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Extension of the present system of hearing of matters before Delhi High Court till 20-02-2021

The Full Court orders that 11 Benches of the Delhi High Court [2 Division Benches, 3 Single Benches (Civil Side), 3 Single Benches (Criminal Side) and 3 Original Jurisdiction (Civil) shall hold Physical Courts w.e.f 18-01-2021, while the remaining Benches shall continue to take up the matters through Video Conferencing as per the roster to be notified on the website of this Court.

Further, it has been ordered that all the Benches shall continue to take up the matters as per the existing arrangement including the cases instituted in the years 2018, 2019 and 2020.

All the Courts of Joint Registrars (Judicial) shall hold physical courts and courts through video conferencing, as per the roster to be notified, on alternate day basis w.e.f. 18-01-2021. They shall also start recording evidence in all the cases.

NOTICE


Delhi High Court

[Office Order dt. 14-01-2021]

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

Case BriefsHigh Courts

Delhi High Court: Anu Malhotra, J., dismissed the petition in view of the dispute being settled mutually.

The instant petition sought quashing of an FIR registered under Sections 498A/406/34 of the Penal Code, 1860 submitting to the effect that a settlement has since been arrived at between the parties.

State did not oppose the quashing of FIR which was apparently emanated due to a matrimonial discord which has been resolved by the dissolution of the marriage between the parties vide a decree of divorce through mutual consent under Section 13 B (2) of the Hindu Marriage Act, 1955.

Respondent 2 had stated that she arrived at the settlement with petitioners without any duress, pressure or coercion from any quarter, hence Court considered it appropriate to put a quietus to the litigation between the parties and for the maintenance of peace and harmony between the parties in view of the observations of the Supreme Court decision in Gian Singh v. State of Punjab, (2012) 10 SCC 303 and Jitendra Raghuvanshi v. Babita Raghuvanshi, (2013) 4 SCC 58, wherein it was held that:

“… it is the duty of the courts to encourage genuine settlements of matrimonial disputes, particularly, when the same are on considerable increase. Even if the offences are non-compoundable, if they relate to matrimonial disputes and the Court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings.

16. There has been an outburst of matrimonial disputes in recent times. They institution of marriage occupies an important place and it has an important role to play in society. Therefore, every effort should be made in the interest of the individuals in order to enable them to settle down in life and live peacefully. If the parties ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law, in order to do complete justice in the matrimonial matters, the courts should be less hesitant in exercising their extraordinary jurisdiction. It is trite to state that the power under Section 482 should be exercised sparingly and with circumspection only when the Court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of process of court or that the ends of justice require that the proceedings ought to be quashed….”

(emphasis supplied)

Hence, in view of the above, the Court directed for quashing of the FIR and disposed of the petition.[Harish Kumar v. State, 2020 SCC OnLine Del 1635, decided on 04-12-2020]


Advocates who appeared before the Court:

For the petitioners: Naveen Kumar Bansal, Advocate with petitioners in person.

For the Respondents: Sanjeev Sabharwal, APP for State with SI Maninder Maan Piyush Pahuja, Adv for R-2 with R-2 in person.

Case BriefsHigh Courts

Delhi High Court: Jyoti Singh, J.,  held that ‘service matter’ concerning the persons working in various Central Government Hospitals under the Ministry of Railway to be covered under the ambit of Section 14 (1) of the Administrative Tribunals Act, 1985, hence directed to approach Central Administrative Tribunal.

The instant petition was filed by the Indian Railways Medical Laboratory Technologists Association seeking the following reliefs:

“(a) The Members of the Petitioner Association be granted the benefits of 7th CPC at par with the counterparts/Railway Medical laboratory Staff working under the same Nodal Ministry and w.e.f. from the very day it got implemented i.e. 01-01-2016 and w.e.f. the date when the said recommendations were implemented by the Govt. of India, Respondent no. 2 and all the arrears etc. be paid to them as expeditiously as possible preferably in 3 months time from the very day it got implemented i.e. w.e.f. 01-01-2016.

(b) The benefits of the 7th CPC recommendations should be given with effect from the very day it got implemented i.e. 01-01-2016 with all consequential benefits including the consequences that entail therewith;

(d) The Costs of the present petition be awarded to the Petitioners and against the Respondents.”

Service Matter

Bench on perusal of the facts of the case expressed that the subject matter of the petition is a ‘service matter’ and the petitioner association comprises of persons working as Lab Assistants, Lab Technician, Lab Superintendents and Chief Lab Superintendents working in various Central Government Hospitals under the Ministry of Railway which is covered under the provisions of Section 14 (1) of the Administrative Tribunals Act, 1985.

Hence, the court stated that the petitioner is amenable to the jurisdiction of Central Administrative Tribunal.

Further while concluding, the Court added that it has no jurisdiction to entertain the present petition in light of Section 14(1) of the Administrative Tribunals Act, 1985 and the Constitution Bench decision in the case of L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.

Therefore, the petition was disposed of.[Indian Railways Medical Laboratory Technologists Assn. v. Ministry of Railways, 2020 SCC OnLine Del 1637, decided on 17-12-2020]


Read more: Section 14(1) of the Administrative Tribunals Act

Jurisdictionpowers and authority of the Central Administrative Tribunal.—(1) Save as otherwise expressly provided in this Actthe Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdictionpowers and authority exercisable immediately before that day by all courts (except the Supreme Court [* * *]1) in relation to—

(a) recruitment, and matters concerning recruitment, to any All-India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian;

(b) all service matters concerning—

(i) a member of any All-India Service; or

(ii) a person [not being a member of an All-India Service or a person referred to in clause (c)] appointed to any civil service of the Union or any civil post under the Union; or

(iii) a civilian [not being a member of an All-India Service or a person referred to in clause (c)] appointed to any defence services or a post connected with defence,

and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation 2[or society] owned or controlled by the Government;

(c) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iiiof clause (b), being a person whose services have been placed by a State Government or any local or other authority or any corporation 3[or society] or other body, at the disposal of the Central Government for such appointment.

4[Explanation.—For the removal of doubts, it is hereby declared that references to “Union” in this sub-section shall be construed as including references also to a Union Territory.]


Advocates who appeared before the Court:

For the Petitioner: Amar Vivek Aggarwal, Gaurav Yadav and Chitwan Godara, Advocates.

For the Respondents: Jagjit Singh, Sr. Panel Counsel for R-1.

Vivek Goyal, CGSC for R-2.

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Rajiv Sahai Endlaw and Asha Menon, JJ., observed that:

It is impossible not to notice all around us, how easily the “common woman” is put down by the “common man”. Less said the better of what happens to the Third Gender!

Appellant had filed the instant appeal on being aggrieved with the Single Judge’s decision.

Bench noted that the inquiry into the complaint of sexual harassment filed by the appellant against the respondent 3/O.P. Verma was conducted before the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Petitioner was working as an Assistant Director with the ESI Hospital, Manesar, Gurgaon. Respondent 3 was posted as Deputy Director in the same hospital.

Appellant had complained that he was repeatedly subjecting her to sexual harassment by using inappropriate language with sexual overtones.

Further, the appellant submitted that she was distributing housekeeping material among the nursing staff at the ESI Hospital when respondent 3 told her to accompany him to male toilet using words that were indicative of sexual advances. Due to the said incident, the appellant felt deeply humiliated.

 Respondent 3 had commented on appellant’s dressing as well where he stated that if another button of her shirt were to open what would be the result that would follow.

On yet another occasion, when the appellant commented to other Staff that Saturdays should be a half-day as there was less work and during the rest of the time they were only playing hide and seek, the respondent 3/O.P.Verma remarked that neither had he caught the appellant nor had the appellant caught him.

The above incidents caused great anguish to the appellant.

In light of the above incident, a complaints committee was duly constituted. The Committee granted the benefit of doubt to respondent 3 and further recommended that both the officers, be relocated with immediate effect.

According to the appellant, this decision was not communicated to her and it was only on 3-07-2013 in response to an RTI query that she learnt of the decision. She filed an appeal but was also not again communicated the result of that appeal.

In the meanwhile, respondent 3/O.P. Verma retired. She, therefore, filed the writ petition challenging the recommendation of 20-01-2012.

Appellant had questioned the transfer by means of the writ petition filed by her and had also sought an independent internal departmental inquiry against the respondent 3/O.P.Verma as well as directions for criminal prosecution against him instead of the transfer. The question that presents itself is whether such relief could be granted or not.

Bench stated that since the respondent retired 5 years back it does not considers it expedient to grant such relief to the appellant of directing an independent departmental inquiry against him.

Court observed that with regard to the criminal prosecution, nothing prevented the appellant from initiating any such action against the respondent 3/O.P.Verma since the date of the incident or even since the date of the report of the Complaints Committee. Appellant did not seek such a relief from the Internal Complaints Committee even after the Act came into force in 2013.

Before parting with the instant order, the Court found it necessary to underline that:

Sexual Harassment is a serious issue that needs to be addressed at all work places urgently and sensitively.

Women are entitled to a congenial and dignified environment to live their life fully and attain their full potentiality.

With regard to Gender Conditioning, Court noted that

Gender conditioning where the man develops a superiority complex, while the woman doubts her own capacity, starts very early in life. It need not be in the form of a tutorial, but certainly as subtle data to the minds of young children, about their privileges or lack of it.

Every institution and organization must declare zero tolerance for Gender insensitivity.

In the instant case, the appellant did not know about the appropriate authority before whom to file her initial complaint.

When asked by it as to why she had lodged the complaint directly to the headquarters, she answered that she did not know the address of the ‘Woman Cell’ at the ESI Hospital and had made an enquiry from Manju Swaminathan and submitted her complaint to the Complaints Committee.

Bench also added to its observation that it cannot be overlooked that the Internal Complaints Committee is intended as a platform to provide an environment of confidence to the complainant.

Absence of eyewitnesses to the incident cannot detract from the credibility of the complainant as her statement is to be considered independently to determine whether it has a ring of truth or not.

Gender Sensitization

Gender sensitivity requires an understanding of what a woman feels when she is sexually harassed.

Though stereotyping is itself unwarranted, it has been noticed that just as in other sexual offences, a woman goes through a lot of soul-searching (again due to gender-conditioning), she tries to adopt measures of self-protection, by avoiding the perpetrator, may be even by taking leave!

Importance of Internal Complaints Committee

Internal Complaints Committee has to be set up in every workplace and every woman employee informed as to the person she can contact in the Internal Complaints Committee when faced with any unsavoury or unacceptable conduct by a male colleague.

The high standard of proof required in criminal trials is not called for during an inquiry by the Internal Complaints Committee under the Act.

There can be no insistence on production of witnesses by the complainant to corroborate her statement.

It is not enough to merely constitute Internal Complaints Committees, but it is also important that the purpose for having such a Committee and in fact for making such a law must always remain uppermost in the minds of all at the workplace.

Hence, Bench reiterated that all employers are required to sensitize all employers who work in the organization to deal with a woman, whether a colleague or a visitor or a beneficiary of services provided to the public, always remaining acutely aware of her dignity.

When a person speaks, the words have an impact and the speaker must be conscious of such impact when speaking to a woman whether from the public or a colleague.

Appeal in view of the above discussion was allowed.[X v. Union of India,  2020 SCC OnLine Del 1618, decided on 17-12-2020]


Advocates who appeared before the Court:

Advocate for the Appellant: Kamna Vohra

Advocates for the Respondents: Anil Dabas, Advocate for R-1. Yakesh Anand, Advocate for R-2,4 &5 ESIC

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J., grants ad-interim injunction while restraining defendant from posting, publishing, sharing any content which is defamatory, derogatory or deprecatory in nature to the plaintiff, its management or employees.

The instant suit was filed by the plaintiff Whitehat Education Technology (P) Limited impleading Aniruddha Malpani as the defendant, inter alia, seeking permanent injunction restraining the defendant from defamation, infringement of trademark, dilution and tarnishing of trademarks, disparagement, damages, unfair competition etc.

Plaintiff claimed to be a start-up company teaching children the Coding, helping them build Games, Animation Apps. Further, the plaintiff submitted that it has developed a Proprietary Coding Curriculum focused on product creation and imparts lessons through live, interactive online classes.

According to the plaintiff, free classes are given to the students and on satisfaction, the students can then enrol themselves where there is no time-limit for the classes and even after availing few classes, if the students want to opt-out, the balance fee is refunded on the same day.

Plaintiff owns and operates a website under its domain name www. whitehatjr.com registered on 23-05-2018 and claims a strong presence on social media. Plaintiff has registered trademarks ‘WHITE HAT JR’ both as a wordmark and device marks.

Adding to the above, plaintiff submitted that in late September 2020, the plaintiff came across the defendant’s posts on Twitter referring to the registered trademarks of the plaintiff ‘WHITE HAT JR’ and issuing statements/posts amounting to defamation/disparagement/trademarks’ infringements, dilution and tarnishment of its trademarks.

Defendant submitted that the instant suit was not maintainable for want of territorial jurisdiction and added that it has not caused any defamation, derogation or its statements being deprecatory, for which the defendant needs to file his affidavit to present the correct facts.

Bench held that since some of the facts are alleged in the plaint are disputed and the same is required to be adjudicated, therefore at the present stage, a limited ad-interim injunction is required to be passed on plaintiff’s prima facie case resulting in an irreparable loss to the plaintiff as also keeping in view the balance of convenience lying in favour of the plaintiff.

Hence, the defendant is restrained from posting, publishing, sharing any content which is defamatory, derogatory or deprecatory in nature to the plaintiff, its management or employees.Defendant was also directed to take down the tweets.[Whitehat Education Technology (P) Ltd. v. Aniruddha Malpani, 2020 SCC OnLine Del 1616, decided on 24-11-2020]

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Rajiv Sahai Endlaw and Asha Menon, JJ., while addressing the instant matter, observed that:

The wife and children of a personnel of the Air Force who has sworn to put his life in peril deserve a treatment different from that of a civilian who has no obligation to sacrifice his life for the country.

Petitioner, a sergeant in the Indian Air Force (IAF) filed the petition in regard to the following:

  • impugning the Air Force Order issued by respondent 2 Chief of Air Staff
  • impugning the administrative order issued by the Chief of Air Staff, sanctioning maintenance claim against the petitioner.
  • Seeking maintenance, directing respondent 2 Chief of Air Staff to refund the amount of maintenance granted under the administrative order, to the son of the petitioner and payable to the respondent 5 i.e. wife of the petitioner.

What the petitioner alleged?

Petitioner’s wife left matrimonial home along with her son and refused to join the petitioner in spite of repeated efforts of the petitioner. Petitioner approached the family court for dissolution of marriage and further initiated custody proceedings for his son.

As a counterblast, wife of the petitioner initiated proceedings under Section 125 of the Criminal Procedure Code, 1973 for maintenance and also approached the Court under Section 156(3) CrPC for registration of a case under Sections 141, 149, 363, 504 & 506 of the Penal Code, 1860 against the petitioner and his parents.

Wife of the petitioner also filed a false and fabricated case under Section 498A of the IPC against the petitioner and his parents but the proceedings in the criminal complaint, as well as the case under Section 498A of the IPC, were stayed by the Allahabad High Court.

Analysis and Decision

Petitioner’s counsel drew the Court’s attention to Sections 190, 191 and 191A of the Air Force Act, 1950 empowering the Central Government to make regulations for all or any of the purposes of the Act other than those specified in Section 189 and requiring the regulations so made to be published in the Gazette and to be laid before the Parliament.

Section 91(i), in exercise of powers whereunder the impugned AFO No. 03/2013 has been issued, shows the same as authorising deduction from pay and allowances of an officer of any sum required by order of the Central Government to be paid for the maintenance of his wife or his legitimate or illegitimate child or towards the cost of any relief given by the said Government to the said wife or child.

Petitioner being a sergeant, the above-stated section would not apply to him.

Section 92(i) authorises deduction from the pay and allowances of an airman, of any sum required by order of the Central Government or any prescribed officer to be paid for the maintenance of his wife or his legitimate or illegitimate child or towards the cost of any relief given by the said Government to the said wife or child.

The Court opined that once (a) there is a specific provision in the Air Force Act i.e. in Sections 91(i) and 92(i) thereof and to which there is no challenge, qua deduction from the pay and allowances, for payment of maintenance; (b) Rule 162, to which also there is no challenge, defines the ‘prescribed officer’ within the meaning of Section 92(i); and, (c) the Air Force Regulations in Regulation 917, to which also there is no challenge, provides that Air Force orders will be issued by the Chief of Air Staff, the impugned order has been issued in compliance of all the said provisions and there was no the need for the said order to be laid before the Parliament or to be notified/ratified इन accordance with Sections 190, 191 and 191A of the Act.

Just like the Courts draw their power to pass orders/decrees for payment of maintenance, from the statutes mentioned hereinabove, so does the Central Government and/or the prescribed officer draw power to award maintenance to wife and children of Air Force personnel from the provisions of the Air Force Act.

Next plea in the petition that was considered was, of the Air Force personnel being discriminated against vis-a-vis civilians, orders for payment of maintenance to wife and children whereagainst can be passed only by the Courts and not by the Central Government or the prescribed officer.

Regarding this, the Bench observed that:

Certainly it is not open to Air Force personnel, to have the privileges not available to civilians and reject the obligations, also not imposed on the civilians. The counsel for the petitioner also forgets that while the civilians can be punished only by the Courts of the land, the Air Force personnel can be tried and punished also by the Authorities under the Air Force Act. What is evident therefrom is, that personnel of the Air Force, form a class by themselves, distinct from the civilians.

Additional observations of the Court:

Sections 16 and 17 of the Air Force Act provides for all persons, enrolled as combatants, selected to hold a non- commissioned rank and subject to the Air Force Act, to be attested and which attestation is in the form of administration of oath containing a promise inter alia to obey all commands of any officer set over him, even to the peril of his life.

The said oath taken by the defence personnel, to the said extent is different from the oath required to be taken vide Articles 60, 69, 124 and 219 of the Constitution of India by the President, Vice-President, Judges of the Supreme Court and the Judges of the High Courts respectively, none of whom swear to place their life at peril for the service of the country.

Bench found no merit in the challenge by petitioner to AFO No. 3 of 2013. The said AFO did not make any legislative change and only guided the exercise of discretion and power vested by Sections 91(i) and 92(i) in the Central Government and the prescribed officer to make deductions from the salary and allowance for payment of maintenance to wife and children.

In Suneel v. Union of India 2003 SCC OnLine Del 810, question in the context of Army Act was considered and it was held that in view of the statutory provisions, the Authorities under the Army Act could not be debarred from making an order of maintenance in favour of wife and children of an Army personnel.[Sergeant Ajit Kumar Shukla v. Union of India,  2020 SCC OnLine Del 1590, decided on 10-11-2020]

Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J., addressed a matter wherein the question was considered whether an application under Section 125 Criminal Procedure Code, 1973 after having secured interim maintenance by an order passed in proceedings under the Domestic Violence Act is maintainable?

The instant petition impugned Family Court’s order whereby the petitioner’s application for interim maintenance under Section 125 of the Criminal Procedure Code, 1973 was rejected.

The said impugned order by the Family Court indicated that the petitioner’s application was rejected on the ground that the petitioners had been granted interim maintenance of Rs 4,000 per month in proceedings filed under Section 12 of the Domestic Violence Act, 2005. Court held that since the petitioners had been awarded interim maintenance for the same period and no appeal had been preferred against the said interim order, an application under Section 125 CrPC for seeking interim maintenance for the same period was not maintainable.

Family Court also added that it was not open for the petitioners to claim maintenance from two different courts in different proceedings for the same period. And, in the event the petitioners were of the view that the amount of interim maintenance granted was insufficient, the appropriate remedy would be to approach the concerned court for modification or enhancement of the interim maintenance.

Petitioner counsel, Dr Amit George contended that the family court’s reasoning was erroneous.

In view of the above-said position, the question to be considered by the bench is as follows:

Whether it is open for the petitioners to maintain an application under Section 125 CrPC after having secured interim maintenance by an order passed in proceedings under the DV Act?

Bench found merit in petitioner counsel’s contention with regard to the Family Court’s order being erroneous.

The question whether an application for interim maintenance under Section 125 CrPC could be maintained for the same period for which interim maintenance has been awarded under the DV Act, is no longer res integra.

In Delhi High Court’s decision of R.D. v. B.D., 2019 SCC OnLine Del 9526 it was held that an order for interim maintenance granted under the DV Act does not preclude an applicant to claim maintenance for the same period in separate proceedings.

Court observed that although a separate application seeking interim maintenance for the same period is maintainable, the Court would of necessarily bear in mind the interim maintenance awarded in the other proceedings while considering the merits of the application.

The above-stated similar view was expressed in the Judgment of Niharika Yadav v. Manish Kumar Yadav, Crl. Rev. P. 755 of 2018, decided on 18-12-2019.

Therefore, the impugned order was set aside and the matter was remanded to the family court to consider the petitioner’s application for interim maintenance under Section 125 CrPC.[Rani v. Dinesh, Crl. Rev. P. 1091 of 2019 and Crl. M.A 13677 of 2020, decided on 02-12-2020]


Advocates who appeared in the matter:

Petitioners: Dr Amit George, Anmol Acharya, Piyo Hardo Jaimon, Rayadurgam, Bharat, Advocates.

Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., addressed a matter involving the determination of jurisdiction with regard to the occurrence of a crime.

The instant petition was filed under Section 482 of the Criminal Procedure Code, 1973 in regard to quashing an FIR for the offences under Sections 420/406 of Penal Code, 1860.

Facts of the instant case:

Since 2009, the petitioner through his sole partnership had been undertaking the business of fresh/dehydrated onions and garlic and other perishable items export to various countries like Europe, Gulf and rest of Asia.

In January 2018, the Complainant’s office, Tiger Logistics, approached the Petitioner and one Makbul Sheikh- salesman of Tiger Logistics. Makbul Sheikh represented to the petitioner that respondent 2 is a commission agent and can provide cost-efficient and reliable services.

Petitioner, based on the transit time of 21 days promised by Tiger Logistics, entered into a sales contract with his customer Sadro SRL, an importer based in Italy. Upon such commitment, the Petitioner provided 13 bookings to Respondent 1 for 26 containers.

The Petitioner only as a goodwill gesture as a sincere exporter and upon the insistence of the representatives of Tiger Logistics paid an amount of Rs.10,76,100 through cheque.

Over the month of January 2018, petitioner had sent 26 shipments of fresh onions through but the shipment did not reach the Port f Naples within 21 days.

Petitioner issued an email to the representatives of Tiger Logistics based out of Gujarat expressing his concerns with regards to the delay of 14 days in the delivery of the shipment of fresh onions.

Due to the Petitioner’s growing concern over the delay in delivery of shipments and risk of loss with every passing day, the Petitioner on 16-04-2018 issued another email to the representatives of Tiger Logistics based out of Gujarat expressing his concern over the delay.

The above-stated delay was acknowledged and accepted and in light of the same representatives of the Tiger Logistics apologized for the delay in the delivery.

However, to the dismay of the petitioner, there was complete failure on the art of the logistics service as promised.

Petitioners were subjected to a huge loss due to the delay in shipments. Respondent 2 started demanding approximately Rs 37 lakhs from the petitioner. Since there was an utter failure of shipping services provided by Tiger Logistics which cannot claim any part of the payment from the petitioner.

Since the petitioner did not pay the above-stated amount, present FIR was registered against the petitioner.

Analysis, Law and Decision

Bench referred to the Supreme Court decision in V.V. Jose v. State of Gujarat, (2009) 3 SCC 78  wherein it was held that even in a case where allegation were made in regard to the failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 IPC could have been said to be made out.

Further, it was held in the above that, a matter which essentially involves dispute of a civil nature should not be allowed to be the subject matter of a criminal offence, the latter being not a shortcut of executing a decree which is non-existent.

Court in regard to the instant matter made an observation that:

“It is trite that an inquiry and trial with respect of an offence shall be conducted by the Court within whose local jurisdiction occurrence in question is said to have taken place and thereby cause of action has arisen. Section 178 and Section 179 of CrPC. are merely exceptions to this principle enumerated in Section 177, and their scope should not be enlarged on analogous consideration.”

Bench added that for determination of offences alleged to have been committed under Section 406 of the Penal Code 1860, Section 181 of CrPC lays down the jurisdiction of such court where “the offence was committed or any part of the property which is the subject of the offence was received or retained.”

 Jurisdiction and Breach of Trust

In view of the above-stated, Court held that,

Since the transaction between the parties in relation to the transaction of goods took place in Gujarat, the representations and meeting took place in Gujarat, the goods were shipped from Pipavav Port Gujarat, bill of ladings were released from Ahmedabad Gujarat, the invoices were raised by the entity based out of Gujarat and the jurisdiction of such invoices were subject to the court of Gujarat, therefore, applying the direct principles of Section 181, only the court situated in Gujarat can exercise jurisdiction over the alleged criminal breach of trust, if any.

 In case of Jai Prakash v. Dinesh Dayal: (1989) 39 DLT 376, this Court held that where the accused is carrying on business in a city, agreement to supply to complainant’s branch office at that city is entered within the local jurisdiction of that city, institution of complaint at New Delhi on the ground that the complainant’s head office situated there, is without jurisdiction.

In view of the above-discussed law and the facts and circumstances of the case, the registration of FIR in question in Delhi is an abuse of the process of law.

“Investigating Agency and Court should not be made an instrument of compelling a party to come to a place far away from his own place, to submit to the jurisdiction of a Court which actually has none.”

Hence, in the instant case, FIR was without jurisdiction and therefore the complainant attempted to seek unlawful recovery of money which was purely commercial matter.[Ramesh Boghabhai Bhut v. State, 2020 SCC OnLine Del 1475, decided on 23-11-2020]

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Vipin Sanghi and Rajnish Bhatnagar, JJ., addressed a petition wherein it was held that a girl who has attained the age of majority is free to reside with whosoever she wishes to.

The instant petition was preferred to seek a writ of Habeas Corpus for production of her sister Sulekha as she went missing on 12-09-2020.

The suspect is respondent 3 — Babloo.

Sulekha after being traced was produced before the Court.

As per the status report, Sulekha was a major on the date when she went missing. She stated that she went with Babloo on her own free will and is married to him.

The above-stated statement was recorded under Section 164 of Criminal Procedure Code, 1973.

In view of the above position, Bench held that

“Sulekha is free to reside wherever she wishes and with whosoever she wishes, she being a major.”

Court directed that Sulekha may be permitted to reside with respondent 3 — Babloo. Police authorities have been directed to escort her to the residence of Babloo and petitioners parents shall be counselled in order to not take the law into their hands or threaten Sulekha or Babloo.

The petition was disposed of in view of the above.[Parveen v. State (NCT of Delhi), 2020 SCC OnLine Del 1481, decided on 24-11-2020]

Hot Off The PressNews

As reported by PTI, the Division Bench of D.N. Patel, CJ and Prateek Jalan addressed an issue wherein Delhi Labour Union sought that women be provided special casual or paid leave as menstruation is intrinsically related to human dignity and by not providing separate toilet facilities or breaks to maintain hygiene, the authorities are depriving the employees of their human dignity.

In the PIL, it was sought that 4 days leave be granted to all classes of women employees and to pay overtime allowance to menstruating women employees if they opt to work during that period.

Various other reliefs such as period rest, clean and separate toilets along with the provision of sanitary napkins be provided to women during their menstruation period.

About the daily wage, muster roll, contractual and outsourced workers, the plea had said they also face severe difficulties during menstruation as their work places lack adequate sanitation and clean toilets and they are not given the facility of earned or sick leave by their employers. [PTI]

In view of the above, Court directed Centre and Delhi Government to treat as a representation a PIL seeking grant of paid leave to women employees during menstruation.


[Source: PTI]

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Manmohan and Sanjeev Narula, JJ., refused to set aside the order of the trial court granting divorce to the respondent-husband.

In the instant appeal, Appellant-wife impugned the Judgment passed by Principal Judge, Family Courts whereby the Court while rejecting the relief sought under Section 12(1)(a) and (c) has allowed the petition of the respondent by granting divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955.

CRUELTY

Trial Court dissolved the marriage between the parties on the ground of cruelty within the meaning of Section 13(1)(ia) of the HMA.

IMPOTENCY

The nature and the extent of allegations made by the appellant are beyond any controversy. Appellant laid down the allegations under two different compartments:

(i) allegations pertaining to the impotency of the Respondent, and

(ii) allegations with respect to mistreatment, torture and dowry demand against the Respondent and his parents.

The above-stated allegations laid the foundation for the ground of cruelty.

Further, the respondent had brought in evidence to establish before the Court that he was not impotent and the false and untrue allegations were causing him mental stress and amounted to cruelty.

On physical examination by the doctor, the respondent was found to be a normal male adult with fully developed secondary sexual character and organs, normal endocrine and sexual function, and had no problem of impotence.

Trial Court concluded that the credibility of the witness could not be impeached, and since respondent suffered no medical infirmity that could render him incapable of consummating the marriage, the allegation of impotence made by the respondents was not proved.

DECISION

Bench stated that, since the witness was a very highly qualified medical expert with immaculate credentials, his testimony was rightly relied upon by the Trial Court, hence no interference by this Court is required.

Court agreed with the observations of the trial court and stated that the accusations were levelled by the appellant and the onus lay on her to establish the veracity of the same.

Appellant entirely failed to produce any medical or corroborated evidence that could remotely suggest that the respondent was medically unfit to consummate the marriage.

Next Question:

Whether a false allegation of impotence amounted to cruelty within the meaning of Section 13(1)(ia) of the HMA?

Cruelty can be physical or mental. High Court stated that it is primarily contextual, pertaining to human behaviour or conduct with respect to matrimonial duties and obligations.

Bench observed that it is essential to see whether the conduct of the party is of such nature, that a reasonable person would neither tolerate the same, nor be reasonably expected to live with the other party.

Decision of the Supreme Court in V. Bhagat v. D. Bhagat, (1994) 1 SCC 337 was relied upon, wherein it was held that:

“Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together.”

“…What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”

ALLEGATIONS MADE IN PLEADINGS

Bench stated that it is no longer res Integra that false, baseless, scandalous, malicious and unproven allegations in the written statement may amount to cruelty.

“If it is established from the evidence that the allegations were evidently false, then such baseless allegations made in the written statement can amount to cruelty and the Court can pass a decree of dissolution of the marriage.”

In view of the above, Court found no infirmity in the trial court’s observations that the allegation of the Appellant in the Written Statement with respect to the impotency clearly falls within the concept of cruelty as defined under the law.

Bench also observed that,

There can be no justification for any party to retaliate by making untrue and false allegations regardless of how provocative the allegations may be. If the Appellant was hurt by the allegations made by the Respondent, she had her legal remedies against the same. It did not certainly give her a carte blanche to make counter-allegations which were untrue and cause deep humiliation to the Respondent.

Adding to the above, Court stated that the imputations and allegations made by the Appellant in the Written Statement were repeatedly reinforced during the trial by giving suggestions to the Respondent and also to his expert witness during the course of their cross-examinations.

Bench held that,

The cruelty in the instant case is of enduring and profound nature.

Concluding the instant matter, Cout held that the appellant and the respondent have been separated for more than eight years and since the separation continued for a sufficient length at time, it can be presumed that the marriage has irretrievably broken down.

It was found that a prolonged and continuous separation and the matrimonial bond was beyond repair. Therefore, refusing to severe the matrimonial ties would cause further mental cruelty to the Respondent.

Hence, the trial court’s conclusion could not be faulted with. [Kirti Nagpal v. Rohit Girdhar, 2020 SCC OnLine Del 1466, decided on 20-11-2020]


Advocates for the parties:

Appellant: Manish Sharma, Ninad Dogra and Jigyasa Sharma

Respondent: Prabhjit Jauhar

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., while addressing the grievance of UPSC aspirants in regard to cancellation of interviews to be held by the Selection Committee observed that,

Selection to the civil services, especially the IAS – a coveted service, cannot be a whimsical process. It has to follow certain norms, procedures and discipline.

Background

20 Non-State Civil Service Officers of the State of Rajasthan aspirants for the appointment of Indian Administrative Service of Rajasthan Cadre filed the present petition in the Non-SCS Category.

Purpose of filing the present petition was to challenge the letter issued by the Union Public Service Commission (UPSC)/ Respondent 1, in accordance to which interviews scheduled by the Selection Committee was cancelled.

Analysis and Findings

Bench stated that it is only considering the question of maintainability of the present petition and three aspects of maintainability i.e.

  • Territorial Jurisdiction of this Court to hear the writ petition
  • Forum non-conveniens
  • Availability of an alternate remedy in the form of CAT under Section 14 of the Central Administrative Tribunals Act, 1985

Territorial jurisdiction:

The primary grievance of the petitioner is against the Central Government and the UPSC and not the State of Rajasthan. Interviews that were to be taken place in Delhi.

This Court clearly had territorial jurisdiction, since the cause of action arose within the territory of Delhi and further because of the fact that both the UPSC and Central Government are within the jurisdiction of this court.

Forum non-conveniens:

Insofar as forum non-conveniens is concerned, the said principle is merely applied in order to determine the most convenient forum, with respect to the dispute.

Bench stated that due to hearings and transmission of records being virtual in any case, because of the pandemic, this Court does not feel compelled to reject this writ petition on the ground of forum non-conveniens.

Availability of alternate remedy:

Whether the Petitioners ought to be relegated to CAT, Jaipur Bench, to avail of their remedies under Section 14 of the Act?

In Savitur Prasad v. Union of India, 2017 SCC OnLine Del 12297, Division Bench observed as under:

“It is also trite to state that the scope of interference by a High Court in service matters and disciplinary proceedings under Article 226 of the Constitution of India, is permissible only in cases of demonstrable lack of jurisdiction and perversity.”
Bench in the instant matter observed that High Courts have power to exercise jurisdiction, even if there is an alternative remedy inter alia on several grounds:
  1. If there is a violation of the Principles of Natural Justice;
  2.  If there are unprecedented or extraordinary circumstances that warrant exercise of jurisdiction under Art.226;
  3. The need to render substantial justice;
  4. If the act complained against is patently erroneous or perverse;
  5. If there is demonstrable lack of jurisdiction or perversity;
  6. If relegating the parties to CAT would not render substantial justice.
  7. The exercise of power under Article 226 is discretionary and depends on the question whether circumstances warrant;

While applying the above principles, the decisions of different courts are disparate and depend on the facts and circumstances of each case.

Court held that in the present case certain unusual and extraordinary circumstances are present.

Further, the Court added that, petitioners were left to suffer as the interviews were cancelled less than 24 hours before the scheduled time. Thus there appears to be some merit in the allegation of breach of Principles of Natural Justice as the Petitioners were never given an opportunity to deal with the allegations.

“…it is the settled position that the alternate remedy has to also be an efficacious remedy.”

Relegating the Petitioners to approach CAT would lead to further delays in their candidature being considered for selection to the IAS.

Supreme Court has in its recent decision on 7-10-2020, in Commissioner of Police v. Umesh Kumar, 2020 SCC OnLine SC 810 observed that irregularities in public recruitment have become a bane, leading to litigation in both Courts and Tribunals across the country.

Court in view of the above analysis made an observation that,

The cancellation of interviews as in the present case is not to be viewed solitarily as a one-off incident. It represents a deeper malaise in the selection, which ought to be conducted fairly and in a transparent manner.

When the Court finds that the selection mechanism is being impeded, successively, it cannot turn a blind eye.

Present case would require interference by the exercise of writ jurisdiction in order to examine as to whether the prescribed norms for selection were adhered to, and if not, then, to consider the remedial measures. The circumstances in the present case accordingly warrant interference under Article 226 of the Constitution. [Akul Bhargava v. UPSC, 2020 SCC OnLine Del 1376, decided on 09-10-2020]

Know thy Judge

 

“ (…)Judgments of Courts are to be based on reason, and discuss fairly, what is argued. Judges, unlike other sections of members of the public cannot meet unjustified personal attacks or tirades carried out against them, or anyone from their fraternity; no clarifications can be issued, no justification is given; propriety and canons of judicial ethics require them to maintain silence.”

  – Justice Ravindra Bhat,

 CPIO, Supreme Court v. Subhash Chandra Agarwal,

2009 SCC OnLine Del 2714.


As a Judge at Supreme Court


  • Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727; While clarifying the position of anticipatory bail in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.Ravindra Bhat, J., in his concurring yet separate judgment brought into light, the forgotten sayings of greatest reformers of the Indian History reflecting upon the evil of caste distinctions.

“Kabir, the great saint poet, for instance, in his composition, remarked:

If thou thinkest the Maker distinguished castes:

Birth is according to these penalties for deeds.

Born a Sudra, you die a Sudra;

It is only in this world of illusion that you assume the sacred thread.

If birth from a Brahmin makes you a Brahmin,

Why did you not come by another way?

If birth from a Turk makes you a Turk,

Why were you not circumcised in the womb?…

       Saith Kabir, renounce family, caste, religion, and nation, and live as one”

Guru Nanak, for instance, stated [Guru Granth Saheb, p. 83]:
   “Caste and dynastic pride are condemnable notions; the one Master shelters all existence. Anyone arrogating superiority to himself halt be disillusioned. Saith Nanak : superiority shall be determined by God.”

Making significant observations on the principle of Fraternity, Justice Bhat observed that,

“When the Framers of the Constitution began their daunting task, they had before them a formidable duty and a stupendous opportunity : of forging a nation, out of several splintered sovereign States and city States, with the blueprint of an idea of India. What they envisioned was a common charter of governance and equally a charter for the people. The placement of the concept of fraternity, in this context was neither an accident, nor an idealised emulation of the western notion of fraternity, which finds vision in the French and American Constitutions and charters of independence. It was a unique and poignant reminder of a society riven with acute inequalities : more specifically, the practice of caste discrimination in its virulent form, where the essential humanity of a large mass of people was denied by society—i.e. untouchability.”  Read More

  • Rambabu Singh Thakur v. Sunil Arora, 2020 SCC OnLine SC 178;  Hearing a contempt petition against a PIL on public disclosure of criminal antecedents of politicians, a Division Bench of RF Nariman and S. Ravindra Bhat, JJ., observed,

It shall be mandatory for political parties [at the Central and State election level] to upload on their website detailed information regarding individuals with pending criminal cases (including the nature of the offences, and relevant particulars such as whether charges have been framed, the court concerned, the case number, etc.) who have been selected as candidates, along with the reasons for such selection, as also as to why other individuals without criminal antecedents could not be selected as candidates.”  Read More

  • Rajendra Diwan v. Pradeep Kumar Ranibala, 2019 SCC OnLine SC 1586; While holding Section 13(2) of the Chhattisgarh Rent Control Act as unconstitutional, a full judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, JJ., observed,

While exercising power under Article 136 of the Constitution, the Supreme Court does not re-appreciate evidence which has been appreciated by the Trial Court and the High Courts, unless extraordinary circumstances exist. It is only where the High Court has completely missed the real point requiring adjudication or has missed or ignored the relevant material, would the Supreme Court be justified in getting into evidence for the purpose of preventing grave injustice to a party.” Read More

  • Mukesh Singh v. State (Narcotic Branch of Delhi), 2020 SCC OnLine SC 700; A full judge Constitution bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, JJ has held that the accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is not entitled to an acquittal as a blanket rule merely because the complainant is the investigating officer. The Court said that;   

“… merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis.” Read More

  • Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 SCC OnLine SC 571; In a reference dealing with the interpretation of Section 65B of the Evidence Act, 1872 that deals with admissibility of electronic records, the three judge bench of RF Nariman, S. Ravindra Bhat and V. Ramasubramanian, JJ., held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record. Read More

As a Judge at Delhi High Court


  • Sanjeet Singh Kaila v. Union of India, 2017 SCC OnLine Del 8170; A Division bench presided by Justice Bhat, held that though the members of the Armed forces consent to the risk that comes with their enrollment in the forces, one is still entitled to a safe workplace with standard equipment.

In the words of Justice Bhat,

“(…) none can be insensible to the piquancy in the pageant of life; more so, those who enlist in the service of their country in its armed forces. Yet to fling that to their teeth when accused of exposing them to more than the risks they had bargained (as the HAL does, here) is to belittle their spirit of sacrifice, which this court finds insensitive, even offensive. A soldier or an air warrior like the petitioner can be expected to be aware of the “normal” risks that he undertakes to accept in the course of a career that is removed from the ordinary. That assumption of risk at the same time raises the threshold bar on his employer and those assigned by the employer to maintain the standards in respect of the workplace and the technical equipment, which such officers and warriors have to handle and live with.” Read More

  • BGP Products v. Union of India, 2018 SCC OnLine Del 12928; Striking down a government notification made under Section 26A of the Drugs Act, to restrict the manufacture and usage of an essential drug likely to be affecting the health of pregnant woman and youth mothers, Justice Bhat observed,

This court notices that the decision of prohibiting a country wide existing manufacturing base for Oxytocin, a life-saving drug (through the over hundred private licensed units spread across the country), for over three decades or so, on the one hand and reserving it to the public sector through a single manufacturing entity, which has no previous record in its production, is thus fraught with potential adverse consequences. One of the important directive principles of State Policy (Article 47) is the that “The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties..”. Maternal welfare too is considered a directive principle (Article 42).Correspondingly, the right of women, generally and pregnant women and young mothers in particular, to have a safe post-partum recovery and avoid risk of haemorrhaging that can be potentially fatal, is an integral part of Article 21 of the Constitution of India. The potential impact may or may not be direct; even if it leads to a few incidents, that would be a grave consequence contrary to public interest.”   

  • CPIO, Supreme Court of India v. Subhash Chandra Agarwal, 2009 SCC OnLine Del 2714; While directing the CPIO to release the information sought by the respondent applicant about the declaration of assets (and not the contents of the declarations, as that was not sought for) and holding the office of the CJI as a‘public authority’, significant remarks were made by Justice Ravindra Bhat, about the office of judges and exemption provided under Section 8(1)(j) RTI Act, 2005.

“In this Court’s opinion Section 8(1)(j) is both a check on the power of requiring information dissemination (having regard to its potential impact on individual privacy rights) as well as a mechanism whereby individuals have limited control over whether personal details can be made public. This safeguard is made in public interest in favour of all public officials and public servants. There can be no manner of doubt that Supreme Court and High Court Judges are public servants (K. Veeraswami established that). They are no doubt given a high status, and afforded considerable degree of protections, under the Constitution; yet that does not make them public servants any less. If that is the true position, the protection afforded by Section 8(1)(j) to Judges is of no lesser quality than that given to other public servants, in this regard. To hold otherwise: would be incongruous, because, members of the higher judiciary are held to self imposed obligatory Constitutional standards, and their asset disclosures are held (by this judgment), to be “information” held by the CJI, a public authority, under the Act; yet, they would be deprived of the protection that the same enactment extends to all those covered by it.”

  • Bayer Corporation v. Union of India, 2009 SCC OnLine Del 2469; Rejecting the claim of Bayer that the drug manufactured and sold by Cipla under the name of ‘Soranib’, was infact a spurious drug under 17-B of the Drugs and Cosmetics Act, 1940 and not a generic drug as contended, Justice Bhat held,

This Court is constrained to observe that the present litigation was what may be characterized as a speculative foray; an attempt to ‘tweak’ public policies through Court mandated regimes.”

The instant case discusses at length about patent linkage in Indian context and how imperative it is to balance monopoly rights of any patent holder and the public at large.

  • Mini Appa Kanda Swami v. M.Indra, 2016 SCC OnLine Del 5312; The Division Bench comprising of S. Ravindra Bhat and Deepa Sharma, JJ., held that demand for privacy by the spouse is not cruelty and also reiterated that High Court lacks the jurisdiction to dissolve a marriage on the doctrine of “irretrievable breakdown” under Section 13(1)(ia) of the Hindu Marriage Act.

“The Court further made observation, as to determination of cruelty for divorce stating, While considering whether a particular conduct constitutes cruelty or not, the social status of parties, cultural background, physical and mental conditions, customs and traditions etc. have to be considered. Mental cruelty can be assessed from the continuous unprovoked conduct of a spouse which causes embarrassment, humiliation, and anguish so as to render the other spouse’s life miserable and unendurable. This conduct should be of such gravity that the wronged party cannot be reasonably asked to put up with such conduct and continue to live with the other party.”  Read More


*Editorial Assistant, EBC Publishing Pvt. Ltd. 

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J., allowed the injunction application filed by the TV Today Network finding they have established prima facie case in their favour.

Present suit was preferred by a media conglomerate which transmits and broadcasts news etc. through print as well as electronic media.

By the instant suit, the plaintiff sought a decree of a permanent and mandatory injunction against defendant 1 restraining him from making the systematic attack on plaintiff’s reputation by making false and baseless tweets.

Defendant 1 levelled allegations against the plaintiff and one of its main anchors of having taken a sum of Rs 8 crores to interview a personality presently in news. It was also alleged that at the time of the birth of the said anchor itself, nurse concerned made obnoxious remarks and that the said anchor is involved in making fake news. The said anchor was also compared to a person, who is facing extradition proceedings.

High Court found that the plaintiff made out a prima facie case in its favour.

Bench stated that till the next date of hearing, defendant 1 is restrained from directly or indirectly publishing, re-publishing, sending or posting any tweet or information either in the electronic form or through the internet, email, social media or any print or communication media whatsoever, the statement or post which is derogatory/defamatory in its contents to the plaintiff or its top management or its anchors or its other office-bearers.

Defendant 2 has been directed to suspend/block the Twitter handles of defendant 1 and to file the basic subscription information of the account holder of the Twitter accounts impugned i.e. ‘@theanuragkts’ and ‘@theanuragoffice’ in the Court and supply a copy thereof to the learned counsel for the plaintiff as a password-protected document before the next date of hearing. [T.V. Today Network Ltd. v. Anurag Srivastava, 2020 SCC OnLine Del 1354, decided on 24-09-2020]

Case BriefsHigh Courts

Delhi High Court: J.R. Midha, J., while addressing the present petition observed the principle laid down by the Supreme Court of India with regard to Industrial Disputes.

Challenge in the Present petition

Trade Union of PTI Employees and Federation of four PTI Employees’ Unions have challenged the retrenchment of 297 employees by the Press Trust of India.

Permanent and regular workmen have been retrenched while contractual workers have been retained. The principle of ‘last come first go’  has not been followed.

Reasons why retrenchment is violative of certain provisions of the Industrial Disputes Act

Further, it has been stated that retrenchment is violative of Section 25-N of the Industrial Disputes Act as PTI employs more than 100 employees and has not taken the prior permission from the State Government before retrenchment;

retrenchment is violative of Section 25-N of Industrial Disputes Act as three months notice/three months wages in lieu of notice has not been given;

retrenchment is violative of Sections 25-F and 25-G of the Industrial Disputes Act as one month notice indicating the reasons for retrenchment and the retrenchment compensation has not been given;

retrenchment is violative of Section 9A of the Industrial Disputes Act read with Clauses 10 and 11 of the Fourth Schedule as the service conditions of the employees relating to rationalization/technique were altered without notice;

the retrenchment is violative of Section 16A of the Working Journalists Act, 1955 as the reason for retrenchment was the liability for payment of wages and mandating promotional grades as per Clause 18(f) of Majithia Award;

the retrenchment is violative of Section 25-G of the Industrial Disputes Act as there is the substantial short payment of retrenchment compensation to the employees;

closure of Attendees, Transmission and Engineering departments is violative of Section 25-O of the Industrial Disputes Act as the closure was without permission and the retrenchment is illegal and mala fide to sabotage the continued disbursement of Majithia Award benefits and to discourage the employees to pursue their remedies under the Wage Board.

retrenchment constitutes an unfair trade practice as set out in clauses 5(a), (b) and (d) of the Fifth Schedule of the Industrial Disputes Act;

large number of employees have not yet received individual notice of their retrenchment; and the plea of “No work” of PTI is false and contrary to PTI work registers.

Analysis and Decision

Whether the writ petitions should be entertained in view of the statutory remedy available to the retrenched employees under the Industrial Disputes Act?

Bench while deciding the present matter observed that,

The law is well settled by the Supreme Court that a writ petition should not be entertained in respect of industrial disputes for which a statutory remedy is available under the Industrial Disputes Act unless ‘Exceptional circumstances’ are made out.

Writ jurisdiction is a discretionary jurisdiction and the discretion should not ordinarily be exercised if there is an alternative remedy available to the petitioner.

Sum and Substance:

  • If the writ petition discloses ‘Exceptional circumstances’ and does not involve disputed questions of fact, the writ petition in respect of an industrial dispute may be entertained.
  • If the writ petition discloses ‘Exceptional circumstances’ but the facts are disputed, the writ petition should not be entertained and the petitioner has to invoke the statutory remedies available as per law.
  • If the writ petition does not disclose ‘Exceptional circumstances’, the writ petition should not be entertained irrespective of whether the facts are disputed or not.
  • Writ jurisdiction is a discretionary jurisdiction and the discretion is ordinarily not exercised, if an alternative remedy is available to the petitioner. The powers conferred under Article 226 of the Court are very wide but these are extraordinary remedies subject to self-imposed restrictions.

With regard to ‘exceptional circumstances’ Court referred to the decision of Delhi High Court, Hajara v. Govt. of India, 2017 SCC OnLine Del 7982.

In the present matter, there are no exceptional circumstances for the exercise of the writ jurisdiction under Article 226 of the Constitution.

Bench stated that the present matter is squarely covered by the principles laid down by the Supreme Court in U.P. State Bridge Corporation Ltd. v. U.P. Rajya Setu Nigam Karamchari Sangh,2004 (2) L.L.N. 93 wherein the Court held that,

“We are of the firm opinion that the High Court erred in entertaining the writ petition of the respondent Union at all. The dispute was an industrial dispute both within the meaning of the Industrial Disputes Act, 1947 as well as U.P. IDA, 1947. The rights and obligations sought to be enforced by the respondent Union in the writ petition are those created by the Industrial Disputes Act.”

High Court observed that,

“The principles of uniformity and predictability are very important principles of jurisprudence.”

Most of the retrenchment cases are simpler than the present case but the writ jurisdiction is not exercised as the law is clear and well settled that the rights under the Industrial Disputes Act have to be agitated before the Industrial Tribunal.

In the present matter, Court declines to exercise the writ jurisdiction in view of the statutory remedy available to the retrenched employees under the Industrial Disputes Act.

Court noted there is no averment in that in any of the retrenched employees authorized the petitioners to espouse their cause. There is no averment that shows the authority of the petitioners to file the petitions.

Held

Bench held that the petitions are being dismissed on the ground that the retrenched employees have a statutory remedy under the Industrial Disputes Act and no ‘Exceptional circumstances’ have been made out by the petitioners.

Post Script

In view of the well-settled law by the Supreme Court that the writ petition relating to an industrial dispute can be entertained only if there are ‘Exceptional circumstances’, it is mandatory for the writ petitioner to disclose the ‘Exceptional circumstances’ in the Synopsis as well as in the opening paras of the writ petition.

Hence, if the writ petitioner does not disclose the “Exceptional circumstances” in the writ petition, the Registry shall return the writ petition under objections to enable the writ petitioner to disclose the “Exceptional circumstances” in the Synopsis as well as in the opening paras of the writ petition.[PTI Employees Union v. Press Trust of India Ltd., 2020 SCC OnLine Del 1216, decided on 18-09-2020]

Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J., in the present petition observed that,

“A deadly weapon is one, which is lethal and is likely to cause death when used in the manner in which it is intended. By its very nature, a deadly weapon is one, which is likely to result in a fatality.”

Appellant was convicted of the offences punishable under Sections 393/398 of the Penal Code, 1860 and Sections 25/27 of the Arms Act, 1959.

The present appeal has been filed impugning the judgment for the above-stated conviction and order of sentence.

It has been submitted that the accused was armed with a pistol which he placed on the complainant’s temple and asked him to hand over whatever he had.

While the accused was fleeing from the spot, two patrolling police officials pursued and apprehended him and the police officials snatched the pistol carried by the accused.

Analysis and Decision

Police Officials Testimony

Bench while analysing the facts and submissions in the present case stated that merely because witnesses from the general public that had allegedly assembled at the spot, were not examined does not mean that the testimony of the police officials is required to be discarded.

Supreme Court’s decision in Kalpnath Rai v. State, (1997) 8 SCC 732  was referred in the above context, wherein following was the Court’s proposition:

“There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance.”

Further, there wasno doubt on the fact that a country made pistol (katta) was recovered from the accused also the fact that he was apprehended while he was fleeing from the spot has also been established.

Question to be determined is whether the appellant’s conviction under Sections 25 and 27 of the Arms Act is maintainable?

The country made pistol (katta) recovered from the appellant was designed to discharge a projectile and therefore, even though it may have fallen into disrepair it, nonetheless, falls within the definition of a ‘firearm’ within the meaning under Section 2(e) of the Arms Act.

Further the Court observed that the possession of ammunition is a punishable offence under Section 25 of the Arms Act. The use of such ammunition is punishable under Section 27 of the Arms Act.

Thus, there is little doubt that the appellant is guilty of committing an offence punishable under Sections 25 and 27 of the Arms Act.

Next issue to be examined is whether the country made pistol (katta) can be termed as a “deadly weapon” under Section 398 IPC?

Section 398 IPC states that if an offender is armed with a deadly weapon at the time of robbery or dacoity, the same would constitute an offence under Section 398 IPC.

Key Question:

Whether the country made pistol (katta) can be termed as a “deadly weapon” even if it is in a state of disrepair?

Court stated that in order for any weapon to be termed as deadly, it should one which is capable of or likely to cause death if used in the manner in which it is intended to be used.

There may be a large number of instruments or objects, which can be used in a lethal manner, however, if they are not intended or meant to be used in that manner, they cannot be understood to be weapons for the purposes of Section 398 of the IPC.

Bench also noted that there are a large number of instruments which if used in a particular manner, may result in a fatality. A pen is not a deadly weapon and merely carrying the said writing instrument, at the time of committing robbery or dacoity, would not constitute an offence punishable under Section 398 of the IPC.

Two necessary ingredients of a ‘deadly weapon’:

first, that it should be a weapon and capable of being used as such

second, that it must be inherently lethal and if used in the intended manner is likely to result in death.

Hence in view of the above analysis, it can be construed that even though the country made pistol recovered from the appellant constitutes a firearm, it cannot be considered as a deadly weapon.

In the present matter, at the material time, the pistol could not be used to inflict any fatal injury, if used in the manner in which it was meant to be used — that is, for the purpose of firing a bullet — on account of it being in disrepair.

Thus the impugned judgment convicting the appellant under Section 398 of the IPC was set aside and his sentence was also reduced.[Sonu v. State, 2020 SCC OnLine Del 1213, decided on 15-09-2020]

Case BriefsHigh Courts

Delhi High Court: Yogesh Khanna, J., held that no coercive action shall be taken against the co-founder of ALT News with regard to the FIR alleging him to have harassed a minor girl on twitter.

Journalist

Petitioner who is a journalist and co-founder of news website outlet ALT News and due to the nature of his work is often abused, threatened and demeaned by people.

Two separate FIRs have been registered against the petitioner. In one FIR it has been submitted that the petitioner had shared an old image of his wearing traditional Indian attire and one Jagdish Singh from his twitter handle replied to this image “once a jihadi is always a jihadi”.

In July again the petitioner tweeted a simple tweet, wherein again Jagdish Singh from his twitter handle replied to the petitioner with a vulgarly worded image Tu toh bada mad****** nikla re”.

Again a similar instance occurred to which, this time the petitioner re-tweeted on Jagdish Singh’s tweet displaying a picture which was visible to the public wherein Jagdish Singh was standing with his daughter whose face was pixelated/blurred by the petitioner and he wrote “Hello Jagdish Singh, Does your cute granddaughter know about your part-time job of abusing people on social media? I suggest you change your profile pic”.

Further, the petitioner argued that the tweet would not reveal if it was intending to cause harassment to the minor girl and rather the said tweet was made on respondent 3 personal account.

06-08-2020: Respondent 3 made a complaint to respondent 2 against the petitioner. Only through twitter, the petitioner got to know that respondent 2 has taken cognizance of the complaint filed.

Petitioners’ Grievance

Petitioner submitted that the copy of the FIR was never supplied to him and for this reason, he could not respond to the allegations made against him.

Bench directed respondent 1 and 4 to supply a copy of the present FIR to the petitioner and should also file a status report on or before the next date.

Response from the police and the National Commission for Protection of Child Rights (NCPCR) has also been sought.

Though respondent 2 submitted she was performing her duty as an informant, however, petitioner states that the information annexed at page 40of the paper book comes from the twitter handle of respondent 2 and the said information was made public, probably to harass the petitioner.

Respondent 2 shall also file a reply on or before the next date.

Matter has been listed for 08-12-2020, till then no coercive action to be taken. [Mohammed Zubair v. State of GNCT, 2020 SCC OnLine Del 1189, decided on 09-09-2020]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Manmohan and Sanjeev Narula, JJ., held that the attendance record is a part of service record which is a matter between the employee and employer governed by the service rules and come under the category of “personal information”.

Present appeal is directed against the Single Judge’s Judgment dated 12-05-2020 in WP (C) 8352 of 2018, whereby the appellant’s petition impugning the order passed by respondent 3 declining to furnish the requested information under the Delhi Right to Information Act, 2001 has been rejected.

Appellant had filed the present appeal under the DRTI Act, 2001 before respondent 5 and 6 seeking information pertaining to Geeta Senior Secondary School, Delhi with regard to his attendance record for the period from 2015 to March, 2017 and also of the rest of the staff members serving in the same school.

Further, it has been stated that the copy of the attendance register was provided to him, however, information concerning the other staff members was declined on the ground that information requested was exempted under Section 8(1) of the Right to Information Act, 2005.

Hence aggrieved with the above situation, the appeal was filed under Section 7 of the DRTI Act before the Public Grievance Commission (PGC).

Single Judge of this court had dismissed the appeal noting that the appellant had received his personal information and that there was no infirmity in the order refusing to furnish information pertaining to other staff members of the school. Further, he noted that in view of Section 22 of the RTI Act, Section 8(1) (j) and the principle stated therein would apply to the facts of the present matter.

Decision

 Bench stated that under Section 7 of the DRTI Act any person aggrieved by an order of the competent authority or any person who has not received any order from the competent authority within 30 working days may appeal to the Public Grievances Commission.

Respondent 3 failed to demonstrate that how respondent 3 could not act as the Appellant Authority. Further, Department of Education categorically stated on record that from 2008 onwards, salary to employees of aided schools is disbursed through the ECS, and therefore, it is not necessary to send a copy of the attendance register along with salary bills for such disbursal.

Appellant also sought the attendance record of the other staff members of the School, Court stated that since the said information related to attendance, it would entail revealing medical and personal information of an individual.

Attendance record is part of service record which is a matter between the employee and the employer and ordinarily these aspects are governed by the service rules which fall under the expression “personal information”.

Court observed that in absence of even a remote connection with any larger public interest, disclosure of the information would be exempted as the same would cause unwarranted invasion of the privacy of the individual under section 8(1) (j) of the RTI Act.

Hence, the petition failed to establish that the information sought for is for any public interest, much less ‘larger public interest’.

Therefore Court declined to entertain the present appeal. [Dr R.S. Gupta v. GNCTD, LPA No. 207 of 2020, decided on 31-08-2020]

Case BriefsHigh Courts

Delhi High Court: Navin Chawla, J., restrained from broadcasting a show titled ‘Bindas Bol’ on Sudarshan TV News channel.

Petitioner’s Counsel placed the video clip of the trailer that has been released by respondent 3 and 4 for the programme ‘Bindas Bol’ that was scheduled to be telecasted on respondent 3 TV Channel yesterday i.e. 28-08-2020 at 8.00 P.M.

Further, he submitted that the said trailer itself shows that the programme in question could be in complete violation of the Programme Code.

Reliance of Sections 5, 19 and 20(3) of the Cable Television Network (Regulation) Act, 1995 was placed.

Respondent 1 submitted that on several complaints been received by the Ministry of Information and Broadcasting a notice for clarification was issued to respondent 3, which states as follows:

“This Ministry has received several complaints regarding a programme which is proposed to be broadcast on Sudarshan News TV from 28.08.2020 at 8.00 PM. In the promo of the proposed programme which is viral on Social Media Platforms, Shri Chavhanke for Sudarshan TV News Channel is raising concerns how people of a particular community have suddenly increased in IAS and IPS cadre, etc.

2. You are, therefore, requested to clarify on the above in the context of the Programme Code enshrined under Cable Television Network Rules, 1994 by return mail.”

Hence in view of the above stated, Court restrained respondent 3 and 4 from telecasting the programme titled ‘Bindas Bol’ till the next date of hearing.[Syed Mujtaba Athar v. Union of India, 2020 SCC OnLine Del 1091, decided on 28-08-2020]