act cannot be
ignored. The term “instrument” and the phrase “instrument or contract having the force of
law” shall most definitely be deemed to include the 1995 Regulations, which regulate the
payment of gratuity to the appellant.
First and foremost, Court have concluded on the basis of section 4 of the Gratuity Act
that an employee has the right to make a choice of being governed by some alternative
provision/instrument, other than the Gratuity Act, for drawing the benefit of gratuity. If an
employee makes such a choice, he is provided with a statutory protection, namely, that the
concerned employee would be entitled to receive better terms of gratuity under the said
provision/instrument, in comparison to his entitlement under the Gratuity Act. This protection
has been provided through section 4(5) of the Gratuity Act. Furthermore, from the mandate of
section 14 of the Gratuity Act, it is imperative to further conclude, that the provisions of the
Gratuity Act would have overriding effect, with reference to any inconsistency therewith in
any other provision or instrument. Thus viewed, even if the provisions of the 1995,
Regulations, had debarred payment of interest on account of delayed payment of gratuity, the
same would have been inconsequential. (Y.K. Singla Vs. Punjab National Bank and others;
(2013 (136) FLR 1087) (SC).
Ss 7(4) and 7(7) – Appeal - Not within 120 days - Hence the appeal was rejected by order
dated 15.1.2011 - Stating that the Court has no power to condone this delay - Order was
challenged which was rejected by learned Single Judge by order dated 11.10.2011 - No
error was committed by learned Single Judge in dismissing the writ petition and
confirming the orders passed by Appellate Authority as well as the Controlling
Authority
Any person aggrieved by an order, under sub-clause (4) of section 7, may within 60
days from the receipt of the order, prefer an appeal to the Appellate Authority. Then the
Appellate Authority is at liberty, if sufficient cause is shown, to extend the period of 60 days
for further period of 60 days. The second proviso of section 7(7) provides that no appeal by an
employer shall be admitted unless, at the time of preferring and appeal, the appellant either
produce a certificate of controlling authority to the effect that the appellant has deposited with
him an amount equal to the amount of gratuity.
The Appellate Authority as well as the learned Single Judge of this Court rightly
upheld the preliminary objection of respondent No. 2 regarding maintainability of the appeal
and there is no reason to interfere in the said findings. Accordingly we find no error is
committed by the learned Single Judge in dismissing the writ petition and confirming the
orders passed by the Appellate Authority as well as the Controlling Authority under the
Gratuity Act. (Bhavnagar Municipal Corporation Vs. Vasantben B. Baraya and others;
(2013 (136) FLR 966) (Gujarat High Court).
Ss. 7, 4 and 4-A - Pension Rules - Rules 45-A(1)(C) and 14-B(2)(b)(ii) -Constitution of
India, 1950 - Article 226 - Writ Petition - Challenged the order passed by Appellate
Authority, by which the appeal was dismissed and order passed by Controlling Authority
was confirmed - The Controlling Authority has directed the payment of amount of
gratuity with 10% interest - Gist of reasoning of Controlling Authority that the
respondent was allowed to retire honourably and gratuity could not be withheld -
Respondent would therefore be entitled to payment of gratuity - Gratuity had become
due and payable to respondent within one month of his retirement on 31.5.2010 - But the
same was deposited at appellate stage as pre-condition for filing appeal - Therefore,
direction to pay gratuity amount at 10% cannot be faulted
The Payment of Gratuity Act being a beneficial piece of legislation, on the employer
not complying with the mandate of the said provision, he would be required to pay the amount
with interest.
The direction by the Controlling Authority for payment of the said amount at 10%
cannot be faulted with as the said rate of interest has been arrived at considering the rate at
which repayment is made as notified by the Central Government from time to time for
payment of long term deposits. (Municipal Corporation of Greater Mumbai Vs. Vitthal
Anna Kamble; (2013 (136) FLR 957)(Bombay High Court).
S. 13 - Claim of gratuity - Objection under - By petitioner - In application of respondent
before Competent Authority for a direction to Railway administration to make payment
of gratuity due to him - Objection of petitioner - Railway was rejected and claim of
respondent for gratuity allowed - On ground that objection not maintainable - Objection
under section 13 of Act will no longer come in the way of petitioners from recovering the
Government dues from the gratuity dues of respondent - Question not considered and
decided by Controlling Authority in impugned order -Therefore, the same is absolutely
illegal and quashed-Matter remitted back to reconsider
The objections under section 13 of the Payment of Gratuity Act will no longer come in
the way of the petitioners from recovering the Government dues from the gratuity dues of the
respondent No. 1. But the question still remains whether the respondent No. 1 was in
unauthorized occupation and whether the amount of Rs. 21,376.80 and electricity dues to the
extent of Rs. 5,520.26/- was actually a Government due against the respondent No. 1. This
question having not even been considered and decided by the Controlling Authority-
respondent No. 1 in the impugned order dated 16.1.1996, therefore, the same is absolutely
illegal and without application of mind and is contrary to the law laid down by the Supreme
Court. (Union of India and another Vs. Satya Narain and another; (2013 (136) FLR 120)
(Allahabad High Court).
Gratuity - Withholding of - Because the employee though retired, but failed to vacate the
company quarter and he had taken bank loan which fell due -Impugned order denying
the employer to deduct the penal rent from outstanding dues of employee - Is contrary to
decision laid down by Hon’ble Supreme Court - As such the impugned order is not
sustainable - Impugned order is modified to that extent - Employer is entitled to
deduct/adjust the outstanding penal rent due for period of unauthorised occupation of
official quarters - The rest should be paid to him
It appears that the impugned order denying the employer to deduct penal rent from the
outstanding dues of the employee is contrary to the decision laid by Hon’ble Supreme Court of
India and as such the impugned order is not sustainable. However, instead of quashing the
impugned order it is modified to the extent that the employer is entitled to deduct/adjust the
outstanding penal rent due from the employee-respondent No. 1 for the period of unauthorized
occupation of the official quarters from his outstanding dues and the rest, if any, should be
paid to the employee-respondent No. 1. (Project Officer, S.D.O.-3 Bokaro Vs. Rajaram
Singh and others; (2013 (136) FLR 713) (Jharkhand High Court).
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Penology
Fine—Default sentence—Court under duty to take into consideration relevant
circumstances regarding offence and offender
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)
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Prisoners Act
S. 29—Transfer of prisoner—Ground for consideration—Obligatory for the court to
apply its mind and objectively to circumstances in which transfer is prayed
The Court may make on a request for transfer of a prisoner is bound to affect him
prejudicially, Court cannot but hold that it is obligatory for the Court to apply its mind fairly
and objectively to the circumstances in which the transfer is being prayed for and take a
considered view having regard to the objections which the prisoner may have to offer. There is
in that process of determination and decision making an implicit duty to act fairly, objectively
or in other words to act judicially. It follows that any order of transfer passed in any such
proceedings can be nothing but a judicial order or at least a quasi-judicial one. Inasmuch as the
Trial Court appears to have treated the matter to be administrative and accordingly permitted
the transfer without issuing notice to the undertrials or passing an appropriate order in the
matter, it committed a mistake. A communication received from the prison authorities was
dealt with and disposed of at an administrative level by sending a communication in reply
without due and proper consideration and without passing a considered judicial order which
along could justify a transfer in the case. Such being the position the High Court was right in
declaring the transfer to be void and directing the retransfer of the undertrials to Bombay jail.
(State of Maharashtra vs. Saeed Sohail Sheikh; 2013 (80) ACC 169 (SC)
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Protection of Women from Domestic Violence Act
S. 12 - Application by aggrieved person - Against whom can be maintain
In the petition filed by respondent No. 2, apart from arraying her husband and her
parents-in-law as parties to the proceedings, has included all and sundry, as respondents. To
say the least, she has even alleged certain actions said to have been done by the tenant whose
name is not even known to her.
In a matter of this nature, Court is of the opinion that the High Court at least should
have directed that the petition filed by respondent No. 2 be confined to her husband as also her
parents-in-law and should not have allowed the Impleadment of respondent Nos. 4 to 12.
In view of the above, while allowing this appeal in part, Court quash the proceedings
as against appellant Nos. 4 to 12 in Case No. 240 of 2007. (Ashish Dixit vs. State of U.P.;
2013(2) ALJ 231)
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Provincial of Small Cause Courts Act
S. 23—Return of plaint in suit involving questions of title—Legality of
Section 23 of SCC Act, 1887 has been considered at umpteen times by the Court and
on some occasions by the Apex Court also. The interpretation and mischief covered by Section
23 has been explained and clarified time and again. In Court’s view it is no more res integra.
In Jiya Lal vs. XIth Additional District Judge, Meerut and others 1994 (1) ARC 280, in
paragraphs 7 & 9 of the judgment the Court held:-
“7. A suit by a landlord against a tenant is cognizable by Judge Small Causes Court
on limited questions. The Judge, Small Causes Court cannot decide the
question of title. He has to decide the limited question as to whether there is a
relationship of landlord and tenant between the plaintiff and defendant. The
right of the plaintiff is based on the relationship of landlord and tenant. In case
the plaintiff has based his right on the basis of a title, then the Court has to
return the plaint as provided under Section 23 of the Provincial Small Causes
Courts Act, 1887.
9. The Judge, Small Causes Court has to decide the only question as to whether
the defendant was let out the disputed shop and his possession at the time of
letting was that of a tenant. The controversy as to whether the plaintiff or the
father of the defendant and his uncle are owners of the property in dispute is
outside the jurisdiction of the Judge, Small Causes Court. The possession of a
tenant is the possession of his landlord.”
In Smt. Sughra Begum vs. Additional District Judge XIIth, Lucknow and others; 1999
(1) ARC 582, this Court in paragraphs 11 & 12 said as under:-
“11. In Court’s opinion, under the facts and circumstances of the present case, the
provisions of Section 23 of the Act referred to above were fully attracted.
Otherwise also to avoid multiplicity of proceedings and to cut-short the
litigation, it was necessary either to return the plaint for representation to a
Court of competent jurisdiction or to transfer the suit giving rise to the present
petition to the Court of Civil Judge, Mohanlalganj, as the Judge Small Causes
Court has no jurisdiction to decide the question of title.
12. It is settled law that when in a suit in Small Causes Court, the question of title
is raised, it is expedient for the Court to return the plaint for presentation before
a Court competent to decide such a question. It is not necessary that plaintiff-
defendant should be rival claimants to the immovable property. The object of
Section 23 is to meet cases in which Judge is satisfied that the question is so
intricate that it should not be decided summarily and that it should return a
plaint for presentation to a proper Court. A reference in this regard is made to a
decision in Noola vs. S. Chaman Lal, AIR 1935 All 148.”
In Pratap Singh vs. IXth ADJ, Fatehpur and others, 2000(2) ARC 41, in paragraphs 5,
6 & 7 of the judgment the Court said—
“5.The object of the Section is to enable the Small Cause Court to decline to
exercise its jurisdiction in small causes suit when the right of the plaintiff and
the relief claimed by him depend upon the proof or disproof of a title to an
immovable property or other title which the Small Causes Court cannot finally
determine and to return the plaint to be presented to a Court having jurisdiction
to determine the title. In effect, the rights to, or interests in immovable property
are elaborately excluded, but as questions of this character may arise
incidentally in Small causes suits, a facultative provision is made by Section 23
enabling the Small Causes Court to send the matter to ordinary Civil Court but
not obliging it to do so.
A Small Causes Court is expected to try suits of a comparatively simple
character and, therefore, suits involving question of title should not be
entertained by that Court. Section 23 is intended to enable the Courts of Small
Causes to save their time by returning the plaints in suits which involve enquiry
into the question of title. This Section is designed to meet the cases in which
Judge, Small Causes Court is satisfied that the question of title raised is so
intricate and difficult that it should not be decided summarily but in ordinary
Court in which evidence is recorded in full and the decision is open to appeal.
The underlying principle under Section 23 seems to be that where it is
considered advisable by a Small Causes Court that a final decision on a
question of title, which decision would, if given by an Original Court,
ordinarily be subject to appeal and even to second appeal and which decision
would ordinarily be res judicata between the parties, should be given in the
particular case before a Small Causes Court, by an Original Court, the Small
Causes Court though competent to decide incidentally the question of title in
that particular case might exercise with discretion, the power of returning the
plaint to be presented to the Original Court which would have jurisdiction to so
decide on that title finally. Obviously, the section is designed to meet the cases,
in which the judge, Small Causes Court is satisfied that the question of title
raised is so intricate and difficult that it should not be decided summarily but in
an ordinary Court in which evidence is recorded in full and decision is open to
appeal.
7. Section 23 is framed in optional terms giving discretion to the Court to
Act in the matter or not, and therefore, in suits involving question of title, the
Small Causes Court has discretion either to decide the question of title or to Act
under this section and return the plaint. It is not always bound to return the
same. Nevertheless, when any complicated question of title arises, it would be
the wiser course for Small Causes Court in the exercise of its discretion to Act
under Section 23 and return the plaint.
In Mahendra Pal Singh and others vs. District Judge, Jhansi and another, 2004 (1) ARC
697, this Court said:
“since intricate question of title is involved in the present case, the revisional Court,
had rightly exercised its discretion under Section 23 of the Act in directing the trial
Court to return the plaint for presentation to the proper Court”.
The Apex Court also had occasion to consider Section 23 in Budhu Mal vs. Mahabir
Prasad and others, 1988 (2) ARC 260 (SC). It held that Section 23 does not make it obligatory
on the Court of Small Causes to invariably return the plaint once a question of title is raised by
the tenant but if the suit cannot be construed to be one between landlord and tenant, they
would not be cognizable by the Court of Small Causes, and, it is for these reasons, in such
cases, the plaint ought to have been returned for presentation to appropriate Court so that none
of the parties are prejudiced.
The aforesaid discussion leaves inescapable conclusion that a Small Cause Court is a
Civil Court and has jurisdiction over suits of civil nature. Since the procedure to be followed is
slightly summary in nature than that followed by Civil Courts in regular suits, on the intricate
questions of civil nature, the law requires, to some extent, that they should be decided by Civil
Courts following detail intricate procedure. But one thing cannot be disputed that a Small
Cause Court is a Civil Court. (Moti Lal vs. Trust Sri Thakur Kishori Raman Ji Maharaj;
2013(1) ARC 753)
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 8 th
February, 2005. The present appellants also point out that two other applications, being OA
No. 434/2005 and OA No. 761/2005 filed by similarly situated employees, came to be
dismissed vide orders of the CAT.
The application filed by the present respondent came up before the CAT for hearing on
st
31 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 5 th
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)
Next question which calls for determination is what is date on which the market value
of the property has to be determined. The determination of the market value depends on
different situations relating to the property, which ultimately means what a willing buyer pays
for purchase of the property. The Stamp Act is a taxing statute. What is clearly said is that
there is no room for intendment. There is no equity about a tax. There is no presumption as to
tax. Nothing is to be read in" nothing is to be implied. While construing the provisions of
section 47-A of the Act and other provisions, the duty chargeable on the instrument is the date
of its execution. Consequently, the market value has to be determined on the date the said
document has been executed/registered. The stand of the learned Counsel for the petitioners is
that the agreement to sell came into existence in the year 1966 on account of failure on the part
of the landlord to execute the sale-deed. The suit had to be filed by the petitioners. It is none of
his fault, as such the value given in the instrument should be taken into consideration while
determining the market value of the property. The delay in execution of the sale-deed was on
account of failure on the part of the owner to execute the sale-deed. Even if, during this period,
the value of the property has shoot up that should not impel the petitioner to pay the stamp
duty on the market value to be determined on the date the said sale-deed was executed. It is
true that no one should suffer on account of litigation. Learned Counsel for the petitioners
invited attention of the Court to the principle that no person shall suffer on account of
litigation for a long time. There is no dispute with the principle that the person should not
suffer on account of litigation going on for a long time. However, the fact remains that the
market value of the property is to be determined on the date when the sale deed was executed.
The Act clearly provides that market value of the property has to be determined on the date the
document was executed and registered. (Shanti Bhushan vs. State of U.P.; 2013 (118) RD
756)
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Succession Act
S.2 (h)—“Will”—Meaning and scope
Will is an instrument whereunder a person makes a disposition of his properties to take
effect after his death and which is in its own nature ambulatory and revocable during his
lifetime. It has three essentials:
(1) It must be a legal declaration of the testator’s intention;
(2) That declaration must be with respect to his property; and
(3) The desire of the testator that the said declaration should be effectuated after his
death.
The essential quality of a testamentary disposition is ambulatoriness of revocability
during the executants’ lifetime. Such a document is dependant upon executants’ death for its
vigor and effect.
Section 2(h) of the Indian Succession Act says “Will” means the legal declaration of the
intention of a testator with respect to his property which he desires to be carried into effect
after his death”. In the instant case, the executants were Indian Christians, the rules of law and
the principles of construction laid down in the Indian Succession Act govern the interpretation
of Will. In the interpretation of Will in India, regard must be had to the rules of law and
construction contained in Part VI of the Indian Succession Act and not the rules of the
Interpretation of Statutes. (Mathai Samuel vs. Eapen Eapen (dead) by Lrs. & Ors.; 2013
(1) ARC 1 (SC)
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Tort
Res ipsa loquitur – Negligence in maintaining swimming pool – Applicability of principle
The plaintiff stated in her testimony that she had gone to take a swim on 5.5.1978 in
the swimming pool at Akbar Hotel at about 5 O’clock. According to her, it had been a hot day
and they had gone down to the pool; her father, mother, her younger brother and herself. Whey
they got to the pool side area, her father, brother and mother went ahead to get into the pool
and she stopped that the edge of the pool to take of her robe and her sandals. Thereafter, she
stated that she remembered that her hair got entangled in the strap of her swimming costume.
She took time to fix that up and to untangle it. Then she walked over to the shallow end of the
pool and she jumped into the pool. She stated that when she jumped in the pool she felt that
her feet touched the bottom of the pool and immediately they slid forward throwing her
backwards against the side of the pool. She felt her head strike the side of the pool. Then her
brother and father came over and supported her in the pool and they, with the help of another
person, whom she did not know, lifted heron to the side of the pool. She stated that she
remembered that her father was being very careful in lifting her and he supported her very
gently but very strongly and her head was very stable in the lifting. She stated that when her
feet touched the bottom of the pool, she found it to be very slippery and immediately both her
feet slid forward. She stated that her body was tingling at that time, right from her shoulders
down to her feet. And, then her body started to go numb. She stated that she also had a small
cut on the back of her head where it struck the side of the pool and there was a bit of blood in
the water of the pool. She stated that while they were waiting for the ambulance, they
transported her on a stretcher-like thing to the manger’s room where they waited for about two
hours. Thereafter, she was transported to Holy Family Hospital in the said ambulance. Dr.
Arjun Sehgal was present at the Holy Family Hospital and he took charge of the case. He
arranged to have the X-rays taken. etc.
From the testimony of G.L. Beer, PW 2, also it is apparent that the plaintiff suffered
the injury in the manner indicated by her, that is, when she jumped into the pool in the shallow
end, her feet slipped on the floor of the pool and slid forward and in the process she hit the
back/top of her head on the side of the pool which ultimately resulted in the fracture of her
cervical column around the 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, 22 nd
Edn. 1992, pp. 499-501 and the Law of Negligence by Dr. Chakraborti, 1996 Edn., pp
191-192].”
In the light of the aforesaid decision, it needs to be examined as to whether the above
conditions apply to the present case. First of all, it has to be determined as to whether the
accident is of a kind which does not ordinarily occur in the absence of someone’s negligence.
It is common knowledge that people and most particularly younger persons jump into the
swimming pool. Unless and until there is some negligence, the injury of the kind indicated in
the present case would not ordinarily occur. When one jumps into the swimming pool in the
shallow end, one does not expect that on the feet reaching the floor of the swimming poor, the
same would slip on account of the floor being slippery.
It is therefore, clear that all the three conditions necessary for application of the
doctrine of res ipsa loquitur stand satisfied. (Susan Leigh Beer v. Indian Tourism
Development Corporation Ltd.; 2013 ACJ 605)
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Transfer of Property Act
Ss. 106 and 114—Provision under—Applicability of—Provisions of Sec. 114 of the Act
would not be applicable when the tenancy is terminated by given one months notice U/s.
106
The question as to when Section 114 of Act, 1882 would be attracted is no more res-
integra, have been considered and decided in a number of cases.
In Mohammad Nasir vs. District Judge, Nainital and others 1999(1) AWC 550 this
Court elaborately examined whether the provisions of Section 114 of the Act, 1882 would not
be applicable when the tenancy is terminated by giving one months notice under Section 106
and it was observed:
“Section 114 of the Act confers a power on the Court to grant an equitable relief to the
defaulting lessee. In order to claim benefit under this section, it has to be shown by the
tenant that one of the terms of the lease was that the landlord will have a right of re-
entry if the rent for any specified period remained unpaid and he has to show further
that forfeiture has been incurred as provided under Section 111(g). Section 114, of the
Act thus postulates existence of determination of lease by forfeiture as a condition
precedent and provisions contained in this section will have no application where the
lease has been determined by serving a notice to quit under Section 106, of the Act.
The relief under Section 114 of the Act is confined to those cases only which are
strictly covered under Section 111(g) and not to those cases which fall under Section
106 of the Act. A monthly tenancy is determinable by one month’s notice by either
party and if the tenancy is terminated by serving one month’s notice under Section 106
of the Act, there is no forfeiture of tenancy and in that event, Section 114 cannot be
applied. Thus, a notice under Section 106, of the Act by no means could be treated as
one under Section 111(g).
Section 114 applies to those cases where the landlord invokes his rights under
what is known as forfeiture clause and determines the lease by forfeiture and sues for
the ejectment of the tenant. I may illustrate it by an example which will make the
picture more clear. Suppose there is a lease for a fixed term of five years containing a
clause that the landlord will be entitled to determine the lease and to re-enter upon the
demised premises even during the period of five years if the tenant does not pay rent
for more than three months. But for this clause, the lease must run for the entire period
of five years and the landlord during the said period will have no right to eject the
tenant before the expiry of the fixed period of five years. If the tenant fails to pay rent
for more than three months, forfeiture clause enables the landlord to determine the
lease before its expiration. In such a case, the subsisting tenancy cannot be determined
by serving a notice simpliciter under Section 106 of the Act and it can only be
determined where the landlord forfeits the tenancy by serving a notice under Section
111(g). In such an event, Section 114 can be pressed into service but where the tenancy
runs from month to month and the same has been determined by a valid notice under
Section 106 of the Act, Section 114 of the Act shall have no application.
In view of above exposition of law and the discussion made hereinabove, Court do not
find any illegality, legal or otherwise, in the orders impugned in this writ petition so as to
warrant interference. (Nizamuddin vs. Smt. Bushra Khatoon and others; 2013 (1) ARC
746)
S. 106 - Non-maintaining reason in quit notice for termination of tenancy - Effect of -
Section 106 does not contemplate to mention any reason for termination of tenancy
Section 106 of the Transfer of Property Act 1882 does not contemplate the mentioning
of any reason for terminating the tenancy. This question has been adequately considered and
answered by the Supreme Court in the case reported in (1994) Supp (3) SCC 694 Zeevan Das
vs. Life Insurance Corporation of India and another. Paragraph 4 of the said judgement
reads as under:
“4. Section 106 of the T.P. Act does indicate that the landlord is entitled to terminate
the tenancy by giving 15 days' notice, if it is a premises occupied on monthly tenancy
and by giving 6 months' notice if the premises are occupied for agricultural or
manufacturing purposes, and on expiry thereof proceedings could be initiated. Section
106 of the T.P. Act does not contemplate of giving any reason for terminating the
tenancy. Equally the definition of the public premises 'unauthorised occupation' under
Section 2(g) of the Act postulates that the tenancy "has been determined for any reason
whatsoever". When the statute has advisedly given wide powers to the public
authorities under the Act to determine the tenancy, it is not permissible to cut down the
width of the power by reading into it the reasonable and justifiable grounds for
initiating action for terminating the tenancy under section 106 of the T.P. Act. If it is so
read Section 106 of T.P. Act and Section 2(g) of the Act would become ultra vires. The
statute advisedly empowered the authority to act in the public interest and determine
the tenancy or leave or licence before taking action under Section 5 of the Act. If the
contention of the appellant is given acceptance he would be put on a higher pedestal
than a statutory tenant under the Rent Act. Take for example that a premises is let out
at a low rent year back like the present one. The rent is unrealistic. With a view to
revise adequate market rent, tenant became liable to ejectment. The contention then is,
action is violative of Article 21 offending right to livelihood. This contention too is
devoid of any substance. An owner is entitled to deal with his property in his own way
profitable in its use and occupation. A public authority is equally entitled to use the
public property to the best advantage as a commercial venture. As an integral incidence
of ejectment of a tenant/licensee is inevitable. So the doctrine of livelihood cannot
indiscriminately be extended to the area of commercial operation. Therefore, we do not
find any substance in the contentions of the appellant. The appeal is accordingly
dismissed. No costs.”
(Vishnu Dutt Tripathi vs. VI Addl. District Judge, Kanpur Nagar; 2012(2) ALJ 148)
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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)
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Statutory Provisions
English translation of Kar Evam Nibandhan Anubhag-7, Noti. No. K.N.-7-791XI-2012-
312(98)-2012, dated December 5, 2012, published In the U.P. Gazette, Extra., Part 4,
Section (Kha), dated 5th December, 2012, pp. 3-4
In exercise of the powers under clause (a) of sub-section (1) of Section 9 of the Indian
Stamp Act, 1899 (Act No. 2 of 1899) as amended from time to time in its application to Uttar
Pradesh read with Section 21 of the General Clauses Act, 1897 (Act No. 10 of 1897) the
Governor is pleased to remit with effect from the date of publication of this notification in the
Gazette, the stamp duty to the extent shown in Column 3 of the Schedule below, chargeable in
respect of the instruments as shown in Column 4 of the said Schedule for the purpose provided
in Paragraph 5.1.1 and 5.1.2 of the Infrastructure and Industrial Investment Policy, 2012, of
the State as mentioned in Column 2 of the said Schedule.
SCHEDULE
1 2 3 4
5.1.1 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-
Conveyance,
(a) for the units to be established in Purvanchal clause (a) of Ar
Madhyanchal and Bundelkhand and lease under
35 Conveyance
(b) for the units of Information
clause (a) of Ar
Technology, Bio Technology,
and lease under
Business Processing Outsourcing,
35
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 100% Conveyance, u
of infrastructure facilities (such as road, Bridges, clause (a) of Art
Over-bridge, Wholesale Market, Trans-Shipment
Centres, Unified Transport and Commercial
Centres, generation, transmission and
distribution of electricity, water supply, water 100%
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 Conveyance, und
clauses (a), (b) and (c) above; clause (a) of Artic
For the purchase of land from the private and lease under A
sources- (a) by an unit falling under sub-clauses 35
(a), (b) or (c) of Para 5.1.1,
(b) by an unit other than those mentioned in Conveyance,
clause (a) clause (a) of Ar
Conveyance,
5.1.2 100% clause (a) of Artic
75%
100%
50%
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."
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—
(2) After entry at Serial No. 229, the following new entry at Serial No. 229-A shall
column wise be inserted, Namely—
Sl. Name of Revenue areas forming limits of Place or place of Combi-ned Title
No. Courts jurisdiction sittings officer
1 2 3 4 5 6
229- Civil Entire revenue area of Tehsils Lalganj Ajhara -- Civil Judges (Jun
A Judges Tehsil Lalganj Ajhara of District Division Pratapgarh
(Junior Pratapgarh
Division
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:-
''अअअअअअअअ अअअअअअ अअअअअ
अअअअअअअ अअअअअअअअअअ अअ अअअअ अअअअअ अअअअअअअ अअअअअअअ अअ
अअअअअअ अअअ अअ अअअअअ अअअअअअ अअ अअअअ अअअअ अअ अअअअ अअअअ
अअअअ अअ अअअ अअअअअअअ अअअअअअअ अअ अअअअ अअअ अअअअअअअअ अअ अअ
अअअअअअअ अअअअअ अअ अअअअअअअअ अअअअ अअ अअ अअअ अअअअअअअअ
अअअअअअ अअ अअ अअ अअअअअअअ अअ अअअअअअअ अअ 10 अअअअअअअ अअ अअअअअ
अअअअअअअअ अअअअअअ अअअअअ अअअअअअअ अअअअअ
G.O. No. 2811/DO-4-2008 dated 10.6.2009 also prescribes procedure of its
payment which is as follows:-
'' अअ अअअअअअअ अअअ अअअअ अअ अअ अअअअअअअ अअअअअअअ अअअ अअ अअ
अअअअअअअ अअअअअअअअअअ अअ अअअअअअअ अअअअअअअअ अअअअअअ अअअअअ
अअ अअअअअअअ अअअअअअ अअ अअ अअअअअअअअअ अअअअअअ अअ अअअअअअअ
अअअअअअअअ अअअअअ अअअअ अअ अअ अअअअअअअ अअअ अअ: अअअअ अअअअअअ
अअअअअअअ अअअअअ अअअअ अअअअअअअअ अअअअअअअ अअअअअअअ अअ अअ
अअअअअअअअ अअअअअअअ अअ, अअअअअअ अअ अअअअअअ अअअअअअअअअ अअअअअअ
अअ अअअअ अअअअ अअ अअअअअ अअअअ अअअ अअअअअअअअअ अअअअ अअअअअअ
अअअअ अअअअअअअ
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.
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