2022 SCC Vol. 3 Part 2

In 2022 SCC Volume 3 Part 2, read a very interesting case wherein a case where a Constable’s name was recommended by the Superintendent of Police but the same was dropped down by the Inspector General of Police for promotion under the 10% quota of outstanding performance for inclusion in the B-I List for promotion to the post of Head Constable in the year 2004, Supreme Court held that mere recommendation of the SP at the initial stage is not sufficient to claim a right for promotion.[Sushil Kumar v. State of Haryana, (2022) 3 SCC 203]

Short Notes: 3


Arbitration and Conciliation Act, 1996 — Ss. 37 and 34 — Setting aside of arbitral award — Jurisdiction of Court under S. 37: In an appeal under S. 37, Court cannot enter into merits of claim. As per settled position of law, an award can be set aside under Ss. 34/37, only if award is found to be contrary to: (a) fundamental policy of Indian law; or (b) interest of India; or (c) justice or morality; or (d) if it is patently illegal. [Haryana Tourism Ltd. v. Kandhari Beverages Ltd.,(2022) 3 SCC 237]

Civil Procedure Code, 1908 — Or. 37 R. 2 — Summary suit — Leave to defend — Grant of — Principles to be followed: While dealing with an application seeking leave to defend, held, it would not be a correct approach to proceed as if denying leave is the rule or that leave to defend is to be granted only in exceptional cases or only in cases where defence would appear to be a meritorious one. On the issue of raising of triable issues, if defendant indicates that he has a fair or reasonable defence, he is ordinarily entitled to unconditional leave to defend unless there be any strong reason to deny leave. Further held, even if there remains a reasonable doubt about probability of defence, sterner or higher conditions could be imposed while granting leave to defend but, denying leave would be ordinarily countenanced only in such cases where defendant fails to show any genuine triable issue and court finds defence(s) to be frivolous or vexatious. [B.L. Kashyap & Sons Ltd. v. JMS Steels & Power Corpn., (2022) 3 SCC 294]

Criminal Procedure Code, 1973 — S. 439 — Bail: In this case of brutal murder of appellant complainant’s husband by tying him with rope to gate and then beating him by pipe and belt, leading to his death, bail was granted by High Court to both respondent-accused. Eyewitnesses identified accused in test identification parade. Entire incident was captured/recorded in CCTV footages and mobile phone. Pipe and belt used in commission of crime were recovered. It was held that in such serious matter and looking to gravity of offences and considering statements of eyewitnesses and that entire incident was recorded in CCTV footages and mobile phone, High Court, held, committed grave error in releasing accused respondents on bail. Hence, impugned judgments and orders passed by High Court releasing respondents on bail were quashed and set aside. [Jayaben v. Tejas Kanubhai Zala, (2022) 3 SCC 230]

Criminal Procedure Code, 1973 — S. 439 — Bail: Principles summarized regarding considerations to be balanced while deciding to grant bail. [Sunil Kumar v. State of Bihar, (2022) 3 SCC 245]

Election — Election Petition/Trial — Practice and Procedure for Election Trial — Affidavit/Verification: Election petition based on allegations of corrupt practices not supported by an affidavit in Form 25, as prescribed under R. 94-A of the 1961 Rules cannot be thrown out at threshold. Non-filing of affidavit or non-filing of proper verification is technical defect which is curable by allowing candidate to file proper affidavit. [A. Manju v. Prajwal Revanna, (2022) 3 SCC 269]

Industrial Disputes Act, 1947 — S. 11-A — Rights and duties of employer and employee concerned in disciplinary proceedings: In terms of S. 11-A, where finding of misconduct is recorded in domestic enquiry, authorities under the Act have full power and jurisdiction to reappraise evidence and to satisfy themselves whether evidence justified finding of misconduct. However, where enquiry is found defective, employer can lead evidence to prove misconduct before the authorities concerned. [U.P. SRTC v. Gajadhar Nath, (2022) 3 SCC 190]

Insolvency and Bankruptcy Code, 2016 — S. 7(5): Disposal of petition at admission stage with directions to settle the matter, without going into merits is not permissible. Mere initiation of the process of settlement is not sufficient for dismissal of petition. Only two courses of action are available to the adjudicating authority in a petition under S. 7, namely: (i) the adjudicating authority must either admit the application under S. 7(5)(a), or, (ii) it must reject the application under S. 7(5)(b). IBC does not provide for the adjudicating authority to undertake any other action, but for either of these two choices. [E.S. Krishnamurthy v. Bharath Hi-Tecch Builders (P) Ltd., (2022) 3 SCC 161]

Insolvency and Bankruptcy Laws — Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 — Regn. 34 — IBBI’s Circular dt. 12-6-2018: Recording of reasons for fixation/determination of IRP/RP’s fee is necessary. Ad hoc determination of fee/non-consideration of basis of the claim or its reasonableness is not permissible. [Devarajan Raman v. Bank of India Ltd., (2022) 3 SCC 254]

Karnataka Agricultural Produce Marketing (Regulation and Development) Act, 1966 (27 of 1966) — S. 65(2) proviso 2 & Expln. and S. 65(2-A)(i-a) and Schedule — Market fee — Liability to pay — Determination of — Processed spices notified as agricultural produce in Sch. — When chargeable: Raw spices imported from outside State, cleaned, processed and sold within market area of appellant Market Committee by respondent defined as “trader” under the Act, held, chargeable for payment of market fee under S. 65 (2). If said produce is sold in the market area of appellant, the importer should realise the market fee from the purchaser and pay the same to the Committee. Clarified, that if one merely imports notified agricultural produce from outside the State for the purpose of cleaning and processing without selling the processed produce within the market area, the said trader would not be liable to pay market fee. [APMC Yashwanthapura v. Selva Foods, (2022) 3 SCC 313] 

Penal Code, 1860 — Ss. 302 and 302/34 or S. 326 [S. 300 Thirdly] — Causing injury(ies) to vital part of body which injury(ies) were the actual cause of death: In this case, death occurred six days after the injury(ies) were inflicted. It was held that such case, held, would still fall under S. 302, as such injury(ies) inflicted on vital part of body were the actual cause of the death. [State of U.P. v. Jai Dutt, (2022) 3 SCC 184]

Penal Code, 1860 — Ss. 302/34 — Identification of accused when assailants are not known to the eyewitnesses who witnessed the incident/assault — Manner in which is required to be done: In this case of murder by shooting from pistol, it was held that alleged involvement of appellant-accused and two other co-accused in the incident, held, could not be established beyond reasonable doubt as eyewitnesses to the shooting were not aware of identity of assailants. Nor was identity of the assailants established in any other reliable manner. Hence, appellant and similarly situated co-accused, were acquitted. [Suryavir v. State of Haryana, (2022) 3 SCC 260]

Penal Code, 1860 — Ss. 302/34 — Murder of one person by shooting him with firearm — Culpability of accused who gave exhortation to murder: In this case, common intention to murder was established against Accused 2 who had exhorted Accused 1 to shoot deceased dead with the firearm. Hence, it was held that Accused 2 rightly convicted for murder under S. 302 with the aid of S. 34. [Omkar Singh v. Jaiprakash Narain Singh, (2022) 3 SCC 281]

Penal Code, 1860 — Ss. 302/34 or Ss. 120-B/302: In this case, accused was not shown to share common intention to murder nor was a party to conspiracy to murder. Neither was involvement in any conspiracy to murder proved against appellant herein Accused 2, nor could it be established that he shared common intention to murder. Hence, conviction of Accused 2 under Ss. 302/34 was quashed. [Mukesh v. State of M.P., (2022) 3 SCC 241]

Service Law — Appointment — Cancellation/Refusal of appointment — Requirement of submitting NOC from erstwhile employer at time of interview — Delay: In this case, for the Post of Asstt. Professor (College Cadre), appellant appllied for NOC on 22-3-2016, which was received by authority concerned on 4-4-2016. Written examination was conducted on 5-3-2017, result whereof was declared on 6-11-2017. Appellant qualified written examination and in anticipation that non-receipt of NOC may disqualify him from appointment filed writ petition in High Court praying for issuance of direction to employer to release NOC. Pursuant to interim order dt. 7-12-2017 passed by High Court in appellant’s favour, appellant was provisionally interviewed. Results of final selection were declared on 15-12-2017, while actual appointments made on 12-7-2018. Appellant received NOC on 6-6-2018 and submitted it to Haryana PSC on 8-6-2018 i.e. even before actual appointments were made. Thus held, there was no delay on part of appellant. Delay was on part of employer in issuing NOC and that too after intervention of High Court. Further held, once it was found that there was no delay/lapse on part of appellant in producing NOC, which was produced before appointments were made, and last candidate who was appointed i.e. R-4 had secured less marks than appellant, there was no justification in denying him appointment. He cannot be punished for no fault of his. Courts below erred in rejecting appellant’s claim to appointment. Further directed that on principle of “no work no pay” appellant was not entitled to back wages but entitled to continuity of service for purpose of seniority, pay fixation, etc. [Narender Singh v. State of Haryana, (2022) 3 SCC 286]

Service Law — Promotion — Competent Authority/Recommending Authority: Authority with power to accord approval to recommendation for promotion, held, is competent authority for grant of promotion and not the recommending authority.  [Sushil Kumar v. State of Haryana, (2022) 3 SCC 203]

Service Law — Seniority — Determination of seniority — Ad hoc/Fortuitous appointees/Promotees — Regularisation of, from date of initial appointment: Employees who were appointed on ad hoc basis and qualified typing test at later stage, in absence of scheme of rules for determining seniority cannot be placed senior to employees who were appointed on substantive basis after undergoing regular selection process. [Shyam Sunder Oberoi v. Tis Hazari Courts, (2022) 3 SCC 197]

Succession Act, 1925 — Ss. 63 and 59 r/w Ss. 67, 68, 45 and 47 of the Evidence Act, 1872 — Validity of will — Proof — Essentials for: Intention of testator to make testament must be proved, and propounder of will must examine one or more attesting witnesses and remove all suspicious circumstances with regard to execution of will. [Murthy v. C. Saradambal, (2022) 3 SCC 209]

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