2019 SCC Vol. 2 March 7, 2019 Part 4

Education Law — Medical and Dental Colleges — Closure/Derecognition/De-affiliation of medical college: Until S. 10-A IMC Act permission and affiliation is granted, students would not be permitted to sit in first year MBBS examination. Directions issued for grant of said permission/affiliation. Police directed to immediately seal premises until State Government takes over. All litigation regarding said college can only be made before Supreme Court. [Sourabh Brala v. Union of India, (2019) 2 SCC 486]

Arbitration and Conciliation Act, 1996 — S. 11(6) — Appointment of arbitrator: Appointment of arbitrator in exercise of power under S. 11(6), not permissible when an arbitrator is already appointed by one of the parties to the agreement in terms of arbitration agreement. Appointment of arbitrator by office/post, as opposed to by name is permissible when agreement permits such appointment. [S.P. Singla Constructions (P) Ltd. v. State of H.P., (2019) 2 SCC 488]

Government Grants, Largesse, Public Property and Public Premises — Writ jurisdiction — Scope of interference by High Court: Determination of factual question(s) by High Court and entering into comparative assessment of suitability of different candidates for allotment, not permissible. [Sanjay Kumar Jha v. Prakash Chandra Chaudhary, (2019) 2 SCC 499]

Constitution of India — Arts. 226 and 136 — PIL — Interference in policy matters: Elected Government has to take care of policy matters unless they are in contravention of Constitution. Individual ideals cannot supersede policy formulating elected bodies. [Janhit Manch v. State of Maharashtra, (2019) 2 SCC 505]

Penal Code, 1860 — S. 302 r/w Ss. 34 and 148: As acquittal by trial court was justified on probable view, interference by High Court on ground that a different view is possible, is not permissible. Presumption of innocence gets strengthened by an order of acquittal. High Court did not demonstrate any perversity in judgment of trial court. [Mohd. Akhtar v. State of Bihar, (2019) 2 SCC 513]

Infrastructure Laws — Telecommunications Laws — Telecom Services/Market and Regulatory Authorities: TRAI, TDSAT, CCI and Other Authorities — Jurisdictions of TRAI and CCI: In this case, RJIL (new entrant into telcom market) filed information before CCI alleging anti-competitive agreement/cartel having been formed by three major telecom operators. Allegation were made against the respondents i.e. Incumbent Dominant Operators (IDOs) that they had through an anticompetitive agreement/cartel, limited the provision of services by delaying or denying POIs to RJIL, with a view to block its entry in the market. CCI took cognizance and came to a prima facie conclusion that a case for investigation was made out and directed the Director General to cause investigation in the case. The Supreme Court held that TRAI is, constituted for orderly and healthy growth of telecommunication infrastructure apart from protection of consumer interest and specific functions are assigned to TRAI, amongst other, including ensuring technical compatibility and effective inter-relationship between different service providers; ensuring compliance of licence conditions by all service providers; and settlement of disputes between service providers, and the purpose of CCI is to eliminate such practices which are having adverse effect on the competition, to promote and sustain competition and to protect the interest of the consumers and ensure freedom of trade, carried on by other participants, in India. Further, S. 27 empowers CCI to pass certain kinds of orders, stipulated in the said provision, after inquiry into the agreements for abuse of dominant position and also it is within the exclusive domain of CCI to find out as to whether a particular agreement will have appreciable adverse effect on competition within the relevant market in India. However, unless TRAI finds fault with the IDOs on the jurisdictional aspects, i.e. whether IDOs were under any obligation to provide POIs during test period, whether demand for POIs made by RJIL were reasonable or not, whether there was any delay/denial in provisioning of POIs etc., the matter cannot be taken further even if CCI has the jurisdiction to deal with the complaints/information filed before it. In the present case, held, balance is maintained by permitting TRAI in the first instance to deal with and decide the jurisdictional aspects which can be more competently handled by it and once that exercise is done and there are findings returned by TRAI which lead to the prima facie conclusion that the IDOs have indulged in anti-competitive practices, CCI can be activated to investigate the matter going by the criteria laid down in the relevant provisions of the Competition Act and take it to its logical conclusion. [CCI v. Bharti Airtel Ltd., (2019) 2 SCC 521]

Criminal Procedure Code, 1973 — Ss. 386(b) and 374 — Appeal against conviction — Proper mode of disposal: As in this case, High Court did not discuss issues arising and urged, matter remanded to be decided on merits uninfluenced by observations made in present appeal. High Court directed to examine evidence of each prosecution witness on issues arising and record its finding thereon. [Kanubhai Bhagvanbhai Nayak v. State of Gujarat, (2019) 2 SCC 596]

Goods and Services Tax (Compensation to States) Act, 2017 — Enactment of, by Parliament — Validity of: The expression “cess” means a tax levied for some special purpose, which may be levied as an increment to an existing tax and the scheme of the 2017 Act, indicates that the cess is with respect to goods and services tax. Further, there being no entry in Sch. VII Lists II and List III of the Constitution, referring to levying of cess in question, Parliament has power to make laws with respect to that matter/tax. Also, Sch. VII List I Entry 97 of the Constitution, pertaining to the “residuary power” leads to the same conclusion. Further, Art. 270 of Constitution and S. 18 of the Constitution (One Hundred and First Amendment) Act, 2016 empowers Parliament to provide for compensation to the States for loss of revenue by law/by cess. Therefore, the Compensation to States Act, 2017 is not beyond the legislative competence of Parliament. [Union of India v. Mohit Mineral (P) Ltd., (2019) 2 SCC 599]

Industrial Disputes Act, 1947 — S. 25-F(c): Notice of retrenchment to be sent to appropriate Government or notified authority, is only directory and not mandatory. [Manju Saxena v. Union of India, (2019) 2 SCC 628]

Constitution of India — Arts. 21, 39 and 41 — Rights of elderly persons/ senior citizens and their enforcement: Art. 21 in its expansive meaning encompasses various rights of elderly persons/senior citizens such as right to dignity, right to health, right to adequate pension and right to shelter. There is need to continuously monitor implementation of rights of elderly persons/ senior citizens. Thus a continuing mandamus is required to be issued in present case also as it is a well-recognised practice for enforcing social justice postulated by Preamble. Directions, thus, issued for enforcement of said rights and statutory rights under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (MWP Act) and other welfare schemes. [Ashwani Kumar v. Union of India, (2019) 2 SCC 636]

 Service Law — Appointment — Eligibility conditions/criteria: In this case, services of respondent were terminated on ground that he was holding certificate of competency as Master issued by Maritime and Port Authority of Singapore which was not equivalent to certificate granted by GoI. However, said objection was neither raised at time of appointment nor subsequently for about 4 years, nor advertisement indicated that candidates should have certificate of competency issued by authorities recognised by GoI. Besides, respondent had passed examination for issuance of pilot licence on 10-2-2009. Furthermore, in light of clarification given by Deputy Nautical Advisor, contention of appellants that CoC issued by Maritime and Port Authority of Singapore was not recognised by GoI is liable to be rejected. More so, in light of letter sent by appellants dt. 29-9-2008 expressing satisfaction over experience and knowledge of respondent in shipping operations. Impugned judgment directing reinstatement of respondent with back wages calls for no interference. However, considering that respondent had not worked since 2012, award of back wages restricted to 40%. [V.O. Chidambaranar Port Trust v. Paul Nadar Bennet Singh, (2019) 2 SCC 654]

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