2021 SCC Vol. 10 Part 4

Evidence Law, Arbitration Law, Service Law and many more interesting decisions covered in this part covering some very pertinent laws.


Arbitration and Conciliation Act, 1996 — Ss. 9, 34 and 37: In this case, irrevocable bank guarantee was furnished by appellant, as per Court direction, but was furnished in terms of alleged inadvertent error in such direction. The legality of subsequent modification of Court direction, to substitute the bank guarantee in accordance with the modification to correct the alleged error, to be determined. The maintainability of Special leave petition under Art. 136 of the Constitution, relating to an interim measure under S. 9 of the A&C Act, also to be determined. In light of disagreement at the Bench, matter referred to larger Bench. [SEPCO Electric Power Construction Corpn. v. Power Mech Projects Ltd., (2021) 10 SCC 792]

Civil Procedure Code, 1908 — S. 9: Jurisdiction of civil court to entertain civil suit based on Industrial Disputes Act, 1947, held, not available. The challenge to termination order was founded on provisions of Industrial Disputes Act, 1947. Civil court lacks jurisdiction to entertain suit structured on provisions of the ID Act and any decree passed by court without jurisdiction is nullity. Further, plea of decree being nullity can also be raised at execution stage. [Milkhi Ram v. H.P. SEB, (2021) 10 SCC 752]

Civil Procedure Code, 1908 — S. 96 r/w Or. 41 R. 31 — First appeal — Proper mode of disposal: Compliance with requirements of Or. 41 R. 31, held, is mandatory. In this case, while disposing of the appeal, High Court had not raised the points for determination as required under Or. 41 R. 31 CPC and being first appellate court had not discussed the entire matter and the issues in detail. High Court had neither re-appreciated the entire evidence on record nor had given any specific findings on the issues which were even raised before the trial court. Hence, held, approach of High Court was completely unsustainable. [K. Karuppuraj v. M. Ganesan, (2021) 10 SCC 777]

Constitution of India — Art. 136 — Delay of 607 days in filing an appeal against bail in a matter involving NDPS Act: Delay in processing of file as explanation, held, unsatisfactory and was not acceptable. The costs of Rs 25,000 was imposed on petitioner Union of India to be recovered from the officers concerned. Court has been imposing costs for wasting of judicial time in such matters which are filed with this oblique motive of saving the officers. Court had categorised such cases as “certificate cases”. These are filed to obtain a certificate of dismissal from Supreme Court to put a quietus to the issue and to save the skin of defaulting officers. Despite repeated orders, very little is done at least in taking action against officers concerned who sit on files and do nothing. Presumption is as if Court will condone the delay for the asking. Court would not follow such a course. SLP dismissed on the ground of delay with imposition of costs as above. [Union of India v. Jitendra, (2021) 10 SCC 789]

Constitution of India — Art. 226 — Exercise of power under — Violation of natural justice by High Court — Tender matter: In this case, the High Court granted relief to one of the bidding applicants without giving an opportunity of being heard to other bidding applicants, which was held unsustainable. Permission of the High Court to bidding writ petitioner to modify its tender offer during subsequent hearings is illegal. Hence, impugned order quashed and matter remanded to High Court for decision afresh in accordance with law. [Vaibhavi Enterprise v. Nobel Cera Coat, (2021) 10 SCC 757]

Constitution of India — Art. 226 — Maintainability of writ petition — Questions of fact — Contractual matter: Dispute as to amount payable to tenderer is disputed question of fact, and in this case, held, the same can be adjudicated only by agreed forum i.e. arbitration and not by writ court. [Union of India v. Puna Hinda, (2021) 10 SCC 690]

Criminal Procedure Code, 1973 — Ss. 439 and 437 — Grant of bail — Exercise of discretion by court — Guidelines issued therefor based on categorisation of offences made herein: Offences have been categorised and the abovesaid guidelines have been issued for grant of bail, but without fettering the discretion of the courts concerned and keeping in mind the statutory provisions. Further held, where the accused have not cooperated in the investigation nor appeared before the investigating officers, nor answered summons when the court feels that judicial custody of the accused is necessary for the completion of the trial, where further investigation including a possible recovery is needed, the benefit of the above guidelines cannot be given to such accused. Lastly, held, it is not as if economic offences not covered by Special Acts, are completely taken out of the aforesaid guidelines but do form a different nature of offences. Thus the seriousness of the charge has to be taken into account but simultaneously, the severity of the punishment imposed by the statute would also be a factor. [Satender Kumar Antil v. CBI, (2021) 10 SCC 773]

Customs — Appeal — Appeal to Tribunal — Proper mode of disposal: In this case, grounds stated by Tribunal for setting aside of decision of Commissioner of Customs were contrary to the record. Moreover, the appeal had not been considered on merits because of these grounds stated by Tribunal, which was held, not proper. Matter remanded to Tribunal for decision afresh. [Commissioner of Customs v. Ballarpur Industries Ltd., (2021) 10 SCC 736]

Education Law — Professional Colleges/Education — Pharmacy Colleges/Institutions — Pharmacy education: Authority empowered to determine issues concerning approval of courses of study, minimum standards of education required for qualification as a pharmacist, registration as a pharmacist, regulation of future professional conduct, etc., held, is Pharmacy Council of India (PCI) and not AICTE. Thus, in the field of pharmacy education and more particularly so far as the recognition of degrees and diplomas of pharmacy education is concerned, the Pharmacy Act, 1948 shall prevail. [Pharmacy Council of India v. Dr S.K. Toshniwal Educational Trusts Vidarbha Institute of Pharmacy, (2021) 10 SCC 657]

Evidence Act, 1872 — Ss. 106 and 101 — Burden of proving guilt of accused — Applicability of S. 106 — When arises: In case governed by circumstantial evidence, when chain of circumstances which is required to be established by prosecution is not established, if failure of accused to discharge burden under S. 106 of the Evidence Act in such case is relevant, principles summarised. [Nagendra Sah v. State of Bihar, (2021) 10 SCC 725]

National Green Tribunal Act, 2010 — Ss. 19 and 14 — Orders passed without hearing party concerned: Right of such party to subsequently challenge adverse order, held, remains intact.  [Ultimate V. Carbon v. T.N. Pollution Control Board, (2021) 10 SCC 655]

Penal Code, 1860 — Ss. 299 to 304: Considerations that should weigh with court in discerning whether an act is punishable as murder or culpable homicide not amounting to murder, discussed. Significance of use of word “likely” in several places in respect of culpable homicide, but absence thereof in definition of murder, explained. [Mohd. Rafiq v. State of M.P., (2021) 10 SCC 706]

Penal Code, 1860 — Ss. 304 Pt. I/34 or Ss. 304 Pt. II/34 [S. 300 Exception 4] and S. 201: In this case, there was death of deceased after being hit with a rod on his head. There was involvement of appellant-accused along with one co-accused and the cause being alleged stealing of appellant’s pigeon by deceased. Available evidence, held, clearly shows that incident was result of sudden fight on the spur of moment taking place in the heat of passion upon a sudden quarrel. It was not a premeditated one and there was no intention on part of appellant and co-accused either to cause death or cause such bodily injury as is likely to cause death. Hence, it was held that High Court erred in convicting appellant under S. 304 Pt. I. Therefore, appellant’s conviction was modified from Ss. 304 Pt. I/34 to one under Ss. 304 Pt. II/34. However, his conviction under S. 201 stood maintained. [Kala Singh v. State of Punjab, (2021) 10 SCC 744]

Penal Code, 1860 — Ss. 376 or 376-D r/w Ss. 363 and 366 — Rape or gang rape — Determination: A case is not of gang rape, when the evidence does not indicate that the other accused committed rape on the prosecutrix, nor that they shared the common intention to rape nor aided the commission of rape by the person who did commit rape (appellant in present case). Hence, conviction of appellant altered to one under S. 376 instead of S. 376-D. [Manoj Mishra v. State of U.P., (2021) 10 SCC 763]

Service Law — Appointment — Invalid appointment/Wrong appointment/Illegal appointment — Duty of Court to protect against appointments obtained fraudulently: Sanctity of public appointment, as a measure of social welfare and significant source of social mobility, must be protected against fraudulent process which manipulates and corrupts selection process. [Bharat Coking Coal Ltd. v. Workmen, (2021) 10 SCC 717]

Service Law — Recruitment Process — Eligibility criteria/conditions: In this case, there was failure to furnish details required in terms of criteria prescribed in the advertisement. Candidate concerned was successful in written test and interview but his candidature was rejected as he had failed to satisfy the required criteria. Writ petition was filed thereagainst by candidate concerned. Interim relief was granted by High Court, directing appellant Corporation to notify interested candidates to submit appropriate evidence as indicated in advertisement for deciding their eligibility for the post, the Supreme Court held that such interim order was improper and hence, was set aside. High Court was directed to dispose of writ petition pending for last 10 yrs expeditiously. [Food Corpn. of India v. Manoj Kumar Srivastava, (2021) 10 SCC 749]

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