Appointments & TransfersNews

Order of Appointment 

President appoints Justice Rajesh Bindal, Senior-Most Judge of Calcutta High Court to perform the duties of the office of the Chief Justice of that High Court with effect from 29-04-2021 consequent upon the retirement of Justice Thottathil Bhaskaran Nair Radhakrishnan, Chief Justice of Calcutta High Court.


Ministry of Law and Justice

Notification dt. 27-04-2021]

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Thottathil B. Radhakrishnan, CJ and Arijit Banerjee, J., expressed that circulars issued by the Election Commission of India show the route map and protocol for human behaviour.

Court while addressing the matter stated that it is unable to reconcile the fact that the Election Commission of India was not able to update the Court as to what action by way of enforcement of the circulars had been obtained.

Issuance of circulars and holding of meetings by themselves do not discharge the onerous responsibility of the Election Commission of India and officers under its command in due performance of not only the statutory power and authority under Representation of People Act, 1950 and the Representation of People Act, 1951 but the confidence that the Indian polity would have on it to carry forward the mechanism of upholding the democracy by use of requisite facilities even in pandemic times like heightened challenge by COVID-19 virus and its variants.

Bench remarked that it is not satisfied with the materials on record to state that the Election Commission of India and its officers on the ground in West Bengal enforced the circulars.

“We are sure that circulars are not merely advisories to be wrapped up by the political parties or those involved in the political propaganda or even the public at large.” 

Further, High Court observed that

Circulars of the Election Commission of India show the route map and the protocol for  behaviour of the political parties, their workers, the people at large and responsible management by the officers including the police and other forces under the command of the Election Commission of India.

Lastly while concluding the matter, Court directed the counsel for Election Commission to return to make submission with a very short affidavit reflecting on whatever has been stated above. [Nitish Debnath v. Election Commission of India, 2021 SCC OnLine Cal 1521, decided on 22-04-2021]


Advocates before the Court:

Mr. Srijib Chakraborty, adv. Mr. Arindam Das, adv.

Mr. Dipayan Choudhury, adv. Mr. Suvradal Choudhury, adv.

Ms. Priyanka Chowdhury, adv.

… For the Election Commission of India

Mr. Y.J. Dastoor, ld. ASG Mr. Phiroze Edulji, adv. Ms. Amrita Panday, adv. Mr. Arijit Majumdar, adv.

…For the Union of India

Mr. Kishore Dutta, A.G.

Mr. Abhrathosh Majumdar, ld. AAG Mr. Sayan Sinha, adv.

… For the State

Mr. Sonal Sinha, adv.

… for the State Election Commission

Case BriefsHigh Courts

Calcutta High Court: Shampa Sarkar, J., expressed that Hindu Marriage Act is a gender-neutral provision and further expressed the scope of maintenance.

In the present revisional application, the issue was with respect to the wife being aggrieved with the quantum of maintenance.

Wife had filed an application under Section 24 of the Hindu Marriage Act and maintenance pendente lite @Rs 30,000 per month and Rs 75,000 as litigation cost was prayed.

Wife was aggrieved that the lower court allowed 1/5th of the husband’s income as maintenance pendente lite and considering the husband’s income as Rs 60,000, Court proceeded to grant an amount of Rs 12,000 as maintenance.

Hindu Marriage Act provides for the rights, liabilities and obligations arising from a marriage between two Hindus.

Sections 24 and 25 make provisions for providing maintenance to a party who has no independent income sufficient for his or her support and necessary expenses. This is a gender-neutral provision, where either the wife or the husband may claim maintenance. The pre-requisite is that the applicant did not have independent income which is sufficient for his or her support during the pendency of the lis.

Justice Krishna Iyer’s decision of Supreme Court in Captain Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70 was referred to regarding the object of maintenance laws.

Supreme Court’s decision in Rajnesh v. Neha, (2021) 2 SCC 324 discussed the criteria for determining the quantum of maintenance and the relevant factors to be taken into consideration in order to quantify the amount. The object behind granting maintenance is to ensure that the dependent spouse was not reduced to destitution or vagrancy on account of failure of the marriage and not as a punishment to the other spouse.

In the instant case, wife’s potential to earn may exist as she had a post-graduate degree but as per the evidence, it appeared that she had been out of employment Since May, 2014. Records revealed that the husband had been appointed at a salary of Rs 23,000. It was expected that in the intervening period, husband’s income must have gone up by at least 3 times.

Supreme Court noted that some guesswork could not be ruled out estimating the income when the sources or correct sources are not disclosed. Hence, Trial Court rounded the figure at Rs 60,000 as the expected income of the husband at present.

Bench considered it prudent to award Rs 20,000 to the wife as maintenance pendente lite.

Bench dismissed Mr Chatterjee’s contention that wife should be directed to disclose her present income and file the affidavit of assets.

Further, the Court stated that in the absence of any evidence on the part of the husband, this Court is of the opinion that taking into consideration the criteria as laid down by several judicial precedents on the subject from time to time, Rs 20,000/- as maintenance pendete lite per month is just and proper.

High Court modified the impugned order to the above extent. It was directed that the current maintenance shall be paid with effect from April, 2021 within 20th of the month.  Thereafter on and from May 2021 the maintenance shall be paid within 15th of every month as directed by lower court.[Upanita Das v. Arunava Das, C.O. No. 4386 of 2019, decided on 09-04-2021]


Advocates before the Court:

For the Petitioner: Mr Srijib Chakraborty and Ms Sudeshna Basu Thakur

For the Opposite Party: Mr Aniruddha Chatterjee and Mr Sachit Talukdar

COVID 19Hot Off The PressNews

Calcutta High Court in light of the COVID-19 Surge has notified that all matters shall be taken up only on virtual mode only and from Monday, 12th April 2021 i.e. today. Only such Lawyers who do not have video accessibility shall attend the Court physically.

The above Order has been issued under the directions of the Chief Justice of Calcutta High Court.

Link to the Notice.


Calcutta High Court

[Notification dt. 11-04-2021]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Arindam Sinha and Suvra Ghosh, JJ. confirmed a decree of divorce passed in favour of the husband by the trial court on grounds of cruelty by the wife. The instant appeal, dismissed by the High Court, was preferred by the wife against the judgment of the trial court.

Backdrop and Factual Matrix

The husband filed for divorce against the wife on grounds of cruelty, alleging that she made false allegations against him of having illicit relations with other women as well as their own daughter. The trial court found that no cogent proof of illicit relationship was forthcoming from the wife which could prove the allegations made by her against the husband. Therefore, the trial court held it amounted to cruelty against the husband under Section 13(i)(i-a) of the Hindu Marriage Act, 1955; and granted a decree of divorce in favour of the husband.

Contentions ─ Wife

The wife argued that the allegation of cruelty was erroneously held to be proved against her. She submitted that the persons named were not produced as witness. Extreme financial hardship had prevented her from fully participating at the trial, but that by itself did not justify finding in the trial court’s judgment and decree that the allegation of cruelty was proved against her.

Contentions ─ Husband

The husband submitted that the suit was filed in year 2004. Dilatory tactics were adopted by the wife. He gave evidence and was cross-examined, which could not shake his evidence. Such unshaken testimony was corroborated by their daughter. The daughter was married and living happily in her matrimonial home. Grave and serious allegations against him were made regarding carrying on with several women, including, their daughter. This part of the evidence was also corroborated by the daughter. The daughter took to the witness box and corroborated unshaken testimony of the husband, and therefore the wife did not cross-examine her, nor turn up to give evidence and be cross-examined. In such circumstances, further corroboration was not required and the Court below correctly appreciated the evidence to find cruelty inflicted on him.

It was further submitted that he had allowed the wife to stay in his flat and is regularly paying her enhanced permanent alimony. Eighteen years of separation had happened and there should not now be reversal of the trial court’s judgment and decree. He relied on the Supreme Court decision in Adhyaatmam Bhaamini v. Jagdish Ambala Shah, (1997) 9 SCC 471.

Law, Analysis and Decision

The High Court analysed the facts and allegations in two parts. Firstly, the allegations were regarding the wife having taken up a 9 am to 9 pm job, after which she became very ill. The husband, in his evidence, stated that he put pressure on the wife to leave the job. On the other hand, the wife said that the husband forced her to work on a sales office to earn money to meet family expenses. On examining the record, it appeared to the High Court that the wife took up the job, after which she fell ill, and the husband caused her to leave the job. Therefore, the wife’s account on this point was disbelieved by the Court.

Secondly, the allegation against the wife was that in July-August 2003, she visited the husband’s office, informing the Committee of Housing about him maintaining illicit relationship with their daughter. As a consequence, members of the Committee came to their residence. The wife admitted that on one occasion, she went to her husband’s office, but only to meet him. She did not meet allegations regarding her approaching the Committee members.

The allegations of the husband against the wife, were corroborated by their daughter in her evidence-in-chief. Although some statements in her affidavit were hearsay. The Court opined that:

There are some statements in her affidavit-in-chief, which are hearsay. The parts of her affidavit that can be attributed to be her evidence is in corroboration of what her father said in the petition, his affidavit-in-chief and from the Box, in cross-examination.”    

 On a complete analysis, the High Court held that the wife made reckless allegations against the husband, amounting to cruelty. The Court was convinced that there is no scope of interference in the trial court’s judgment and decree. The appeal was fount without any merit and was therefore dismissed. [Radha Majumder v. Arun Kumar Majumder, 2021 SCC OnLine Cal 1398, decided on 23-03-2021]


Advocates who appeared in this case:

Mr. Pradip Kumar Roy

Ms. Shraboni Sarkar … for appellant wife

Mr. Debabrata Acharyya

Mr. Sital Samanta … for respondent-husband

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Thottathil B. Radhakrishnan, CJ and Arijit Banerjee, J., held that Judiciary is not the policy-making instrument on issues regarding conversion of marriage in terms of personal laws, though it may sit in Judgment on the validity, the enforceability of any piece of law made by a legislative body.

Petitioner’s counsel submitted that what has been demonstrated through the present petitions are merely tips of the iceberg and the larger canvass will disclose that there is a consorted effort in certain religious denominations to effectuate conversion under the guise of the institution of marriage.

Adding to the above, counsel stated that in the areas where there are no state legislation controlling or regulating religious conversion, the judiciary could consider stepping in to put regulatory measures in place.

Analysis and Decision

Judiciary—The policy-making instrument?

Bench opined that the pith and substance of all the issues relating to conversion of marriage and acceptability of marriage in terms of personal laws or municipal laws are matters on which the policy-making instrument would not be the judiciary.

Expressing further in view of the above, High Court stated that the Courts may sit in Judgment on the validity, enforceability and/or otherwise of any piece of law which may be made by any legislative body.

Lastly, while concluding the matter, Bench held that in light of the ACJM, Tehatta, Nadia’s report and the accused girls in relation to whom the petitions were filed having been recovered, no purpose would be served by keeping the petitions on board since they stand discharged upon recovery of the alleged victims. [Palash Sarkar v. State of W.B., 2021 SCC OnLine Cal 530, decided on 03-03-2021]

Case BriefsHigh Courts

Calcutta High Court: Sabyasachi Bhattacharya, J., reiterated the decision of Supreme Court in Embassy Property Developments (P) Ltd. v. State of Karnataka, 2019 SCC OnLine SC 1542, regarding whether NCLT and Resolution Professional have jurisdiction to take control and custody of any asset except as subject to the determination of ownership by a court or authority.

“…the power of the resolution professional to take control of any asset, itself, is subject to the determination of ownership by a court or authority.”

Factual Matrix

Kolkata Municipal Corporation filed the present petition challenging an order passed by the National Company Law Tribunal (NCLT) acting as Adjudicating Authority under the Insolvency and Bankruptcy Code, 2016 for handing over physical possession of the office premises.

KMC, in exercise of its authority under Sections 217-220 of the Kolkata Municipal Corporation Act, 1980, had distrained the said property in the recovery of municipal tax dues from an assessee.

Debt of the assessee came within the purview of a Corporate Insolvency Resolution Process (CIRP), thus prompting respondent 4, the Resolution Professional, representing the owner of the asset, to approach the NCLT for handing over of such physical possession of the property-in-question from the KMC.

In view of the above, the instant petition was filed.

Questions that arise in the instant matter are:

  • Whether the writ jurisdiction of this court under Article 226 of the Constitution of India can be invoked in the matter, despite the availability of an alternative remedy;
  • Whether the property-in-question, having been seized by the KMC in recovery of its statutory claims against the debtor, can be the subject matter of a Corporate Resolution Process under the Insolvency and Bankruptcy Code, 2016.

While considering the first question, Bench referred to the decision of Embassy Property Developments (P) Ltd. v. State of Karnataka, 2019 SCC OnLine SC 1542, wherein it was held that, in so far as the question of exercise of the power conferred by Article 226, despite the distinction between lack of jurisdiction and the wrongful exercise of the available jurisdiction, should certainly be taken into account by High Courts, when Article 226 is sought to be invoked by passing a statutory alternative remedy provided by a special statute.

Petitioners urged that the NCLT and the Resolution Professional have no jurisdiction to take control and custody of any asset except as subject to the determination of ownership by a court or authority. KMC exercised its powers under Sections 217 to 220 of the 1980 Act to distraint the asset of the debtor and to attach the property, to be followed by sale in future, but the said exercise of power was argued to be beyond the purview of IBC. Resolution Professional and the NCLT acted de hors their statutory powers in seeking to take control and custody of the asset.

Hence, the challenge in the present petition was on the ground of absence of jurisdiction and not ‘wrongful exercise of the available jurisdiction’, thus bringing it within the fold of Article 226 of the Constitution. Therefore, petition is maintainable.

“…although a wrongful exercise of available jurisdiction would not be sufficient to invoke the High Court’s jurisdiction under Article 226 of the Constitution, the ground of absence of jurisdiction could trigger such invocation.”

Considering the second questions posed above, Bench stated that it would be particularly apt to consider the tests laid down by the Supreme Court in Embassy Property Developments (P) Ltd. v. State of Karnataka, 2019 SCC OnLine SC 1542.

In the above-referred decision, while discussing Section 60(5)(c) of IBC, Supreme Court held, “…a decision taken by the government or a statutory authority in relation to a matter which is in the realm of public law, cannot, by any stretch of imagination, be brought within the fold of the phrase “arising out of or in relation to the insolvency resolution”.

Further, the Court, while moving ahead in the analysis of the matter and reaching a conclusion expressed that there cannot be any doubt about the proposition that the contours of the powers conferred on the Adjudicating Authority, being the NCLT, under Section 60 of the IBC, are defined by the duties of the interim resolution professional under Section 18.

What is to be seen to examine the charter of the interim resolution professional is whether the assets, of which control and custody is sought to be taken by the professional, are sub judice before a court or authority for the purpose of “determination of ownership” thereof.

In the instant matter, petitioner proceeded with acquiring the possession of the property-in-question and putting up the same for attachment under its powers as flowing from Sections 217-220 of the 1980 Act.

The above-said provision envisages a situation where an amount of tax, for which a bill has been presented under Section 216 of the Act, is not paid within 30 days from the presentation thereof.

In view of the event, Municipal Commissioner may cause a demand notice to be served on the person for such liability and on the non-payment of such tax, petitioner shall under Section 219 of the 1980 Act issue a distress warrant, for distraint of the property. Further in the process, person charged with the execution of the warrant in the presence of two witnesses, makes an inventory of the property which he seizes under such warrant. Thereafter, steps are taken for disposal of such property, including attachment and sale.

KMC followed the above-laid procedure and took possession of the disputed property for non-payment of tax. Hence, there was no scope of any ‘determination’ of ownership of the property by the KMC. Thus, in view of the Supreme Court decision in Embassy Property Developments (P) Ltd. v. State of Karnataka, 2019 SCC OnLine SC 1542  a finalised claim would come within the purview of “operational debt” under Section 5(21) of the IBC. Hence, the Resolution Professional has jurisdiction to take custody and control of the same.

Parameters of powers of the NCLT, as an Adjudicating Authority under Section 60 of the IBC, is defined and circumscribed by the scope of Section 18(f)(vi) of the IBC. Such exercise of power would fall within the ambit of the expression “arising out of or in relation to the insolvency resolution”, as envisaged in Section 60(5)(c) of the IBC.

Crown Debts

Referring to the decision of Supreme Court in Commr. of Income-tax v. Monnet Ispat Energy Ltd., [Special Leave to Appeal (C) No (S) 6438 of 2018], wherein it was held that income tax dues, being in the nature of crown debts do not take precedence even over secured creditors, Bench stated that the said proposition holds true in the present matter as well.

Hence, KMC’s claim being in the nature of crown debts, cannot gain precedence over other secured creditors, as contemplated in the IBC.

Therefore, in view of the Supreme Court decision in Embassy Property Developments (P) Ltd. v. State of Karnataka, 2019 SCC OnLine SC 1542 Finalised claim of the KMC can very well be the subject-matter of a Corporate Resolution Process under the IBC.

Accordingly, the Court decided the above two questions in affirmative.[Kolkata Municipal Corpn. v. Union of India, 2021 SCC OnLine Cal 145, decided on 29-01-2021]


Advocates who appeared:

For Petitioners:

Ashok Kumar Banerjee, Sr. Adv.,

Rajdip Roy,
Anindya Sundar Chatterjee,
Goutam Dinda

For Respondent 3:

Jishnu Chowdhury,

Dilwar Khan,
Sondwip Sutradhar

For Respondent 4:

Rishav Banerjee,

Pronoy Agarwal,

Ankita Baid

Appointments & TransfersNews

Supreme Court Collegium has approved the proposal for elevation of the following Judicial Officers as Judges of the Calcutta High Court:

1. Kesang Doma Bhutia,

2. Rabindranath Samanta,

3. Sugato Majumdar,

4. Ananya Bandyopadhyay,

5. Rai Chattopadhyay,

6. Bivas Pattanayak,

7. Subhendu Samanta, and

8.  Ananda Kumar Mukherjee.


Supreme Court of India

[Statement dt. 04-02-2021]

Case BriefsHigh Courts

Calcutta High Court: Shekhar B. Saraf, J., in the instant matter after a precedential examination with regard to judicial inquiry, laid down a few principles for the same.

Petitioners sought command towards Secretary of the West Bengal Central School Service Commission – Respondent 4 to allow petitioners to add their enhanced training qualifications, as prescribed in the Recruitment Rules, 2016 in the process of selection for appointment to the post of Assistant Teacher in Upper Primary Level of Schools in pursuance of the Appointment Notification dated September 23, 2016, as well as to consider their candidatures as trained candidates as per verifications to be submitted online in terms of the latest verification notification dated December 28, 2020.

Analysis, Law and Decision

Bench stated that in Aktarul Islam Kayal v. State of West Bengal, W.P.A. No. 9597 of 2019, Court did not set aside the advertisement published on September 23, 2016, and Commission was directed to hold a fresh selection of all candidates who were found to be eligible under Rule 12(2).

The above position clearly prevents the court from any intervention with regard to such advertisement.

Further, the fresh cause of action that arose was with regard to enhanced qualifications to be considered due to the fact that the selection process had been postponed by 4 years.

Supreme Court’s decision in Shankar K. Mandal v. State of Bihar, (2003) 9 SCC 519 which had also consciously considered the decision in Ashok Kumar Sharma v. Chander Shekhar, (1997) 4 SCC 18, clearly reiterated the point of law that when there is no cut-off date provided for in the Rules, then such date shall be as appointed for the purpose in the advertisement/notification inviting such applications.

State or its constituent statutory bodies as the Commission have a right to fix a cut-off date in the advertisement for the purposes of such selection process. Furthermore, the cut-off date has to be adhered to and applied consistently for all persons and the same cannot be ignored for a particular person.

Bench expressed that one cannot lose sight of the fact that the Courts in this country including High Courts, are institutions tasked to adjudicate and not to legislate.

In the Supreme Court decision of Hari Krishna Mandir Trust v. State of Maharashtra, (2020) 9 SCC 356, Court had reiterated the scope of the powers of a High Court exercising its powers under Article 226 of the Constitution of India.

Moving on to the precedents of the Supreme Court that prescribe non-interference in policy decisions of the State under this Court’s judicial review powers, the Supreme Court had held in Ekta Shakti Foundation v. Govt. of NCT of Delhi, (2006) 10 SCC 337 as follows:

“11. The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or [is violative of] the fundamental rights of the citizen or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the court, it cannot interfere.”

Supreme Court in Directorate of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 SCC 737, dealt with the entrenched scope of judicial review concerning governmental policy.

3-Judge Bench headed by the then Chief Justice T.S. Thakur in Centre for Public Interest Litigation v. Union of India, (2016) 6 SCC 408, extensively discussed the scope of judicial interference in government policies.

Based on the above precedential examination, the following distinct principles emerged:

  • The scope of judicial enquiry apropos policy decisions/matters of the State is restricted to the “sole dimension” of whether such policy decision/matter is either :

i.against any statutory provision;
ii. violative of any fundamental rights of a citizen;

iii. in the teeth of any Constitutional provision;

iv. manifestly arbitrary/discriminatory;
v. based on irrelevant consideration.

  • Only the ‘legality’ of the policy decision, and not the wisdom or soundness of such decision can be a subject matter fir for judicial review under Article 226 of the Constitution of India.
  • Constitutional Courts, such as this Court ought to be hesitant in interfering in matters of such policy or the day-to-day functioning of any departments of the government or any statutory bodies.
  • Negligible interference in policy decisions when such decisions are the outcome of deliberations of technical experts as Courts lack the expertise to determine the basis/factors based on which such decisions might have been taken. This is also inclusive of “economic policies”.

In view of the above discussion, Bench stated that the policy decision of the Commission reflected through its initial notification/advertisement dated September 23, 2016, as a statutory body, in the present case does not touch the realm of arbitrariness and accordingly, no interference is called for.

Hence, Court doesn’t need to mould such advertisement to allow a change in the circumstances that may have taken place with regard to the enhanced qualifications of the writ petitioners. Attempt by this Court to allow the same would result in an unfair treatment for those who did not enhance their qualification and are not present before this Court, not to mention taking an erroneous step in encroaching into the domain of the executive branch of the government.

Therefore, the batch of writ petition was dismissed. [Subhasis Negel v. State of West Bengal, 2021 SCC OnLine Cal 194, decided on 19-01-2021]

Hot Off The PressNews

Justice Ashis Kumar Chakraborty passed away on 30-01-2021 due to cardiac arrest.


About

He was Born on December 12, 1965. Graduated in Law (five years) from the University of Calcutta in November, 1992. Was enrolled as an Advocate on January 29, 1993. Practised mainly in the High Court at Calcutta as well as the Supreme Court of India in Civil, Company, Arbitration and Constitutional Matters.

Justice  Ashis Kumar Chakraborty was elevated to the Bench as an Additional Judge of the High Court at Calcutta on October 22, 2014. Appointed as Permanent Judge of the Calcutta High Court on 06-10-2016.


Few Judgments

Case BriefsHigh Courts

“[Sexual harassment] can be perpetrated by the members of any gender, even inter se.”

Calcutta High Court: Sabyasachi Bhattacharyya, J. held that a complaint under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [“POSH Act”], is maintainable even against “a person” belonging to the same gender as that of the complainant. In other words, a complaint under the POSH Act is maintainable against women.

Issue

In the present petition, the petitioner contended that the respondent authorities acted without jurisdiction in entertaining a complaint on alleged sexual harassment against her, despite the fact that both, the petitioner and the complainant, are of the same gender.

Arguments

Petitioner

The petitioner stressed that the allegations of the complainant revolved around alleged vilifying and defaming in public. It was submitted that the act as alleged, could not fall within the purview of “sexual harassment” as contemplated in the POSH Act. She placed particular reliance on the definition of “sexual harassment” in Section 2(n) of the POSH Act and sought to impress upon the Court that the acts contemplated therein have no nexus with the present complaint.

It was next submitted that, as per Section 19(h) of the POSH Act, an employer shall cause to initiate action under IPC or any other law for the time being in force, against the perpetrator. It was argued that such an action, as envisaged under IPC, only pertains to a man being involved in the offence, which ingredient has to be factored in while appreciating the connotation of “sexual harassment” under the POSH Act.

It was submitted that since the Vishakha judgment [Vishakha  v. State of Rajasthan, (1997) 6 SCC 241] was the genesis of the POSH Act, the concept of the POSH Act has to be read and interpreted in the light of the said judgment. It was argued that the question of gender equality acquires primacy in deciding whether a complaint falls within the periphery of the POSH Act. In the present case, since the gender of the complainant and the respondent (petitioner herein) is the same, the question of the POSH Act being invoked does not arise.

Complainant

The complainant made reference to the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015 and submitted that the said Regulations are broad enough to encompass respondents of all genders, implicitly meaning that the gender of the complainant and the respondents can very well be the same in order to attract the rigours of the Regulations, which govern the present parties as well. By placing particular reliance on Regulation 8(2), it was argued that the expression “the respondents shall file his/her reply” has been used therein, thereby bringing within its purview respondents of both genders. This, read with the definition of “respondent” in Section 2(m) of the POSH Act, which contemplates “a person” as a respondent, indicates clearly that same gender allegations can also be entertained under the POSH Act.

Analysis

The High Court, stated at the outset, that a cursory glance at Section 2(m) of the POSH Act shows that the term “respondent” brings within its fold “a person”, thereby including persons of all genders.

The Court was of the opinion that although there was substance in the submission of the petitioner that the said expression has to be read in conjunction with the rest of the statue as a whole, there is nothing in Section 9 of the POSH Act [which has been referred to in Section 2(m)] to preclude a same-gender complaint under the POSH Act.

“Although it might seem a bit odd at the first blush that people of the same gender complain of sexual harassment against each other, it is not improbable, particularly in the context of the dynamic mode which the Indian society is adopting currently, even debating the issue as to whether same-gender marriages may be legalized.”

It was also held that the definition of “sexual harassment” in Section 2(n) cannot be a static concept but has to be interpreted against the backdrop of the social perspective. Sexual harassment, as contemplated in the POSH Act, thus, has to pertain to the dignity of a person, which relates to her/his gender and sexuality; which does not mean that any person of the same gender cannot hurt the modesty or dignity as envisaged by the POSH Act.

“A person of any gender may feel threatened and sexually harassed when her/his modesty or dignity as a member of the said gender is offended by any of the acts, as contemplated in Section 2(n), irrespective of the sexuality and gender of the perpetrator of the act.”

The Court further held that if sub-section (2) of Section 3 [Prevention of Sexual Harassment] is looked into, it is seen that the acts contemplated therein can be perpetrated by the members of any gender, even inter se.

Decision

In such view of the matter, the High Court held that the act alleged by the complainant to have been perpetrated by the petitioner, as evident from her complaint was maintainable under the POSH Act. Hence, the complaint cannot be turned down at the outset.

It was however clarified that the merits of the allegations levelled by complainant against the petitioner have not been gone into in any manner by the court. And it will be open to the appropriate authorities to decide the matter independently, on its own merits. [Malabika Bhattacharjee v. Vivekananda College, WPA 9141 of 2020, dated 27-11-2020]

Appointments & TransfersNews

Appointment Orders

President is pleased to appoint Justice Sanjib Banerjee, Judge of the Calcutta High Court, to be the Chief Justice of the Madras High Court with effect from the date he assumes charge of his office.


President is pleased to appoint Justice Hima Kohli, Judge of the Delhi High Court, to be the Chief Justice of High Court for the State of Telangana with effect from the date she assumes charge of her office.


President is pleased to appoint Dr Justice S. Muralidhar, Judge of the Punjab and Haryana High Court, to be the Chief Justice of the Orissa High Court with effect from the date he assumes charge of his office.


Ministry of Law and Justice

Appointments & TransfersNews

Transfer Orders of Justice Joymalya Bagchi of Calcutta High Court as a Judge Andhra Pradesh

President, after consultation with the Chief Justice of India, is pleased to transfer Justice Joymalya Bagchi, Judge of the Calcutta High Court, as a Judge of the Andhra Pradesh High Court and directs him to assume charge of his office in the Andhra Pradesh High Court.

ORDER


Ministry of Law and Justice

[Notification dt. 31-12-2020]

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Sanjib Banerjee and Arijit Banerjee, JJ., observed that an adult woman is free to marry the person of her choice covert.

In the instant matter, it was traced out that the girl’s age was 19 years old and she married a person of her choice and doesn’t want to return to her parental home.

Upon the petitioning father complaining that his daughter’s statement under Section 164 of the CrPC may not have been recorded in an atmosphere where she felt comfortable, the 19-year-old girl was required to meet the senior-most Additional District Judge and for sufficient care to be taken so that she was not under any coercion or undue influence.

Despite a clear and clean report, father harboured some suspicion.

Bench held that,

If an adult marries as per her choice and decides to convert and not return to her paternal house, there can be no interference in the matter.

Matter has been listed on 24-12-2020.[Palash Sarkar v. State of W.B., WPA No. 9732 of 2020, decided on 21-12-2020]

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Thottathil B. Radhakrishnan, CJ and Arijit Banerjee, J., has taken suo motu cognizance of a newspaper report with regard to smuggling and illegal trading of endangered species of birds.

Cruel Intrusion | Life of Flora and Fauna

The newspaper report in ‘Anandbazar Patrika’ exposed the tip of an iceberg regarding the cruel intrusion into the life of flora and fauna particularly the birds, in the wake of the winter season.

Court noticed the challenges to the beautiful fauna life owning to cruel, unethical and illegal activities, in violation of the Constitution and the laws, particularly those relating to animals and birds, were noticed.

In view of the above, requisite directions were sought to be issued by this Court.

It was also noticed that the facts affecting the environment and ecological balance would also be considered.

Counsel appearing for the High Court pointed out that birds are perceived as a symbol of freedom because of their ability to fly. For many centuries birds and their feathers have symbolized life, death, good and bad luck, the future, the past, and other signs.

The above-stated newspaper report touches the different aspects with regard to Constitutional and statutory provisions which deal with the animal life including the fauna population.

Sum and substance of the report:

“In order to effectively deal with the issue of smuggling and illegal trading of endangered species of birds, the provisions of Schedule VII, List III [Concurrent List], Entry 17B of the Constitution of India which speaks of protection of wild animals and birds may be looked into. In addition thereto Articles 48A [Directive principles of State policy] and 51A (g) [Fundamental duties] inter alia speaks of protecting, improving and safeguarding wildlife, reading thus:

48A: The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.

51A (g): to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures.”

“…The burning issue at the moment is trade in pet birds. It is very unfortunate that species, though protected, are still trafficked widely. A staggering number of birds are cruelly smuggled in various places, in appalling conditions. Birds are trafficked stuffed and suffocated in the piping of suitcases, PVC pipes. They are stuffed in socks, crammed in shoes and their beaks are taped shut. To catch wild parrots, the hunters take two of them as bait and puncture their eyes. These blind and wounded birds are then left on a sheet, where they cry out for help.”

Bench stated that thoughtful consideration needs to be given in the context of different statutory provisions which provide the support to the Constitutional salutory need to protect the birds and also to act promptly, vigorously, forcefully and effectively against the wrongdoers.

Further, the larger scale capturing of birds using weapons or otherwise and also bringing birds to captivity beyond those permissible under the law has also been disclosed in the suo motu petition.

“…migrating birds know no territorial limits and they would fly to better pastures depending upon the change of climate, availability of food and various other reasons including for their existence, procreation etc. This is part of the ecological management of the universe.”

Smuggling and illegal trading of endangered species of birds

In Court’s opinion, the instant matter needs to be considered as the issue is necessary and expedient as the same concerns smuggling and illegal trading of endangered species of birds and for their preservation and protection.

Hence, Bench stated that the instant matter shall stand registered and continue as Public Interest Litigation to address various issues, including the following:

“(i) smuggling and illegal trading of endangered species of birds.

(ii) To fix the responsibility for such smuggling and illegal trading of endangered species of birds.

(iii) To pass necessary directions upon the appropriate authorities to ensure that no smuggling and illegal trading of endangered species of birds, take place and the violators are taken to task on a war footing.”

In view of the urgency of the matter, the same is to be posted on 08-12-2020.[Smuggling and illegal trading of endangered species of birds, In Re., 2020 SCC OnLine Cal 2160, decided on 04-12-2020]

Case Briefs

Calcutta High Court: A Division Bench of Harish Tandon and Hiranmay Bhattacharyya JJ., while allowing the present appeal, discusses upon the essentials of granting an injunction order in light of the settled precedents.

Background

The defendant in a suit for infringement of copyright has preferred the instant first miscellaneous appeal challenging the order dated 20-08-2020, passed by the District Judge at Alipore in Title Suit No. 6 of 2020. The facts leading to the present appeal are categorically mentioned hereunder;

  1. The author who is the appellant herein entered into a publishing and copyright agreement with the publisher being the respondent on 24-11-2017.
  2. The respondent filed a suit alleging illegal termination of the aforesaid agreement by the appellant through an e-mail dated 01-06-2020. It was further alleged that the appellant herein through her advocate’s letter dated 20-07-2020, threatened to institute legal proceedings against the respondent before the appropriate forum.
  3. The respondent further claims that the appellant herein threatened to publish the books through other publishers which compelled the respondent to pray for an order of injunction restraining the appellant from giving any effect to the e-mail dated 01-06-2020 and the letter dated 20-06-2020 by filing an application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure.
  4. The Trial Judge, by the order impugned, restrained the defendant/appellant from taking any steps pursuant to the letter dated 01-06-2020 as well as the letter dated 20-07-2020 till 25-09-2020.
  5. Being aggrieved against the aforesaid order, the instant appeal has been preferred.

 Contentions

Saptansu Basu, Senior Advocate appearing for the appellant assails the impugned order on the following grounds. Firstly, the principles laid down by Supreme Court in the case of Shiv Kumar Chadha v. Municipal Corporation of Delhi, (1993) 3 SCC 161, has not been followed by the court below while passing the ex-parte order of injunction. Secondly, no order of injunction can be passed restraining a person from instituting a proceeding before a court of law. Lastly, the respondent may, at best, be entitled to damages in the event the court finds that the notice period as mentioned in the termination letter falls short of the required notice period as per the agreement in question. Reliance was further placed on Indian Oil Corporation Ltd. v. Amritsar Gas Service, (1991) 1 SCC 533 in support of such submission.

Aritra Basu, Advocate for the respondent submitted that the agreement dated 24-11- 2017 contains a termination clause which provides that 90 days notice is mandatory before terminating the agreement by the appellant herein. It was further submitted that since the termination letter has been issued by the appellant, in violation of the said agreement, the same cannot be given effect to and the court below was perfectly justified in passing an order of injunction. Furthermore, Section 42 of the Specific Relief Act, 1963, empowers the court to grant an injunction directing the appellant to perform the negative agreement by issuing a 90 clear days notice for termination of the agreement in the instant case even if the court is unable to compel the specific performance of the agreement. Reliance was placed on the judgment of KSL Industries v. National Textiles Corporation Limited, OMP 581 of 2010 decided on 14-08-2012 and Madras High Court judgment in Base International Holdings v. Pallava Hotels Corpn. Ltd., 1998 SCC OnLine Mad 614, so to emphasize that an order of injunction can still be passed in case the notice period mentioned in the termination notice is in violation of the termination clause mentioned in the agreement.

 Observation

The Court, identifying the crux of the matter, said that the agreement shall remain in existence, unless terminated by a specific notice of termination. The bench further remarked that, since the contract is determinable in nature therefore it cannot be specifically enforced in view of Section 14(1) of the Specific Relief Act, 1963.

 “Section 41 of the Specific Relief Act provides that an injunction cannot be granted to prevent the breach of a contract, the performance of which would not be specifically enforced. Since we are of the view that the contract in question is one, the performance of which could not be specifically enforced, the learned judge of the court below erred in law by passing an order of injunction in the instant case which would in effect amount to directing specific performance of the said agreement. Furthermore, no injunction can be passed restraining a party from instituting any proceeding in a court of law. The resultant effect of the order of injunction passed by the learned court below is a restraint upon the appellant from initiating any legal proceedings before a court of law which is not permissible in law.”

Rejecting the submission of the respondent, the Court said, “Section 42 of the Specific Relief Act operates in a totally different field and cannot be applied to the facts of the instant case. In the event the court at the time of trial is of the view that the respondent has suffered any injury due to short notice period, the respondent may be entitled to reliefs in accordance with law but that cannot be a ground for passing an order of injunction.”

With respect to the cases referred by the counsel for the Appellant, the Court agreed that the principles laid down by the Supreme Court in the case of Shiv Kumar Chadha has not been followed as the Trial Court judge did not record reasons for its opinion while passing the order of injunction. Further, it was observed that the ratio of the other two cases, namely, KSL and Base International cannot be applied in the present factual matrix as the circumstances essentially vary.

 Decision

Allowing the present appeal, the Court held that the Trial Judge below erred in law by passing an order of injunction.[Debarati Mukhopadhyay v. Book Farm, FMAT 369 of 2020 with IA No. CAN 1 of 2020 with IA No. CAN 2 of 2020]


Sakshi Shukla, Editorial Assistant ha sput this story together

Case BriefsCOVID 19High Courts

Calcutta High Court: A Division Bench of Arijit Banerjee and Sanjib Banerjee, JJ., modified its earlier Order dated 19-10-2020, wherein it was held that, Durga Puja Pandals to be made no-entry zone for members of public.

Durga Puja Organisers filed applications for modification of the Order dated 19-10-2020. In effect, some of the strict rules put into place by such order are sought to be relaxed.

On a direct query from the court as to whether the State has challenged the order dated October 19, 2020, passed in the present proceedings, State indicated that no petition for special leave to appeal had been filed before the Supreme Court.

Bench stated that upon consideration of the submission made on behalf of the applicants and the parties and upon considering the effect of the order dated October 19, 2020, Court felt that such order is required to be modified only in respect of the following:-

(i) Dhakis may be permitted, not within the pandal area but in the no-entry zone immediately beyond the pandals. For all other purposes such no entry zone has to be kept completely empty and the only exception that is made is for a reasonable number of dhakis to be allowed to play in such an enclosed place. It is made clear that the dhakis should wear masks and maintain proper hygiene and distancing norms;

(ii) Directions as to the fixed charts referred to in the order of October 19, 2020 stand modified and the charts will now be fixed for the day. Such charts must be put up by 8 a.m. and, in case of smaller pujas, may include upto 20 names, but not more than 15 persons in case of smaller pujas should get access to the pandals at any given point of time. At the highest end, the charts may include upto 60 names, but at no point of time should the number of persons present within the pandals or the covered area be more than 45. The norms for the highest-end pandals would only apply to pujas where the pandals cover an area in excess of 300 sq. metre excluding the dais on which the idols are placed.

It will be permissible for the dhakis to be inside the pandal, but in such event, the number of other persons simultaneously allowed inside the pandal will stand reduced so that the maximum number of persons as permitted by the present order is not exceeded.

No further modification was thought appropriate so that the effect of the order was not diluted. [Ajay Kumar De v. State of W.B.,  2020 SCC OnLine Cal 1995, decided on 21-10-2020]

Case BriefsCOVID 19High Courts

Calcutta High Court: A Division Bench of Arijit Banerjee and Sanjib Banerjee, JJ., while laying down directions with regard to the Durga Puja Festival, held that all the pandals will be made no-entry zone in view of the pandemic.

The instant matter pertained to the bandobast during the Durga Puja celebrations.

Petitioners concern is with regard to COVID protocol, that the same may not be maintained at the Puja pandals in the State and if free access would be permitted, the distancing norm can never be maintained.

Petitioner apprehended that the breach in the above regard may lead to an uncontrollable spurt in COVID cases across the State.

Adding to the above, the petitioner stated that ideally, strict restrictions on the conduct of Durga Puja should be placed by the State Government to ensure that there was no crowding.

Petitioner claimed that if the pujas were permitted to be low-key affairs, with visitors not being permitted at the public pujas, there may not have been any fear of over-crowding or of the COVID protocol not being maintained.

The doctors have been expressing serious concern regarding what the situation may be after the pujas if such uncontrolled gatherings are allowed and the COVID protocol is not followed.

State submitted that special measures have been put in place. For the said measures, Government Memorandum of September 28, 2020, was referred to wherein all the aspects have been covered.

Volunteers have been asked to be deployed at all pandals ‘for ensuring compliance of norms of physical distancing among visitors”. Also, cultural programmes have been prohibited and inaugurations and immersions directed to be conducted on a low-key.

State also referred to a book released by the Kolkata Police detailing the police arrangements during the Durga Puja and Laxmi Puja, 2020.

When students across disciplines, whether in schools or colleges or engaged in higher studies, have been prevented from attending educational institutions for more than six months and several students stand to lose a year, it is rather incongruous that puja festivities would continue as in the previous years.

Court stated that

the measures that have been announced by the State are well-intentioned, but may only remain a pious wish on paper without any blue-print being chalked out for their implementation on the ground.

Further, adding to the above, State is justified when it complains that any attempt by the court to make the pandals a no-entry zone may not be effective as the crowds will be beyond the no-entry zone anyway.

Court added that the present order should not be seen against the State for the inadequacy of the measures attempted to be put in place, but only as a supplement to ensure the proper implementation of such measures by the limited police personnel, volunteers and other administrative officials and workers.

  • Durga Puja pandals have been made no-entry zones for members of the public.
  • For small pandals, 5-metre zone beyond the extremities of the pandals on all sides and for the larger pandals, a 10-metre zone beyond the extremities of the pandal on all sides will be a part of the no-entry zone.
  • At the smaller pandals, 15 persons will be named in the list who may have access to the no-entry zone at all times. The number will be 25 to 30 in respect of the bigger to the biggest pandals.
  • Police administration is empowered to identify which of the pandals will be regarded as small pandals or big pandals for the restricted zone to be a distance of 5m or 10 m beyond the furthest extremities of the pandals on all sides.
  • Awareness campaigns o be conducted even by the local media in small towns across the State to request people to maintain the distancing norm and not to descend on the streets in hoards as in regular years to celebrate the Durga Puja festival.
  • The lists of personnel to be allowed access within the core puja pandals must be fixed and cannot be a floating list or changed every day.

Bench declined the State’s prayer to stay the operation of the present order. [Ajay Kumar De v. State of West Bengal, 2020 SCC OnLine Cal 1984, decided on 19-10-2020]

Case BriefsCOVID 19High Courts

Calcutta High Court: A Division Bench of Sanjib Banerjee and Moushumi Bhattacharya, JJ., while addressing the issues raised in the present petition observed that,

“From bringing to life the act-of-God clause that was mostly regarded as a redundant appendage in contracts to redefining the rules of human engagement, the pandemic has almost been all-pervasive.”

The present lis is born in its wake: upon a unique situation arising where students have been kept away from academic institutions for months together, prompting their parents or guardians to question why regular fees ought to be paid in such a scenario.

PRIVATE UNAIDED SCHOOLS | Concession in Fees

The point of public interest canvassed in the petitions is that private unaided schools should allow the substantial concession in fees as the physical conduct of classes has not been possible for more than 6 months and normal functioning may not resume in a full-fledged manner for several months more.

Profiteering by Schools

The parents or guardians complain of profiteering by the schools by unjustly enriching themselves even as several of the schools have terminated the services of several of the usual employees or have not paid the teachers in full and not incurred the normal expenses needed to physically operate such schools.

School’s Contention 

Almost all the schools represented contended that they have not removed any regular employee from the payrolls, and some even claim that the contractual staff have also been retained and paid during the lockdown.

Institutions controlled by the Church

The institutions controlled by the Church of North India and another which claims to be a linguistic minority educational institution, have objected to the Court seeking to interfere into their affairs.

They suggest that not only do they enjoy a special status accorded by Article 30(1) of the Constitution but they are also protected under Article 19 of the suprema lex.

No drastic measure

By and large, the schools indicate that they have not taken the ultimate drastic measure of excluding students from the limited online classes now conducted, though no fees may have been tendered on behalf of several students for the period beginning April, 2020.

The general refrain is that schools do not look at making any profit and, to the extent, their financial positions may allow, they are ready to accord concessions to parents or guardians of students in financial distress, but a general reduction of fees across the board should not be permitted.

Analysis and Decision

“…courts must exercise extreme self-restraint and not use the extensive amplitude as a springboard for judicial anarchy.”

In a breakdown scenario as a result of any natural calamity or an act of God or when the subordinate judiciary is not available or a litigant has no access to any other court in an extreme case, the High Court must not forget the width of the authority available to it and its constitutional obligation to discharge its duties governed by the overarching established principles designed by what may be loosely said to be the rule of law.

Two other broadheads of objection have been taken by some of the schools as noticed above: under Article 30(1) of the Constitution and under Article 19 thereof read with the right of privacy as espoused.

Court while analysing the set of contentions with regard t minority institutions stated that,

“…even minority educational institutions need to adhere to certain fundamental norms, the most basic of them being that they cannot be run for the purpose of making profit”.

Bench added that the basic requirement is that the fees charged must have some correlation with the facilities provided.

If the facilities provided over a long stretch of time, as for the best part of a year and probably more, cost less because physical classes have not been held, a substantial part of the money saved has to be returned without, for the moment, going to the question as to whether it should be returned pro rata or on a need-based basis.

Assessment of fees

Hence, Court stated that an assessment of the fees demanded or obtained during the lockdown period and in the absence of physical classes in the schools, may not amount to the breach of any right conferred by Article 30(1) of the Constitution in respect of a school run by a religious or a linguistic minority.

The same rule as above should apply to all private unaided schools since they are governed by private contracts between private individuals.

Bench in view of the unprecedented situation and as a one time measure issued the following directions:

  • No increase in fees during FY 2020-2021.
  • From the month beginning April, 2020 till the month following the one in which the schools reopen in the physical mode will offer a minimum of 20% reduction of fees across the board. Non-essential charges for use of facilities not availed of will not be permissible.
  • Session fees traditionally charged periodically will be permissible, but again, subject to a maximum of 80 per cent of the quantum charged for the corresponding period in the financial year 2019-20.
  • The minimum figure of 20 per cent reduction in the monthly tuition fees will be on the basis of the tuition fees charged for the corresponding month in the previous financial year.
  • For F.Y. 2020-21, a maximum of 5% excess of revenue over expenditure will be permissible. The balance excess should be passed on by way of general concession or special concession in cases of extreme distress.
  • No amount towards the arrears on account of revision of pay to teachers or other employees can be passed on in the fees for the financial year 2020-21. The amount on account of arrears may be recovered in 2021-22 and 2022-23, if normal physical functioning resumes by March 31, 2021.
  • There will be no increase in salaries of teachers or of other employees during the financial year 2020-21. In case any school has given effect to a higher pay scale, the difference must not be realised out of the school fees.
  • Parents and guardians of students are requested not to avail of the reduction in schools fees, if their financial situation does not merit the reduction.
  • In addition to the across-the-board reduction, every school will entertain applications from parents or guardians for further reduction or waiver or exemption or delayed or installment payments, as the case may be. Said applications must be supported with financial statements.
  • Such applications have to be filed before the respective schools by November 15, 2020, and every application should be dealt with on an individual basis and a decision communicated to the applicant by December 31, 2020.
  • When an application for further reduction or waiver or exemption or delayed payment of fees has been disposed of by the relevant school but the parents or guardians are aggrieved by the decision, an application may be filed, upon deposit of Rs 1000, to a committee for further adjudication of the request and to assess the decision communicated by the relevant school. Such application has to be filed within 10 days of the rejection.
  • The committee referred to in the immediate preceding clause will be headed by Mr Tilok Bose, Senior Advocate as its chairperson and will be assisted by the Headmistress or Principal of Heritage School and Ms Priyanka Agarwal, Advocate for the parents in WPA 5890 of 2020.
  • The deposit obtained by the committee will be retained by the committee and Rs 800 therefrom disbursed to the auditor or firm of chartered accountants for the first time the accounts of a particular school need to be assessed by the auditor or firm of chartered accountants. For every repeat exercise, meaning studying the accounts of the same school from the second time onwards, Rs 500 per case will be paid to the auditors. The balance amount in the hands of the committee will be used for the purpose of secretarial and managerial services the committee may be required to obtain.
  • By November 30, 2020, the committee should indicate a dedicated e-mail account whereat the appeals against the decisions of the schools may be filed.
  • By November 30, 2020, the committee should indicate a dedicated e-mail account whereat the appeals against the decisions of the schools may be filed.
  • Every application made before the committee must clearly indicate the name and other particulars of the student involved and furnish the e-mail ID of the school and its Principal or the like for the committee to communicate with the school.
  • The committee must endeavour to dispose of every application within 45 days of the receipt thereof and the decision of the committee will be binding, subject to the relevant schools having a right to apply to this court in the present proceedings for the reconsideration thereof.
  • The quantum of fees to be charged for every month will be indicated by the individual schools on any website and the notice-boards of the schools and informed to Advocate for the petitioner in WPA 5890 of 2020.
  • By November 30, 2020, the fees payable in terms of this order for the period up to November 30, 2020, should be tendered on behalf of all students.
  • With effect from December 8, 2020 all schools will be entitled to disallow students whose fees have not been paid in full in terms of this order and those who have not applied for reduction or waiver or the like. However, schools should ensure that this extreme step is taken only after exercising due care and caution.
  • No student will be entitled to apply for a transfer certificate without the full quantum of fees in terms of this order being first discharged.
  • Fees payable by students to boards for examinations or otherwise shall have to be paid in addition to the monthly fees and other charges in terms of this order and no waiver or reduction of the fees or charges payable to the boards may be sought or granted.
  • There will be no refund of the fees already paid.
  • The expenses incurred for developing the infrastructure of the schools should not be passed on to the students during the current financial year, though it will be open to recover the same from the students from financial year 2021-22 onwards, if the physical functioning resumes by March 31, 2021.
  • The cap of five per cent of the revenue over expenditure for the year 2020-21 will be subject to the exception that it may exceed the five per cent only if the general reduction afforded to the parents is not availed of by any of the parents and no student in financial distress has been denied additional concession despite being worthy.
  • No unusual expense should be incurred during financial year 2020-21 and no development or infrastructure expense should be incurred unless absolutely unavoidable.
  • Above directions for any form of concession will not apply to any of the 145 schools where the average monthly fee (calculated on an annual basis over the year from April, 2020 to March, 2021) is less than Rs 800. However, such schools may voluntarily take such measures as deemed fit.
  • The other private unaided schools in the State should also abide by the directions mutatis mutandis, particularly since the matter has been heard extensively and as public interest litigation.

Court made it clear that the present order may not be used as a precedent for the regulation of fees in the schools in future.

The instant petitions will appear next on 07-12-2020 to monitor the progress in the implementation of directions issued.

Moushumi Bhattacharya, J. supported the reasons laid down by Sanjib Banerjee, J., leading to the conclusions.

Bhattacharya, J.,  proposed to supplement three issues: Articles 226, 30(1) and 14 of the Constitution of India together with the right to privacy in the foreground of the arguments made.

The endeavour of the Court is that students must not be caught in the crossfire between their parents and the school authorities.

Under Article 226, the power of the High Courts is

“……..to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of…….”

The order in which the words have been positioned indicate that the writ courts not only have the power to issue the five writs but also to issue orders and directions having the force and effect of the five writs, separately or together, for enforcing the rights guaranteed under Part III of the Constitution. The wide berth contemplated was recognised in Dwarka Nath v. Income Tax Officer, AIR 1966 SC 81 as an enabler for tailoring the reliefs to fit the shape and peculiarities of the case and stretching the parameters of the power “to reach injustice wherever it is found”.

But does that mean that a court’s authority to issue writs under Article 226 is unfettered?

The court draws its own boundaries within which it decides the lis on a number of factors; including but not limited to whether there is an efficacious remedy or alternative forum which the petitioner should have first exhausted, whether the right can be reasonably restricted, where there is stark absence of a public law element in the discharge of duties of the concerned entity or even where the conduct of the petitioner does not call for the court’s intervention on the facts of the case.

The privacy argument of the CNI and the linguistic minority schools is another aspect which should be briefly dwelt on. K.S. Puttaswamy (Privacy-9 J.) v. Union of India (2017) 10 SCC 1 has been placed to elevate the right to privacy as a ‘travelling right’.

It is a right aimed at preserving the spatial and intellectual integrity of an individual in matters of choice and acts as a springboard for the connected freedoms which are guaranteed under the Constitution.

As noticed in several decisions impacting minority institutions, Article 30(1) was contemplated by the framers to serve as a shield and not as a sword. After all, can these schools bypass the statutory requirement of filing their periodic audited financial numbers to the concerned authorities?

Schools cannot be simplistically categorised according to the financial profile of the guardians and whether as such they need a fee-reduction for their wards.

“…a benefit, like a right, cannot be denied to a greater number merely on the ground that it may be misused by a few.”

Adding to the above, Bench also stated that the teachers who need the schools to remain financially solvent for their job-security may also be parents mired in debts/loss of service who would benefit from a fee-reduction. The mechanism proposed had to as inclusive as possible representing the concerns of guardians across the board, irrespective of privilege and financial bracket.

“We have designed a 2-tier mechanism not only to provide guardians with a window for further concessions but also to make the process as free of coercion/ compulsion and as much transparent as is practicably possible under the circumstances.”

[Biplab Kumar Chowdhury v. Union of India, WPA 5530 of 2020, decided on 13-08-2020]


Counsels

For the State: Kishore Datta, A-G, Senior Advocate & Sayan Sinha, Advocate

For Union of India: Y.J. Dastoor, ASG, Senior Advocate & Siddhartha Lahiri, Advocate.

For the petitioner
In WPA 5890 of 2020: Advocates, Sai Deepak, Rishav Kumar Singh, Anurag Mitra, Priyanka Agarwal and Avinash Kumar Sharma.

For the petitioner (in person) In WPA 5378 of 2020: Advocate Partyush Patwari

Case BriefsHigh Courts

Calcutta High Court: Ravi Krishan Kapur, J., while addressing an issue pertaining to Employees’ State Insurance Act, 1948, observed that,

The ESI Act provides for certain benefits to employees in case of sickness, maternity and employment injury and makes provisions for certain other matters in relation thereto. A perusal of the various sections of the Act would reveal that the Act is made applicable to all factories.

Present petition was filed challenging an order passed under Section 85B of the Employees’ State Insurance Act, 1948 whereby the Employees’ State Insurance Authorities levied penal damages of nearly Rs 60 lakhs under Section 85B of the Act on the petitioner establishment for the delay in making payment of its contributions for the period from September 2002 to March 2010.

By a conversion agreement between the owner of Jute Mill and petitioner 1, petitioner 1 was allowed to utilize the entire production capacity of the jute mill for the production of jute goods.

Further, the ESI authorities claimed that a sum of Rs 3,73,04,297 was in arrears out of which only a sum of Rs 1,10,97,511 was on account of ESI contributions and the rest represented damages and interest.

Petitioners contended that the above-stated dues said to be payable by the petitioners were primarily for the period prior to the agreement which had been executed between the owners of the jute mill and petitioner 1.

An impugned order came to be passed inter alia holding the petitioner company liable for a sum of Rs 59,61,588 on account of damages for the delayed payment of contributions for the period from September, 2002 to March, 2010.

Petitioner contended that the said order was liable to be set aside and quashed on the ground that the same was an unreasoned order.

Decision

Bench opined that the question as to whether the damages imposed under Section 85B of the Act are justiciable or not or whether the quantum of damages is in accordance with the principles for computing damages is certainly a dispute which would fall within the ambit of clause (g) of Section 75 (1) of the Act.

Court further added that, under Section 75(1)(g) of the Act, the Insurance Court would ordinarily have jurisdiction to decide the question as to whether damages imposed under Section 85B of the ESI Act are justifiable or not.

Bench referred to the Supreme Court decision in B.M. Laxmanamurthy v. Employees’ State Corporation, Bangalore (1974) 4 SCC 365, wherein it was held that

“the Act is a beneficial piece of social security legislation in the interests of labourers in factories at the first instance with the power to extend to other establishments”.

Thus, the Act is a welfare measure meant to provide certain benefits to the employees in certain cases of sickness, maternity and employment injury. It is also a well-settled principle of statutory interpretation that socio-economic legislation should be interpreted liberally with an end to promote the scheme of the Act and avoid the mischief which it seeks to control.

Crux of the dispute in this petition pertains to the applicability and imposition of the damages by the ESI authorities under Section 85B of the Act.

What is the intention behind the insertion of Section 85B of the ESI Act?

To deter the employer who makes any default or delay in depositing the contribution amount.

In the present matter, there was a delay of 8 years on the part of the establishment in making payment of their ESI dues.

Delayed payment, which means untimely payment gives rise to a breach of the obligations under the Act and for such failure and omission (if not explained) the employer exposes itself to recovery of damages.

Hence, the levy of damages as per Section 85B of the Act was fully justified and warranted.

In view of the admitted indisputable and unassailable fact of delay for more than 8 years in making payment of the ESI contributions, no reasonable or prudent person apprised of these facts could take a different view on the question of whether such non-payment on the part of the petitioners was intentional or not.

Petitioner failed to show any mitigating factors or offer any cogent explanation.

Court further added that in the absence of any prescribed special period of limitation for levy of damages under the Act, the levy of damages or penalty for defaults beyond the period of 3 years cannot be rejected as being beyond the jurisdiction of the respondent Corporation.

Section 93A of the Act clearly provides that both the employer and the person to whom the factory or establishment has been transferred remain jointly and severally liable to pay the amounts due in respect of any amount under the Act.

In view of the above-stated Section, Court stated that a transferee cannot claim that he being the transferee of an establishment is not liable to pay the dues accruing before the transfer.

Court found no aspect of limitation insofar as damages were concerned.

Therefore, failure on the part of the establishment to carry out their statutory obligations was in conscious and wilful disregard of their lawful obligations.

“An the absence of any prescribed special period of limitation for levy of damages under the Act, the levy of damages or penalty for defaults beyond the period of three years cannot be rejected as being beyond the jurisdiction of the respondent Corporation.”

Respondent authorities were directed to take all available steps in accordance with law for expeditious recovery of the balance amount payable under the impugned order by the petitioner.[Premchand Jute & Industries (P) Ltd. v. Employees State Insurance Corporation, 2020 SCC OnLine Cal 1574, decided on 18-08-2020]