2020 SCC Vol. 2 February 21, 2020 Part 3

Constitution of India — Arts. 32, 136, 137 and 226 — Judicial review — Disputes involving government contracts: Determination of pricing is not the function of courts, particularly in defence contracts.  Such issues cannot be dealt with by courts on mere suspicion of persons approaching it. Judicial review does not permit re-appreciation of materials. Court cannot sit in judgment over wisdom of Government. [Yashwant Sinha v. CBI, (2020) 2 SCC 338]

Civil Procedure Code, 1908 — Or. 8 R. 6-A — Counterclaim: Court has discretionary power to consider belated counterclaim filed after submission of written statement. Balanced approach of court in exercise of discretionary power where counter-claim is filed after submission of written statement, stressed. Factors to be considered for exercise of discretionary power, illustrated. Once issues have been framed, further held (per curiam), court cannot entertain belated counterclaim filed after submission of written statement. [Ashok Kumar Kalra v. Surendra Agnihotri, (2020) 2 SCC 394]

Service Law — Transfer of Employee/Service — Rights/Entitlements on Transfer: In this case there was transfer of 15 regular employees from Kandla Port Trust (KPT) to FCI w.e.f. 1-1-1973. They claimed parity by remaining 306 work-charged employees of KPT who were also transferred to FCI. Tribunal directed FCI (Respondent 1) to give option to 15 employees to elect revised pay scales under S. 12-A(4) of 1964 Act. The Supreme Court held that distinction between regular employee and work-charged employee cannot be ignored. Relief granted by Tribunal was also restricted to 15 workmen who were regular employees. Besides, office order dt. 18-9-1973 transferring employees working in KPT to FCI also shows that regular employees and work-charged employees were treated differently. Even assuming that workcharged employees also had to be appointed in FCI, they cannot claim parity with regular employees, that too in 1996 after having accepted appointment in FCI as per office order dt. 18-9-1973. [Kandla Port Workers Union v. Food Corpn. of India, (2020) 2 SCC 419]

Penal Code, 1860 — Ss. 302/149, 147 and 148 — Murder — Testimony of interested eyewitnesses — When may be relied on: In this case, clear, cogent and almost identical testimony of interested eyewitnesses (there being previous enmity) was fully corroborated by medical evidence. There was prompt FIR and no reason to doubt prosecution case, hence, reversal of acquittal, confirmed. [Ramji Singh v. State of U.P., (2020) 2 SCC 425]

Penal Code, 1860 — S. 456 — Housebreaking by night — Acquittal by Tribunal, reversed: In instant case, it was held that the judgment of Tribunal acquitting respondent-accused cannot be sustained since Tribunal erred in ignoring material evidence on record and blowing out of proportion minor contradictions in testimonies of S (person into whose house accused had broken into at night) since there was ring of truth in her evidence and no reason for her to falsely implicate respondent. Besides, it also failed to consider consistent testimonies of other witnesses who spoke about occurrence. Moreover, it ignored material evidence on record like photograph of bruises on both arms of respondent and opinion of doctor which lent support to prosecution version. Thus, there was sufficient material on record clearly pointing to guilt of respondent. Tribunal erred in interfering with judgment of conviction passed by SCM. Judgment of SCM imposing punishment of dismissal and reduction in rank restored. However, it was directed that sentence of imprisonment imposed would be modified to period already undergone. [Union of India v. Dafadar Kartar Singh, (2020) 2 SCC 437]

Constitution of India — Arts. 226 and 32 — Maintainability of writ petition — Alternative remedy/Exhaustion of remedies: Principle that High Court should not exercise its extraordinary writ jurisdiction when efficacious alternative remedy is available is a rule of prudence and not rule of law. Existence of such remedy does not mean that jurisdiction of High Court is ousted. Rule of alternative remedy is a rule of discretion and not rule of jurisdiction. Merely because court may not exercise its jurisdiction is no ground to hold that it has no jurisdiction. In relation to orders passed by Armed Forces Tribunal (AFT), High Court would be justified in exercising its writ jurisdiction because of some glaring illegality committed by AFT. Besides, alternative remedy must also be efficacious. To expect a Non-Commissioned Officer (NCO) or Junior Commissioned Officer (JCO) to approach Supreme Court in every case may not be justified because it is extremely difficult and beyond monetary reach of ordinary litigant to approach Supreme Court. Thus, exercise of writ jurisdiction against orders of AFT is within discretion of High Court and there cannot be blanket ban on exercise of such jurisdiction. [Balkrishna Ram v. Union of India, (2020) 2 SCC 442]

Constitution of India — Arts. 137, 141 and 142 — Curative petition against death sentence — Maintainability — Nirbhaya Gang Rape Case: As petitions were not within parameters of law laid down in Rupa Ashok Hurra, (2002) 4 SCC 388, curative petitions dismissed. Along with it, applications for oral hearing and stay on execution of death sentence were also rejected. [Akshay Kumar Singh v. State (NCT of Delhi), (2020) 2 SCC 454]

Arbitration and Conciliation Act, 1996 — Ss. 11(6-A) [as ins. in 2015] and 16 — Appointment of arbitrator and jurisdiction of arbitrator: Law summarised regarding exercise of power under S. 11 before 2015 Amendment and after Amendment. Doctrine of kompetenz-kompetenz and its limitations, explained. Consideration of preliminary objections such as limitation, etc. by Court at pre-reference stage, after insertion of S. 11(6-A) is not permissible. After the insertion of S. 11(6-A), issue of limitation, which is a jurisdictional issue, held, is to be decided by arbitrator. [Uttarakhand Purv Sainik Kalyan Nigam Ltd. v. Northern Coal Field Ltd., (2020) 2 SCC 455]

Arbitration and Conciliation Act, 1996 — S. 11(6) — Appointment of arbitrator by court, in terms of arbitration agreement as opposed to appointment ignoring arbitration agreement — Necessity of: When agreement specifically provides for appointment of named arbitrators, appointment should be in terms of agreement, unless there are exceptional reasons for departing from agreement procedure for appointment of arbitrator, as per settled principles. [Union of India v. Pradeep Vinod Construction Co., (2020) 2 SCC 464]

Criminal Procedure Code, 1973 — S. 301 and 225 r/w S. 24(8) proviso and S. 311 — Extent of right of victim’s counsel to assist the prosecution: The same is not restricted only to assisting Special Public Prosecutors. Rather, assistance given by the victim’s counsel is meant to be given to the prosecution in general, regardless of who exactly is leading it. Further held, extent of assistance by victim’s counsel to Public Prosecutor and manner of giving it would depend on the facts and circumstances of each case. Though all possible scenarios that may arise during a criminal prosecution cannot be detailed and discussed, a victim’s counsel should ordinarily not be given the right to make oral arguments or examine and cross-examine witnesses. The balance inherent in the scheme of CrPC should not be tampered with, and the prime role accorded to the Public Prosecutor should not be diluted. Even if there is a situation where the Public Prosecutor fails to highlight some issue(s) of importance despite the same having been suggested by the victim’s counsel, the victim’s counsel may still not be given the unbridled mantle of making oral arguments or examining witnesses. If the victim’s counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the court. If the Judge finds merit in them, he may take action accordingly by invoking his powers under S. 311 CrPC or S. 165 of the Evidence Act, 1872. [Rekha Murarka v. State of W.B., (2020) 2 SCC 474]

Local Government — Town Planning — Development permission/FSI charges/Change of land use — Rate of prevalent FSI (Floor Space Index) charges — Determination of: Mere pendency of the application for planning permission does not create a vested right in an applicant and right accrues only when the permission/sanction is granted by the Government/authorities concerned. Further, until and unless an application complete in all respects is approved, it remains a mere application and no right can be claimed on the basis of such an application. Thus, the rates prevailing at the time of granting of permission are the rates which an applicant has to pay. [Chennai Metropolitan Development Authority v. D. Rajan Dev, (2020) 2 SCC 483]

Service Law — Pension — Entitlement to pension — Period of interruption of service — Non-consideration of for purposes of pension — Propriety: In this case, appellant was appointed on 8-5-1970 as Proof Reader, seeking voluntary retirement on 1-2-1988, but subsequently reappointed on 3-8-1994 pursuant to recommendations of Education Minister. There was prayer for adding period of interruption of service between 1-2-1988 and 3-8-1994 i.e. more than six years for grant of pension. In terms of R. 4.23, Punjab Civil Service Rules, Vol. II as applicable to State of Haryana, period of interruption of one year service could be condoned for grant of pensionary benefits. Appellant’s request for relaxation from R. 4.23 was not acceded to by Government. Hence, it was held that refusal by respondent for adding period of interruption for pensionary benefit cannot be faulted with. Further held, appellant’s period after fresh appointment from 3-8-1994 being less than qualifying service of 10 years, he was not entitled for pension. [Surinder Nath Kesar v. Board of School Education, (2020) 2 SCC 499]

Service Law — Penalty/Punishment — Competent authority — Regns. 4(h) and 5(3) of Canara Bank Officers and Employees (Discipline and Appeal) Regulations, 1976: In this case, punishment of compulsory retirement was imposed by General Manager while disciplinary proceedings was initiated by DGM as disciplinary authority. In terms of Regn. 5(3), disciplinary authority or any other authority higher than it, may impose penalties specified in Regn. 4. Hence it was held that Division Bench erred in holding that General Manager being an authority higher to disciplinary authority could not exercise power of disciplinary authority and impose punishment. Order of Single Judge remitting matter to authorised appellate authority for reconsideration of appeal was restored. [Canara Bank v. Kameshwar Singh, (2020) 2 SCC 507]

Penal Code, 1860 — S. 302 or S. 304 [S. 300 Thirdly and Exception 4] — Murder or culpable homicide not amounting to murder: In this case, there was sudden fight on the spur of the moment and premeditation or intention to kill deceased or to cause the very injury which ultimately led to death of deceased, was absent. All ingredients of S. 300 Exception 4 were satisfied in this case. Hence, it was held that offence committed in this case was not murder but culpable homicide not amounting to murder. [Ananta Kamilya v. State of W.B., (2020) 2 SCC 511]

Criminal Procedure Code, 1973 — S. 389 — Suspension of sentence — Conditional order of suspension of sentence: When suspension of sentence by trial court is granted on a condition, non-compliance with that condition has adverse effect on continuance of suspension of sentence. Court which has suspended the sentence on a condition, after noticing non-compliance with that condition can very well hold that suspension of sentence stands vacated due to non-compliance. [Surinder Singh Deswal v. Virender Gandhi, (2020) 2 SCC 514]

Kerala Buildings (Lease and Rent Control) Act, 1965 (2 of 1965) — S. 11(4)(i) — Tenant sub-letting entire leased premises or any part thereof when lease deed does not confer such powers: Landlord, held, obtains right to seek eviction of tenant from entire premises even if part only of the leased premises is sublet. If one tenancy is created it would not be appropriate to pass eviction order only in respect of part thereof. Hence, in such circumstances, eviction order must be passed in respect of the entire premises. When tenant transfers his rights under lease and sublets entire building or any portion thereof without lease conferring such right on him to do so, then cause arises for eviction. Under such circumstances, landlord should send a registered notice to tenant intimating contravention of said condition of lease. When tenant fails to terminate transfer or sub-lease, as the case may be, within thirty days of receipt of notice, application for eviction can be made by landlord. Sub-letting of any part of tenanted premises gives right to eviction from whole premises. If one tenancy is created it would not be appropriate to pass eviction order only in respect of part thereof but eviction order must be passed in respect of whole premises. [K. Lubna v. Beevi, (2020) 2 SCC 524]

Rent Control and Eviction — Sub-Letting/Sub-Tenant/Sub-Tenancy — Unauthorised sub-letting as a ground for eviction — Subletting by tenant — Proof of: Defence of tenant that he was a partner in the concern in possession of the property let is rejected, when same is to conceal the real transaction of sub-letting. Inducting a partner or partners in business or profession by a tenant by itself does not amount to sub-letting, however, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal real transaction of sub-letting, court may tear the veil of partnership to find out real nature of transaction entered into by tenant. [A. Mahalakshmi v. Bala Venkatram, (2020) 2 SCC 531]

Arbitration and Conciliation Act, 1996 — S. 17 r/w Ss. 2(2) & 2(4) and S. 9(3) — Power of Arbitral Tribunal to grant interim relief in cases of statutory arbitrations under other Acts, such as under the Gujarat Act, 1992 — Applicability of Pt. I [Ss. 17 and 9 (3)] of the A&C Act: S. 17 of the 1996 Act is not inconsistent with the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992, and thus as per S. 2(4) of the A&C Act, the same is applicable for granting interim relief under Gujarat Act. Furthermore, by application of S. 9(3) of the A&C Act, proper forum for grant of interim relief would be Arbitral Tribunal once it is constituted, and not Court. Moreover, grant of interim relief by High Court exercising writ jurisdiction under Art. 226 of the Constitution is impermissible when such relief can be granted by the Arbitral Tribunal. [State of Gujarat v. Amber Builders, (2020) 2 SCC 540]

Motor Vehicles Act, 1988 — Ss. 163-A and 147: Claim petition under S. 163-A, held, not maintainable by borrower/permissive user of vehicle against owner and/or insurer of said vehicle, as such borrower/permissive user steps into shoes of owner, and owner cannot both be claimant and recipient. In a claim under S. 163-A, deceased/victim has to be a third party in relation to vehicle in question. Mere own-use of motor vehicle by owner/borrower/permissive user does not entitle such person(s) to maintain S. 163-A petition against insurer of their own/borrowed vehicle. Owner/borrower/permissive users are not “third parties” in relation to their own/borrowed vehicle and hence are not covered by statutory insurance under S. 147. Thus, claim of owner/borrower/permissive user would be limited to personal accident coverage re own-use of the vehicle, if any, strictly as per contract of insurance covering the borrowed vehicle. [Ramkhiladi v. United India Insurance Co., (2020) 2 SCC 550]

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