Motor Vehicles – Modification of Scheme

2014 STPL(Web) 867 SC (SC)(DB) - Judgment Date: 18-12-2014 - Speaking order required

B.A. LINGA REDDY ETC. ETC. Vs. KARNATAKA STATE TRANSPORT AUTHORITY & ORS.

Motor Vehicles Act, 1988, Section 102 – Modification of Scheme – Principles of Natural Justice – Speaking Order – Held that modification of the scheme is a quasi-judicial function – While modifying or cancelling a scheme, the State Government is duty-bound to consider the objections and to give reasons either to accept or reject them – The rule of reason is anti-thesis to arbitrariness in action and is a necessary concomitant of the principles of natural justice – There is no consideration of the objections except mentioning the arguments of the rival parties – Objections both factual and legal have not been considered much less reasons assigned to overrule them – Even in brief, reasons have not been assigned indicating how objections are disposed of – Modification of the Schemes could not be said to be in accordance with the principles of natural justice in the absence of reasons so as to reach the conclusion that private operators are meeting the genuine demands of the public in excess of the service provided by the STOs., hence, it cannot be said to be sustainable -The appeals being bereft of merits liable to be dismissed – State Government to hear the objections, consider and decide the same in accordance with law by a reasoned order within 3 months – In the intervening period, the arrangement as directed by the High Court in the impugned order to continue.

Service Law – Termination

2014 STPL(Web) 866 SC (SC)(DB) - Judgment Date: 18-12-2014 - Compensation in lieu of reinstatement ordered

STATE OF U.P. & ORS. Vs. PARMANAND SHUKLA (DEAD) THR. L.RS.

Constitution of India, Articles 14 and 226 – Termination – Compensation in Lieu of Reinstatement – Apex Court has already upheld the main order passed by the High Court – The present case of respondent though came to be decided later in point of time, but it was identical in nature with the cases which were the subject matter of decided case – The original respondent of this case was also entitled to claim the same benefits, which were granted to other similarly situated employees like him by the High Court – Since the original respondent, in the meantime, died and was deprived of the benefit of enjoying the relief of reinstatement in State services along with other similarly situated employees, he was at least entitled to be compensated by paying money compensation to enable his large family to survive due to his untimely death – Keeping in view the statement of details of payment of monthly salary filed by the respondents-Legal Representatives coupled with other material factors the interest of justice would demand that the respondents are to be paid in lump sum a total sum of Rs. 10 Lacs by the appellant-State in full and final settlement of all the claims arising out of this litigation relating to the service of the original respondent.

Arbitration – Appointment of arbitrator – Pendency of application

2014 STPL(Web) 865 SC (SC)(DB) - Judgment Date: 18-12-2014 - Arbitration can commence

ANIL S/O JAGANNATH RANA AND OTHERS Vs. RAJENDRA S/O RADHAKISHAN RANA AND OTHERS

Arbitration and Conciliation Act, 1996, Section 8(1) and 8(3) – Arbitration Agreement – Under Section 8(1) of the Act, either party is free to apply to the judicial authority within the prescribed time to refer the parties to arbitration, in case the matter pending before it is the subject matter of an arbitration agreement – Section 8(3) of the Act however makes it clear that notwithstanding the application under Section 8(1) of the Act and the issue pending before the judicial authority, arbitration may be commenced or continued and an arbitral award can also be made – In other words, despite the pendency of an application under Section 8(1) of the Act before the judicial authority, Section 8(3) of the Act permits the parties to commence and continue the arbitration and the arbitral tribunal is free to pass an award.

Dowry Death – Dying declaration

2014 STPL(Web) 864 SC (SC)(DB) - Judgment Date: 18-12-2014 - Acquittal

BANARSI DASS AND OTHERS Vs. STATE OF HARYANA

Evidence Act, 1872, Section 32(1) – Dying Declaration – The incident occurred on 18.06.1998 whereas the death is on 04.08.1998 – Exhibit-PM-dying declaration was recorded on 18.06.1998 itself – At the time of recording of the statement, the condition of the patient no doubt was very stable and she was in a very good state of mind as recorded by the doctor – The burn injury was only 40-45% of the body and, according to doctor 40-45% burns is not fatal and such a patient can be saved if given proper treatment – It has also come out in evidence that the death is not caused by the burns but because of septicemia, an infection on account of improper management of the wounds – It is fairly clear that the patient on 18.06.1998 was not apprehending death, not merely because she lived for more than seven weeks after the incident but because of the nature of the burn injuries – Held that Exhibit-PM-declaration does not meet the requirements of a dying declaration under Section 32(1) of the Evidence Act.

Arbitration – Arbitration Clause

2014 STPL(Web) 863 SC (SC)(DB) - Judgment Date: 17-12-2014 - Clause not related to arbitration. Arbitration not maintainable

INTERNATIONAL AMUSEMENT LIMITED Vs. INDIA TRADE PROMOTION ORGANISATION & ANR.

Arbitration and Conciliation Act, 1996, Sections 11(6), 16 – Arbitration Clause – Agreement entered into between the parties in which arbitration clauses 27 and 28 were incorporated that the licensed premises are public premises as defined in the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and fall within the jurisdiction of the Estate Office and in case of any dispute arising out of or in connection with this agreement the disputes shall be referred to the sole arbitration of the Chairman, India Trade Promotion Organisation or his nominee whose decision/award shall be final, conclusive and binding on the parties – Findings by High Court on the writ petition filed by the ITPO holding that the matters enumerated under Section 15 of the P.P. Act cannot be referred to arbitration for adjudication for arbitrator – Held that the clause 28 in the agreement on the case on hand is not an arbitration clause – Therefore, the appointment of an Arbitrator by the nominee of the Chief Justice has been rightly set aside in the impugned judgment by the Division Bench of the Delhi High Court – The other proceedings involved in this case, if any, pending under the provisions of the P.P. Act before the Estate Officer, the same shall be continued by him.

Electrocution – Compensation

2014 STPL(Web) 862 SC (SC)(DB) - Judgment Date: 17-12-2014 - Compensation allowed

RAMAN Vs. UTTAR HARYANA BIJLI VITRAN NIGAM LTD. & ORS.

Constitution of India, Articles 21 and 226 – Electrocution – Compensation – Writ Jurisdiction – 100% permanent disability suffered by the appellant in the electrocution accident – On account of which he lost all the amenities and become a deadwood throughout his life – Compensation of Rs. 60 lacs awarded by the Ld. Single Judge of the High Court – Directed that the amount be deposited in Bank and monthly amount of Rs. 20,000/- directed to be paid to the appellant-claimant – Division Bench on concession given by counsel reduced the monthly amount to be to R. 10,000/– Impugned judgment and order of the Division Bench of the High Court modifying the judgment of ld. Singly judge set aside – The compensation awarded at sub-paras (v) and (vi) of the order of the learned single Judge restored and modified: (a) in the modified form that the compensation is awarded with direction to the respondents to keep Rs.30 lakhs in the Nationalised Bank in the name of the appellant represented by his father as a natural guardian till the age of attaining majority of the appellant. (b) The further direction contained in the judgment of the learned Single Judge that if the appellant is not alive at the time of attaining the age of majority, the deposit amount shall be reverted to the respondents, set aside. (c) further declared that the said amount of compensation of Rs.30 lakhs exclusively belongs to the appellant and after his demise it must go to the legal heirs or representatives as it is the exclusive estate of the appellant as the it is the compensation awarded to him for the 100% permanent disability suffered by him due to electrocution on account of the negligence of the respondents – Further directions as regards mode of payment of amount to the appellant given.

FIR – Non-mentioning of name of Accused

2014 STPL(Web) 861 SC (SC)(DB) - Judgment Date: 17-12-2014 - Conviction

STATE OF PUNJAB Vs. JAGGA SINGH ETC.

Penal Code, 1860, Section 302 – Criminal Procedure Code, 1973, Section 154 – Murder – FIR – Non-mentioning of name of Accused – Appreciation of evidence – Testimony of the investigating officer PW 23 S.I. that he arrested two accused in the presence of PW1 – PWs 1 and 2 have also identified both of them as assailants during the trial in the court –Held that the omission to mention their names in the complaint does not affect the prosecution case and there is no doubt about the identity of the said accused.

Writ Jurisdiction – Arbitration Clause

2014 STPL(Web) 860 SC (SC)(DB) - Judgment Date: 17-12-2014 - Writ maintainable

RAM BARAI SINGH & CO. Vs. STATE OF BIHAR & ORS.

Constitution of India, Articles 14 and 226 – Writ Jurisdiction – Arbitration Clause – Alternative Remedy – Held that a constitutional remedy by way of writ petition is always available to an aggrieved party and an arbitration clause in an agreement between the parties cannot ipso facto render a writ petition “not maintainable” – Availability of alternative remedy is definitely a permissible ground for refusal by a writ court to exercise its jurisdiction in appropriate cases – But once the respondents had not objected to entertainment of the writ petition on ground of availability of alternative remedy, the final judgment rendered on merits cannot be faulted and set aside only on noticing by the Division Bench that an alternative remedy by way of arbitration clause could have been resorted to.

Sexual Harassment – Sitting Judge of High Court – In-house Procedure

2014 STPL(Web) 859 SC (SC)(DB) - Judgment Date: 18-12-2014 - Directions issued

ADDITIONAL DISTRICT AND SESSIONS JUDGE 'X' Vs. REGISTRAR GENERAL, HIGH COURT OF MADHYA PRADESH AND OTHERS

Constitution of India, Article 32 – Sexual Harassment of Lady Additional and Sessions Judge – Complaint against Sitting Judge of High Court – In-house Procedure – By forwarding the complaint received by the Chief Justice of India against respondent no.3 – Justice ‘A’, to the Chief Justice of the High Court, the “in-house procedure” was sought to be put in motion – It is apparent from the “seven steps”, of the “in-house procedure”, for sitting High Court Judges, that the role of the Chief Justice of the High Court, is limited to the first three steps – it was not open to the Chief Justice of the High Court, either to constitute the “two-Judge Committee”, or to require the “two-Judge Committee”, to hold an inquiry into the matter, by recording statements of witnesses – The role of the Chief Justice of the High Court, being limited to the first stage of the investigative process, during which the only determination is, whether a prima facie case is made out requiring a deeper probe -The Chief Justice of the High Court had exceeded the authority vested in him under the “in-house procedure” – It is only in the second stage of the investigative process, that the Chief Justice of India, is to constitute a “three-member Committee” for holding a deeper probe, into the allegations levelled in the complaint – Petitioner fully justified, in submitting, that the “two-Judge Committee” constituted by the Chief Justice of the High Court, was beyond the purview of the “in-house procedure” – Proceedings adopted by the Chief Justice of the High Court are liable to be set aside – It is no longer viable, to strictly follow the “in-house procedure” contemplated for sitting judges of the High Court de novo – It is left to the Chief Justice of India, to take a fresh call on the matter – All that needs to be done is, that the role assigned to the Chief Justice of the concerned High Court, in the first stage of the “in-house procedure”, will now have to be assigned to someone other than the Chief Justice of the concerned High Court – In taking a decision on the matter, the Chief Justice of India may assign the above role to a Chief Justice, of some other High Court – Or alternatively, he may himself assume the said role.

Service Law – Appointment by Transfer – Seniority

2014 STPL(Web) 858 SC (SC)(DB) - Judgment Date: 18-12-2014 - Not entitled to seniority from their initial appointment

KUMOD KUMAR & ANOTHER Vs. STATE OF JHARKHAND & OTHERS

Bihar Police Manual, 1978, clause 3(e)(i) and clause (9) of Rule 7A, under Chapter 1A, Chapter 20, Rules 653 to 656 – Bihar Police Manual, 1978, Volume III, Appendix 42 – Police Act , 1861, Section 7 and 12 – Absorption (on reversion) – Seniority – The comparative analysis of selection and appointment of Sub- Inspectors/Assistant Sub-Inspectors of Police in the general line, and that of Steno Sub-Inspectors/Steno Assistant Sub-Inspectors, leaves no room for any doubt, that those inducted into the general line of the police force, constitute a separate and distinct cadre, as against those recruited as Steno Sub-Inspectors/Steno Assistant Sub-Inspectors in the “Miscellaneous Force” of the Police Department – The above conclusion gets further credence from the fact, that the duties which Steno Sub-Inspectors/Steno Assistant Sub-Inspectors discharge, are totally dissimilar from the responsibilities assigned to Sub-Inspectors/Assistant Sub-Inspectors in the general line of the police force – While the former are assigned only stenography work, the latter perform traditional police duties – Held that the conclusion by the High Court that Steno Sub-Inspectors/Steno Assistant Sub-Inspectors are a part of a different cadre vis-a-vis Sub-Inspectors/Assistant Sub-Inspectors of the general line upheld – Appellant held not entitled to seniority from their initial appointment Steno Sub-Inspectors/Steno Assistant Sub-Inspectors but from the date they were appointed Sub- Inspectors/Assistant Sub-Inspectors of Police in the general line.

Eviction – User Charges

2014 STPL(Web) 857 SC (SC)(DB) - Judgment Date: 18-12-2014 - User charges imposed

SATENDRA SINGH Vs. VINOD KUMAR BHALOTIA

Constitution of India, Article 142 -Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, Section 2(2) Explanation 1(a) – Transfer of Property Act, 1882, Section 106 – Eviction – User Charges – Shop was rented by the respondent to the petitioner, for the period from August, 1981 to June, 1982 – As the petitioner did not vacate the premises on the expiry of the period depicted in the rent agreement dated 1.8.1981, a suit for the eviction of the petitioner was filed by the respondent on 24.11.1982 – The defence of the petitioner under 1972 Act and Section 106 of the 1882 Act held to be frivolous – Plea regarding payment of rent also found false – In exercise of jurisdiction under Article 142 user charges @ 1,000- p.m. commencing from 1.7.1982, for remaining in occupation of the rented premises, after the expiry of the rent agreement imposed on the petitioner to be to the respondent-landlord.

Mobile Charger – Concessional Rate of Tax

2014 STPL(Web) 856 SC (SC)(DB) - Judgment Date: 17-12-2014 - No concessional rate of tax to charger

STATE OF PUNJAB & ORS. Vs. NOKIA INDIA PVT. LTD.

Punjab Value Added Tax Act, 2005, Section 26, 32(1), 53, Schedule B, Entry 60, 60(6)(g) – Punjab Value Added Tax Rules, 2005, Rules 36 and 43 – Mobile/ Cellphone Charger – Concessional Rate of Tax – Held that the Assessing Authority, Appellate Authority and the Tribunal rightly held that the mobile/cell phone charger is an accessory to cell phone and is not a part of the cell phone -The battery charger cannot be held to be a composite part of the cell phone but is an independent product which can be sold separately, without selling the cell phone – The impugned orders passed by the High Court liable to be set aside and the order passed by the Tribunal affirmed.

Government Dues – Non-payment – Sale of Property

2014 STPL(Web) 855 SC (SC)(DB) - Judgment Date: 11-12-2014 - Sale set aside & property restored

SRI PRABIN RAM PHUKAN & ANR. Vs. STATE OF ASSAM & ORS.

Constitution of India, Article 227 – Assam Land and Revenue Regulation, 1886, Section 3(b), Section 72 read with Rules 133, 134, 136 and 136-A – Government Dues – Non-payment – Sale of Property – Finding of fact – Writ jurisdiction – Well reasoned finding of fact recorded by the Board in favour of the appellants (landholders) on the question of non-service of notice of the demand for payment of defaulted amount of arrears of land revenue of Rs. 731.70 and non-service of notice of sale of land was binding on the writ court, being a pure finding of fact based on proper appreciation of facts – High Court exceeded its jurisdiction when it proceeded to examine this factual issue like an appellate court and reversed the factual finding – The writ court did not assign any cogent reason as to why the factual finding of the Board on this issue was wrong and hence, call for interference – The requirement of Section 72 read with Rules 133, 134, 136 and 136-A which deals with the mode of effecting service on the defaulting landholder not complied with – The impugned judgment liable to be is set aside and that of the Board restored – State (respondent no. 1) directed to pay the amount of compensation deposited by the IOC for the land allotted to them to the appellants along with interest on the said amount at the rate of 6 % payable from the date of deposit till paid to the appellants -The State is also directed to restore the possession of the remaining land, i.e., the land excluding the land allotted to IOC to the appellants within three months after making proper verification and demarcation of the land in question.

Industrial Dispute – Maintainability of Reference

2014 STPL(Web) 2114 BOMBAY (SC)(DB) - Reference to be decided after Unfair Labour Practice complaint

BASF INDIA LTD., CONSTRUCTION CHEMICALS DIVISION Vs. GOVERNMENT OF MAHARASHTRA

M.R.T.U. and P.U.L.P. Act, 1971 – Section 59 and Schedule II and IV – Industrial Dispute – Maintainability of Reference – Pendency of U.L.P. Complaint – Disputed issue of employer-employee relationship – U.L.P. proceedings and reference proceedings could not be entertained simultaneously – Counter demand of petitioner was not referred to Industrial Tribunal – When U.L.P. Complaint was pending and was expedited under orders of Single Judge of this Court, reference proceedings cannot be entertained until issue of employer-employee relationship was decided in U.L.P. proceedings – Petitioner is a factory engaging in business of manufacturing construction chemicals – Petitioner employees about 35 workmen on its roll – Found that unless employer-employee relationship is established between litigating sides, demands raised by respondent No.3/Union cannot be entertained as against petitioner – Even so, when question of this kind is raised before Courts, Courts must attempt to construe reference not too technically or in a pedantic manner, but fairly and reasonably – Prima facie held that issue of employer-employee relationship is involved in both of these U.L.P. and Reference proceedings – Found that U.L.P. Complaint needs to be decided expeditiously prior to taking up reference proceedings for hearing as it would lead to a judicial pronouncement on issue of employer-employee relationship – This would be in aid of reference proceedings thereafter – Directions issued – Writ Petition partly allowed..

Industrial Disputes – Contract Labour

2014 STPL(Web) 2113 DELHI (DEL) - No regularization

VINAY SHARMA AND OTHERS Vs. INDRAPRASTHA GAS LTD.

Industrial Disputes Act, 1947 – Sections 10 and 10(4) – Industrial Disputes – Contract Labour – Workmen were in employment of contractors and not in employment of 1st respondent – Employer-Employee relationship not existed – To prove such a relationship, petitioners were necessary required to plead and prove that contract between respondent No. 1 and contractor is a sham, nominal and camouflage as in reality, they are employees of principal employer – Held that neither reference was made about relationship, or contract being sham, nominal and camouflage nor petitioners have pleaded/ proved that contract was sham, nominal and camouflage – Consideration has to be through a process of open selection in terms of Recruitment Rules – Tribunal has rightly answered reference denying claim of regularization of petitioners Writ Petition dismissed.

MACT – Notional Income

2014 STPL(Web) 2112 ALLAHABAD (ALL)(DB) - Compensation allowed

BAJRANG PRASAD AND ANOTHER Vs. SMT. MADHU GOEL AND ANOTHER

Motor Vehicles Act, 1988 – Sections 166, 168 and 173 – MACT – Notional Income – Deceased was unmarried and non-working girl – Notional Income of Rs. 3,000/- per month was rightly taken – Compensation enhanced – Held that compensation is not a source of profit or earning – Deceased was unmarried, so 50% is to be deducted – By looking age of parents, multiplier of 11 was rightly applied – Thus, plea that multiplier was wrongly applied, is not sustainable in the eye of law for reason that no age proof was given – By applying multiplier of 11, total compensation comes to Rs. 1,98,000+4,500 = Rs. 2,02,500/- along with interest @ 6% per annum – Compensation enhanced from Rs. 1,83,793/- to Rs. 2,02,500/- Modified impugned judgment and award to that effect – Appeal partly allowed.

Electrocution

2014 STPL(Web) 2111 MADRAS (MAD) - Ex gratia payment not curtail rights of compensation

ARULAPPAN Vs. SECRETARY TO GOVT. OF TAMIL NADU, ELECTRICITY BOARD DEPT.

Electricity Act, 2003 – Section 53 – Constitution of India, 1950 – Article 226 – Electrocution – Ex gratia Payment – Death due to electrocution – Payment of ex-gratia to accident victim – Does not represent just compensation – In law ex-gratia payment is payment made without giver recognizing any liability or legal obligation – Merely because an ex-gratia payment has been made by Chief Minister of State extending her goodwill that would not curtail rights of minor daughter of victim of electrocution to claim a just compensation from State Authorities – Held that Rs. 1,50,000/- paid as compensation, does not represent just compensation – Value of life, is immeasurable and it cannot be restricted to such a low sum – Petitioner is stated to be 75 years – Minor child has lost love and affection of her mother – Whereabouts of father is not known – Ex gratia does not take away right of a person to claim just compensation.

MACT – Recovery Rights

2014 STPL(Web) 2110 HP (HP) - Recovery right upheld

NIRMALA DEVI & ANOTHER Vs. SH. RAVINDER KUMAR & OTHERS

Motor Vehicles Act, 1988 – Sections 279, 337, 338 and 201 – MACT – Recovery Rights – Third Party Cover – Accused minor without valid and effective driving licence – Owner/insured came to be rightly saddled with liability – Tribunal has rightly held that driver of offending scooter was not having valid and effective driving licence – Her son, who was minor at relevant point of time, has caused accident, she cannot avoid liability – Further, she has not lodged any complaint against her son for taking and driving scooter without her consent – Injured/claimant is a third party, is covered in terms of tin insurance contract – Thus, Tribunal has rightly granted right of recovery to insurer of offending scooter and owner/insured came to be rightly saddled with liability – Claimant/injured is entitled for compensation to tune of Rs. 2,48,967/- with interest @ 7.5% per annum – Impugned award is upheld – Both Appeals dismissed.

Dishonor of Cheque – Compounding

2014 STPL(Web) 2109 HP (HP) - Compounding allowed

BALBIR SINGH Vs. YASH PAL THAKUR

Negotiable Instrument Act, 1881 – Sections 138 and 147 – Criminal Procedure Code, 1973 – Sections 320 and 482 – Dishonor of Cheque – Compounding – Offence against a private individual not State – Parties has settled amicably outside Court – Petitioner has already paid settled amount by way of deposit of Rs.12,000/- before Trial Court and balance amount of Rs.25,000/- has been paid by petitioner to respondent which is acknowledged by respondent – This is not a case wherein offence for which petitioner has been charged can ‘stricto senso’ termed to be an offence against State – Even otherwise, complainant/respondent does not want to pursue case, therefore, possibility of conviction of petitioner is not only remote but impossible – Therefore, quashing of complaint initiated at instance of respondent/complainant would be a step towards securing ends of justice and to prevent abuse of process of Court – Found this to be a fit case to exercise powers under not only Sections 397 & 401, but Section 482 Cr. P.C. – Impugned judgment and orders are quashed and set-aside – Petitioner is acquitted – Criminal Revision Petition allowed.

Company – Winding up – Advertisement

2014 STPL(Web) 2108 DELHI (DEL)(DB) - No stay on publication of advertisement

INDO ROLHARD INDUSTRIES LTD. Vs. M. K. MAHAJAN & ANR.

Companies Act, 1956, Sections. 433(c), 433(e), 434(1)(a) & 434(1)(c) – Companies (Court) Rules, 1959, Rules 9 & 29 – Winding up – Admission of Petition – Advertisement – Deferment of publication – Order of admission of winding up petition challenged by appellant before Division Bench by way of filing appeal – Said appeal limited to procedure to be adopted after admission of winding up petition – Merits of findings which led to admission of petition were not assailed in said appeal – Held, there was no reason why advertisement should be deferred, more so as appellant had not availed of opportunity granted to it by Division Bench to move an application for deferment of advertisement of petition – Even otherwise, there did not appear to be any special circumstances which would warrant deferment or suspension of publication of advertisement – Appellant had sufficient opportunity to settle claims of respondents – Deferment of publication of advertisement to enable appellant to pay to respondent admitted dues was thus no longer warranted – Present appeal appears to be only an attempt to protract proceedings – Lacks of bona fides of appellant company are more than apparent from record – Appeal dismissed.

Industrial Dispute – Employer-employee Relationship

2014 STPL(Web) 2107 DELHI (DEL)(DB) - No Employer-employee relationship found

GOPAL Vs. BHARAT SANCHAR NIGAM LTD.

Industrial Disputes Act, 1947, Sections 17B, 25G & 25N – Employer-employee Relationship – Retrenchment – Compensation – Security personnel hired through contractor by BSNL – Appellants have not proved relationship of employer and employee – Appellants have not produced any document to prove employment – Held, respondent being a Public Sector Undertaking cannot employ any person without issuance of appointment letter and maintaining proper records of wages – Since issue as to whether contract between respondent and contractors were sham and camouflage, was not even referred to Tribunal, therefore, Tribunal erred in giving a finding with respect to same – Appellants have received wages in range of Rs.3,00,000/- u/s.17B of Industrial Disputes Act which is treated as compensation and appellants are therefore not liable to return same – Appeals dismissed.

Practice and Procedure – Non appearance of Parties in Appeal

2014 STPL(Web) 2106 NC (NC) - Appeal to be decided on merit

KANPUR DEVELOPMENT AUTHORITY Vs. RAMSIYA GUPTA

Consumer Protection Act, 1986 – Sections 15, 17, 19 and 21 – Practice and Procedure – Non appearance of Parties in Appeal – Appeal dismissed without dealing on merit by merely saying that order of District Forum is correct – Revision – Held: State Commission either should have dismissed appeal in default or should have decided appeal on merits after considering all the grounds raised in memo of appeal. Matter remand back to the State Commission for disposal by speaking order after dealing with all the contentions and arguments raised by the petitioner.

Consumer – Insurance – Repudiation of Death Claim

2014 STPL(Web) 2105 NC (NC) - Compliant dismissed

NATIONAL INSURANCE CO. LTD. THROUGH MANAGER Vs. APARNA KAHAR

Consumer Protection Act, 1986—Sections 15, 17, 19 and 21 – Insurance – Repudiation of Death Claim on ground that death due to coronary heart disease and was not an accident – Revision against allowing complaint – Held: As per medical report death caused due to coronary heart disease. As per terms and conditions of policy, claim was payable only when death was result of accident caused by external visible and violent means – There was no external injury on body of deceased and death was not caused by accident due to external visible and violent means, claim was not payable – Findings of District Forum and State Commission are contrary to record – Revision allowed and complaint dismissed.

Education – Approval

2014 STPL(Web) 2104 MP (MP)(DB) - Withdrawal of extension of approval set aside

SWAMI VIVEKANAND COLLEGE OF SCIENCE & TECHNOLOGY Vs. ALL INDIA COUNCIL FOR TECHNICAL EDUCATION

All India Council for Technical Education Act,1987, Section 10 – Extension of Approval – Withdrawal of Extension – Irregularities committed right from the academic session 2006-2007 up to 2011-2012 – No adverse action is taken – The recognition and approval granted continued and the students have passed out and no action has been taken against the Society for this period – It is only for the period 2012-2013 and 2013-2014 that action is taken – Expert Committee report dated 10.5.2014 indicates that everything is in order and approval could be granted – That being so in the facts and circumstances of this case particularly in the light of the Inspection Report dated 10.5.2014 that has come on record, the period from 2012-2013 and 2013-2014 should also be regularized now and a direction to this effect should be issued – The withdrawal of approval ordered for the said period by the impugned order stands set aside and the functioning of the institute for the aforesaid period is directed to be regularized in accordance with law -For the purpose of seeking approval for this academic session i.e. 2014-2015, respondent Council shall permit the petitioner’s institute and the Society access through its on-line portal – The institute shall be permitted to submit its application on-line and thereafter it shall be processed in accordance with law.

Mediclaim Policy – Non renewal of Policy by Insurer

2014 STPL(Web) 2103 KERALA (KER) - Direction to consider policy

N. D. PRASAD Vs. NEW INDIA ASSURANCE COMPANY LIMITED & ANOTHER

Insurance Act,1938 – Pre-Mediclaim Policy – No-renewal of Policy – On the ground of his past conducts that he made claims contrary to the undertaking given or the exclusion clause and that, he had approached the Consumer Forum against the repudiation of claim by the 1st respondent – The 1st respondent has no case that, the petitioner had made any bogus claim without actually undergoing treatment -The petitioner cannot be found fault with in lodging claims before the 1st respondent and for not honouring the claim, the insured is left with no alternative but to knock at the doors of a court of law – No reason to uphold the stand taken by the 1st respondent in Exhibit P3 in not renewing the Mediclaim policy taken by the petitioner – 1st respondent directed to consider the request made by the petitioner for renewal of Exhibit P1 Mediclaim policy issued to him, if he is otherwise eligible for such renewal, on the petitioner agreeing the conditions for such renewal and paying the required premium for such renewal.

Immigrants – Expulsion from Assam

2014 STPL(Web) 854 SC (SC)(DB) - Judgment Date: 17-12-2014 - Court to monitor expulsion

ASSAM SANMILITA MAHASANGHA & ORS. Vs. UNION OF INDIA & ORS.

Constitution of India, Articles 142,145(3), 4(2), 6, 10, 11, 14, 21, 29, 32, 325, 326, 355, 368(1) – Citizenship Act, Section 5(1)(2), 6(3), 6(4), 6A – Immigrants (Expulsion from Assam) Act, 1950 – Illegal Access to the Country from Bangladesh – Substantial questions as to the interpretation of the Constitution involved which have to be decided by a minimum of 5 Judges under Article 145(3) matter directed to be placed before the Chief Justice for constitution of appropriate bench – Section 6A of the Citizenship Act must be deemed to be valid until the larger Bench decides these matters – The Court considered the necessity of issuing appropriate directions to the Union of India and the State of Assam to ensure that effective steps are taken to prevent illegal access to the country from Bangladesh; to detect foreigners belonging to the stream of 1.1.1966 to 24.3.1971 so as to give effect to the provisions of Section 6(3) & (4) of the Citizenship Act and to detect and deport all illegal migrants who have come to the State of Assam after 25.3.1971 – Under Article 142 of the Constitution directions issued regarding Border fencing, to expedite and to finalise the process of selection of the Chairperson and Members of the Foreigners Tribunals and Existing Mechanism of Deportation of Declared Illegal Migrants – The implementation of the aforesaid directions will be monitored by this Court on the expiry of three months.

Quashing of charges – Corruption etc

2014 STPL(Web) 853 SC (SC)(DB) - Judgment Date: 17-12-2014 - Quashing of charges set aside

STATE TR. INSP. OF POLICE Vs. A. ARUN KUMAR & ANR.

Criminal Procedure Code, 1973, Section 227 and 228 – Penal Code, 1860, Sections 120B read with section 420, 467, 468, 471 IPC and 477-A IPC – Prevention of Corruption Act, 1988, Section 13 (2) read with section 13(1)(d) and 15 – Customs Act, 1962, Section 32 – Framing of Charge – Challenge as to – The material on record discloses grave suspicion against the respondents – Special Court held to be right in framing charges against the respondents – High Court was not justified in stating that Section 15 of the POC Act could not be invoked in the present case – Since the duty draw back was not actually availed, the prosecution had rightly alleged that there was an attempt to commit offence under the relevant clauses of Section 13(1) of the POC Ac -. It is not the requirement of law that in order to charge an accused under Section 15 of the POC Act he must also be charged either under Section 13(1) (c) of 13(1) (d) of the POC Act – The assessment of the High Court in that behalf is not correct – Judgment and order passed by the High Court quashing of charges liable to be set aside and the order of the Special Court restored.

Sanction to Prosecute – Retired Public Servant

2014 STPL(Web) 852 SC (SC)(DB) - Judgment Date: 17-12-2014 - No sanction required for corruption case but required for case under IPC

STATE OF PUNJAB Vs. LABH SINGH

Prevention of Corruption Act, 1988, Section 19 – Retired Public Servant – Sanction to Prosecute – The public servants in question had retired on 13.12.1999 and 30.04.2000 – The sanction to prosecute them was rejected subsequent to their retirement i.e. first on 13.09.2000 and later on 24.09.2003 – The public servants having retired from service there was no occasion to consider grant of sanction under section 19 of the POC Act – Appeal filed by the State partly allowed -The stand taken by the appellant in the petition not approved – The prosecution cannot keep waiting till a public servant retires and then choose to file charge-sheet against him after his retirement, thereby setting at naught the protection available to him under Section 19 of the POC Act.

Murder – Dying Declaration

2014 STPL(Web) 851 SC (SC)(DB) - Judgment Date: 17-12-2014 - Conviction

MAHADEO NARAYAN MORE & ANR. Vs. STATE OF MAHARASHTRA

Penal Code, 1860, Section 302/34 – Murder – Dying Declaration – Order of acquittal by the trial Court reversed by the High Court – Oral reporting made by deceased ‘S’ which was reduced to writing, namely, Ext.41 is quite consistent with her reporting of the previous day, namely, Ext.30 and the subsequent dying declaration Ext.34 recorded by the Special Executive Magistrate naming the appellants – PW-1 in his testimony deposed to the incident of the previous day as well as the events on the fateful day – PW-7 Dr. at the beginning of recording Ext.34 had certified “patient conscious and in a position to give dying declaration” and at the end of said Ext.34 had also certified “DD recorded in my presence. Patient conscious during DD” – While in the box, the doctor categorically stated that he was present when the dying declaration was recorded and that ‘S’ was conscious and fit to make a statement – The dying declaration Ext.34 thus inspires complete confidence and do not see any reason to doubt the veracity thereof – Additionally the threat that ‘S’ would be set on fire was given the previous day, as per Ext.30, recorded on the previous day -Do not find any infirmity in the assessment made by the High Court.

Quashing of Complaint – Dishonour of Cheque – Vicarious liability

2014 STPL(Web) 850 SC (SC)(DB) - Judgment Date: 17-12-2014 - Complaint quashed

POOJA RAVINDER DEVIDASANI Vs. STATE OF MAHARASHTRA & ANR.

Criminal Procedure Code, 1973, Section 482 – Negotiable Instruments Act, 1881, Section 138 and 141 – Dishonour of Cheque – Offence by Company – Liability of Director – Vicarious liability – Cognizance of offence – Putting the criminal law into motion is not a matter of course – To settle the scores between the parties which are more in the nature of a civil dispute, the parties cannot be permitted to put the criminal law into motion and Courts cannot be a mere spectator to it – Before a Magistrate taking cognizance of an offence under Section 138/141 of the N.I. Act, making a person vicariously liable has to ensure strict compliance of the statutory requirements – The Superior Courts should maintain purity in the administration of Justice and should not allow abuse of the process of the Court – Petition resigned as director much before the offence was committed by Company – The High Court ought to have quashed the complaint against the appellant which is nothing but a pure abuse of process of law – The case held to be a fit case for quashing the complaint – Impugned judgment passed by the High Court liable to be set aside and the criminal proceedings pending against the appellant before the Trial Court liable to be quashed.

PIL – Designating Senior Advocates

2014 STPL(Web) 849 SC (SC)(DB) - Judgment Date: 16-12-2014 - Remand back for consideration on merit

T. N. RAGHUPATHY Vs. HIGH COURT OF KARNATAKA AND OTHERS

Constitution of India, Article 226 – Advocates Act, 1961, Section 16(2) – Public Interest Litigation – Against Designating Senior Advocates – Petition seeing for a writ of mandamus for framing new norms strictly in consonance with the provisions of Section 16(2) of the Advocates Act, 1961 in the matter of designation of senior advocates – A writ of certiorari is also sought for quashing notifications dated 30.06.2014 and 14.07.2014 whereby 15 advocates have been designated as senior advocates by the High Court of Karnataka – Findings by the High Court that appellant does not have locus standi to file writ petition in public interest – Held that some of the issues raised in the writ petition require consideration – These are the issues to be considered by the High Court only since it is the High Court concerned which frames the rules/regulations/guidelines regarding the designation of senior advocates -Impugned order liable to be set aside with a request to the High Court to consider the matter on merits.

Dowry Death

2014 STPL(Web) 848 SC (SC)(DB) - Judgment Date: 16-12-2014 - Acquittal/Conviction

VIJAY PAL SINGH AND OTHERS Vs. STATE OF UTTARAKHAND

Penal Code, 1860, Section 304B and 113B – Evidence Act, 1872, Section 113B – Dowry Death – Presumption – Appeal against Conviction – PW-1-father of the deceased and PW-7- husband of the elder sister of the deceased have stated that ‘R’ and ‘G’ were also with ‘V’ and ‘N’-husband of the deceased when they visited his house and demanded dowry and posed a threat – It has come in the evidence of PW-5 and PW-6 that in the family of in-laws’ of the deceased ‘S’, they did not recognize any person other than the father-in- law-‘V’ and husband-‘N’ – Not only that it has come out in evidence of PW-1 himself that younger brother-‘R’ had been studying elsewhere and that the brother-in-law ‘G’ was from a different village – Since the independent witnesses PWs-5 and 6 have recognized only the father-in-law and husband of the deceased, it will not be safe to conclude the offence under Sections 304B of IPC, 498A of IPC or 201 of IPC as proved against ‘R’ and ‘G’ -Conviction and sentence as against third accused/appellant-‘R’ and fourth accused/appellant-‘G’ liable to be set aside.

Transport Corporation – Bus Shelters

2014 STPL(Web) 847 SC (SC)(DB) - Judgment Date: 12-12-2014 - Transport Corporation has no authority to erect and maintain bus shelters

NOVA ADS Vs. METROPOLITAN TRANSPORT CORPORATION AND ORS.

Chennai Municipal Corporation Act, 1919, Section 204, 285, 285A – The Terms ‘Stand’ – Bus Shelters – Management of – Executive order – Plea that by GOMs No. 14 dated 11.01.1993 State Government had allowed the State transport undertaking to provide bus shelters to passengers and also to maintain them – Held that in common parlance, the “stand” and “shelter for passengers” are quite different – They cannot be attributed the same meaning. – The State Government could have issued a notification specifying certain places as stands for motor vehicles of the Transport Department which may include State transport undertakings i.e. MTCL, but the State Government, as per the scheme of the Act, has no statutory authority to issue a notification allowing the State transport undertakings to provide shelters for passengers – It is well settled in law that neither the Rule nor a Regulation nor a Notification can transgress the postulates engrafted under the Act – The opinion expressed by the High Court that the Corporation has the power or authority to deal with the streets, subject to restrictions under the Act and the MTCL has no power or authority to deal with the same on the basis of the government order upheld.

Corruption – Conviction by High Court upheld

2014 STPL(Web) 846 SC (SC)(FB) - Judgment Date: 12-12-2014 - Conviction

S. DINESH KUMAR Vs. STATE TH. INSPECTOR & ANR.

Prevention of Corruption Act, 1988, Section 7 and 13(1)(d) read with Section 13(2) – Illegal Gratification – Appeal against Conviction – Order of acquittal passed by the Special Judge reversed by the High Court – Held that in an appeal against acquittal, if two views are possible and the court below has acquitted the accused, the appellate court would not be justified in setting aside the acquittal merely because the other view is also possible – In the present case, the recovery of bribe amount from the person or possession of the accused having being firmly established – Immediate explanation offered by the appellant held to be not tenable as it is unimaginable that as against 50% of the arrears of taxes which the complainant was supposed to deposit, Rs. 1000/- only would be paid and accepted – The aspects of demand and acceptance having been established – No two views are possible in the matter and the approach adopted by the Special Judge was perverse, justifying interference by the High Court.

Death Sentence – Delay in Disposal of Mercy Petition

2014 STPL(Web) 845 SC (SC)(FB) - Judgment Date: 12-12-2014 - Death sentence converted to life imprisonment

AJAY KUMAR PAL Vs. UNION OF INDIA AND ANOTHER

Constitution of India, Articles 21, 32 – Death Sentence – Delay in Disposal of Mercy Petition – Commutation of Sentence – The death sentence awarded by the trial court on 09.04.2007 attained finality on 16.03.2010 with the dismissal of appeals by the Apex Court – No further proceedings in the form of review petition etc. were taken on behalf of the petitioner – His Mercy Petition preferred on 10.04.2010 i.e. within a month of the decision of the Court was forwarded the same day with all relevant documents so as to enable the concerned functionaries to exercise requisite jurisdiction but not disposed of for more than three years – The petitioner kept in solitary confinement since the date trial court awarded the death sentence which is complete transgression of the right under Article 21 of the Constitution causing incalculable harm to the petitioner – Sentence commuted and the sentence of life imprisonment substituted in place of death sentence awarded to the petitioner.

Dowry Death /Cruelty

2014 STPL(Web) 844 SC (SC)(DB) - Judgment Date: 16-12-2014 - Acquittal/ Conviction

HARISH KUMAR Vs. STATE OF HARYANA

Penal Code, 1860, Sections 498-A, 304B – Evidence Act, 1872, 32(1), Section 113B – Dowry Death – Presumption – Dying Declaration – Death caused due burn injuries – Immediately after the incident within half an hour the appellant-husband took his wife ‘M’ to the hospital and got her admitted where medico legal examination was recorded by PW-1 Dr. – Parents of the deceased were informed about the incident and they visited their injured daughter in the hospital – ‘M’ died five days after the incident – Naib Tehsildar on next day of the incident recorded the dying declaration and DW-1 Dr., Medical Officer of the hospital where ‘M’ was admitted, was present at the time of recording of dying declaration and he made the endorsement that the patient was in a fit condition to make it – Held that the courts below have erred in law in not relying the dying declaration recorded by the Naib Tehsildar in the presence of the Medical Officer, on the request of the police, which is voluntary and truthful – Find sufficient evidence that the defence has discharged its onus to rebut the presumption that could have been gathered under Section 113B of the Indian Evidence Act, in respect of offence punishable under Section 304-B I.P.C – Conviction of the appellant under Section 498A IPC upheld, and he is sentence to rigorous imprisonment for a period of three years, which he has already undergone – Conviction and sentence recorded against the appellant, in respect of the offence punishable under Section 304B IPC liable to be set aside.

Arbitration – Appointment of Arbitrator

2014 STPL(Web) 843 SC (SC)(DB) - Judgment Date: 16-12-2014 - Application dismissed

PRICOL LIMITED Vs. JOHNSON CONTROLS ENTERPRISE LTD. & ORS.

Arbitration and Conciliation Act, 1996, Section 11(2) – Appointment of Arbitrator – Application for – The respondents by invoking Arbitration clause 30.2 had approached SIAC for appointment of an Arbitrator – This was on 5th September, 2014 i.e. before the present proceeding was instituted by the petitioner – Though the notice of the said request was served on the petitioner on 11th September, 2014, no steps were taken by the petitioner to pre- empt the appointment of a sole Arbitrator by SIAC sole Arbitrator by the SIAC on 29th September, 2014 – The petitioner has submitted to the jurisdiction of the said arbitration – Even if it is held that such participation, being under protest, would not operate as an estoppel, what must be acknowledged is that the appointment of the sole Arbitrator made by SIAC and the partial award on the issue of jurisdiction cannot be questioned and examined in a proceeding under Section 11(6) of the Act – To exercise the said power, in the facts and events that has taken place, would really amount to sitting in appeal over the decision of SIAC in appointing arbitrator as well as the partial award dated 27th November, 2014 passed by him acting as the sole Arbitrator – Such an exercise would be wholly inappropriate in the context of the jurisdiction under Section 11(6) of the Act – Application u/s 11(6) liable to be dismissed.

Advocates Welfare Fund – Classification

2014 STPL(Web) 842 SC (SC)(DB) - Judgment Date: 16-12-2014 - Classification valid

S.SESHACHALAM & ORS. ETC. Vs. CHAIRMAN, BAR COUNCIL OF TAMIL NADU & ORS.

Constitution of India, Article 14 – Explanation II (5) of Section 16 of the Tamil Nadu Advocates’ Welfare Fund Act, 1987, Explanation II (5) of Section 16 – Advocates Welfare Fund – Advocates – Classification – Advocates who had set up practice straight after enrolment and other advocates who start their practice after demitting the office and are in receipt of pension and other benefits – Challenge to validity of Explanation II (5) of Section 16 – Held that the classification of lawyers into these two categories is a reasonable classification having a nexus with the object of the Act – High Court rightly concluded that there is reasonable classification between the advocates who had set up practice after demitting their office from the Central/State government/Organization and advocates who have set up practice straight from the law college – It would be right to say that the retired officials who joined legal profession constitute a separate class and the disentitlement of the benefit of lump sum welfare fund to this group of advocates cannot be said to be unreasonable – Do not find any infirmity in the impugned judgment of the High Court and the appeals are liable to be dismissed accordingly.

Bail – Parity

2014 STPL(Web) 841 SC (SC)(DB) - Judgment Date: 16-12-2014 - Bail cancelled

NEERU YADAV Vs. STATE OF U.P AND ANOTHER

Criminal Procedure Code, 1973, Section 439 – Penal Code, 1973, Sections 147, 148, 149, 302, 307, 394, 411, 454, 506, 120B and 34 – Bail – Grant of – Parity – Challenge as to – As per the allegations 2nd respondent had fired at the deceased – Two persons were also injured in the attack – The occurrence took place in the broad day light – As per the FIR and statement recorded under Section 161 CrPC, the allegations against ‘A’ and the 2nd respondent are different – That apart, the number and nature of crimes registered against the 2nd respondent speaks voluminously about his antecedents – 2nd respondent was a history sheeter Held that it was imperative on the part of the High Court to scrutinize every aspect and not capriciously record that the 2nd respondent is entitled to be admitted to bail on the ground of parity -It was not a case of parity and, therefore, the impugned order clearly exposes the non- application of mind – Impugned order liable to be set aside.

Service Law – Amendment of Rules – Promotion

2014 STPL(Web) 840 SC (SC)(DB) - Judgment Date: 15-12-2014 - Balancing act by HC upheld

K.K. SHARMA Vs. HIGH COURT OF DELHI & ORS.

Constitution of India, Articles 14 and 16 – Delhi High Court Establishment (Appointment & Conditions of Service) Rules, 1972 – Amendment of Rules – Promotion – Post of Assistant – Reversion – Fair hearing – Principles of natural justice – Appellants were, admittedly, not heard prior to the order dated 23.10.2009 in W.P.(C) Nos.4077-84 of 2004 – Undoubtedly, the directions in the said order would prejudicially affect all or some of the appellants once the same are implemented – Held that to give fair hearing to the affected parties the emphasis must be on substance and not on form – The test, always, will be whether the affected person has been heard – There is no inevitable need to obliterate the adverse order before hearing a person who was mistakenly not heard earlier; the slate can always be cleaned if upon hearing the affected person such a course of action is required – Until such a decision is taken the adverse order is deemed to be in abeyance – This is how the course of events in the present case has to be understood – Both the orders are attempts made by the High Court to balance the situation by taking into account the legal rights that flow to the Junior Translators from the judgments of the High Court that require implementation and the equitable considerations by which the cases of the appellants, who are not at fault, are required to be judged – The impugned orders do really strike a balance between the compulsion of law and equity – “The law, as an instrument of social justice, takes a longer look to neutralize the sins of history” – Though there is an adverse impact on equitable rights occasioned by a “milder version” of implementation of judicial orders that have attained finality in law yet the order passed by the High Court not interfered with.

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