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Lawteller - April 2017

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Total Pages - 52
(Including 4 Title Pages)
SERVICE
WRIT COURT DUTY BOUND TO EXAMINE THE
MATTER, IF FINDINGS ARE PERVERSE
K
RISHNA NARAYAN TEWARI-THE
RESPONDENT WAS employed with Allahabad
Bank (the appellant-bank) and during the relevant
period he was posted as Officer in-charge at the
appellant-bank’s Sultanpur branch in District
Sultanpur in the State of Uttar Pradesh. He was, by
an order dated 10th December, 2004, placed under
suspension in contemplation of a disciplinary
enquiry which was initiated against him with the
service of a charge-sheet dated 10th February, 2005.
The respondent pleaded not guilty but the Enquiry
Officer concluded the enquiry proceedings rather
quickly within a span of just about forty-five days
and submitted a report dated 27th May , 2005
holding that the respondent was guilty on all counts
except two which were held proved but only
partially. The Disciplinary Authority accepted the
findings and passed an order imposing upon the
respondent the major penalty of removal from
service.
Aggrieved, the respondent preferred a departmental
appeal which was dismissed by the Appellate
Authority by its order dated 5th January, 2006. The
respondent then questioned the said two orders
before the High Court in a writ petition which has
been allowed by the High Court.
The High Court came to the conclusion that neither
the Disciplinary Authority nor the Appellate
Authority had applied their mind or recorded
reasons in support of their conclusions. Relying
upon the decisions of Supreme Court in Roop Singh
Negi v. Punjab National Bank & Ors. [2009 (2) S CC
570], Kuldeep Singh v. Commissioner of Police &
Ors. [1999 (2) SCC 10], Nand Kishore v. State of
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Bihar [1978 (3) SCC 366], Kailash Nath Gupta v.
Enquiry Officer, Allahabad Bank & Ors. [2003 (3) SLR
1], State Bank of Bikaner & Jaipur v. Nemi Chand
Nalwaya [2011 (4) SCC 584] and Mohd. Yunus Khan
v. State of U.P. & Ors. [2010 (10) SCC 539], the High
Court held that the order passed by the disciplinary
authority and the appellate authority were
unsustainable in law. The High Court found that the
findings recorded by the Disciplinary Authority and
affirmed by the Appellate Authority were perverse
and were based on no evidence whatsoever . The
High Court observed that the Appellate Authority
had not applied its mind independently and simply
cut and pasted the findings of the Disciplinary
Authority while dismissing the appeal.
Against the judgement of the High Court special
leave petition was filed. The Supreme Court
accepted the appeal, but only in part and to the
extent that while orders passed by the Disciplinary
Authority and the Appellate Authority shall stand
quashed, and the respondent entitled to continuity
of service till the date of his superannuation with
all service benefits on that basis, he shall be entitled
to only 50% of the salary for the period between the
date of his removal from service till the date of
superannuation.
The operative part of the judgment reads as under:It is true that a writ court is very slow in interfering
with the findings of facts recorded by a
Departmental Authority on the basis of evidence
available on record. But it is equally true that in a
case where the Disciplinary Authority records a
finding that is unsupported by any evidence
April 2017
I Lawteller I 159
SERVICE
whatsoever or a finding which no reasonable
person could have arrived at, the writ court would
be justified if not duty bound to examine the matter
and grant relief in appropriate cases. The writ
court will certainly interfere with disciplinary
enquiry or the resultant orders passed by the
competent authority on that basis if the enquiry
itself was vitiated on account of violation of
principles of natural justice.
TTTTTTT
The High Court has, in the case at hand, found all
these infirmities in the order passed by the
Disciplinary Authority and the Appellate Authority.
The respondent’s case that the enquiry was
conducted without giving a fair and reasonable
opportunity for leading evidence in defense has not
been effectively rebutted by the appellant. More
importantly the Disciplinary Authority does not
appear to have properly appreciated the evidence
nor recorded reasons in support of his conclusion.
To add insult to injur y the Appellate Authority
instead of recording its own reasons and
independently appreciating the material on record,
simply reproduced the findings of the Disciplinary
Authority. All told the Enquir y Officer, the
Disciplinary Authority and the Appellate Authority
have faltered in the discharge of their duties resulting
in miscarriage of justice. The High Court was in that
view right in interfering with the orders passed by
the Disciplinary Authority and the Appellate
Authority.
TTTTTTT
The High Court has taken note of the fact that the
respondent had been placed under suspension in the
year 2004 and dismissed in the year 2005. The
dismissal order was challenged in the High Court
in the year 2006 but the writ petition remained
pending in the High Court for nearly seven years till
2013. During the intervening period the respondent
superannuated on 30th November, 2011. Not only
160
I Lawteller I April 2017
that he had suffered a heart attack and a stroke that
has rendered him physically disabled and confined
to bed. The respondent may by now have turned 65
years of age. Any remand either to the Enquiry Officer
for a fresh enquiry or to the Disciplinary Authority
for a fresh order or even to the Appellate Authority
would thus be very harsh and would practically deny
to the respondent any relief whatsoever. Superadded
to all this is the fact that the High Court has found,
that there was no allegation nor any evidence to
show the extent of loss, if any, suffered by the bank
on account of the alleged misconduct of the
respondent. The discretion vested in the High Court
in not remanding the matter back was, therefore,
properly exercised.
TTTTTTT
We however, of the opinion that while proceedings
need not be remanded for a fresh start from the
beginning, grant of full salary for the period between
the date of dismissal and the date of superannuation
would not also be justified. We, therefore, allow this
appeal but only in part and to the extent that while
orders passed by the Disciplinary Authority and the
Appellate Authority shall stand quashed, and the
respondent entitled to continuity of service till the
date of his superannuation with all service benefits
on that basis, he shall be entitled to only 50% of the
salary for the period between the date of his removal
from service till the date of superannuation. Retiral
benefits shall also be released in his favour. The order
passed by the High Court shall, to the extent
indicated above, stand modified. The parties shall
bear their own costs.
TTTTTTT
Authorities relied upon : 1978 (3) SCC 366.
Reference : Supreme Court. Allahabad Bank & Ors.
v. Krishna Narayan Tewari, Civil Appeal No. 7600 of
2014.
—————
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SERVICE
NOTICE INVITING OPTION, NOT REQUIRED
TO BE PERSONALLY SERVED, UNLESS
REGULATIONS SO PROVIDE
B
ALWANT SINGH, THE PLAINTIFF HAD BEEN
WORKING AS driver with PEPSU Road
Transport Corporation. The statutory Regulation has
been framed, namely , PEPSU Road Transport
Corporation Employees/Pension Gratuity and General
Provident Fund Regulations 1992 (hereinafter referred
to as "Regulations 1992"), which came into force w.e.f.
15th January, 1992. The Regulations were made
applicable to the employees of the Corporation who
were appointed on or after the date of issue of
Regulations on whole-time and regular basis and
those who were working immediately before the date
of issue of Regulations and opt for these Regulations.
The exercise of option for pension scheme w as to be
made within six months from the date of issue of
Regulations. Those employees who opted for
Regulations and had obtained advance from the
Corporation out of the Contributory Provident Fund
were required to refund the same within a period of
six months. The plaintiff did not submit an option
under the Regulations 1992 and attained the age of
superannuation on 30th November , 2000. After
retirement plaintiff was released the entire amount of
Contributory Provident Fund (CPF) which was
received by the plaintiff. Plaintiff filed Civil Suit
No.1044 of 2003 for declaration to the effect that
plaintiff is entitled for pension and commuted
pensions and other benefits attached with the same
alongwith interest @ 18% on the delayed payment.
The plaintiff’s case was that after retirement the
defendant only released the contributed fund and has
not released the full pension. The defendants filed
written statement stating that plaintiff had never opted
for pension as per Regulations 1992. Plaintiff had
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received all his dues and no dues against defendants
is pending. Plaintiff had obtained loan of Rs.12,000/from CPF out of which Rs. 4999/- is yet to be
recovered. The Trial Court vide its judgment and order
dated 26th March, 2005 decreed the suit declaring that
plaintiff is entitled to pension, commuted pension and
other benefits and defendants would issue demand
notice to the plaintiff within one month as to how
much amount of CPF should be paid by him (plaintiff)
so as to avail the benefit of pension scheme. The
Trial Court held that although the plaintiff was to give
option as per Regulation 1992 and he had to deposit
the amount of CPF but Pension cannot be declined
on the technical ground that he had not refunded the
loan amount.
The Corporation aggrieved by the judgment of the
Trial Court filed an appeal being C.A.D. No.21 of 2005
which was dismissed by learned Additional District
Judge, Bathinda vide judgment dated 29th August,
2005.
The Appellate Court took the view that it was
obligatory on the part of the defendants to have led
cogent reasons that the scheme under the
Regulations 1992 was circulated between the
employees of the Corporation and they were made
to note the same so as to opt within specified period.
It was further held that plaintiff had never opted out
of the Regulations. With the above finding the appeal
was dismissed by the Additional District Judge.
Aggrieved by the judgment of the Appellate Court,
Regular Second Appeal was filed by the Corporation
in the Punjab and Haryana High Court. The High
Court also dismissed the appeal by observing that
April 2017
I Lawteller I 161
SERVICE
there is no evidence that pension scheme was
circulated within the employees and got noted by
them. Relying on judgment of Punjab and Haryana
High Court, the appeal was dismissed.
Against the judgement of the High Court the
Corporation filed special leave petition. The Supreme
Court accepted the appeal, set aside the judgement
of the High Court, the suit of the plaintiff was
resultantly dismissed.
The operative part of the judgment reads as under:It is well settled that the notice inviting option need
not to be personally served to the employees unless
the Regulation or any instruction so provides. The
Regulations 1992 which are being considered in the
present case had already been interpreted in PEPSU
Road Transport Corporation v. Mangal Singh. This
Court having already held that Regulations 1992 do
not contemplate any personal service of notice to
employees the finding in the judgment of the courts
below holding otherwise for decreeing the suit of the
plaintiff are unsustainable. From the facts of the
present case it is clear that although Regulations
were in force from 1992, plaintiff retired on 30th
November, 2011 and after retirement received CPF
benefits without any protest and at no point of time
before retirement he has raised any grievance. The
benefit which was available to him under CPF scheme
was received by the plaintiff, he cannot be allowed
to another benefit flowing from the pension scheme
which he never opted. Extending benefit of the
pension scheme to the plaintiff shall be extending
double benefits CPF benefit as well as pension
scheme which was never contemplated by the
Regulations. In any view of the matter, the issue in
the present case is covered by the judgment in
PEPSU Road Transport Corporation v. Mangal
Singh (supra) and we do not propose to take any
different view in the matter. Learned counsel for the
respondents has also contended that in so far as the
outstanding amount of CPF is concerned the said
amount could have been deducted by virtue of
Regulation 24 and which amount is to be adjusted
against death-cum-retirement gratuity. In the present
case the plaintiff having not opted for pension
scheme, the requirement from refunding the advance
taken from CPF within six months is not attracted.
More so, in the present case as has been stated by
the appellant in the written statement in the suit even
after retirement an amount of Rs.4999/- was due from
the advance taken by the respondents from his CPF
amount.
TTTTTTT
In view of the foregoing, we are of view that the
judgments of the courts below are unsustainable.
The suit of the plaintiff deserved to be dismissed. In
the result the appeal is allowed. The judgments of
the High Court as well as First Appellate Court and
Trial Court are set aside and the suit of the plaintiff
stands dismissed. The parties shall bear their own
costs.
TTTTTTT
Authorities relied upon : 2015 (12) SCC 51, 2009 (14)
SCC 793.
Reference : Supreme Court. Pepsu Road Transport
Corporation, Patiala v. Amandeep Singh & Ors.,Civil
Appeal No. 3842 of 2011.
—————
Justice is always violent to the party offending, for every man
is innocent in his own eyes.
—DANIEL DEFOE
162
I Lawteller I April 2017
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GENERAL
IN VIEW OF DOCUMENTARY EVIDENCE, THERE
COULD BE NO MEDICAL EXAMINATION TO
DETERMINE THE AGE
P
URSUANT TO COMPLAINT BY THE
COMPLAINANT, FIR VIDE Crime No.5/2010
was initially registered under Sections 417 and 506(ii)
IPC on 26.03.2010 with Old Washermenpet Police
Station, Chennai against the appellant, his father,
mother and uncle. After carrying out necessary
investigation, charge-sheet dated 18.11.2010 was filed
against the appellant under Section 376 IPC and
against his parents and uncle under Sections 417 read
with 109 IPC and 506(ii) IPC. It was alleged that the
appellant had become friendly with the victim while
they had reached ’10+2’ standard; that this fact was
known to the family of the appellant who treated the
victim as their daughter-in-law; that the appellant had
committed sexual intercourse with the victim on 5 to
6 occasions; and that the behavior of the family of
appellant later changed and they refused to perform
the marriage. It was alleged that the appellant thus
committed offence under Section 376 IPC while his
family members were guilty of offence under Sections
417 read with 109 IPC and 506(ii) IPC.
Appropriate charges under the aforesaid Sections
having been framed, Criminal O.P. No.9823 of 2011
was filed in the High Court seeking quashing of those
charges. The High Court by its Order dated 20.06.2012
quashed the charges as against the parents and uncle
of the appellant but dismissed the challenge raised
by the appellant. Consequently the trial proceeded
only against the appellant for the offence punishable
under Section 376 IPC. On 18.09.2012, the victim
deposed before the trial court as PW -1. In her
examination-in-Chief she deposed:
"………….......I firmly believed that the
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accused and his family will not leave me and
our marriage would definitely solemnize.
After this the accused forced me and had
intercourse with me 5 to 6 times."
The victim however in her examination in chief did
not give any probable period or time when the
intercourse had last taken place. In her crossexamination conducted on 06.10.2012, to a pointed
query she answered, "We had intercourse finally in
August, 2009".
At that juncture, the cross-examination of the victim
was stopped and a plea of juvenility of the appellant
was raised. It was submitted that going by the
assertions of the victim, the appellant was definitely
a juvenile on the alleged dates of occurrence. Criminal
M.P. No.10872 of 2012 under Section 7A of the
Juvenile Justice (Care and Protection of Children) Act,
2000 (hereinafter referred to "the Act") was also filed
praying that the age of the appellant be determined
in terms of the provisions of the Act and the Rules
framed thereunder. The complainant was also allowed
to make her submissions. After hearing the parties,
the Court posted the application for pronouncement
of Orders on 04.12.2012. However, on 28.11.2012 an
application under Section 216 of Cr.P.C. was filed by
the prosecution for adding charge under Section 417
against the appellant. The request for addition of the
charge was dismissed by the trial court which order
was affirmed by the High Court by its Order dated
15.02.2013. The complainant challenged the order of
the High Court by filing SLP(Crl.) No. 1899 of 2013
which was dismissed by Supreme Court on
12.08.2014.
April 2017
I Lawteller I 163
GENERAL
The trial court thereafter postponed the issue of
juvenility to be considered at the stage of final
determination of the matter , which order was
challenged by the appellant by filing petition under
Section 482 of Cr.P.C. The challenge was accepted by
the High Court and by Order dated 8.12.2014 it
directed:
"The learned III Additional Sessions Judge
shall first decide the claim of juvenility raised
by the petitioner herein and then to proceed
with further in accordance with law. At any
rate, appropriate decision on the claim of
juvenility shall be made within a period of
30 days as provided in Rule 8B of the Tamil
Nadu Juvenile Justice (Care and Protection
of Children) Rules, 2001 from the date of
receipt of the records from the trial court."
The matter was then heard by the trial court which
after considering the relevant material on record
declared the appellant to be juvenile in conflict with
law under Section 7A of the Act. The trial court found
the date of birth of the appellant to be 19.10.1991.
Going by the assertions made by the victim that the
sexual intercourse between them lastly occurred in the
month of August, 2009, the trial court found that on
the date of occurrence, the appellant was a juvenile.
Concluding thus, the trial court directed:
"29. Finally, this court allows the above
Petition Crl.O.P.No.10872/2012 and decides
that the offender was a Juvenile on the date
of commission of offence.
30. As the offender on the date of occurrence
of offence was a juvenile, the present case
can be decided only by the Juvenile Board
and this court orders transfer of the S.C.130/
2011 to the Juvenile Board."
The complainant being aggrieved, challenged the
aforesaid determination by filing Criminal Revision
Case No.383 of 2015 in the High Court of Madras. The
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I Lawteller I April 2017
High Court by its Judgment and Order dated 13.10.2015
allowed said criminal revision and remitted the matter
back to the trial court for fresh consideration. It was
observed: "It is evident that the trial court has not
determined the correct age of the second respondent/
accused or the date of occurrence in the facts and
circumstances of the case. The trial court also did not
take note of the fact that the offence alleged to have
been committed was a continuing offence. The trial
court also did not consider the expert opinion obtained
from a Medical Officer to determine the age of the
second respondent/accused. The trial court has also
not ascertained correctly the date on which the first
occurrence took place and the last occurrence
committed by the accused/second respondent herein.
The trial court was carried away by an admission made
by the complainant during the course of crossexamination."
Against the judgement of the High Court special leave
petition was filed. The Supreme Court accepted the
appeal, set aside the judgement of the High Court.
The view taken by the trial court was restored and
the matter stands disposed of in terms of the
directions issued by the trial court.
The operative part of the judgment reads as under:In the present case the trial court took into account
the documentary evidence as contemplated in the
statutory provisions and returned a finding that the
date of birth of the appellant was 19.10.1991. During
the course of its judgment the High Court could not
find such conclusion to be vitiated on any ground.
In the face of the relevant documentary evidence,
there could be no medical examination to ascertain
the age of the appellant and as such the
consequential directions passed by the High Court
were completely unwar ranted. Fur ther, if the
allegations of the prosecution are that the offence
under Section 376 IPC was committed on more than
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GENERAL
one occasion, in order to see whether the appellant
was juvenile or not, it is enough to see if he was
juvenile on the date when the last of such incidents
had occurred. The trial court was therefore justified
in going by the assertions made by the victim in her
cross examination and then considering whether the
appellant was juvenile on that date or not.
our view it would be an empty formality in the face
of finding of fact rendered by the trial court. We,
therefore, allow this appeal and set aside the
Judgment and Order under appeal. The view taken
by the trial court is restored and the matter stands
disposed of in terms of the directions issued by the
trial court as stated above.
TTTTTTT
TTTTTTT
We thus find that the approach of the High Court in
the present case was incorrect and completely
misdirected. Even if we were to remand the matter
back to the High Court for fresh consideration, in
Reference : Supreme Court. Sri Ganesh v. State of
Tamil Nadu and Anr.,Criminal Appeal No. 39 of 2017
[Arising out of SLP (Crl.) No. 9073 of 2015].
µ GLOBAL GLIMPSE
µ
—————
KENTUCKY: LAW TO PROTECT STUDENTS’ RIGHT T O RELIGIOUS
EXPRESSION
Kentucky Governor Matt Bevin signed a bill into law aimed at protecting student organizations’ rights to
manage internal affairs in a manner that is consistent with the group’s religious or political beliefs. The law
passed through the House and Senate nearly unopposed, with only three senators and eight House members
voting against the law. The legislation amends KRS Chapter 158.183 to allow students to voluntarily express
religious or political viewpoints in public schools and post secondary institutions. Students and human rights
groups fear the legislation could allow student organizations to exclude people with conflicting lifestyles,
specifically LGBTQ students. The law also allows educators to incorporate religious texts into core curriculum.
ECJ: NATIONS DO NOT HAVE TO ISSUE HUMANITARIAN VISAS
The European Court of Justice (ECJ) ruled that countries are not required to issue visas to refugees on
humanitarian grounds even if they are facing torture or inhumane treatment. The case arose surrounding a
Syrian family seeking asylum in Belgium. The court stated that while states may choose to grant asylum
under their own national law, "member States are not required, under EU law, to grant a humanitarian visa to
persons who wish to enter their territory with a view to applying for asylum....".This ruling is in direct conflict
with the advice of Advocate General Paolo Mengozzi, who stated that member states had to grant visas on
humanitarian grounds if it could be proven that they were escaping torture and danger.
ECJ: UPHOLDS ELECTRONIC PUBLICATIONS TAX
The European Court of Justice ruled that EU member states may not charge less than the standard valueadded tax (VAT) on electronic publications. The court held that while physically printed books and materials
may be taxed at the lower VAT rate, solely electronic publications must be subject to the standard VAT rate,
with the exception of digital publications distributed on CD-ROMs. The case came before the court when the
Polish Constitutional Court asked for guidance on the matter due to a suit questioning the difference in tax
rates brought by the Polish Commissioner for Civic Rights.
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April 2017
I Lawteller I 165
GENERAL
BENEFIT OF ACQUITTAL GRANTED, TO THE
NON-APPEALING ACCUSED ALSO
O
N 12.07.1993 AT ABOUT 6.00 AM PW6
GAUTAM KHETO found a dead body lying on
the road in front of his house with a handkerchief tied
around the neck. He reported the incident which was
recorded in G.D. Book of Muchipara Police Station
dated 12.07.1993, whereafter the police conducted
inquest on the dead body and sent it for autopsy .
The dead body was having a tattoo on the right forearm with "Ramchandra Singh" written in Hindi. Postmortem examination was conducted by PW18 Dr.
Rabindra Basu who opined that the death was due
to strangulation and the ligature mark and head
injuries were ante-mortem in nature.
At about 10.10 PM on the same day i.e. 12.07.1993
PW4 Jai Kishore Guin came to Muchipara Police
Station and made a statement that he had heard
conversation between PW3 Kailash Srivastava and
PW16 Shyamlal Jadav which suggested that they had
knowledge about the incident. The investigating
officer could then find both PW16 Kailash Srivastava
and PW6 Shyamlal Yadav on 13.07.1993. According
to both these witnesses they had seen an old man
and four other persons alighting from a taxi near a
sweetmeat shop in Akrur Dutta Lane and that the old
man, who was in drunken condition was taken away
by the other persons. According to these witnesses,
the number of taxi was 3157. The investigating officer
then located the taxi driver, i.e. PW5 Laxminarayan
Dey, who stated that in the intervening night of
11.07.1993 and 12.07.1993 five persons had boarded
his taxi, four persons were younger in age, while one
was an old man. According to this witness there was
some altercation amongst them; that near a sweetmeat
shop all of them alighted and that when they came
back only four of them had returned. He thereafter
dropped them at Rajabazar.
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I Lawteller I April 2017
PW8 Saraswati Singh lodged a report on 16.07.1993
that her husband named Ramchandra Singh was
missing since 11.07.1993. Two days later she was
called to the police station and shown certain
photographs but she could not identify the picture.
After few days, she again went to the police station
with her nephew who could identify the picture to
be that of Ramchandra Singh, the husband of said
PW8 Saraswati Singh.
On the strength of suspicion expressed by said PW8
Saraswati Singh the appellant Mohd. Sajjad and one
Sk. Sahid @ Bablu were arrested on 09.09.1993 and
11.09.1993 respectively. Both these persons were
subjected to test identification parade on 06.10.1993
in which PWs 3, 5 and 16 identified them. After
completion of investigation charge-sheet was filed
against the appellant and said Sk. Sahid @ Bablu for
the offences punishable under Section 302 read with
Section 34 IPC while three persons, namely, Mohd.
Sehzada, Sheikh Kaloo and Sheikh Panchu were
stated to have been absconding and declared as
proclaimed offenders.
The prosecution principally relied upon the testimony
of PWs 3, 5, 8 and 16. PW3 Kailash Srivastava in his
deposition stated as under:
"I live at No.8, Gopi Lane, Bowbazar ,
Calcutta. I am a plumber. I know Haripada
Das. He was my previous employer. I sleep
at Premises No.8, Gopi Bose Lane, Calcutta.
In the night of 11.07.1993 an incident took
place. That night there was pain in the
stomach of Haripada Das. Haripada Das lives
in No.3, New Bowbazar Lane, which is close
to my residence. At about 12/ 12:15 in that
night a man came from Haripada and awoke
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GENERAL
me from sleep. I went to Haripada’s place
with that man. Haripada told me that he
should be immediately hospitalized for the
pain in his stomach. Then myself went to
search out a taxi to take Haripada to Hospital.
Shyamlal Yadav is a driver. Haripada Das is
a plumber contractor. We went towards
Nirmal Ch. Street for a taxi. We saw a taxi
entering Akrur Dutta Lane from Nirmal Ch.
Street. We also entered Akroor Dutta Lane
to catch the taxi. We saw the taxi to stop
near sweetmeat shop in Akroor Dutta Lane.
We saw about 5 persons getting down from
the taxi. We approached the taxi driver to
hire the taxi for taking the patient to hospital.
The taxi driver refused to take the patient to
the hospital. The other persons who got
down from the taxi also got annoyed with
us and told us to go away because they
would take the taxi for return journey. There
was an old man in the taxi. And other 4
persons scolded us by saying us to away.
We found the old man to be in drunken
condition. The old man was taken out of the
taxi, the other persons present there. Then
we came away from the place after noting
the number of that taxi. The number of the
taxi was 3157. We noted the number of that
taxi because the driver refused to take the
patient to hospital with the idea that we
should lodge diary against the driver. We
saw those persons by the electric light that
was burning on the road. If I now see any
of those persons I may recognize those
persons who got down from the taxi that
night."
PW16 Shyamlal Yadav supported the version of PW3
Kailash Srivastava and deposed on similar lines. PW5
Laxminarayan Dey deposed that on the night
intervening 11.07.1993 and 12.07.1993 five persons had
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boarded his taxi. He also deposed to the fact that
while the taxi had stopped near a sweetmeat shop two
persons had come to hire his taxi and that there was
some altercation with those persons.
PW8 Saraswati Singh in her examination stated as
under:
"My husband’s income out of salary was
not sufficient to maintain our family. To make
up the income to meet the family expenses,
I used to buy kerosene oil from Scott Lane
Market and sale it at higher price at my
residence. I used to earn profit of Rs.30/40
per day. In course of my business in
kerosene oil, I picked acquaintance with a
boy who used to sell kerosene oil on that
market. His name is Raju which I gathered
from him. Raju with other boys used to visit
our house in connection with my business
in kerosene. I enquired the name of those
persons accompanying Raju and learnt from
him that one of them was Sahajad, another
was Bablu, the other one was Panchu and
another was Kaloo. I used to purchase
kerosene oil from Raju as he used to sell me
oil at cheaper price than others."
She further stated that there were some disputes with
Raju in connection with the aforesaid business. As
regards disappearance of her husband and the steps
taken by her thereafter she stated as under:
"My husband did not die in our home. In
the night of 11th July 1993, my husband did
not return home. Sometimes my husband
used to pass night outside home but he
used to come back home regularly. Next day
I went to the police station to lodge a diary.
When I met a police officer there with dress
who was going out of P.S. I told him that
my husband did not return home that night
and I wanted to make a diary. He asked me
April 2017
I Lawteller I 167
GENERAL
whether my husband used to drink or not
and I told him that my husband used to
drink. He advised to me to search in the
police station and in the hospital for my
husband. Thereafter, I went to Entally Police
Station but did not find my husband there.
I then again went to Bowbazar P.S. but I did
not find my husband there. Then I went to
Amherest Street P.S. and therefrom I went
to Jorasanko P.S. but I did not find my
husband anywhere there. On the next day I
went to my relation’s house. I went to
Bhawanipore at the house of my husband’s
sister. They informed me that my husband
did not go to their place and asked me to
diarize the matter . Then I went to
Chandernagore there from my husband’s covillagers used to live but I did not find my
husband there also. I also went to Medical
College Hospital, then to Compbel Hospital.
I also searched in P.G. Hospital for my
husband but I did not find my husband
anywhere. On 16th of that month my
husband’s sister son came to our house and
scolded me for not diarizing the matter. Then
I went to Muchipara P.S. and lodged a diary.
After 2 days I was called from the P.S., I was
shown some photographs in the P.S. As I
could not distantly recognized the person
from the photograph I told the police to call
my husband’s sister ’s son who could
identify that person from the picture as I
have defect in eye-sight. My husband’s
sister’s son then came to us on 24th of that
month. I went to the police station with him
and he saw the photographs and identified
the picture of the photograph as that of his
Mama i.e. my husband. Then myself with
Shib Kumar Singh, my husband’s sister’s son
went to N.R.S. Hospital (Campbel). Then I
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identified the body by comparing with the
photograph in that hospital to be the dead
body of my husband……."
The prosecution also pressed into service
confessional statement given by Sk. Sahid @ Bablu
under Section 164 Cr.P.C. which was recorded by
PW19, the then Chief Metropolitan Magistrate,
Calcutta on 27.09.93. Insofar as test identification is
concerned, the prosecution relied upon the testimony
of PW17, Metropolitan Magistrate Calcutta who
testified that in the test identification parade PW5
Laxmi Narayan Dey and PW3 Kailash Srivastava could
identify both the accused while PW16 Shyamlal
Yadav could identify only the appellant.
After considering the material on record the trial court
found that the prosecution was successful in bringing
home its case against both the accused. Though the
evidence regarding confession was discarded by the
trial court, it found the evidence of three witnesses,
namely, PWs 3, 5 and 16 regarding identification of
the accused to be trustworthy. It observed as under:
"It is true that the Test Identification Parade
was held two months after the incident of
murder but the accused were absconded and
they were arrested on 9th September and
11th September and the Test Identification
Parade was held on 6th October, 1993. It is
also true that the witnesses did not disclose
or give any description of the accused in
their statement before the police. But the fact
that the accused were identified by the
witnesses in Court which is substantive
evidence and the proceedings of Test
Identification Parade are used to
corroborative evidence. But, it should be
remembered here also that this is not only
evidence on the prosecution side as the
prosecution case hinges on circumstantial
evidence and besides the evidence of
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GENERAL
identification of the accused of three PWs
which is merely a link of the chain of
circumstances while there are other names
which have completed the chain. I reiterate
here that the names of the accused came out
from the statement of the widow who has
given a vivid description of the incident as
to how they (accused) came colder to her
family while dealing in kerosene oil and the
motive of the accused as ascribed by her to
commit the murder of her husband was to
grab her money and for committing some
other heinous crimes of which the PW10
has stated in her evidence. So, when the
entire chain of circumstantial evidence is
complete, it is futile to challenge any link
separately unless there is glaring instance
of disbelief."
The circumstances that the deceased was last seen
in the company of four persons including the
appellant and said Sk. Sahid @ Bablu and that the
appellant had disputes with PW8, wife of the
deceased, weighed with the trial court in accepting
the case of the prosecution. The Trial Court did not
find it safe to rely on the confessional statement of
Sk. Shahid @ Bablu. The Trial Court by its judgment
dated 19.12.1996 convicted the appellant and said Sk.
Sahid @ Bablu for the offences punishable under
Section 302 read with Section 34 IPC. After hearing
the parties, the trial court by its order dated 23.12.96
sentenced both the accused to suffer imprisonment
for life and to pay fine of Rs.5,000/- each, in default
whereof to suffer rigorous imprisonment for six
months.
It appears that Sk. Sahid @ Bablu did not prefer any
appeal against his conviction and sentence while the
appellant carried the matter by filing Criminal Appeal
No.53 of 1997 challenging his conviction and
sentence. The High Court affirmed the view taken by
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the trial court and dismissed the said criminal appeal
vide its judgment dated 20.04.2010.
Against the judgement the High Court special leave
petitions were filed. The Supreme Court accepted the
appeals, set aside the judgements of conviction and
sentence acquitted him on all the charges levelled
against him. The benefit of this acquittal and also
extended to the non appearing accused namely Sk.
Sahid @Bablu.
The operative part of the judgment reads as under:In the case in hand, apart from the fact that there
was delay in holding the Test Identification Parade,
one striking feature is that none of the concerned
prosecution witnesses had given any identification
marks or disclosed special features or attributes of
any of those four persons in general and the accused
in particular. Further, no incident or crime had
actually taken place in the presence of those
prosecution witnesses nor any special circumstances
had occurred which would invite their attention so
as to register the features or special attributes of the
concerned accused. Their chance meeting, as
alleged, was in the night and was only for some
fleeting moments.
TTTTTTT
In the instant case none of the witnesses had
disclosed any features for identification which would
lend some corroboration. The identification parade
itself was held 25 days after the arrest. Their chance
meeting was also in the night without there being
any special occasion for them to notice the features
of any of the accused which would then register in
their minds so as to enable them to identify them on
a future date. The chance meeting was also for few
minutes. In the circumstances, in our considered view
such identification simplicitor cannot form the basis
or be taken as the fulcrum for the entire case of
prosecution. The suspicion expressed by PW 8
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I Lawteller I 169
GENERAL
Saraswati Singh was also not enough to record the
finding of guilt against the appellant. We therefore
grant benefit of doubt to the appellant and hold that
the prosecution has failed to establish its case
against the appellant.
TTTTTTT
In the circumstances we allow the present appeal,
set aside the judgments of conviction recorded by the
courts below against the appellant and acquit him
of all the charges leveled against him. We further
direct that the benefit of this acquittal and our
decision will also enure to the advantage of the nonappealing accused namely Sk. Sahid @Bablu.
TTTTTTT
Authorities relied upon : 2002 (8) SCC 147, 1987 (3)
SCC 331.
Reference : Supreme Court. Md. Sajjad @ Raju @
Salim v. State of West Bengal, Criminal Appeal No.
1953 of 2010.
µ GLOBAL GLIMPSE
—————
µ
US SC: SCHOOL DISTRICTS MUST INDIVIDUALIZE EDUCATION FOR
DISABLED STUDENTS
The US Supreme Court unanimously vacated and remanded a lower decision regarding the Individuals
with Disabilities Education Act (IDEA). The court ruled that to meet IDEA standards, a school must offer
an "individualized education program" that is tailored to each child’s needs, finding that students with
disabilities must have the chance to make meaningful, "appropriately ambitious" progress. Endrew F . v.
Douglas County School District questioned whether a minimum standard was acceptable or an individualized
program had to be created for each student under IDEA. Chief Justice Roberts wrote for the court, "[i]t
cannot be right that the IDEA generally contemplates grade-level advancement for children with disabilities
who are fully integrated in the regular classroom, but is satisfied with barely more than de minimis progress
for children who are not". There are currently almost 6.5 million students with disabilities in the US.
US SC: ALLOWS COPYRIGHT PROTECTION OF CHEERLEADING UNIFORMS
The US Supreme Court upheld copyright protections for features incorporated into the design of useful
articles. The court ruled 6-2 in Star Athletica, LLC v. Varsity Brands, Inc. in favor of Varsity Brands in a
patent infringement lawsuit concerning patterns typically fit for cheerleading uniforms. The suit was brought
to determine the proper test for implementing "separate-identification and independent-existence
requirements" as mandated by USC 17 § 101. The court held that a feature incorporated into a design of
a useful article is eligible for copyright protection if, separate from the useful article, the feature (1) can be
perceived as a two or three dimensional work of art and (2) would qualify as a protectable pictorial, graphic,
or sculptural work on its own or in another tangible medium of expression. Justice Clarence Thomas, writing
for the majority, opined that "the uniform design met the [separability] test of being able to exist as its own
pictorial, graphic, or sculptural work". Thomas also stated that the fact the design follows the contours of
a cheerleading uniform does not bar it from copyright. The ruling supports the pre-established law that
protects such works of art.
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LAW FOR YOU
LEAVE TO DEFEND
The discretion that a Judge exercises under Order 37
to refuse leave to defend or to grant conditional or
unconditional leave to defend is a discretion akin to
Joseph’s multi-coloured coat-a large number of
battling alternatives present themselves. The life of
the law not being logic but the experience of the trial
Judge, is what comes to the rescue in these cases;
but at the same time informed by guidelines or
principles that we propose to lay down to obviate
exercise of judicial discretion in an arbitrary manner.
At one end of the spectrum is unconditional leave to
defend, granted in all cases which present a
substantial defence. At the other end of the spectrum
are frivolous or vexatious defences, leading to refusal
of leave to defend. In between these two extremes
are various kinds of defences raised which yield
conditional leave to defend in most cases. It is these
defences that have to be guided by broad principles
which are ultimately applied by the trial Judge so that
justice is done on the facts of each given case.
Reference: SC. IDBI Trusteeship Services Ltd.
v. Hubtown Ltd., civil appeal no. 10860 of
2016 [arising out of S.L.P. (Civil) No. 31439
of 2015].
PROOF OF CRUELTY BY HUSBAND
IS SINE QUA NON TO SEEK
STATUTORY PRESUMPTION UNDER
S. 113B
Presumption as to dowry death under S. 113B of
Evidence Act is grounded on the proof of cruelty or
harassment of the woman dead for or in connection
with any demand for dowry by the person charged
with the offence. The presumption as to dowry death
thus would get activated only upon the proof of the
fact that the deceased lady had been subjected to
cruelty or harassment for or in connection with any
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demand for dowry by the accused and that too in the
reasonable contiguity of death. Such a proof is thus
the legislatively mandated prerequisite to invoke the
otherwise statutorily ordained presumption of
commission of the offence of dowry death by the
person charged therewith. A conjoint reading of
provisions of Ss. 498A, 304B of Penal Code and S.
113B of Evidence Act thus predicate the burden of
the prosecution to unassailably substantiate the
ingredients of the two offences by direct and
convincing evidence so as to avail the presumption
engrafted in Section 113B of the Act against the
accused. Proof of cruelty or harassment by the
husband or her relative or the person charged is thus
the sine qua non to inspirit the statutory
presumption, to draw the person charged within the
coils thereof. If the prosecution fails to demonstrate
by cogent coherent and persuasive evidence to prove
such fact, the person accused of either of the above
referred offences cannot be held guilty by taking
refuge only of the presumption to cover up the
shortfall in proof.
Reference: SC. Baijnath and others v. State of
Madhya Pradesh, criminal appeal no. 1097
of 2016 [arising out of S.L.P. (Crl.) No. 9718
of 2014].
ORIGINAL OR CERTIFIED COPY OF
ARBITRATION
AGREEMENT
THOUGH NOT ACCOMPANIED WITH
APPLICATION, BUT FILED AT THE
TIME OF CONSIDERATION, DOES
NOT ENTAIL REJECTION OF
APPLICATION
Section 8(2) of Arbitration and Conciliation Act (26
of 1996) has to be interpreted to mean that the court
shall not consider any application filed by the party
under Section 8(1) unless it is accompanied by
April 2017
I Lawteller I 171
LAW FOR YOU
original arbitration agreement or duly certified copy
thereof. Thus, the filing of the application without
such original or certified copy, but bringing original
arbitration agreement on record at the time when the
Court is considering the application shall not entail
rejection of the application under Section 8(2).
Reference: SC. Ananthesh Bhakta
Represented by Mother Usha A. Bhakta &
others v. Nayana S. Bhakta & others, civil
appeal no. 10837 of 2016 [arising out of SLP
(C) No. 31179 of 2014].
ORDER INITIATING PROCEEDINGS
U/S. 340 C rPC, WITHOUT
FOLLOWING PROCEDURE LIABLE
TO BE SET ASIDE
There are two pre-conditions for initiating
proceedings under Section 340 CrPC,--(i) materials
produced before the court must make out a prima facie
case for a complaint for the purpose of inquiry into
an offence referred to in clause (b)(i) of sub-section
(1) of Section 195 of the CrPC and (ii) it is expedient
in the interests of justice that an inquiry should be
made into the alleged offence. The mere fact that a
person has made a contradictory statement in a
judicial proceeding is not by itself always sufficient
to justify a prosecution under Sections 199 and 200
of the Indian Penal Code, but it must be shown that
the defendant has intentionally given a false
statement at any stage of the judicial proceedings or
fabricated false evidence for the purpose of using the
same at any stage of the judicial proceedings. In the
process of formation of opinion by the court that it
is expedient in the interests of justice that an inquiry
should be made into, the requirement should only be
to have a prima facie satisfaction of the offence which
appears to have been committed. It is open to the
court to hold a preliminary inquiry though it is not
mandatory. In case, the court is otherwise in a
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position to form such an opinion, that it appears to
the court that an offence as referred to under Section
340 of the CrPC has been committed, the court may
dispense with the preliminary inquiry. Even after
forming an opinion as to the offence which appears
to have been committed also, it is not mandatory that
a complaint should be filed as a matter of course. No
doubt, such an opinion can be formed even without
conducting a preliminary inquiry, if the formation of
opinion is otherwise possible. And even after forming
the opinion also, the court has to take a decision as
to whether it is required, in the facts and
circumstances of the case, to file the complaint. Only
if the decision is in the affirmative, the court needs
to make a complaint in writing and the complaint thus
made in writing is then to be sent to a Magistrate of
competent jurisdiction.
Reference: SC. Amarsang Nathaji as himself
and as Kar ta and Manager v . Hardik
Harshadbhai Patel and others, civil appeal
no. 11120 of 2016 [arising out of S.L.P. (C)
No. 13749 of 2016].
ORDER PASSED BY FOREIGN
COURT BECOMES DECREE AS PER
CPC
"A foreign judgement" is defined under Section 2(6)
as judgement of a foreign Court. "Judgement" as per
Section 2(9) of C.P.C. means the statement given by
the Judge on the grounds of a decree or order. Order
is defined under Section 2(14) of CPC as a formal
expression of any decision of the Civil Court which
is not a ’decree’. Then Explanation 2 to Section 44A
(3) says "decree" with reference to a superior Court
means any ’decree’ or ’judgement’.As per the plain
reading of the definition ’Judgement’ means the
statement given by the Judge on the grounds of
decree or order and order is a formal expression of a
Court. Thus "decree" includes judgement and
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LAW FOR YOU
"judgement" includes "order". On conjoint reading
of ’decree’, ’judgement’ and ’order’ from any angle, the
order passed by the English Court falls within the
definition of ’Order’ and therefore, it is a judgement
and thus becomes a "decree" as per Explanation to
Section 44A(3) of CPC.
Reference: SC. M/s. Alcon Electronics Pvt.
Ltd. v. Celem S.A. of Fos 34320 Roujan, France
and another, civil appeal no. 10106 of 2016
[arising out of Special Leave Petition (Civil)
no. 19791 of 2013].
SCHEME FOR REGULARIZATION OF
APPOINTMENTS MUST BE FOR
VALIDATING
IRREGULAR
APPOINTMENTS
Regularization is not a source of recruitment nor is it
intended to confer permanency upon appointments
which have been made without following the due
process envisaged by Articles 14 and 16 of the
Constitution. Essentially a scheme for regularization,
in order to be held to be legally valid, must be one
which is aimed at validating certain irregular
appointments which may have come to be made in
genuine and legitimate administrative exigencies. In
all such cases it may be left open to Courts to lift the
veil to enquire whether the scheme is aimed at
achieving the above objective and is a genuine
attempt at validating irregular appointments. State and
its instrumentalities cannot be permitted to use this
window to validate illegal appointments. Second rider
which must necessarily be placed is that the principle
as formulated above is not meant to create or invest
in a temporary or ad hoc employee right to seek a
writ commanding State to frame a scheme for
regularization. Otherwise, this would simply
reinvigorate a class of claims which has been shut
out permanently by decision in AIR 2006 SC 1806.
Ultimately, it would have to be left to the State and
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its instrumentalities to consider whether the
circumstances warrant such a scheme being
formulated. The formulation of such a scheme cannot
be accorded the status of an enforceable right. It
would perhaps be prudent to leave it to a claimant to
establish whether he or she falls within the exceptions
carved out in paragraph 53 of decision in AIR 2006
SC 1806 and falls within ambit of a scheme that may
be formulated by the State. Subject to riders referred
to above, a scheme of regularization could fall within
the permissible limits of decision Uma Devi AIR 2006
SC 1806 and be upheld.
Reference: SC. State of Jammu and Kashmir
and others v. District Bar Association,
Bandipora. Civil appeal no. 36084 of 2016,
Special Leave Petition (C) 11941 of 2016
[arising out of SLP (C) CC No. 16091 of 2016].
PERMANENT RESIDENTS OF J&K
ARE CITIZENS OF INDIA
State of Jammu & Kashmir has no vestige of
sovereignty outside the Constitution of India and its
own Constitution, which is subordinate to the
Constitute of India. It is therefore wholly incorrect to
describe it as being sovereign in the sense of its
residents constituting a separate and distinct class
in themselves. Residents of Jammu & Kashmir, are first
and foremost citizens of India. It cannot be said that
Constitution of India and that of Jammu & Kashmir
have equal status. Article 1 of Constitution of India
and Section 3 of Jammu & Kashmir Constitution make
it clear that India shall be a Union of States, and that
State of Jammu & Kashmir is and shall be an integral
part of the Union of India. Permanent residents of the
State of Jammu & Kashmir are citizens of India, and
that there is no dual citizenship as is contemplated
by some other federal Constitutions in other parts of
the world.
Reference: SC. State Bank of India v. Santosh
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I Lawteller I 173
LAW FOR YOU
Gupta and Anr., etc., civil appeal nos. 1223712238 with 12240-12246 of 2016 [arising out
of SLP (Civil) Nos. 30884-30885 with 3081030815 & 30817 of 2015] [SLP (Civil) Nos.
30817 of 2015].
Divisional Controller Maharashtra, State
Road Transport Corporation, Jalgaon Div.,
Jalgaon, civil appeal no. 11807 of 2016
[arising out of S.L.P. (C) No. 26366 of 2016].
ABETMENT OF SUICIDE
ADMINISTRATIVE CONTROL OF
NATIONAL
AND
STATE
COMMISSIONS
The power of administrative control is couched in
wide terms. The power would include overseeing the
functioning of the State Commissions and the district
fora in all administrative matters. This would include
the posting of and control over members,
appointment of and control over manpower, provision
of adequate infrastructure and the streamlining of all
administrative matters (except the exercise of the
judicial power in deciding complaints, appeals and
revisions). The difficulties which have been
encountered in the proper functioning of the district
fora and the State Commissions.
The basic ingredients of provision of S. 306 IPC are
suicidal death and the abetment thereof. To constitute
abetment, the intention and involvement of the
accused to aid or instigate the commission of suicide
is imperative. Any severance or absence of any of
this constituents would militate against this
indictment. Remoteness of the culpable acts or
omissions rooted in the intension of the accused to
actualize the suicide would fall short as well of the
offence of abetment essential to attract the punitive
mandate of Section 306 IPC. Contiguity, contiguity,
culpability and complicity of the indictable acts or
omission are the concomitant indices of abetment.
Section 306 IPC, thus criminalises the sustained
incitement for suicide.
Reference: SC. State of U.P. and others v. All
U.P. Consumer Protection Bar Association,
civil appeal no. 2740 of 2007 with W rit
Petition (C) No. 164 of 2002.
Reference: SC. Gurcharan Singh v. State of
Punjab, criminal appeal no. 1135 of 2016
[arising out of SLP (Criminal) No. 8764 of
2016].
GRATUITY CAN BE DENIED ONLY IF
TERMINATION IS ON ACCOUNT OF
OFFENCE INVOLVING MORAL
TURPITUDE
EMPLOYEE OF TENANT, NOT
NECESSARY PARTY TO EVICTION
PROCEEDINGS
In order to deny gratuity to an employee, it is not
enough that the alleged misconduct of the employee
constitutes an offence involving moral turpitude as
per the report of the domestic inquiry. There must be
termination on account of the alleged misconduct,
which constitutes an offence involving moral
turpitude.
Reference: SC. Jorshing Govind Vanjari v.
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An employee of a tenant is never considered to be
in actual possession of tenanted premises much less
in possession in his legal right. Indeed, he is allowed
to use the tenanted premises only with the permission
of his employer by virtue of his contract of
employment with his employer . An employee,
therefore, cannot claim any legal right of his own to
occupy or to remain in possession of the tenanted
premises while in employment of his employer or even
thereafter qua landlord for want of any privity of
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LAW FOR YOU
contract between him and the landlord in respect of
the tenanted premises.
Reference: SC. Nandkishor Savalaram Malu
(Dead) Thr. LRs. v. Hanumanmal G. Biyani (D)
Thr. LRs. and others, civil appeal no. 11868 of
2016 [arising out of SLP (C) No. 19259 of
2010].
SPECIAL PROVISIONS UNDER I.T.
ACT HAVE OVER-RIDING EFFECT
AND COVER CRIMINAL ACT AND
OFFENDER
Obscenity pertaining to electronic record falls under
the scheme of the I.T . Act. Once the special
provisions having the overriding effect to cover a
criminal act and the offender, he gets out of the net
of the IPC. Electronic forms of transmission is covered
by the IT Act, which is a special law. It is settled
position in law that a special law shall prevail over
the general and prior laws. When the Act in various
provisions deals with obscenity in electronic form, it
covers the offence under S. 292 IPC.
Reference: SC. Sharat Babu Digumarti v.
Govt. of NCT of Delhi, criminal appeal no.
1222 of 2016 [arising out of SLP (Criminal)
No. 7675 of 2015].
SUO MOTU COGNIZANCE
The cause for invoking its jurisdiction suo motu by
High Court in the instant case was a news report in
regard to a breach of security at airport. Matters of
security ought to be determined by authorities of the
government vested with duty and obligation to do
so. Gathering of intelligence information, formulation
of policies of security, deciding on steps to be taken
to meet threats originating both internally and
externally are matters on which courts singularly lack
expertise. Breach of security at particular airport
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undoubtedly was an issue of serious concern and
would have been carefully investigated both in terms
of prosecuting the offender and by revisiting the
reasons for and implications of a security lapse of this
nature. This exercise was for the authorities to carry
out. It was not for the Court in the exercise of its
power of judicial review to suggest a policy which it
considered fit. The formulation of suggestions by the
High Court for framing a National Security Policy
travelled far beyond the legitimate domain of judicial
review. Formulation of such a policy is based on
information and inputs which are not available to the
court. The court is not an expert in such matters.
Judicial review is concerned with the legality of
executive action and the court can interfere only
where there is a breach of law or a violation of the
Constitution. A suo motu exercise of the nature
embarked upon by the High Court encroaches upon
the domain of the executive.
Reference: SC. Union of India v. Rajasthan
High Court and others, civil appeal no. 717 of
2006.
SC & ST ACT ENLARGES SCOPE OF
CRIMINAL LIABILITY NOT COVERED
BY IPC
The Act enlarges the scope of criminal liability by
including several acts or omissions of atrocities
which were not covered by India Penal Code or
Protection of Civil Rights Act, 1955. The Act also
provides protection to Scheduled Castes and
Scheduled Tribes for various atrocities affecting
social disabilities, properties, malicious prosecution,
political rights and economic exploitation. It also
provides for enhanced punishment for commission of
offences against the Scheduled Castes and Scheduled
Tribes. The minimum punishment for neglect of duties
committed by a public servant was also increased.
Provisions were made for granting minimum relief and
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compensation to victims of atrocities and their legal
heirs. Other salient features of the Act include
externment of potential offenders from Scheduled
Areas and Tribal Areas as well as attachment of the
properties of accused. The Act prohibits the grant of
Anticipatory Bail to accused and the Probation of
Offenders Act, 1958 was also made inapplicable to
the Act. Certain preventive measures provided in the
Act include cancellation of arms licenses of potential
offenders and even grant of arms licenses to
Scheduled Castes and Scheduled Tribes as a means
of self defence.
Reference: SC. National Campaign on Dalit
Human Rights and others v. Union of India
and others, Writ Petition (Civil) No. ‘140 of
2006.
POWER TO PUNISH DOES NOT
EXTEND TO PUNISHING FOR
CONTEMPT OF SUPERIOR COURT
Power to punish for contempt vested in a Court of
record under Article 215 does not extend to punishing
for contempt of a superior court. Such a power has
never been recognized as an attribute of a court of
record nor has the same been specifically conferred
upon High Courts under Article 215. A prior if, the
power to punish under Article 215 is limited to the
contempt of High Court or courts subordinate to High
Court, there was no way High Court could justify
invoking that power to punish for contempt of a
superior court. That is particularly so when superior
court’s power to punish for its contempt has been in
no uncertain terms recognized by Article 129 of the
Constitution. The availability of the power under
Article 129 and its plenitude is yet another reason
why Article 215 could never have been intended to
empower High Courts to punish for the contempt of
the Supreme Court. The logic is simple. If Supreme
Court does not, despite the availability of power
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vested in it, invoke the same to punish for its
contempt, there is no question of a Court subordinate
to the Supreme Court doing so.
Reference: SC. Vitusah Oberoi and others v.
Court of its Own Motion, criminal appeal no.
1234 with 1299 of 2007.
DEEMED DIVIDEND
Section 2(22)(e) of Income-Tax Act (43 of 1961)
creates a fiction, thereby bringing any amount paid
otherwise than a dividend into the net of dividend
under certain circumstances. It gives an artificial
definition of "dividend". It does not take into account
that dividend which is actually declared or received.
The dividend taken note of by this provision is a
deemed dividend and not a real dividend. Loan or
payment made by company to its shareholder is
actually not a dividend. In fact, such a loan to a
shareholder has to be returned by the shareholder to
company. It does not become income of the
shareholder. Notwithstanding the same, for certain
purposes. Legislature has deemed such a loan or
payment as ’dividend’ and made it taxable at the hands
of the said shareholder. It is, therefore, not in dispute
that such provision which is a deemed provision and
fictionally creates certain kinds of receipts as
dividends, is to be given strict interpretation. It
follows that unless all the conditions contained in the
said provision are fulfilled, the receipt cannot be
deemed as dividends. Further, in case of doubt or
where two views are possible, benefit shall accrue in
favour of the assessee.
Reference: SC. Gopal and Sons (HUF) v. CIT,
Kolkata-XL, civil appeal no. 12274 of 2016
[arising out of SLP (C) No. 22059 of 2015].
ooooooo
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GENERAL
TO KEEP UNPRINCIPLED AND UNETHICAL
LITIGANTS AT BAY, IS OBLIGATION OF COURT
O
N THE BASIS OF A REPORT BY THE
INFORMANT UNDER Section 154 CrPC, FIR
No. 205/2014 dated 26.07.2014 was registered at
Chandrayanagutta Police Station, Hyderabad for the
offences punishable under Sections 147, 148 149 and
307 of the Indian Penal Code (IPC). Challenging the
initiation of criminal action, the three accused
persons, namely , accused Nos. 1, 2 and 5,
(respondent Nos. 1, 2 and 3 herein) invoked inherent
jurisdiction of the High Court in Criminal Petition No.
10012 of 2014 for quashing of the FIR and
consequential investigation. As the impugned order
would show, the learned single Judge referred to the
FIR and took note of the submissions of the learned
counsel for the petitioners therein that all the
allegations that had been raised in the FIR were
false and they had been falsely implicated and
thereafter expressed his disinclination to interfere on
the ground that it was not appropriate to stay the
investigation of the case. However, as a submission
had been raised that the accused persons were
innocent and there had been allegation of false
implication, it would be appropriate to direct the
police not to arrest the petitioners during the
pendency of the investigation and, accordingly, it
was so directed.
The seminal issue that arises for consideration in this
appeal, by special leave, is whether the High Court
while refusing to exercise inherent powers under
Section 482 of the Code of Criminal Procedure (CrPC)
to interfere in an application for quashment of the
investigation, can restrain the investigating agency
not to arrest the accused persons during the course
of investigation.
The Supreme Court accepted the appeal, set aside the
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impugned order of the High Court and directed that
the investigation shall proceed in accordance with
law.
The operative part of the judgment reads as under:In the instant case, the High Court has not referred
to allegations made in the FIR or what has come out
in the investigation. It has noted and correctly that
the investigation is in progress and it is not
appropriate to stay the investigation of the case. It
has disposed of the application under Section 482
CrPC and while doing that it has directed that the
investigating agency shall not arrest the accused
persons. This direction "amounts" to an order under
Section 438 CrPC, albeit without satisfaction of the
conditions of the said provision. This is legally
unacceptable.
TTTTTTT
States where Section 438 CrPC has not been deleted
and kept on the statute book, the High Court should
be well advised that while entertaining petitions
under Article 226 of the Constitution or Section 482
CrPC, exercise judicial restraint. We may hasten to
clarify that the Court, if it thinks fit, regard being
had to the parameters of quashing and the selfrestraint imposed by law, has the jurisdiction to
quash the investigation and may pass appropriate
interim orders as thought apposite in law, but it is
absolutely inconceivable and unthinkable to pass an
order of the present nature while declining to
interfere or expressing opinion that it is not
appropriate to stay the investigation. This kind of
order is really inappropriate and unseemly. It has no
sanction in law. The Courts should oust and obstruct
unscrupulous litigants from invoking the inherent
jurisdiction of the Court on the drop of a hat to file
April 2017
I Lawteller I 177
GENERAL
an application for quashing of launching an FIR or
investigation and then seek relief by an interim order.
It is the obligation of the court to keep such
unprincipled and unethical litigants at bay.
949, 1980 (2) SCC 565,AIR 1980 SC 326, 1977 (4) SCC
451, 1977 (4) SCC 137, AIR 1976 SC 1947, AIR 1974
SC 1146, 1972 (1) SCC 452, 1970 (1) SCC 595,
AIR 1945
PC 18.
TTTTTTT
Reference : Supreme Court. The State of Telangana
Authorities relied upon : 2013 (16) SCC 797, 2007 v. Habib Abdullah Jeelani & Ors., CriminalAppeal No.
Cri LJ 170 (All), 2005 Cri LJ 755 (All), 2000 Cri LJ 569 1144 of 2016 [@ Special Leave Petition (Crl.) No. 5478
(All), 1998 Cri LJ 2366 (All), 1997 Cri LJ 2705 (All), of 2015].
1994 Cri LJ 1919 (All),AIR 1992 SC 604,AIR 1982 SC
—————
µ GLOBAL GLIMPSE
µ
FAMILIES OF 9/11 VICTIMS SUE SAUDI ARABIA
More than 850 family members of victims of the 9/11 attacks filed a lawsuit against the Kingdom of Saudi
Arabia. The suit alleges that Saudi Arabia provided support to Al Qaeda in multiple ways. First, it alleges
that Saudi Arabian charities ran terrorist training camps in Afghanistan, working hand in hand with Osama
bin Laden. The suit also claims that the government of Saudi Arabia directly funded Al Qaeda by providing
passports and transportation across the globe. Finally, the suit contends that certain Saudi officials worked
with the hijackers in the US for the 18 months leading up to the attacks. The lawsuit seeks unspecified damages,
with the primary motive on trying to hold Saudi Arabia accountable for the attacks. This legal challenge only
became available after congress passed the Justice Against State Sponsors of Terrorism Act, which provided
the legal recourse to sue foreign governments over the 9/11 attacks.
US SC: DECLINES TO HEAR VIMEO COPYRIGHT INFRINGEMENT CASE
The US Supreme Court declined to hear an appeal from record companies that want to pursue a copyright
infringement case against music site Vimeo for hosting music by classic artists. Capitol Records and other
record companies had sued Vimeo for hosting 199 unauthorized video recordings from artists such as The
Beatles and Elvis Presley. The Supreme Court decision lets stand the federal appeals court ruling that websites
are protected from liability for music recorded before 1972. According to the federal judge, a federal safe
harbor law, the Digital Millennium Copyright Act, did not create liability for video-sharing websites as long
as they remove the infringing material once they receive notice of it.
US SC: DECLINES TO HEAR VISAAND MASTERCARD ANTITRUST CASE
The US Supreme Court denied a petition to revive a $7.25 billion antitrust settlement with Visa and Mastercard
over claims that the corporations illegally filed debit and credit card fees. The court left in place a decision
by the Second Circuit Court of Appeals to throw out a settlement because some retailers stood to receive no
payments or derive any benefit from the settlement. The retailers reached the settlement after claiming Visa
and MasterCard were overcharging on "swipe fees", which charged retailers an average of 2 percent of the
transaction when the purchaser used a card, and barred the retailers from directing purchasers toward
alternative payment methods. The settlement would have been the largest antitrust settlement in US history.
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SERVICE
IN CASE OF MERGER, CORPORATION NOT
OBLIGED TO ASK FOR OPTIONS
S
.K. SHARMA AND OTHERS-THE
RESPONDENTS FILED THE WRIT petition in
1992 claiming that they were appointed originally in
a department of PEPSU described as PEPSU
Roadways, between January 1955 and September 1956.
It is not in dispute that in the PEPSU Roadways the
respondents’ appointment was only on temporary
basis. PEPSU Roadways lost its utility due to creation
of PEPSU Road Transport Corporation (hereinafter
referred to as the ’Corporation’). Copy of notification
dated 07.01.1956 available on record shows that
Corporation was created by this notification under the
provisions of the Road Transport Corporation Act,
1950 enforced with effect from 10.08.1954. The State
Government through the Chief Secretary issued a
letter dated 16.10.1956 informing the General Manager,
PEPSU Roadways, Patiala (with reference to PEPSU
Roadways’ communication dated 14.10.1956) that His
Highness the Rajpramukh had ordered the transfer of
PEPSU Roadways to the PEPSU Road Transport
Corporation (with effect from 15.10.1956 forenoon) on
various terms and conditions in respect to evaluation
of the assets of the PEPSU Roadways as well as
sharing the burden for payment of the employees of
the Corporation. The letter indicates that the
Corporation was requested to draw up the agreement
required by clause (h) of sub-section (2) of Section
19 of the Road Transport Corporation Act, 1950 and
forward the same to the Government for approval and
signatures. On account of the States Reorganization
Act the merger of State of PEPSU with the State of
Punjab became effective from 01.11.1956. Through an
Order no. 61 dated 30.11.1956 the Corporation
admitted that PEPSU Roadways stood taken over by
the Corporation from 16.10.1956 (before noon), so the
services of all the temporary employees stood
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transferred to the Corporation with effect from
16.10.1956 on the prevailing terms and conditions till
the approval of new terms and conditions by the
Corporation. The respondents never challenged this
declaration, got promotions etc. and continued to
serve the Corporation till they all retired between
1989 and 1991. It is not in dispute that PEPSU Road
Transport Corporation Regulations which was framed
in 1957 provided for Contributory Provident Fund
(CPF). There was no provision for grant of pension.
Much after the retirement of the respondents, only
with effect from 15.06.1992 the Corporation framed
PRTC Employees Pension/Gratuity and General
Provident Fund Regulations, 1992 (hereinafter
described as ’Regulations of 1992’). Under these
Regulations, for the first time pension was introduced
in the Corporation.
Soon after the enforcement of Regulations of 1992 the
respondents who had already received their retiral
benefits under the 1957 Regulations filed the writ
petition at hand. Originally the grievance of the
respondents in the writ petition was as to why the
Regulations of 1992 have not been made retrospective
but through an amendment in 1998, the writ petition
was substantially amended so as to claim that they
continued to be employees of the State in the
department of PEPSU Roadways till PEPSU State was
reorganized and from 01.11.1956, the date of
reorganization they became employees of State of
Punjab with right to pension as available to
Government servants. The Single Judge allowed the
writ petition on the premise that the respondents had
simply been transferred from the parent department
to serve in the Corporation and therefore they
continued to be Government servants because there
was no order passed for their absorption in the
April 2017
I Lawteller I 179
SERVICE
Corporation. The Letters Patent Appeal preferred by
the appellants was dismissed by the judgment and
order dated 24.04.2006.
The PRTC being aggrieved filed special leave petition
against the judgement of the High Court. The Supreme
Court accepted the appeal, the impugned judgement
of the High Court granting relief to the respondents
was set aside. The appeal was accordingly allowed.
The operative part of the judgment reads as under:Reply of the appellants is that since the department
itself ceased to exist there were no posts on which
the respondents could claim lien and in absence of
any such post or lien they cannot claim to be
Government employee of PEPSU State till
01.11.1956, the date of the merger of PEPSU State
with Punjab.
TTTTTTT
There can be no such belated challenge to the
decision of PEPSU State whereby PEPSU Roadways,
one of the departments came into and merged with
the Corporation lock, stock and barrel before the
merger of PEPSU with Punjab on 01.11.1956. Hence,
the provisions of the States Reorganization Act
ceased to have any significance in the matter
because the respondents ceased to be employees of
State Government of PEPSU prior to 01.11.1956.
TTTTTTT
They accepted such merger and alteration of their
service conditions without any protest. Since 1957,
under the Regulations of the Corporation they
participated and contributed to the scheme of CPF
and obtained the benefits of retirement from the
Corporation between 1985 and 1991 without any
protest. The High Court clearly erred in ignoring
such conduct of the respondents, the effect of the
Chief Secretary’s letter dated 16.10.1956 containing
decision of PEPSU State and its acceptance by the
Corporation reflected by the order dated 30.11.1956.
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I Lawteller I April 2017
The High Court further erred in relying upon law
which is applicable when there is no merger of
Government concern with the private concern but
only individual employees are transferred on
deputation or on foreign service to other
organizations/services. The ordinary rules providing
for asking of option or issuance of letters of
absorption depend upon nature of stipulations which
may get attracted to a case of deputation. There may
be similar stipulations in case of merger by transfer.
But if there are no such stipulations like in the
present case then the transferee concern like the
Corporation has no obligation to ask for options
and to issue letters of options to individual
employees who become employees of the transferee
organization simply by virtue of order and action of
transfer of the whole concern leading to merger. No
doubt in case of any hardship, the affected employees
have the option to protest and challenge either the
merger itself or any adverse stipulation. However, if
the employees choose to accept the transition of their
service from one concern to another and acquiesce
then after decades and especially after their
retirement they cannot be permitted to turn back and
challenge the entire developments after a gap of
decades.
TTTTTTT
We are constrained to hold that the respondents had
accepted to continue as employees of Corporation
pursuant to order of merger/transfer of PEPSU
Roadways with effect from 16.10.1956 and on
completing their service under the Corporation and
reaching the age of retirement they were entitled to
receive only the benefits of CPF and gratuity as
admissible to them under then prevailing regulations
of the Corporation.
TTTTTTT
It cannot be claimed by way of general rule simply
on the basis of S.R. Bhanrale v. Union of India and
Ors. [1997 (1) SLJ 14] that in all cases of claim for
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SERVICE
pension, the plea of delay or limitation cannot be
considered by a writ court. Only where the retiral
benefits have been wrongly withheld and not paid
despite numerous representations and as observed
in para 4 of the aforesaid judgment the delay is not
of decade or so the Court may not appreciate a plea
of limitation raised by the Government. In the present
case admission or declaration made by the
Corporation on 30.11.1956 through Order no. 61
that services of the respondents, i.e., of all temporary
employees stood transferred to the Corporation with
effect from 16.10.1956 and shall be governed by the
new terms and conditions as and when approved by
the Corporation was within the knowledge of the
respondents and they accepted such orders of the
Government and the Corporation from 1956 till their
retirement and even thereafter till the enforcement
of Regulations of 1992 which led to filing of writ
petition by them in 1992. Clearly the respondents
acquiesced to the entire situation and accepted their
status as employees of the Corporation leading to
admissible retiral benefits. In such circumstances, the
aforesaid judgment cannot help the respondents. The
appellant Corporation was fully justified in raising
the plea of delay and latches. The High Court erred
in ignoring such plea when the delay was quite
unusual. We find no material to satisfactorily explain
such delay.
TTTTTTT
Authorities relied upon : 2014 (4) SCC 144, 1973 (1)
SLR 1080, 1969 (1) SCC 466,AIR 1954 SC 217.
Reference : Supreme Court. PEPSU Road Transport
Corporation, Patiala Through its Managing Director
& Anr. v. S. K. Sharma & Ors., Civil Appeal No. 4703
of 2009.
µ GLOBAL GLIMPSE
—————
µ
NEW ZEALAND: GIVES RIVER SAME LEGAL RIGHTS AS PERSON
The New Zealand Parliament voted to approve a law that grants the Whanganui River the legal rights of a
person. According to the new law, the river, or Te Awa Tupua as it is known to the local Maori people, is now
recognized as "an indivisible and living whole, comprising the Whanganui River from the mountains to the
sea, incorporating all its physical and metaphysical elements," and "is a legal person and has all the rights,
powers, duties, and liabilities of a legal person". In addition, the law mandates that two guardians be assigned
to "act and speak for and on behalf of" the river. One guardian will be appointed by Parliament, and the other
by the local Maori tribe. Albert Gerrard, a lead negotiator for the Whanganui tribe, called the 170-year legal
fight for recognition a "long, hard battle". New Zealand Attorney General Chris Finlayson said the legal
recognition is important to the local Maori people.
BREXIT BILL RECEIVES ’ROYAL ASSENT’ AND BECOMES LAW
UK House of Commons speaker John Bercow announced that the EU withdrawal bill has received royal assent
and become law. UK Prime Minister Theresa May is now empowered to begin the Brexit process underArticle
50 of the EU’s key treaty. Article 50 explains that the UK will cease to be a member of the bloc two years after
the prime minister notifies the Union. The prime minister’s office has indicated that notification will occur in
the final week of March, and the prime minister plans to create a new free-trade deal between the UK and the
EU at that time.
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I Lawteller I 181
GENERAL
A WOMAN’S RIGHT TO MAKE REPRODUCTIVE
CHOICES IS ALSO A DIMENSION OF
’PERSONAL LIBERTY’: SC
M
EERA SANTOSH PAL-PETITIONER NO.1 IS
22 YEARS OLD, HAD approached the
Supreme Court under Article 32 of the Constitution
of India seeking directions to the respondents to
allow her to undergo medical termination of her
pregnancy. She apprehended danger to her life,
having discovered that her fetus was diagnosed with
Anencephaly, a defect that leaves foetal skull bones
unformed and is both untreatable and certain to cause
the infant’s death during or shortly after birth. This
condition is also known to endanger the mother’s life.
By order dated 11.1.2017, while issuing notice to the
respondents, the Supreme Court gave a direction for
examination of petitioner no.1 by a Medical Board
consisting of the following seven Doctors:
1. Dr. Avinash N. Supe, Director (Medical
Education & Major Hospitals) & Dean
(G&K) - Chairman
2. Dr. Shubhangi Parkar, Professor and HOD,
Psychiatry, KEM Hospital
3. Dr. Amar Pazare, professor and HOD,
Medicine, KEM Hospital
4. Dr. Indrani Hemant Kumar Chincholi,
Professor and HOD, Anaesthesia, KEM
Hospital
5. Dr. Y.S. Nandanwar, Professor and HOD,
Obstetrics, KEM Hospitals
6. Dr. Anahita Chauhan, Professor and Unit
Head, Obstetrics & Gynecology, LTMMC
and LTMG Hospitals
7. Dr. Hemangini Thakkar, Addl. Professor,
Radiology, KEM Hospital.
As on 12.1.2017, she was into her 24th week of
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I Lawteller I April 2017
pregnancy. This is also borne by the report dated
12.1.2017, received from the Director (ME & MH)’s
Office, Seth G.S. Medical College & KEM Hospital,
Parel, Mumbai - 400 012.
By its report dated 12.1.2017, the Medical Board has
examined petitioner no.1 with specific reference to
their special expertise for general, medical,
radiological, psychiatric and anaesthetic evaluation.
An obstetric evaluation was done by two
Obstetricians. Ultrasonography was performed at
KEM Hospital on 12.1.2017 by the Additional
Professor, Radiology. The said Board has further
reported that obstetric examination shows 24 weeks
pregnancy, external ballottement present, fetal parts
not well felt with mild polyhydramnios. On internal
examination, the cervix is posterior and OS is closed.
Ultrasonography diagnosis has revealed a single live
fetus with anencephaly with mild polyhydramnios
with hypotelorism.
The court was informed that the fetus is without a
skull and would, therefore, not be in a position to
survive. It is also submitted that petitioner no.1 has
undergone psychiatric evaluation. She is reported to
be coherent, has average intelligence and with good
comprehension. She understands that her fetus is
abnormal and the risk of fetal mortality is high. She
also has the support of her husband in her decision
making.
Upon evaluation of petitioner no.1, the aforesaid
Medical Board has concluded that her current
pregnancy is of about 24 weeks. The condition of the
fetus is not compatible with extra-uterine life. In other
words, the fetus would not be able to survive outside
the uterus.
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GENERAL
Importantly, it is reported that the continuation of
pregnancy can gravely endanger the physical and
mental health of petitioner no.1 and the risk of her
termination of pregnancy is within acceptable limits
with institutional back up.
The Supreme Court found that the medical evidence
clearly suggest that there is no point in allowing the
pregnancy to run its full course since the fetus would
not be able to survive outside the uterus without a
skull.
The Supreme Court accepted the writ petition thus
allowed petition no 1 to undergo medical termination
of her pregnancy.
The operative part of the judgment reads as under:In Suchita Srivastava and Anr. v. Chandigar h
Administration [2010 AIR (SC) 235], a bench of
three Judges held "a woman’s right to make
reproductive choices is also a dimension of ’personal
liberty’ as understood under Article 21 of the
Constitution". The Court there dealt with the
importance of the consent of the pregnant woman as
an essential requirement for proceeding with the
termination of pregnancy. The Court observed as
follows:
"22. There is no doubt that a woman’s right to
make reproductive choices is also a dimension
of "personal liberty" as understood under
Article 21 of the Constitution of India. It is
important to recognise that reproductive
choices can be exercised to procreate as well
as to abstain from procreating. The crucial
consideration is that a woman’s right to
privacy, dignity and bodily integrity should
be respected. This means that there should be
no restriction whatsoever on the exercise of
reproductive choices such as a woman’s right
to refuse participation in sexual activity or
alternatively the insistence on use of
contraceptive methods. Furthermore, women
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are also free to choose birth control methods
such as undergoing sterilisation procedures.
Taken to their logical conclusion,
reproductive rights include a woman’s
entitlement to carry a pregnancy to its full
term, to give birth and to subsequently raise
children....."
TTTTTTT
The crucial consideration in the present case is
whether the right to bodily integrity calls for a
permission to allow her to terminate her pregnancy.
The report of the Medical Board clearly warrants the
inference that the continuance of the pregnancy
involves the risk to the life of the pregnant woman
and a possible grave injury to her physical or mental
health as required by Section 3(2)(i) of the Medical
Termination of Pregnancy Act, 1971. Though, the
pregnancy is into the 24th week, having regard to
the danger to the life and the certain inability of the
fetus to survive extra uterine life, we consider it
appropriate to permit the petitioner to terminate the
pregnancy. The overriding consideration is that she
has a right to take all such steps as necessary to
preserve her own life against the avoidable danger
to it.
TTTTTTT
In these circumstances given the danger to her life,
there is no doubt that she has a right to protect and
preserve her life and particularly since she has made
an informed choice. The exercise of her right seems
to be within the limits of reproductive autonomy.
TTTTTTT
In the circumstances, we consider it appropriate in
the interests of justice and particularly, to permit
petitioner no.1 to undergo medical termination of her
pregnancy under the provisions of Medical
Termination of Pregnancy Act, 1971. The learned
Solicitor General Mr. Ranjit Kumar who took notice
on the last date of hearing has not opposed the
petitioners prayer on any ground, legal or medical.
April 2017
I Lawteller I 183
GENERAL
We order accordingly.
TTTTTTT
The termination of pregnancy of petitioner no.1 will
be performed by the Doctors of the hospital where
she has under gone medical check-up. Fur ther,
termination of her pregnancy would be supervised
by the above stated Medical Board who shall
maintain complete record of the procedure which is
to be performed on petitioner No.1 for termination
of her pregnancy.
TTTTTTT
Reference : Supreme Court. Meera Santosh Pal and
Ors. v. Union of India and Ors., Writ Petition (Civil)
No. 17 of 2017.
—————
µ GLOBAL GLIMPSE
µ
UK COURT: LONDON MINICAB DRIVERS MUST PASS ENGLISH TEST
A London high court judge ruled that all drivers applying for a minicab or private hire vehicle license must
pass an English reading and writing test that includes a 120-word short essay. The case was taken to court
by Uber Technologies, the ride-share app company , which protested the new language test rules of Transport
for London (TFL), London’s transport authority. Uber, representing the drivers, argued that the language
requirement would cause 33,000 drivers to lose their livelihoods and have a "disproportionate impact" on
drivers from countries where English was not predominantly spoken and thereby amounts to an "indirect
discrimination on grounds of race and nationality". Judge John Mitting, acknowledged that the requirement
could cause 40,000 drivers to either fail the test or be deterred from applying for a private hire vehicle license
over a three-year period. Nevertheless, Mitting rejected the argument that the standards were too high and
ruled that the requirements were essential for ensuring passenger safety, and raising standards. London’s
Mayor Sadiq Khan applauded the decision stating: "I’m delighted that the courts have today backed my
plans to drive up standards and improve passenger safety in London". However, the lawyer for Uber and the
drivers termed the decision as "deeply disappointing" stating that while Uber has always supported "spoken
English" skills, it fails to see the relevance of writing an essay to communicating with passengers or getting
them safely from one location to another.
ECJ: EMPLOYERS MAY BAN HEADSCARVES IN WORKPLACE
The European Court of Justice (ECJ) ruled that EU companies, under permitted conditions, may ban employees
from displaying political or religious symbols, including Islamic headscarves. In a related case, the ECJ
determined that Belgium security company G4S, which dismissed a Muslim receptionist for wearing a hijab,
was not discriminatory and properly applied a broad dress code to maintain a politically and religiously neutral
work environment. The ECJ stated that even though such dress codes may indirectly affect certain employees,
they are nevertheless permitted when supported by a "legitimate aim". According to the ECJ, upholding an
image of neutrality may qualify as such. The ruling comes in the midst of Muslim immigration concerns in
Europe, and thus far the ruling has received praise from countries such as France where headscarves are
already banned from public service jobs. Critics have stated that the ruling may prevent Muslim women from
working and may further promote hate crimes. Advocacy group such as Amnesty International (AI) claimed
that the ruling contradicts equality in the workplace and opens a "backdoor" to the prejudices of clients.
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SERVICE
UoI DIRECTED TO MODIFY SERVICE CONDITIONS
OF PORTERS IN INDIAN ARMY
T
HE PETITIONERS - TWENTY NINE OF MEN HAD BEEN engaged as porters in the Indian
Army as casual labourer daily wage employees in the
border areas of Rajouri, Jammu and Poonch. The
grievance is that the petitioners had not been treated
as regular employees and had been denied the benefit
of minimum pay-scales despite long years of service
in arduous conditions prevalent in a difficult terrain.
According to the petitioners, many of them had
worked for long years. Details had been furnished of
the period over which they had been engaged in the
writ proceedings. The relief which they seek is in the
following terms:
Supreme Court which eventually resulted in a
judgment dated 14 May 2013 in Isher Singh v. Union
of India [Civil Appeal Nos. 6248-6249 of 2010].
Leaving open the issue of jurisdiction, a Bench of
two learned Judges of the Supreme Court held that
the appellants were working for between fifteen and
twenty years. Hence, in the view of the Court, the
observations contained in paragraph 53 of the
decision of a Constitution Bench of th e Supreme
Court in Secretary, State of Karnataka v. Uma Devi
[2006 AIR (SC) 1806] "would come in their aid". For
convenience of reference the observations in Uma
Devi have been extracted below:
"(a) ..an appropriate writ in the nature of
mandamus or any other writ, direction or
order commanding respondents to treat
petitioners as regular civilian employees in
the Indian Army and extend them all benefits
which are being given to the regularly
appointed / recruited porters discharging
identical work by treating already rendered
services by the petitioners as .. by regularly
appointed/recruited porters."
"53. One aspect needs to be clarified. There
may be cases where irregular appointments
(not illegal appointments) as explained in
State of Mysore v. S.V. Narayanappa [1967
(1) SCR 128], R.N. Nanjundappa v . T.
Thimmiah [1972 (1) SCC 409] and B.N.
Nagarajan v. State of Karnataka [1979 (4)
SCC 507], and referred to in paragraph 15
above, of duly qualified persons in duly
sanctioned vacant posts might have been
made and the employees have continued to
work for ten years or more but without the
intervention of orders of courts or of
tribunals. The question of regularization of
the services of such employees may have to
be considered on merits in the light of the
principles settled by this Court in the cases
above referred to and in the light of this
judgment. In that context, the Union of India,
the State Governments and their
instrumentalities should take steps to
regularize as a one time measure, the services
of such irregularly appointed, who have
Similarly situated porters engaged by the Indian Army
as casual labour instituted a proceeding before the
Armed Forces Tribunal at its Principal Bench in New
Delhi. [O. A. Nos. 302 & 204 of 2010] By a judgment
dated 11 May 2010, the Tribunal held that since the
porters are not subject to statutory provisions which
govern the Army, Navy and Air Force, their grievance
did not fulfill the definition of a ’service matter’ under
Section 3(o) of the Armed Forces Tribunal Act, 2007.
Hence by the judgment of the Tribunal, the
application was dismissed.
Special Leave Petitions were moved before the
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April 2017
I Lawteller I 185
SERVICE
worked for ten years or more in duly
sanctioned posts but not under cover of
orders of courts or of tribunals and should
further ensure that regular recruitments are
undertaken to fill those vacant sanctioned
posts that require to be filled up, in cases
where temporary employees or daily wagers
are being now employed. The process must
be set in motion within six months from this
date. We also clarify that regularization, if
any already made, but not sub-judice, need
not be reopened based on this judgment,
but there should be no further by-passing
of the constitutional requirement and
regularizing or making permanent, those not
duly appointed as per the constitutional
scheme."
The appeals were disposed of by directing the Union
government to consider the case of the appellants
considering their past service record, within a period
of four months.
Contempt petitions were filed before the Supreme
Court with a grievance that the judgment had not been
complied with. By an order dated 23rd September 2015
the Supreme Court took on the record a decision
taken by the Union Ministry of Defence in the
following terms:
"Hon’ble Supreme Court, during the course
of hearing of above Contempt Petitions on
the above mentioned case, has observed
that some benefits/ex-gratia should be paid
to those porters who worked for a specified
number of years say 10 or 12.
2. The issue of giving some additional
benefits to these petitioners has been
considered in the Ministry in deference to
the above observation of the Hon’ble
Supreme Court.
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I Lawteller I April 2017
3. In recognition of the services rendered by
these petitioners for Indian Army in
operationally active areas having life
threatening conditions, it is proposed that
these petitioners engaged at the border
posts of Army along the LOC for a minimum
period of 10 years, be paid an honorarium
of Rs.50,000/- (Rs. Fifty thousand only). The
payment of honorarium is being granted as
a special dispensation and as a onetime
measure. The above decision should not be
treated as a precedent."
While dealing with the question of regularization, the
court noted the submission of the Union government
that the employment of porters is "absolutely
seasonal" and that when the earlier civil appeals were
disposed of, there was no direction to regularize the
services of the porters. After recording this
submission, Supreme Court held thus:
"In our considered opinion, there cannot be
a direction for regularization."
However, the Court (having regard to the hazardous
conditions in which the porters have to work, facing
injury and disability and in some cases death)
suggested to the Union Ministry of Defence to frame
a scheme which would govern porters who suffer
injury or disability. The Court directed that the
scheme shall also contain provisions for the payment
of compensation to the families of civilians who meet
with death while working as porters. The Supreme
Court noted that a roster is maintained when civilians
are engaged as porters. The contempt petitions were
disposed of with the following observations:
"Before parting with this application for
contempt, we may note that if the
authorities feel appropriate, apart from what
we have stated hereinabove, they can frame
a better scheme so that these seasonal
porters feel secured. The competent
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SERVICE
authorities shall discuss with the Chief of
Army Staff or the officers deputed by him
and work out the modes so that there is real
enthusiasm to take these kinds of risky jobs.
Professor Bhim Singh also submitted with
agony that unless economic security is
provided to this category of porters, who
because of the basic livelihood take up such
jobs, may not feel that they are not being
looked after. We hope and trust, the
authorities who engage them shall
understand and appreciate their agony ,
anguish and the need and proceed as
suggested by us".
The issue as to whether the porters are entitled to
regularization has been dealt with first in the
judgment dated 14 May 2013 and subsequently in the
order disposing of the contempt petitions on 23
September 2015. The Bench hearing the civil appeals
had left it open to the Union government to consider
the case of the porters having regard to their past
service record in the light of para 53 of the decision
of the Constitution Bench in Uma Devi. In the
contempt proceedings the plea for regularization was
not accepted and the Court observed that a direction
for regularization could not be granted. However, it
was left open to the Union government to frame a
better scheme so that the porters feel secure. We may
also note here that the plea for regularization was not
declined in the original judgment of 14 May 2013. In
fact, the Supreme Court had adverted to the
observations in para 53 of the decision in Uma Devi.
The Supreme Court directed the Union Government
to take a fresh look at the minimum wages proposed
in the scheme so that porters are paid at part at the
lowest pay-scale applicable to multitasking staff and
medical facilities are provided. If provisions provide
for additional payments for work in high altitude
area/high risk fields, scheme should also provide for
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it. There should be enhancement in terminal benefits
as also in compensations to be provided in case of
death/disability. The writ petitions were accordingly
disposed of in the above terms.
The operative part of the judgment reads as under:This Court consistent with the position in law and
the background of this case in regard to
regularization may not be in a position to issue a
mandamus to the Union government to regularise but
surely that does not prevent the government from
taking a robust view of reality in consultation with
the Armed Forces whom the porters serve with
diligence and loyalty. The scheme which has been
proposed undoubtedly marks a welcome
improvement over the present conditions of porters
and we appreciate the steps which have been
pursued by Mr. P. S. Patwalia, learned Additional
Solicitor General, Mr R Balasubramanian, learned
Counsel assisting him and by the concerned officials
of the Ministry of Defence and the Indian Army to
ensure a just resolution. The scheme as proposed
contains provisions for (i) maintenance of records
of hiring; (ii) paid weekly and national holidays;
(iii) hours of work and a six day week; (iv) medical
facilities in emergent circumstances; (v)
compensation in the event of death or permanent
disability; (vi) canteen services; (vii) insurance
cover; and (viii) a onetime financial grant on
severance.
TTTTTTT
Authorities relied upon : Civil Appeal Nos. 62486249 of 2010.
Reference : Supreme Court. Yash Pal & Ors. v.
Union of India & Ors., Writ Petition (Civil) No. 616
of 2013 With Writ Petition (Civil) No. 912 of 2013
[Under Article 32 of the Constitution of India].
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April 2017
I Lawteller I 187
LEGAL UPDATES
PLEA TO STAY JALLIKATTU LAW
REJECTED
A few hours after the President gave his assent to
the Tamil Nadu amendments in the Prevention of
Cruelty Act of 1960 to allow jallikattu, the Supreme
Court refused to stay the new State law. Allowing the
Central government to withdraw its January 7, 2016
notification permitting jallikattu, a Bench declined the
plea of NGO Compassion Unlimited Plus Action for
an interim stay on the operation of the Prevention of
Cruelty to Animals (Tamil Nadu Amendment) Act,
2017. It asked the organisation and other animal rights
activists the ’basis’ of their challenge to the new State
law. Referring to the amendments made by the Tamil
Nadu Assembly to the 1960 Central Act, Justice Misra
pointed out that the declared object of the new
legislation is the preservation of a particular breed of
bulls. "They say that the new law is for the
preservation of a variety of bulls… they call it
[jallikattu] a culture. This has to be debated," he
observed.
satisfied that the entire case is based on a misreading
of the official files, contradictory statements of the
witnesses as well as speculations and surmises of Sh.
C.Sivasankaran. I have no hesitation in recording that
no prima facie case warranting framing of charge
against any of the accused is made out. Accordingly
all accused stand discharged."
SC T O HEAR AFRESH DELHI
GANGRAPE CONVICTS PLEA ON
PUNISHMENT
The Supreme Court agreed with amicus curiae and
senior advocate Raju Ramachandran that proper
procedure was not followed in sentencing to death the
four convicts in the sensational December 16 gangrape and murder case that shocked the nation.A Bench
said it would hear afresh aspects on sentencing of the
convicts and asked them to file affidavits. The court
acknowledged the contention raised by Mr .
Ramachandran that the Code of Criminal Procedure
(Cr.PC), relating to sentencing of convicts, was not
followed in letter and spirit by the trial court in the
COURT DISCHARGES MARANS IN case. Section 235 of the Cr.PC mandates that convicts
AIRCEL-MAXIS DEAL CASE
should be individually heard on the question before
In a big relief to former Telecom Minister Dayanidhi the trial judge pronounces the order awarding
Maran, his brother Kalanithi Maran and the latter’s wife punishment. Mr. Ramachandran said the trial court and
Kaveri Kalanithi, a special court freed them of bribery the High Court were "so overwhelmed by the nature
and money laundering charges in the Aircel-Maxis deal of the crime" that they did not follow the proper
case. The court did not find enough proof on record procedure for sentencing the accused in the instant
to frame charges against the accused persons in the case. "We would like to give an opportunity to
two cases. The CBI in its charge sheet had alleged that accused persons to file affidavits along with
the former Minister entered into a criminal conspiracy documents stating mitigating circumstances," the
with T. Ananda Krishnan, owner of Malaysian
Supreme Court observed. It then permitted M.L.
company Maxis, and coerced Chinnakannan
Sharma and A.P. Singh, defence lawyers, to visit the
Sivasankaran, owner of Aircel, to sell his shares to the condemned men in Tihar Jail here to provide them an
former in lieu of bribe in the form of investments by opportunity to file affidavits detailing mitigating
the foreign company through another company into circumstances in their favour by February 23. The 23Sun Direct TV Pvt. Ltd. and South Asia FM Limited year-old victim, a paramedic, was brutally assaulted
promoted by Kalanithi Maran. The judge said: "I am and gang-raped by six persons in a moving bus in
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LEGAL UPDATES
south Delhi and thrown out of the vehicle with her male
friend on the night of December 16, 2012. She had died
in a Singapore hospital on December 29. The trial court
had awarded death penalty to convicts, Mukesh,
Pawan, Vinay Sharma and Akshay Kumar Singh. While
the fifth and one of the key accused, Ram Singh,
allegedly committed suicide inside jail during trial.
APEX COURT FOR STATUS QUO ON
GUJJAR QUOTA
The Supreme Court’s interim order for maintenance of
status quo on employment and admission to educational
institutions to Special Backward Classes (SBCs),
including Gujjars, has come as a setback to the BJP
government in Rajasthan, which has been giving
assurances about safeguarding their quota. While
refusing to stay the Rajasthan High Court’s December
9, 2016, judgment which struck down a legislation
providing 5% reservation to SBCs, the apex court has
directed the State government not to make any fresh
admissions and appointment till the final hearing of the
matter. Passing its interim order on a special leave
petition moved by the State government against the
High Court’s judgment, a two-judge Bench also said the
admissions and appointments made so far would not
be disturbed pending final hearing.A State Cabinet subcommittee, comprising three Ministers, had assured
Gujjars that the community’s quota would be
safeguarded in all ongoing recruitments by the different
departments. It said the State government would make
efforts to grant appointments to SBC candidates who
had cleared the recruitment process and protect the
rights of those who were at various stages of
appointment. The State government, which was earlier
exploring legal options and had sought time from Gujjar
leaders to resolve the issue, has now been left with no
option other than stopping the exercise for recruitment
and admissions to colleges. "The latest position is that
there is no quota for Gujjars in public employment and
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education. The reservation for us has virtually ended,"
Rajasthan Gujjar Arakshan Sangharsh Samiti general
secretary Shailendra Singh told The Hindu. He said the
State government had been misleading Gujjars and other
SBCs ever since the matter was taken to the court. Mr.
Singh said the Gujjars, who had been assiduously
demanding legal protection for their reservation, would
chalk out a strategy to fight for 5% sub-quota within
the OBC reservation in order to ensure that it does not
cross the 50 per cent cap mandated by the Supreme
Court.
SC CLEARS PLAN TO VERIFY
MOBILE PHONE USERS THROUGH
AADHAAR
The Supreme Court approved the government’s plan
to record the identification details of mobile
subscribers through an e-KYC (Know Your Customer)
mechanism linked to Aadhaar in a bid to enhance
national security and prevent fake users. A Bench led
by Chief Justice of India asked the government,
represented by Attorney-General Mukul Rohatgi, to
put in place the mechanism within a year . The
mechanism would cover at least 100 crore mobile
phone subscribers, 90% of whom use pre-paid cards.
Mr. Rohatgi submitted that all new mobile
connections were provided through Aadhaar-based
e-KYC. The court was considering a petition by NGO
Lokniti Foundation, which had contended that fake
SIM cards were a major threat to national security.
COMPENSATION FOR
OUSTEES ORDERED
DAM
The Supreme Court gave its nod for the distribution
of compensation among the oustees of the Sardar
Sarovar Project (SSP) on river Narmada in Madhya
Pradesh. It ordered payment of Rs. 60 lakh to each of
the families likely to be displaced. The apex court,
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LEGAL UPDATES
which passed a slew of directions to address the
grievances of 681 such families, withdrew its proposal
to set up a three-member committee of former Supreme
Court judges to look into the compensation and
rehabilitation issues. A three-judge Bench led by Chief
Justice of India ordered compensation of Rs. 60 lakh
per family for two hectares of land. The families will
have to give an undertaking that they will vacate the
land within a month, failing which the authorities will
have the right to forcibly evict them. The bench said
monetary compensation was considered as the
proposed land compensation was not feasible due to
non-availability of a land bank. The bench observed
if families that had taken the money had some dispute,
they could raise the demand for Rs. 15 lakh, which
would be given after deducting the money already paid
to them. The apex court asked the Gujarat government
to give the money to Madhya Pradesh for further
distribution through the grievance redressal authority
headed by a retired High Court judge. The order was
confined to Madhya Pradesh, as the highest number
of oustees were from that State. As far as Maharashtra
and Gujarat were concerned, the apex court said relief
and rehabilitation work had to be completed within
three months.
SC ISSUES CONTEMPT NOTICE TO
SITTING HC JUDGE
The Supreme Court sent out a strong message that it
will not hesitate to act against one of its own for the
sake of upholding justice. For the first time in the
history of Independent India, it issued a contempt of
court notice against a sitting High Court judge for
allegedly disgracing the judicial institution and
impeding the course of justice administration. A Bench
of seven senior-most judges of the Supreme Court, led
by Chief Justice of India, assembled in a packed Court
1 and heard Attorney-General Mukul Rohatgi give his
opinion that the Calcutta High Court judge, should
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face contempt action for his "scurrilous" letters against
sitting and retired High Court and Supreme Court
judges. The Supreme Court had taken suo motu
cognisance of Justice Karnan’s letters and conduct.
The Bench ordered Justice Karnan to appear before it
to defend himself in person. It also directed him to
refrain forthwith from undertaking any judicial or
administrative work and return all his official files to
the Calcutta High Court registry. The Bench sought
the assistance of senior members of the Bar to help
understand the extent of its own constitutional powers
in the uncharted waters presented by the case. Chief
Justice Khehar and Mr. Rohatgi sounded out senior
advocate K.K. Venugopal for rendering assistance.
"We have to be very careful. We have to hear all of
you and we have to hear him. Everything has to be
evaluated as per cause and effect: What we can do,
what we cannot do.... If punished, will he remain in
office or not," Chief Justice said. In its Union of India
versus Sankal Chand Sheth judgment of 1977, the
Supreme Court had held that neither the President nor
the Chief Justice of India had the power to punish a
judge for misconduct.
GOPAL ANSAL GETS JAIL
The Supreme Court, in a majority judgment of 2:1,
decided to send real estate baron Gopal Ansal back to
jail for negligence leading to the deaths of 59 people
in the 1997 Uphaar Cinema fire tragedy case, while
sparing his elder brother Sushil from serving time
behind bars due to his advanced age. The majority
decision came on separate review petitions filed by the
CBI and the Association of Victims of Uphaar Tragedy
against a 2015 judgment of the Supreme Court which
had allowed the Ansals to walk free after directing them
to pay a total compensation of Rs. 60 crore. The then
Bench led by Justice Anil Dave had found nothing
"fruitful" in sending the duo to jail. The third judge
on the Bench, dissented in favour of the 2015
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LEGAL UPDATES
judgment and dismissed the need for a review of the
earlier verdict. Both Justices Kurian and Goel were part
of the earlier Bench led by Justice Dave, who is now
retired. Gopal Ansal has been sentenced to a year’s
imprisonment. He had already spent four months and
20 days in prison earlier. This period would be set off
from his term and he would have to serve the rest of
the prison sentence. He has been given four weeks to
surrender. The court took into consideration that Sushil
has already served over five months in jail and granted
remission. The court found that for a man of his age Sushil is in his late 70s - and physical ailments, the
punishment would suffice. The court also upheld its
earlier judgment directing the Ansals to pay a total
compensation of Rs. 60 crore, saying it was not
excessive. The theatre at the Green Park area here
became a death trap in 1997 during the screening of
blockbuster movie Border. Smoke from a fire inside the
theatre asphyxiated cine-goers as extra seats blocked
exit routes. A 100 more were injured in the ensuing
stampede inside the blacked-out theatre. The decision
by Justice Dave’s Bench came after the case was
repeatedly adjourned for over a period of 17 months
in the Supreme Court itself. The case has had a roller
coaster ride during the past two decades. In the
Supreme Court, in 2014, a two-judge Bench had
confirmed that the Ansals were guilty of negligence
and were "only interested in making money," but had
disagreed on how much time the duo should spend in
prison for their crime. While Justice (as he was then)
T.S. Thakur had agreed with the Delhi High Court that
they should undergo a year behind bars, Justice
(retired) Gyan Sudha Misra had imposed a fine of Rs.
100 crore on the Ansals to build a trauma care centre.
MAN CAN’T CLAIM MARRIED
SISTER’S PROPERTY: SC
A property inherited by a woman from her husband
cannot be claimed by her brother, the Supreme Court
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has said. The Bench referred to the provision of the
Hindu Succession Act. "Language used in Section
15 clearly specifies that the property inherited from
the husband and father-in-law would devolve upon
the heirs of husband/father-in-law from whom she
inherited the property," the Supreme Court observed.
The verdict came on an appeal filed by a man
challenging a March 2015 order of the Uttarakhand
High Court that found him to be an unauthorised
occupant in a property in Dehradun where his married
sister, now dead, was a tenant.
ADMISSION GIVEN TO 634 MBBS
STUDENTS CANCELLED
Terming their conduct an "act of deceit," the Supreme
Court confirmed the cancellation of the admission of
634 students to the MBBS course made through
Vyapam test in Madhya Pradesh. The Bench held in
an 87-page judgment that the action of the students
was "unacceptable behaviour" and did not warrant
any interference under Article 142 of the Constitution.
"The actions of the appellants are founded on
unacceptable behaviour and in complete breach of
the rule of law. Their actions constitute acts of deceit,
invading into a righteous social order . National
character, in our considered view, cannot be sacrificed
for benefits-individual or societal," the Supreme
Court observed. "If we desire to build a nation on
the touchstone of ethics and character and if our
determined goal is to build a nation where only the
rule of law prevails, then we cannot accept the claim
of the appellants for the suggested societal gains...
We have no difficulty whatsoever in concluding in
favour of the rule of law. Such being the position, it
is not possible for us to extend to the appellants, any
benefit under Article 142," the court observed. In its
87-page judgment, the Bench said the case
highlighted "mass fraud," and any leniency would
encourage others to follow suit. Reacting to the
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verdict, the Congress demanded the resignation of
Madhya Pradesh Chief Minister Shivraj Singh
Chouhan. "The ruling has exposed that the corrupt
network of mafia, power-brokers and officials of the
Medical Education Department and the State
Professional Examination Board was involved in
getting these students passed through illegal means.
Mr. Chouhan should resign immediately ," said
Madhya Pradesh Congress president Arun Yadav.
Congress leader Ajay Singh said the order had
substantiated the accusations of a scam.
ACQUITTAL OF SASIKALA SETASIDE
Indicting former Tamil Nadu Chief Minister
Jayalalithaa, albeit posthumously , for having
criminally conspired with aide V.K. Sasikala at her Poes
Garden residence to launder ill-gotten wealth, the
Supreme Court set aside the Karnataka High Court’s
acquittal of Ms. Sasikala and two co-accused in the
20-year-old disproportionate assets case. The court
said appeals by the Karnataka government and
others, including DMK leader K. Anbazhagan, against
Jayalalithaa stand abated with her death on December
5, 2016. The Bench ’restored in toto’ the trial court’s
conviction of Ms. Sasikala, V.N. Sudhakaran and J.
Elavarasi (accused no 2, 3 and 4) in September 2014,
and ordered them to surrender immediately at the trial
court in Karnataka. Even after Ms. Sasikala serves her
four-year sentence, she would be disqualified from
contesting elections for the next six years as per the
Supreme Court judgment in the Lily Thomas versus
Union of India of July 2013 case. The voluminous
main judgment, authored by Justice Ghose for the
Bench, held that the trial court’s conviction of the
three accused - A2 to A4 - on September 27, 2014,
has been restored in full. The trial judge, John
Michael D’Cunha, had sentenced Ms. Sasikala, Mr.
Sudhakaran and Ms. Elavarasi under Section 109 IPC,
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read with Section 13 (2) of the Prevention of
Corruption Act - abetment of criminal misconduct of
a public servant - to simple imprisonment for a period
of four years each and to pay a fine of Rs. 10 crore
each. The trial court had sentenced Jayalalithaa to
four years’ imprisonment and Rs. 100 crore in fine for
corruption. If alive, she would have had to resign as
CM and serve the rest of her prison term, besides
paying the fine. "We have analysed the evidence
adduced by the parties and we come to the
conclusion that A1 to A4 (Jayalalithaa, Sasikala,
Sudhakaran and Elavarasi) entered into a conspiracy,
and in furtherance of the same, A1 (Jayalalithaa), who
was a public servant at the relevant time, had come
into possession of assets disproportionate to her
known sources of income during the check period
(1991-96) and had got the same disbursed in the
names of A2 to A4 and the firms and the companies
involved to hold this on her behalf with a masked
front," the Supreme Court held.
MoP FOR JUDICIAL POSTINGS SET
TO GAIN FINAL SHAPE SOON
The Supreme Court Collegium is engaged in
exhaustive consultations to finalise the long-pending
Memorandum of Procedure (MoP) for appointment of
judges and draft clauses which once created an
impasse between the highest judiciary and the
government. The MoP draft was handed over to the
Collegium by the government in August 2016. But no
progress was made in resolving the differences till J.S.
Khehar took over as Chief Justice of India. Chief
Justice Khehar has repeatedly given positive signals
- once in open court and again at a function last week
- that he would have the MoP finalised soon, possibly
by February-end. Sources say clauses in the draft
MoP, like the executive’s prerogative to reject judicial
candidates recommended by the Collegium on the
ground of "national security ," are no longer a
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LEGAL UPDATES
roadblock. Justice T.S. Thakur, Chief Justice Khehar’s
immediate predecessor, had time and again made
strong observations against perceived government
inaction. However, since Chief Justice Khehar took
over, there has been an improvement in relations
strained since the Constitution Bench scrapped the
National Judicial Appointments Commission Act in
2015. This has resulted in five new judges appointed
to a depleted Supreme Court in one go. Justices S.K.
Kaul, Naveen Sinha, Dipak Gupta, M.
Shantanagonder and S. Abdul Nazeer have joined the
SC and the number of judges has risen from 23 to 28,
just three short of the full sanctioned judicial strength
of the court. Sources said the focus is now on
finalising the MoP. However, the Collegium has also
recommended nine Chief Justices for various High
Courts: Justices Hemant Gupta, Abhilasha Kumari,
B.D. Ahmed, Pradeep Nandarajog, Rajendra Menon,
T. Vaiphei, H.G. Ramesh, T.B. Radhakrishnan and P.K.
Mohanty. Though both the judiciary and the
government have maintained that the pendency of the
MoP would not stand in the way of judicial
appointments, an amicable resolution to that issue
would clear the air on the procedure for appointments
of judges to higher judiciary.
SC TWEAKS RULE FOR NATIONAL
ANTHEM IN CINEMAS
There is no need to be on your feet inside a cinema
hall when the National Anthem is featured as a part of
a film, documentary or a newsreel. The Supreme Court
issued this second clarification on its November 30
order, directing all to mandatorily stand up when the
National Anthem is sung or played in a cinema theatre.
"It is clarified that when the National Anthem is sung
or played in the storyline of a feature film or as part of
the newsreel or documentary, apart from what has been
stated in the order dated 30.11.2016, the audience need
not stand," Justice Dipak Misra, heading a Bench, also
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comprising Justice R. Banumathi, directed. The court’s
clarification came after several applications were filed
on the question, including from the Conference for
Human Rights and the Kodungallur Film Society. On
December 9 last year, the Supreme Court first modified
its November 30 order by exempting physically
challenged or handicapped persons from standing up
when the National Anthem is played before film
screenings. On November 30, the court had ordered
cinema halls to mandatorily play the anthem and had
directed all those present there to stand up to show
respect. The court said the practice would instil a
feeling of committed patriotism and nationalism. It also
ordered cinema halls to display the national flag on
the screen when the anthem was played. The playing
of the anthem in cinema halls, it said, was to be
conceived as an opportunity for the public to express
their "love for the motherland". "It is time people feel
’this is my country’," Justice Misra had remarked.
JUDGE EXHORTS CITIZENS TO
FIGHT ’DEADLY AFFLICTION’ OF
CORRUPTION
Justice Amitava Roy, the second judge on the
Supreme Court Bench which delivered the verdict in
the Jayalalithaa wealth case, gave a three-page
evocative judgment on the plight of the common man,
the upright and the honest who find themselves in
the minority in a society where corruption has spread
its ’malignant’ hold over every strata of society.
Identifying with the ordinary man who suffers in
distressed silence in a world where the corrupt are
held in awe and fear, Justice Roy exhorts his fellow
men to join in a "collective, committed and
courageous turnaround" to "free the civil order from
the suffocative throttle of this deadly affliction."
"Every citizen has to be a partner in this sacrosanct
mission, if we aspire for a stable, just and ideal social
order as envisioned by our forefathers and fondly
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cherished by the numerous self-effacing crusaders of
a free and independent Bharat, pledging their
countless sacrifices and selfless commitments for
such a cause," Justice Roy wrote. In court, moments
after Justice Ghose read out for the Bench the
operational part of the main judgment in the case,
Justice Roy introduced his short judgment as an
expression of the court’s ’deep concern’ for the
escalating corruption in the country. He pointed to
the Jayalalithaa case as a ’startling’ example of how
corruption has a stranglehold over both the
perpetrators and the sufferers. In fact, Justice Roy
said the case was indicative of how contemporary
lives seemed to even acknowledge and remain
reconciled to the "all-pervading pestilent presence of
corruption almost in every walk of life." The judgment
called for judicial action and legislative vision to battle
this "vice of insatiable avarice." The courts should
ensure that the corrupt do not hide behind evidential
inadequacies, processual infirmities and
interpretational subtleties, all artfully advanced in
their defence. Corruption cases should be
conscientiously dealt by courts with a sense of moral
maturity and singular sensitivity to uphold the law,
otherwise, Justice Roy warned, the coveted cause of
justice would end up in crutches.
LODGE FIR AGAINST U.P. MINISTER,
DIRECTS SUPREME COURT
The Supreme Court ordered the Uttar Pradesh police
to lodge a First Information Report (FIR) against State
Minister and Samajwadi Party leader Gayatri Prajapati
in connection with cases of alleged gang rape and
sexual harassment. The Bench directed the police to
inquire and file an action taken report in eight weeks
in a sealed cover. The direction came on a PIL petition
filed by a woman who has alleged repeated gang rape
by Mr. Prajapati and others and has sought the
court’s direction for lodging an FIR. Petitioner’s
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I Lawteller I April 2017
counsel Mehmood Pracha said the police had not
taken any action on the complaint given to the
Director-General of Police. Counsel appearing for
Uttar Pradesh said the allegations could not be
ascertained and there was a delay in filing the
complaint. Mr. Pracha contended that the petition was
filed before the elections were announced and the
Supreme Court had issued notice on November 25 last
year. He said the fundamental and civil rights of an
individual could not get suspended when elections
were announced and the Uttar Pradesh police should
have lodged an FIR. He said the alleged incident first
taken place in October 2014 and continued till July
2016 and when the accused tried to molest the minor
daughter of the petitioner, she decided to lodge a
complaint. Mr. Prajapati was sacked by Chief Minister
Akhilesh Yadav from his Cabinet in 2016 during the
family feud with his father Mulayam Singh Yadav and
uncle Shivpal Yadav, but was later reinstated into the
Council of Ministers.
MOTHER GETS CUSTODY OF 8 YEAR
OLD GIRL
The Supreme Court united an eight-year-old girl with
her mother after over six years, saying that it was not
possible for the child to comprehend the comfort of
maternal love while staying with the father. The girl
was separated from her mother when she was only
21 months old after her parents separated due to
marital discord, with the father getting the infant’s
custody. The mother, a school teacher who was
allegedly forced to leave her matrimonial home,
contested the custody of her child before a family
court, which dismissed her plea. She then challenged
the order in the High Court, which gave the child’s
custody to her, with visitation rights for the father.
The father, an Army officer, then challenged the High
Court order in the Supreme Court.
ooooooo
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SERVICE
PHYSICALLY HANDICAPPED PERSONS IN
GENERAL CATEGORY OR OBC CATEGORY
HAVE TO BE TREATED ALIKE
T
HESE APPEALS HAVE BEEN FILED
CHALLENGING THE judgments of Madras High
Court and Delhi High Court allowing the writ petitions
filed by Physically Handicapped candidates
belonging to Other Backward Classes (OBC), claiming
that they are entitled to avail 10 attempts instead of
7 attempts in the Civil Services Examination. The
challenge is on the ground that since the attempts
for Physically Handicapped candidates belonging to
General Category have been increased from 4 to 7,
w.e.f. 2007 Civil Services Examination, there should
be a proportionate increase in attempts to be taken
by Physically Handicapped Candidates belonging to
the OBC Category.
C. A. No. 858 of 2017 @ Special Leave Petition (Civil)
No. 21587 of 2013 had been filed against the judgment
of the Division Bench of Madras High Court dated
24.1.2012 in Writ Petition (c) No. 18705 of 2010 titled
M. Selvakumar v. Central Administrative Tribunal and
Others.
C. A. No. 859 of 2017 @ Special Leave Petition (Civil)
No. 18420 of 2015, Union Public Service Commission
v. Tushar Keshaorao Deshmukh and Another and C.
A. No. 860 of 2017 @ SLP ? No. 25885 of 2015 Union
of India v. Tushar Keshaorao Deshmukh and Another
have been filed against the same judgment of Delhi
High Court dated 13.10.2014 in Writ Petition (c) No.
7377 of 2013.
The Delhi High Court in its judgment dated
13.10.2014 has followed the judgment of Madras High
Court in M. Selvakumar’s case (supra).
CA No. 858 of 2017 @ SLP (C) 21587 of 2013
The Respondent M. Selvakumar, an orthopaedically
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differently-abled person belonging to Other Backward
Class (OBC) applied for Civil Services Examination for
the first time in the year 1998. The Respondent took
7 attempts between the examination held in the year
1998 to 2006, but failed to qualify the same.
Prior to 2007 Examination, Physically Handicapped
candidates belonging to General Category were
entitled to take only 4 attempts which were allowed
to General Category Candidate also, whereas,
Physically Handicapped candidates belonging to
OBC Category were entitled to take 7 attempts equal
to OBC Category candidates also. There was no
restriction on the number of attempts for candidates
belonging to SC/ST Category.
The Central Government is authorised to frame rules
for recruitment of Civil Services Examination as per
All India Services Act, 1951. By Notification dated
29.12.2007, the Central Government amended the Civil
Services Examination Rule by adding a condition that
Physically Handicapped Candidate belonging to
General Category shall be eligible for 7 attempts.
The Respondent submitted his application in
response to the Notification dated 29.12.2007,
appearing for his 9th attempt. The candidature was
not accepted, as he had already exhausted his 7
attempts at the examination. The Respondent filed an
O. A. No. 905 of 2008 before the Central
Administrative Tribunal, Madras Bench, praying for
the following reliefs:
"(i) To declare that the clause 3(iv) of the
notification dated 29.12.2007 in respect of
the civil service preliminary examination,
2008 published in the employment news
April 2017
I Lawteller I 195
SERVICE
29.12.2007-04.01.2008 edition as illegal in so
far as not giving three more additional
attempts to the physically handicapped in
the other backward class apart from being
discriminatory, violation of article 14 and in
violation of the basic frame work of the
PWD Act, 1995.
(ii) Consequently direct the 2nd respondent
to extend three more attempts to the
applicant for the Civil services preliminary
examination.
(iii) Pass such other orders or direction as
this Hon’ble Tribunal may deem fit in the
circumstances of the case and to award
costs and render justice."
This application was contested by the Union of India.
The Tribunal vide its judgment and order dated
17.03.2010, refused to condone the delay of 883 days
in filing the application and consequently dismissed
the same. The Respondent filed a Writ Petition before
the Madras High Court, challenging the order of the
Tribunal. The High Court vide its judgment and order
dated 24.01.2012, allowed the writ petition, setting
aside the order of the Tribunal. It was held that
increasing number of attempts in respect of Physically
Handicapped candidates in the General Category from
4 to 7 and not increasing proportionally the attempts
for Physically Handicapped candidates belonging to
OBC Category candidates is arbitrary. It was held that
the Petitioner (Respondent in the present appeal) is
further entitled to 3 more chances. The Union of India
aggrieved by the said judgment has filed the SLP (c)
No. 21587 of 2013.
C.A. No. 859 of 2017 @ SLP (C) No. 18420 of 2015
& C.A. No. 860 of 2017 SLP (C) No. 25885 of 2015
The common respondent in the aforesaid appeals is
a Physically Handicapped candidate belonging to the
OBC Category who had submitted an application for
Civil Services Examination, 2012. Although, he was
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I Lawteller I April 2017
permitted to appear in the Preliminary Examination but
when he submitted the detailed application form for
appearing in the Main Examination, the Union Public
Service Commission, having noticed that he had
already exhausted his 7 attempts at the examination,
issued a show cause notice and rejected his
candidature for the 2012 Examination. The candidate
aggrieved by the rejection of his candidature filed an
O. A. No. 930 of 2013 in the Central Administrative
Tribunal Principal Bench, Delhi.
The O.A. was contested by the Commission, stating
that the applicant in his application had not correctly
mentioned the number of attempts undertaken by
him, and after scrutiny it was found that he had
already availed as many as 8 attempts at the
examination, exhausting the maximum number of
attempts permissible to his Category, i.e. Physically
Handicapped candidates belonging to OBC Category,
thereby his candidature was rightly cancelled. It was
also submitted that the Writ Petitioner had not
approached the court with clean hands as he had not
disclosed correctly, the number of attempts
undertaken by him. There being suppression of the
facts and the applicant not being eligible to appear
in 2012 Examination, his candidature was rightly
rejected.
The Tribunal vide its judgment and order dated
19.07.2013 dismissed the O. A. The Respondent
challenged the order of the Tribunal before the Delhi
High Court by filing a Writ Petition (c) No. 7377 of
2013. The Respondent in his Writ Petition relied upon
judgment of the Madras High Court in M. Selvakumar
(supra). The Delhi High Court held that as long as
the declaration of law as held in M. Selvakumar’s case
stands, the Tribunal ought to have followed it. The
Delhi High Court following the judgment of M.
Selvakumar agreed with the view of the Madras High
Court, and stated that in the case of OBC Candidates,
7 attempts permitted to both physically-abled
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SERVICE
candidates and those with disability is discriminatory.
The Delhi High Court allowed the Writ Petition and
set aside the rejection of the candidature of the
Petitioner and directed for declaration of the result
and if the Petitioner was found successful, his claim
for appointment was directed to be processed.
The Union Public Service Commission filed an appeal
challenging the above judgment dated 13.10.2014 and
Supreme Court on 08.07.2015 stayed the operation of
the aforesaid judgment of the Delhi High Court.
The Supreme Court allowed the appeals. The
judgement of the Madras High Court dated 24.1.2012
in M. Selvakumar v. Central Administrative Tribunal
and Others was set aside and the Writ Petition was
dismissed. Similarly, the judgment of Delhi High Court
dated 13.10.2014 was set aside and the Writ Petition
filed by the respondents were hereby dismissed.
The operative part of the judgment reads as under:All Physically Handicapped Category candidates
have been granted uniform relaxation of upper age
by 10 years, as per Rule 6, as quoted above in
addition to relaxation in age of 5 years for SC
Category candidates and 3 years for OBC Category
candidates as per Note-I of Rule 6, the benefit of age
relaxation can be taken by Reserved Category
candidates cumulatively.
TTTTTTT
When the attempts of Physically Handicapped
candidates of OBC Category and Physically
Handicapped candidates of General Category, who
appeared in the Civil Services Examination are made
equal, and a Physically Handicapped candidate
belonging to OBC Category, in addition to 10 years
relaxation in age also enjoys 3 years more age
relaxation for appearing in the examination, we
cannot agree with the High Court that there is
discrimination between Physically Handicapped
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candidates of OBC Category and Physically
Handicapped Candidates of General Category. The
reserved category candidate belonging to OBC are
separately entitled for the benefit which flow from
vertical reservation, and the horizontal reservation
being different from vertical reservation, no
discrimination can be found when Physically
Handicapped candidates of both the above
categories get equal chances i.e. 7 to appear in the
examination.
TTTTTTT
We have observed that the reasoning given by the
Madras High Court in M. Selvakumar was
unfounded. Once the decision of M. Selvakumar is
found to be on erroneous grounds, judgment of the
Delhi High Court cannot stand. The reliance on
Anamol Bhandari (supra) by Delhi High Court is
also not appropriate. We, therefore, come to the
conclusion that the view taken by both the Madras
High Court and the Delhi High Court that increasing
the number of attempts for Physically Handicapped
candidates belonging to General Category from 4 to
7 w.e.f. the 2007 Examination and not proportionally
increasing the number of attempts for Physically
Handicapped candidates belonging to OBC
Category from 7 to 10, is discriminatory and
arbitrary, is unsustainable.
TTTTTTT
The judgment of the Madras High Court dated
24.1.2012 in M. Selvakumar v . Central
Administrative Tribunal and Others is set aside and
the Writ Petition is dismissed. Similarly, the judgment
of Delhi High Court dated 13.10.2014 impugned in
the last two appeals is set aside and the Writ Petition
filed by the respondents is hereby dismissed. All the
appeals are allowed.
TTTTTTT
The horizontal reservation and relaxation for
Physically Handicapped Category candidates for
Civil Services Examination, is a matter of
April 2017
I Lawteller I 197
SERVICE
Governmental policy and the Government after
considering the relevant materials have extended
relaxation and concessions to the Physically
Handicapped candidates belonging to the Reserved
Category as well as General Category. It is not in
the domain of the courts to embark upon an inquiry
as to whether a particular public policy is wise and
acceptable or whether better policy could be evolved.
The Court can only interfere if the policy framed is
absolutely capricious and non-informed by reasons,
or totally arbitrary, offending the basic requirement
of the Article 14 of the Constitution.
noticed the decision of the Government to give 7
attempts to physically challenged persons belonging
to General Category, as against existing 4 attempts.
The Press Note dated 27.04.2007 thus reflects the
policy of the Government and the said policy
statement in no manner helps the respondent in the
present case.
TTTTTTT
Reference : Supreme Court. Union of India & Ors.
v. M. Selvakumar & Anr., C.A. No. 858 of 2017
[Arising out of SLP (C) No. 21587 of 2013] with C.A.
No. 859/2017 @ SLP (C) 18420 of 2015 with C.A. No.
860/2017 @ SLP (C) 25885 of 2015.
The above note spelled out the objective and policy
of the Government of India, to which it is entitled to
frame and implement. The decision to improve access
and increase the representation of the physically
challenged persons is referred to in the 1st
paragraph, as quoted above. The 2nd Paragraph
TTTTTTT
Authorities relied upon : C. A. No. 859 of 2017, C.
A. No. 860 of 2017,Writ Petition (c) No. 4853 of 2012,
Writ Petition (c) No. 18705 of 2010, Writ Petition No.
116 of 1998, 1976 (2) SCC 310.
µ GLOBAL GLIMPSE
—————
µ
ECJ: RIGHT TO BE FORGOTTEN IS LIMITED
The European Court of Justice (ECJ) ruled that individuals cannot demand that their personal data be erased
from company records. The court said the ruling came from the public need for legal certainty to protect third
party interests. The registers hold very little personal data and do not infringe on privacy. The court reserved
its right to assess specific circumstances under which company registers should be limited on an individual
basis. The case was brought by Italy due to their loss of a case over compensation to a man whose properties
had failed to sell because a bankruptcy he filed was kept on record at Lecce Chamber of Commerce. In May
2014 the EU court ruled that individuals could request that irrelevant information be removed in the search
results from search engines like Google and Bing.
PAKISTAN: HINDUS TO REGULATE THEIR OWN MARRIAGES
Pakistan President Mamnoon Hussain signed into law the Hindu Marriage Bill 2017, allowing Pakistan’s Hindus
to regulate their own marriages. Hindus will be able to perform legal marriages in accordance with their religious
customs. According to the law, marriages officiated before the passage of the law will be automatically
legitimized. According to Pakistan Prime Minister Nawaz Sharif, the new law was passed to provide equal
protection to Pakistan’s Hindus. The law will apply to all of Pakistan’s Hindus, except those living in the
Sindh providence, which already has a law regarding Hindu marriages.
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GENERAL
HIGHEST BIDDER, HAVING DEPOSITED 10%
OF BID AMOUNT, WHETHER ACQUIRED ANY
VESTED RIGHT? HELD, NO
T
HE PLAINTIFF BHUDEEP BUILDERS AND
EXPORTERS PVT. LTD. were later renamed as
M/s. Orchid Infrastructure Developers P. Ltd. The
plaintiff-respondent filed a suit for declaration with
consequential relief as against the appellants with
regard to rejection of bid relating to the commercial
tower situated in Sector 29, Urban Estate, Gurgaon,
in area admeasuring 9.527 acres. The bid submitted
by the plaintiff was the highest of Rs.11,17,50,000/-.
The reserve price was Rs.106.65 crores. The main
terms and conditions of the auction were as under:
crores being highest was accepted. Petitioner deposited
10% amount by various drafts on the fall of hammer.
Formal letter of allotment was not issued in spite of
efforts made by the plaintiff. Officials of HUDA were
dragging their feet over the issue without any rhyme or
reason.
Plaintiff ultimately received memo dated 24.9.2004
purporting to refund 10% amount Rs.11,17,50,000
deposited by the plaintiff at the time of auction held on
24.5.2004 on the ground that the bid had not been
accepted.
(i) 10% of the bid amount to be tendered on
the spot at fall of hammer.
(ii) 15% of the bid money to be deposited
within 30 days from the date of issuance of
allotment letter.
(iii) 75% of the amount to be paid within 60
days from issuance of allotment letter as one
time interest free payment or with interest in
the manner prescribed.
Plaintiff questioned the rejection of the bid on the
ground of its being illegal, unlawful, mala fide, arbitrary,
discriminatory and violative of principles of natural
justice. The bid for the commercial tower was adequate
and above the reserved price. The plaintiff relied upon
Regulation 6 regarding issuance of allotment letter by
Chief Administrator. The rejection of the bid is without
any rhyme or reason. The order is non-speaking. There
was no material available with the defendant to conclude
(iv) The Presiding Officer (Administrative
that auction of property in question was made at a lower
Officer) reserved the right to withdraw any
rate or that the same would fetch a higher price in the
property from the auction or reject any bid
event of re-auction. The Chief Administrator alone was
without assigning any reason.
competent to decide about the bid and no delegation
It is further averred in the plaint that the auction held of power to Administrator has been shown to the
on 24.5.2004 was presided over by the Administrator, plaintiff. Mere baseless apprehension harboured by the
Haryana Urban Development Authority (for short defendant that the auction could fetch a higher rate,
’HUDA’). Reserve price had been approved by Chief could not be said to be in public interest. If such action
Administrator, HUDA. Though the reserved price for the is permitted, auction process shall be a never ending
other sites were approved by the Administrator. In the exercise. The plaintiff valued the suit for declaration and
plaint it was further averred that 27 persons deposited consequential relief of mandatory injunction at Rs.400
the security amount of Rs.50 lakhs for bidding and and paid the court fee of Rs.55. Plaintiff has prayed for
various bidders actively participated in the bids.
a declaration that memo dated 24.9.2004 rejecting the bid
Ultimately the bid of the plaintiff amounting to Rs.111.75 of the plaintiff to be void ab initio, non est and illegal,
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April 2017
I Lawteller I 199
GENERAL
and that plaintiff is successful bidder of commercial
tower measuring 9.527 acres situated in Sector 29, Urban
Estate, Gurgaon. Plaintiff further prayed for mandatory
injunction directing the defendants to issue formal letter
of allotment pertaining to the suit property in favour of
the plaintiff and to complete requisite formalities of
allotment including delivery of possession and sanction
of site plan. Plaintiff further prayed for an injunction
restraining defendants from re-auctioning the suit
property and from creating any third party interest of
any nature in respect of the suit property.
The defendant HUDA in its written statement raised
preliminary objection that the civil court has no
jurisdiction to entertain the present suit in view of
section 15(2) of Haryana Urban DevelopmentAuthority
Act, 1977 (hereinafter referred to as ’theAct’). It was also
submitted that the suit was not maintainable in the
present form, that the plaintiff has no cause of action
to file the suit and has not come to court with clean
hands, suit is liable to be rejected under Order 7 Rule
11 of the C.P.C., plaintiff is liable to pay ad valorem court
fee on the sale consideration of Rs.111.75 crores of the
commercial site in question, the suit is barred under
section 41(h) of the Specific ReliefAct. The plaintiff has
not availed the remedy of arbitration as per the rules,
regulations and bye-laws of HUDA. There is no
concluded contract between the parties. Plaintiff has
accepted the terms and conditions of the auction in
which it was mentioned that the competent authority is
entitled to accept or reject the bid without assigning any
reason. The auction was presided over by the
Administrator, HUDA. After auction in question was
held complaints were received regarding intimidation
and threatening of bidders. The bid was not accepted
for the reason that the price of urban estates at other
places like Faridabad, Panipat, Panchkula etc. for similar
kind of property was higher. The bid in question was
not acceptable as per prevalent market price of the similar
property in Gurgaon. The Presiding Officer i.e.
Administrator is fully competent to refuse or accept the
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I Lawteller I April 2017
bid. Competent authority after going through the
individual reports/comments/opinion of the members of
the Auction Committee comprising of Estate Officer,
HUDA, Gurgaon, Senior Accounts Officer, District Town
Planner and District Revenue Officer (representative of
the Deputy Commissioner, Gurgaon) as members under
the Chairmanship of Administrator, HUDA.
Administrator thoroughly examined the observations
and recommendations of the members of the Auction
Committee regarding not to accept the bid prices of big
commercial sites since these prices being apparently on
the lower side which was also examined by the
Government at the Headquarters level. The records of
the entire auction proceedings including opinion of the
Estate Officer, Gurgaon, other members of the Auction
Committee, Deputy Commissioner and also after
studying the reserve price and auction price trends, a
decision was taken by the competent authority not to
accept the bid prices vide their written report.
It was further contended by HUDA that Administrator
is the competent authority. Power to accept bid has
been delegated to him by the competent authority.
In view of the written statement the plaintiff filed a
rejoinder. It was denied that the civil court has no
jurisdiction and bid price was not inadequate. It also
denied the delegation of power toAdministrator, HUDA,
Gurgaon.
The trial court - Civil Judge, Junior Division, Gurgaon
decreed the suit vide judgment and decree dated
14.10.2010. Three witnesses were examined by the
plaintiff and on behalf of defendant HUDA. Shri
P.K.Ramanand, Assistant was examined. The trial court
held that Administrator, HUDA was not competent to
reject the bid of the plaintiff. As per Regulation 6 of
Haryana Urban Development (Disposal of Land and
Buildings) Regulations, 1978 (hereinafter referred to as
’the Regulations of 1978’), the authority to accept or
reject a bid was vested with ChiefAdministrator, HUDA
and delegation of power to ChiefAdministrator can only
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GENERAL
be made by the State Government vide notification as
per section 51(4) of the Act. No notification has been
placed on record to prove that the power of Chief
Administrator has been delegated to Administrator,
HUDA. The report on the basis of which bid had been
rejected was not placed on record. The trial court held
that the plaintiff is entitled to mandatory injunction for
issuance of formal letter of acceptance of bid. The trial
court further held that the suit is maintainable. The
payment of court fee by the plaintiff was adequate as
the suit was not for specific performance of contract.
The trial court further directed the defendants to issue
formal letter of allotment on completion of requisite
formalities within two months.
On first appeal being preferred in the court of District
Judge, Gurgaon the same was allowed vide judgment
and decree dated 29.11.2010. The suit was dismissed by
the first appellate court. The first appellate court has
opined that the power of Chief Administrator has been
delegated to Administrator, HUDA. As is apparent from
the letter written by Chief Administrator to the
Administrator. No legal and vested right accrued in
favour of the plaintiff by submission of the highest bid
and 10% of the amount on fall of hammer. Bid has not
been finally accepted. The plaintiff ought to have paid
ad-valorem court fee. The first appellate court also
observed that no responsible officer of HUDA has
entered the witness box and only a junior ranking
Assistant has been examined who was not present
when the auction was held. He was posted at Gurgaon
on 2.10.2008. The first appellate court has observed as
under:
"However, the defendants have not produced
any document whatsoever to prove the above
averment and nor has any responsible officer,
including defendants No.2 and 3, cared to step
in the witness box to substantiate the above
referred plea and instead only one witness, and
that too an Assistant named P.K. Ramanan
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from the office of HUDA, Gurgaon who is a
junior ranking official was examined as DW1
who was admittedly not even present at the
time of the impugned auction because he has
admitted during his cross-examination that he
came to be posted at Gurgaon only w.e.f.
8.8.2008. Non-appearance of any responsible
official of HUDA thus indicates some sort of
unholy news between certain quarters for
which reason a copy of this Judgment is
ordered to be forwarded to the Chief Secretary
to the Government of Haryana for getting
conducted an enquiry as to why such course
of conduct was adopted despite huge stakes
running into several crores. Was it intended
to benefit the plaintiff by default. The Chief
Secretary to Government of Haryana be
requested to acknowledge receipt of the copy
of the judgment."
On the second appeal being preferred on 2.1.2011 in the
High Court as against the judgment and decree, the same
has been allowed on 17.1.2011 within 15 days of it being
filed. The High Court has restored the judgment and
decree of the trial court on the ground that there is no
delegation of power to the Administrator. The rejection
by the Administrator was inconsequential and was not
a valid decision in the absence of irregularity in auction
the bid ought to have been accepted by the Chief
Administrator, HUDA and letter conveying acceptance
ought to have been issued in favour of the plaintiff. In
view of Regulation 6(2) the Chief Administrator was
competent authority to take a final decision on the bid.
No notification has been issued by the State Government
under section 51(4) of the Act. The suit has been held
to be maintainable. It has been rightly valued and
adequate court fee has been paid.
The judgment and decree of High Court has been
questioned in this special leave to appeal. The Supreme
Court accepted the appeal, The judgment and decree
passed by the High Court was set aside and that of the
April 2017
I Lawteller I 201
GENERAL
first appellate court was restored.
The operative part of the judgment reads as under:Firstly, we examine the question whether there being
no concluded contract in the absence of acceptance of
bid and issuance of allotment letter, the suit could be
said to be maintainable for the declaratory relief and
mandatory injunction sought by the plaintiff. The
plaintiff has prayed for a declaration that rejection of
the bid was illegal. Merely by that, plaintiff could not
have become entitled for consequential mandatory
injunction for issuance of formal letter of allotment.
Court while exercising judicial review could not have
accepted the bid. The bid had never been accepted by
concerned authorities. It was not a case of cancellation
of bid after being accepted. Thus even assuming as per
plaintiff’s case that the Administrator was not equipped
with the power and the Chief Administrator had the
power to accept or refuse the bid, there had been no
decision by the Chief Administrator. Thus, merely by
declaration that rejection of the bid by the
Administrator was illegal, the plaintiff could not have
become entitled to consequential relief of issuance of
allotment letter. Thus the suit, in the form it was filed,
was not maintainable for relief sought in view of the
fact that there was no concluded contract in the
absence of allotment letter being issued to the plaintiff,
which was a sine qua non for filing the civil suit.
TTTTTTT
We are of the considered opinion that there was no right
acquired and no vested right accrued in favour of the
plaintiff merely because his bid amount was highest
and had deposited 10% of the bid amount. As per
Regulation 6(2) of the Regulations of 1978, allotment
letter has to be issued on acceptance of the bid by the
Chief Administrator and within 30 days thereof, the
successful bidder has to deposit another 15% of the bid
amount. In the instant case allotment letter has never
been issued to the petitioner as per Regulation 6(2) in
view of non-acceptance of the bid. Thus there was no
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I Lawteller I April 2017
concluded contract.
TTTTTTT
It is evident that in the absence of a concluded contract,
i.e. in the absence of allotment letter and acceptance
of highest bid, the suit by the plaintiff was wholly
misconceived. Even if non-acceptance of the bid was
by an incompetent authority, the court had no power
to accept the bid and to direct the allotment letter to
be issued. Merely on granting the declaration which
was sought that rejection was illegal and arbitrary and
by incompetent authority, further relief of mandatory
injunction could not have been granted, on the basis
of findings recorded, to issue the allotment letter, as it
would then become necessary to forward the bid to
competent authority - Chief Administrator - for its
acceptance, if at all it was required.
TTTTTTT
It is apparent that there had been delegation of power
by HUDA to the Administrator with respect to the power
to accept the auction bids for commercial/residential/
industrial sites provided the highest bid is more than
the reserve price and minimum of three bids have been
received. The Administrator has also the power if the
site is not sold in 3 attempts, to revise the price
downwards up to a maximum of 10% of the reserve
price. Thus plaintiff has not come to the court with clean
hands and has suppressed for the reasons best known
to it, the aforesaid order of HUDA by which delegation
of power has been made. The fact that there was
delegation of power is also crystal clear from the
communication exchanged between the Administrator
and the Chief Administrator. As the Administrator was
reluctant to accept the bid, as was the case in the case
of fixation of reserve price also, the Administrator
considering the huge property, said that the auction
involved prime and big commercial sites, huge revenue
is involved and such a big auction has been carried
out for the first time in the State of Haryana, therefore,
all the record pertaining to the auction was sent to the
Chief Administrator for scrutiny and approval at the
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GENERAL
level of Chief Administrator, HUDA, Gurgaon. However,
the Chief Administrator also washed off his hands. He
wrote back to the Administrator on 28.7.2004. The
decision to confirm or otherwise of a bid, should be
taken only by a competent authority whose order is
appealable. Therefore, bids should be considered by the
competent authority and as the Administrator is the
competent authority to take the follow-up action, the
Headquarters be apprised of the decision taken.
Thereafter, the Administrator had taken the decision
not to confirm the seven bids of seven properties. It is
apparent from the order dated 21.9.2004 that the
Administrator after examining the relevant aspects and
the report, had decided to reject the seven bids
mentioned therein.
TTTTTTT
The Administrator had also mentioned in his letter that
there was delegation of power to him. The letter from
the Chief Administrator also indicated that the
Administrator was armed with the power. That apart,
when we see the terms and condition No.4 of the tender
notice, subject to which auction was held, provided
thus: "4. The presiding officer reserves the right to
withdraw any property from the auction or reject any
bid without assigning any reason."
TTTTTTT
Admittedly, the Presiding Officer was the Administrator,
HUDA. Thus, as per the terms of the auction also, the
Administrator was having the power to accept or reject
the bid. That the bid was more than the reserve price and
there were more than 3 bidders, is not disputed. Thus, in
our opinion, the Administrator had the power to reject the
bid as per the delegation made to him on 13.9.1989.
TTTTTTT
We impose costs of Rs.5 lakhs on the plaintiff/
respondent to be deposited as : Rs.2.5 lakhs in the
Advocates’ Welfare Fund and Rs.2.5 lakhs in the
Supreme Court Employees’ Welfare Fund within a period
of two months from today.
TTTTTTT
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It is apparent that the report and recommendations of
the Auction Committee consisting of 5 members, was
not to accept the bids of big commercial sites as the
prices fetched were on lower side which was examined
by the Government at the Headquarters level.
Considering the auction trends and also taking into
consideration the higher prices fetched at Panipat,
Panchkula and Faridabad, it was decided to reject the
seven bids. Thus, there was due application of mind.
TTTTTTT
In our opinion when it is apparent from the
communication that the reports were considered and
what was contained in the report was very much
pleaded in the written statement, mere non-production
of report was not of any significance in the instant case.
We are satisfied that the rejection of the bid by the
Administrator was absolutely proper and justified and
was beyond the pale of judicial scr utiny. The
Administrator had the right to reject the bids and he
had rejected it on sufficient ground, duly considering
the materials on record as is apparent from the
communication dated 21.9.2004. In the interest of the
public, revenue of the State and in the interest of HUDA
the huge property was saved from being plundered.
TTTTTTT
In the instant case we are satisfied from the order that
the reports were considered and what were the reports,
has been made clear in the reply filed by the
respondents which has not been controverted. In the
instant case merely the bid being above the reserve
price, was not a safe criteria to accept the same.
TTTTTTT
Authorities relied upon : CWP No. 12753/2010, 2008
(10) SCC 696, 1982 (2) SCC 365,AIR 1978 SC 851.
Reference : Supreme Court. Haryana Urban
Development Authority & Ors. v . Orchid
Infrastructure Developers P. Ltd., Civil Appeal No.
1016 of 2017 [Arising out of SLP (C) No. 12166/2011].
—————
April 2017
I Lawteller I 203
GENERAL
APPLY MULTIPLIER METHOD FOR
DETERMINING COMPENSATION
I
N A MOTOR ACCIDENT, THE APPELLANT
HEREIN SUFFERED physical injuries. It happened
on July 08, 2006 when the appellant was going on
a scooter to Gram Pendri in the State of
Chhattisgarh. When he reached near Gram Pendri,
a Hyundai Getz car bearing Registration No. MH
12 CR 6917, driven by respondent No.1, hit the
scooter, as a result of which the appellant fell
down and sustained fractures on both the legs,
thereby suffering permanent disability to some
extent. He filed claim for compensation against the
respondents before the Motor Accidents Claims
Tribunal (MACT), Rajnandgaon, Chhattisgarh.
The MACT, vide award dated May 05, 2009,
granted him compensation in the sum of Rs.
5,35,227, under the following heads:
Head
Amount
(in Rs.)
Medical & Transport
Expenses
3,10,227
Loss of Income
1,00,000
Mental & Physical agony
30,000
Removal of rod inserted
in right leg
25,000
Permanent disability to
some extent
70,000
TOTAL
5,35,227
Not satisfied with the quantum of compensation, the
appellant approached the High Court by way of
appeal under Section 173 of the Motor Vehicles Act,
204
I Lawteller I April 2017
1988 (for short, the ’Act’). The High Court has, vide
impugned judgment, enhanced the compensation to
? 6,35,000. The High Court has not awarded
compensation under different heads but has deemed
it proper to award lump sum compensation in the
aforesaid amount. Relevant discussion in this behalf
can be traced to paras 8 and 9 of the impugned
judgment, which reads as under:
"(8) We have gone through the evidence
adduced by the claimant on the issue of
injury sustained by him. In our opinion,
taking into consideration the nature of
injury, the permanent disability occurred on
the body of the appellant (claimant) to
some extent, as a result of which he claims
to be not as fit as he was prior to accident
in his day-to-day work, resulting in
reducing his capacity to do some extent of
work, the expenditure incurred in receiving
medical treatment in actual, the loss and
mental pain suffered due to his involvement
in accident we consider it proper to
enhance in lump sum the compensation
from Rs.5,35,227/- to Rs.6,35,000/-. In other
words, in our view, the claimant is held
entitled for a total sum of Rs.6,35,000/- by
way of compensation for the injuries
sustained by him.
(9) In our considered opinion, due to
injuries in both legs which is also duly
proved in evidence by the claimant and his
doctor, he cannot freely move and attend
to his duties. His movements are restricted
to a large extent and that too in young age.
It is for all these reasons, we feel that the
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GENERAL
Tribunal had awarded a less compensation
under this head and hence, some
enhancement under the head of pain and
suffering and also under the head of
permanent partial disability and loss of
earning capacity is called for . This
enhancement figure is arrived at taking into
consideration all relevant factors."
Against the judgement of the High Court special leave
petition was filed. The Supreme Court found that the
MACT had quantified the income of the appellant at
Rs. 10,000, i.e. Rs. 1,20,000 per annum. Going by the
age of the appellant at the time of the accident,
multiplier of 17 would be admissible. Keeping in view
that the permanent disability is 70%, the
compensation under this head would be worked out
at Rs. 14,28,000. The MACT had awarded
compensation of Rs. 70,000 for permanent disability,
which stands enhanced to Rs. 14,28,000. For mental
and physical agony and frustration and
disappointment towards life, the MACT has awarded
a sum of Rs. 30,000, which was enhanced to Rs.
1,30,000. The appellant was also entitled to the
interest as awarded by the High Court as well as the
costs of appeal.
The operative part of the judgment reads as under:The crucial factor which has to be taken into
consideration, thus, is to assess as to whether the
permanent disability has any adverse effect on the
earning capacity of the injured. In this sense, the
MACT approached the issue in right direction by
taking into consideration the aforesaid test.
However, we feel that the conclusion of the MACT,
on the application of the aforesaid test, is erroneous.
A very myopic view is taken by the MACT in taking
the view that 70% permanent disability suffered by
the appellant would not impact the earning capacity
of the appellant. The MACT thought that since the
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appellant is a Chartered Accountant, he is supposed
to do sitting work and, therefore, his working
capacity is not impaired. Such a conclusion was
justified if the appellant was in the employment where
job requirement could be to do sitting/table work and
receive monthly salary for the said work. An
important feature and aspect which is ignored by the
MACT is that the appellant is a professional
Chartered Accountant. To do this work efficiently
and in order to augment his income, a Chartered
Accountant is supposed to move around as well. If a
Chartered Accountant is doing taxation work, he
has to appear before the assessing authorities and
appellate authorities under the Income Tax Act, as a
Chartered Accountant is allowed to practice up to
Income Tax Appellate Tribunal. Many times
Chartered Accountants are supposed to visit their
clients as well. In case a Chartered Accountant is
primarily doing audit work, he is not only required
to visit his clients but various authorities as well.
There are many statutory functions under various
statutes which the Chartered Accountants perform.
Free movement is involved for performance of such
functions. A person who is engaged and cannot freely
move to attend to his duties may not be able to match
the earning in comparison with the one who is
healthy and bodily abled. Movements of the
appellant have been restricted to a large extent and
that too at a young age. Though the High Court
recognised this, it did not go forward to apply the
principle of multiplier.
TTTTTTT
Authorities relied upon : 1977 (3) SCC 64, 1966 (3)
SCR 649.
Reference : Supreme Court. Sandeep Khanuja v. Atul
Dande & Anr., Civil Appeal No. 1329 of 2017 [Arising
out of SLP (C) No. 22790 of 2013].
—————
April 2017
I Lawteller I 205
LIGHTER SIDE OF LA
W
LAW
DID YOU KNOW?
Intelligent Burglar
A lawyer went to the Police Station wishing to
speak with the burglar who had broken into his
house the night before.
“You’ll get your chance in court.” said the Desk
Sergeant.
“No, no no!” said the lawyer, “I want to know how
he got into the house without waking my wife.
I’ve been trying to do that for years!”
n
Four women may not rent an apartment
together.
n
The Hammer
206
I Lawteller I April 2017
Tennessee, U.S.
It's illegal for frogs to croak after 11 PM
n
A man is in court. The Judges says, "on the 3rd
August you are accused of killing your wife by
beating her to death with a hammer, how do you
plead?"
"Guilty", said the man in the dock.
At this point a man at the back of the court stood
up and shouted "You dirty rat!"
The Judge asked the man to sit down and to
refrain from making any noise.
The Judge continued "..... and that also on the
17th September you are accused of killing your
maid by beating her to death with a hammer, how
do you plead"?
"Guilty", said the man in the dock.
Again the same man at the back stood up and
shouted even louder, "You dirty rotten stinking
rat"!!
At this point the Judge called the man to the
bench and said, "I have already asked you to be
quiet, if you continue with these outbursts, I will
have to charge you with contempt of court.
I can understand your feelings, but what
relationship have you to this man?"
He replied "He is my next door neighbor".
The Judge replied, "I can understand your feelings
then, but you must refrain from any comments".
The man replied "NO, your Honor, you don’t
understand. Twice I have asked if I could borrow
a hammer, and BOTH TIMES he said he didn’t
have one"!!!
Missouri, U.S.
Missouri, U.S.
One may not honk another’s horn.
n
Tennessee, U.S.
It is illegal for a woman to drive a car
unless there is a man either running or
walking in front of it waving a red flag to
warn approaching motorists and
pedestrians.
Disclaimer - Lawteller Team is not responsible for the
actuality of the above information as available in the
public domain.
"Lying is such a harsh word, your Honor.
We prefer to call it ’testimony without borders’."
Courtesy - www.pinterest.com
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