Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J. dismissed a writ petition filed by a serving officer of the Indian Army seeking to quash an FIR registered against him in Imphal, Manipur.

At the relevant time, the petitioner was posted at Dimapur, Nagaland, and was the Commanding Officer of 50 Coy ASC (Supply). It was alleged that during his tenure, he accepted illegal gratification from a local contractor engaged in supplying edible oil and pulses to 50 Coy ASC (Supply). An FIR was registered against him by the CBI Anti-Corruption Branch at Imphal.

Ripu Daman Bhardwaj, Special Public Prosecutor appearing for the Central Bureau of Investigation, at the outset, raised objections regarding the jurisdiction of the Delhi High Court to entertain the instant petition. Per contra, Lovkesh Sawhney, Durgesh Kumar Pandey and Deepak Kumar, Advocates, representing the petitioner, contended that the petition was maintainable.

The Court was of the view that the principal question for consideration was whether the Court should exercise its jurisdiction in the facts of the case. It was noted: “Undeniably, a substantial part of the offence alleged against the petitioner was committed outside the jurisdiction of this Court. As noticed above, the petitioner was posted in Dimapur and the allegation is regarding his conduct of receiving illegal gratification while serving as the commanding officer of 50 Coy ASC (Supply). Whilst it may be correct that the funds are stated to have been received by the petitioner; the allegation is that the same was done at the instance of the petitioner, who was, at the material time, posted in Dimapur.”

In such view of the matter, the High Court was of the view that it would not be apposite for the Court to entertain the instant petition. It was also observed: “Insofar as the principle of forum conveniens is concerned, the said principle has to be applied keeping in view the place where the substantial cause has arisen and where the substantial evidence for adjudicating the cause is available.”

Resultantly, it was held that trial in the instant matter was required to be conducted within the jurisdiction of another High Court. The petition was therefore dismissed.[Amit Sharma v. CBI, W.P.(CRL) 2330 of 2019, decided on 13-09-2019]

Case BriefsHigh Courts

Karnataka High Court: B. Veerappa, J. allowed a petition filed by two nurses for quashing of an order whereby they were held liable for the death of a child due to their negligence. 

Petitioners herein were the two nurses of a hospital who had approached the Court challenging the order of Karnataka Medical Council (KMC) which had held both of them responsible for negligent death of a child. The complaint of negligence was filed by respondent whose child had died in the hospital. KMC passed an order holding that the complainant had failed to prove negligence on the part of doctors, but it held the petitioner-nurses liable for negligence and directed the Medical Superintendent to take action against them.

Counsel for the petitioner, N. Ravindranath Kamath contended that nurses are not medical practitioners as per the provisions of the Karnataka Medical Registration Act, 1961. Whereas counsel for the respondent, R. Nagendra Malik contended that only because of the negligence on the part of the petitioners, the complainant lost her child.   

The Court held that a comprehensive reading of Sections 2, 13 and 15 of the Karnataka Medical Registration Act, lead to the conclusion that nurses could not be categorized as medical practitioners practicing medicine. Thus, KMC had no jurisdiction to take action against the petitioner. 

In view of the above, holding the impugned order to be in excess of KMC’s jurisdiction, it was quashed. [Medical Superintendent, Kasturba Hospital v. Fathima Bi, Writ Petition No. 35640 of 2012 decided on 18-06-2019] 

Case BriefsHigh Courts

Jharkhand High Court: Rajesh Kumar, J., modified the order passed by the tribunal to the extent that relief granted by the Tribunal is unauthorized and out of jurisdiction as Tribunal went beyond the terms of reference to pass the Award.

The present writ petition had been filed against the Award dated 18-11-2013 passed in Reference No. 13 of 1991 by the Central Government Industrial Tribunal No. 2, Dhanbad whereby reference was in favour of the workmen. The factual matrix of the present case is that all three concerned workmen were an employee of the company. They were charged for misappropriation and after conducting a departmental enquiry, they were dismissed from service. Against the said order of dismissal, an Industrial Dispute was raised, referred to as Ref. No. 13/91. Since the management failed to justify the dismissal of the workmen, the Tribunal passed an order of reinstatement in favour of the employees, Suresh Ram and Sarda Shovel. As Sukhdeo Bhuian had died during the pendency of the reference case, he had been substituted by his son namely Santosh Kumar. The issue herein is with respect to the appointment of the dependant of the deceased employee.

The Court stated that “It is trite that Tribunal gets jurisdiction to pass the Award in terms of reference. Tribunal cannot go beyond the terms of reference to pass an Award.” Further, the Court observed that reference is only with regard to justification with the order of dismissal of three workmen and issue of appointment was not the subject matter of the reference. Hence, in the absence of such reference, relief granted by the concerned Tribunal is wholly unauthorized and beyond the jurisdiction. Hence, the Court modified the award to the extent that the appointment to the dependent of the deceased employee is quashed.[Employers In re, Management of Sendra Bansjora Colliery v. Workmen, WP (L) No. 4632 of 2014, decided on 22-07-2019]

Case BriefsHigh Courts

Jammu & Kashmir High Court: Dhiraj Singh Thakur, J. allowed a petition to direct the CBI to take charge of the present case.

The petitioner filed a Habeas Corpus Petition seeking appropriate direction to respondents to produce her son, who went missing in the custody of respondents. Petitioner also prayed for referring the investigation into the matter by the constitution of a Special Investigation Team (SIT) or in the alternative to refer the matter to the Central Bureau of Investigation (CBI).

The petitioner’s son, Shakeel Ahmed, went missing on his way to Zairat at Kaliar Sharief in Roorkie, Uttrakhand under the custody of the respondents. The matter was investigated initially by the appropriate Police Station, as an FIR under Section 364 RPC was filed. The investigating officer recorded the statement of witnesses under Section 161 of CrPC and called the accused persons to the Police Station and interrogated them. However, no fruitful result was obtained pursuant to which, the investigating officer closed the case. The matter was again reopened by the Zonal Police Head Quarter and a Special Investigation Team (SIT) was formed by the Senior Superintendent of Police. However, the SIT also failed to arrive at any conclusion and was clueless about the disappearance of the son of the petitioner.

The respondents contended that the matter if referred to Crime Branch, should also involve the territorial jurisdiction between the two States i.e. the State of Jammu and Kashmir and the State of Uttrakhand.

The High Court allowed the appeal and was of the view that since the investigation would involve the areas beyond the territorial jurisdiction of the State of J&K where the Crime Branch cannot have any jurisdiction, it would be appropriate to refer the matter for investigation to the CBI under Section 364 of RPC. The Court also held that “it cannot be a silent spectator to the disappearance of the son of the petitioner who needs to be recovered and the matter investigated at the earliest.”[Sabza Begum v. State of J&K, 2019 SCC OnLine J&K 666, decided on 08-07-2019]

Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J. disposed of the writ petition saying that the petitioner should approach the appropriate forum, in accordance with law as the respondents have complied with the condition to provide the reason for denying pension to the petitioner.

In this case, the petitioner was ordered to represent the dues payable to him and the respondent University was required to consider and pay the admissible dues of the petitioner within three months, failing which the dues were to carry simple interest at the rate of 10% per annum.

It was the duty of the respondents to give a reasoned order with regard to the admitted dues and details with regard to payment made, including a calculation chart. The learned counsel for the petitioner raised two grievances on account of earned leave and arrears of pension from February, 2003 to 31-12-2005. With regard to earned leave, he specifically mentioned that amount for 217 days was due whereas the University has sanctioned only 134 days, with the absence of a calculation chart to show the reasons for such a restriction.

The respondents filed a show-cause notice against the petitioner which said that the prayer for payment of arrears of pension from February, 2003 to December, 2005 had been rejected on the ground that the petitioner had opted for a different option which did not provide for the pension.

The Court held that their jurisdiction was to see whether the order of the writ Court has been complied with by the respondents. As there was no specific direction on merit with regard to payment of a pension or the number of days of earned leave, the respondents cannot be said to be in contempt if they have either denied or paid the earned leave for a lesser period. The Court advised the petitioner, to assail the same in accordance with law before the appropriate forum and ordered the respondents to provide a detailed calculation chart.

In view of the above-noted facts, the instant petition was disposed of accordingly.[Savitri Choudhary v. State of Bihar, 2019 SCC OnLine Pat 1236, decided on 29-07-2019]

Case BriefsHigh Courts

Uttaranchal High Court: Sudhanshu Dhulia, J. entertained a writ petition where the petitioner, a workman was aggrieved by the order of the Deputy Labor Commissioner as his application under Section 14-A of U.P. Industrial Dispute Act, 1947 was rejected for punishing the respondent.

The petitioner contended that he was a workman in a private company since 2003. He was working as a Technician in the Noida factory but was subsequently transferred to Ranchi. Thereafter he contended that a settlement was reached between the Union and the Management wherein one of the stipulated conditions was that “the place of transfer of transferred employees would be changed as per the convenience of the employees concerned”. After the settlement, the said petitioner was transferred to Dehradun but due to his alleged involvement in the trade union activities, he was again transferred to Gauhati, thus, the petitioner alleged that such transfer was in clear violation to the settlement already made. Further, he made a request before the Labour Commissioner to cancel his transfer on the ground that such was violative to the settlement. It was submitted by counsel for the petitioner Singdha Tiwari that under Section 14-A of U.P. Industrial Dispute Act, 1947 i.e., Penalty for breach of a term of the award, there had been a breach of settlement committed by the respondent and he was liable for punishment.

The said application under Section 14-A was rejected by the Commissioner on the ground that what the petitioner was actually relying upon was the settlement which was executed between the Management and Union at Noida and therefore only the Labour Commissioner, Noida had jurisdiction to entertain this application.

The Court observed that Section 14-A of the Act, 1947 which the petitioner had invoked for redressal of his grievance had a long and chequered history. Initially, there was no such provision under the Act, 1947 or even in the Industrial Disputes Act, 1947. In the Act, 1947, Section 14-A was inserted by U.P. Act No. 34 of 1978. It made a breach of a binding settlement (or award) by any person a punishable offence. This provision was inserted as a deterrent to such employers who were earlier able to evade the implementation of an award or settlement. The Court noticed and stated that the provision gave more teeth to the Industrial Disputes Act. However, it was held that since Section 14-A of the Act, 1947 was related to an “offence”, the application would not lie either before the Labor Commissioner, of any place but it was only cognizable by the Magistrate, 1st Class, as such was the stipulation of the law.

The Court cited the relevant provisions which were Sections 15 and 16 of the said Act, and where it was mentioned ‘Offence to be deemed cognizable’ and ‘Cognizance of offence’, the Court further stated that the bare reading of the provisions showed that Magistrate was the only competent authority to adjudicate the matter. It was stated that the first authority which must take cognizance of the mater was the concerned District Magistrate or the public servant by the previous sanction of the DM. Hence, the Court found that the matter was decided by the Labor Commissioner on the point of jurisdiction, without properly adjudicating the real issue. It was held that though the provisions of CrPC were not strictly applicable but Sections 178 and 179 were to be applied and cognizance would have been taken up by the Magistrate rather than Commissioner. The Court allowed the writ petition only on the ground that Deputy Labor Commissioner was wrong in dismissing the application of the petitioner on ground of jurisdiction, before adjudicating with the matter, the Deputy Labor Commissioner must have proceeded in accordance with the law and after appreciating the facts of the case.[Rajesh Kashyap v. Rakesh Pandey, 2019 SCC OnLine Utt 630, decided on 04-07-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities Appellate Tribunal (SAT), Mumbai: Coram of Justice Tarun Agarwala (Presiding Officer), Dr C.K.G. Nair (Member), and Justice M.T. Joshi (Judicial Member) directed SEBI to look into violation of market norms by Cairn India with respect to withholding of dividends along with interest payable to Cairn UK Holdings, the Appellant.

The Appellant created a foreign subsidiary in India called Cairn India which became a subsidiary of Vedanta in 2010-11. The Appellant filed a complaint stating that Cairn India did not pay the due dividends amounting to Rs 340.64 crores and hence brought an action before SEBI to direct them to pay the due dividends along with an interest of 18 percent per annum. In this action, they alleged that Cairn India was in violation of Sections 24 and 127 of the Companies Act, 2013. They also contended that SEBI had jurisdiction over the matter because the company was also in violation of the Regulation 4(2)(c) of the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements).

SEBI disposed of the complaint and refused to take any action as it said that the unpaid dividend of over Rs 660.63 crores had already been handed over to the income tax authorities by the company and it could therefore not interfere. The Tribunal was of the view that if a company has violated the provisions of the Companies Act in not releasing the dividend when there was no embargo upon it, it is SEBI’s duty to inquire into the alleged violation and if it exists to take action against the said company under Section 124 of the Companies Act. This aspect has not been considered by SEBI. The Tribunal justified SEBI’s decision that since an amount has been transferred to the income tax authorities pursuant to some orders issued by them, the question of paying the dividend by the appellant along with interest does not arise. Therefore, it is open to the appellant to pursue remedies for the return of the dividend amount from the income tax authorities.

The Tribunal, in this case, allowed the appeal in part saying that while SEBI was correct in not interfering with the income tax authorities, it had to give an opportunity of hearing to the appellants.[Cairn UK Holdings Ltd. v. Securities and Exchange Board of India, 2019 SCC OnLine SAT 72, decided on 19-07-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, C.J. and Alok Kumar Verma, J. entertained a writ petition which was initially filed in the Allahabad High Court in 1994.

Factual matrix of the case was that the petitioner was appointed as a Panchayat Mantri and thereafter the Panchayat Mantries were declared to be public servants. Petitioner sought leave for 15 days during his course of employment. Respondent demanded a health certificate by the petitioner, however, he failed. The services of the petitioner were terminated on various grounds; he questioned his termination on the principle of natural justice.

State Public Services Tribunal on the sole ground that the impugned order of termination dated had been passed with retrospective effect and the State Public Services Tribunal quashed the said order of termination and held that the order of termination cannot be passed with retrospective effect.

While the Tribunal held that the petitioner had been absent from duty throughout, and had filed the Claim Petition after a period of more than 12 years, the State Public Services Tribunal observed that, since the order of termination was void, the law of limitation had no application on void orders; but no order related to the payment of salary for intervening period was passed as the petitioner was at fault.

The Court in the instant writ held that while it was debatable whether the Tribunal was entitled to grant the relief sought for in the Claim Petition, despite the employee had invoked its jurisdiction 12 years’ after the order of termination was passed. The Court felt that it was inappropriate to examine that aspect since the Government had filed a Writ Petition before the Allahabad High Court questioning the very same order passed by the Tribunal, albeit to the extent the order of termination was quashed and the petitioner was reinstated into service. Hence the examination in the Writ Petition was limited to the action of the Tribunal in denying the petitioner salary for the period between the dates of his termination till the date on which the petitioner was required to join duty.

The writ was filed challenging the order passed by the State Public Services Tribunal, Lucknow where it quashed the termination order of the petitioner and had held it illegal and void. It further directed respondents to reinstate the petitioner and pay him salary and dues. The Tribunal, however, observed that no orders were passed for payment of salary to the petitioner, for the intervening period, on account of his continued absence from duty.

The Court held that, “unlike an appellate authority which can reappreciate the evidence on record, the High Court, in the exercise of its certiorari jurisdiction, would not substitute its views for that of the Tribunal, nor would it reappreciate the evidence on record to arrive at a conclusion different from that of the Tribunal whose order is impugned before it.”

The Court found no error in the order of the Tribunal as to pass certiorari, hence saw no reason to interfere with the order of the Tribunal in denying the salary from the date of the termination till reinstatement. The Court observed that “Having approached the State Public Services Tribunal after a period of 12 years, the petitioner cannot be heard to contend that he should also be paid his salary for the intervening period from the year 1980 to 1992 when he approached the Tribunal, even though it was he who had slept over his rights for around 12 years.”[Naresh Kumar Jain v. State Public Services Tribunal, 2019 SCC OnLine Utt 613, decided on 16-07-2019]

Case BriefsHigh Courts

Gauhati High Court: Rumi Kumar Phukan, J. allowed a criminal petition filed against the order of the trial court whereby the petitioner-husband was directed to hand over the custody of the minor daughter to the respondent-wife.

The parties were married to each other and a daughter was born to them — presently around 3 years old. After the birth of the daughter, the respondent developed physical ailments for which she had to undergo treatment at various places. It was an admitted fact that presently the parties were residing separately and the respondent was staying at her paternal home. The daughter resided with the father. In January 2019, the respondent was admitted to a hospital and requested the petitioner to bring the daughter to see her. The petitioner did accordingly. However, on the very next day, the respondent went to the petitioner’s house to bring back the daughter with her. She also filed a petition under Section 97 (search for persons wrongfully confined) CrPC, stating that under Section 6 of the Hindu Minority Act, she was the natural guardian of the child and therefore she should be given her custody. The trial court ordered that the custody of the daughter be handed over to the respondent. The said order was affirmed by the Sessions Judge in revision. Aggrieved thus, the petitioner filed the present petition.

A.M. Bora, Advocate made submissions on behalf of the petitioner. While the respondent was represented by Dr B.U. Ahmed, Advocate.

In hIgh Court’s opinion, for invoking the special provision of Section 97, it was to be seen whether the child had been wrongfully confined by the petitioner. In addition to the above facts, it was noted that the child was wrongfully left by the respondent in the custody of the petitioner because of her ill health since 2017. In such circumstances, it could in no way be stated as confinement. It was observed: “… strangely, the learned court treated the matter as if dealing with the custody of the child and gave the custody of the child to the respondent/wife which is beyond the jurisdiction of Section 97 CrPC. The provision of custody of the child can be decided under Section 25 of the Guardian and Wards Act and the same cannot be adjudicated in the petition under Section 97 of the Code. The only question which is to be decided while passing any such order by a court that there was certain wrongful confinement of a person while initiating the proceeding. As has been discussed above, no matter of wrongful confinement has been made out as against the petitioner, who is the natural guardian/father of the child.”

In such view of the matter, it was held that the impugned orders were passed without jurisdiction and were therefore quashed.[Sanjeev Kumar Singh v. O. Mema Devi, 2019 SCC OnLine Gau 2874, decided on 16-07-2019]

Case BriefsHigh Courts

Bombay High Court: K.R. Shriram, J. dismissed an admiralty suit filed by the plaintiff insofar as he claimed wages under the provision of Section 129 of the Merchant Shipping Act, 1958.

The plaintiff was a seafarer and worked as Chief Engineer on board two shipping vessels — namely, Malaviya Thirty-Three and Bharati-S — both owned by GOI Offshore Ltd., which was under liquidation. According to him, wages which were due to him from working on both the vessels were not paid to him. He claimed the same under the present suit along with interest. The plaintiff further claimed wages under Section 129 of the Merchant Shipping Act.

Vikrant Shetty, counsel for the plaintiff, contended that Section 129 provides for time of payment of wages, and if the payment is not made within such time, the plaintiff is entitled for further payment of wages for the delayed period. Per contra, counsel for the defendant, S. Priya along with Aparna Sinha, did not dispute the plaintiff’s claim for the payment of wages payable for his employment on the two vessels. She, however, disputed the claim raised under Section 129.

The question before the Court was whether the plaintiff was entitled to approach the Court to claim the amount under Section 129 of the Merchant Shipping Act?

After discussing the provisions of Section 129 (time of payment of wages) and Section 132 (decision of questions by shipping masters), the High Court observed: “any claim for wages under Section 129 can be made only to the shipping master and if the shipping master passes an order within the limit of his jurisdiction, that could be enforced by a Judicial Magistrate of the first class or a Metropolitan Magistrate as provided in Section 132(3) as an order for payment of wages made by such Magistrate.”

It was noted that there are no averments in the plaint whatsoever as to how the plaintiff claims he is entitled to the amounts as claimed under Section 129 of the MS Act. Finally, it was held that since the jurisdiction is not with the High Court but only with the shipping master under Section 129, the Court could not determine the claim under Section 129. Therefore, the claim to such extent was rejected.[Jagdish Singh Bhaduria v. Bharati-S, 2019 SCC OnLine Bom 1179, decided on 05-07-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): A Coram of Justice A.I.S Cheema (Judicial Member) and Justice Balvinder Singh (Technical Member) set aside the judgment passed by National Company Law Tribunal, Hyderabad Bench (NCLT) and directed the cancellation of entry of the name of appellant in the register of member of respondent 2 showing equity shares purported to have been credited on the basis of conversion of Compulsory Convertible Debentures (CCDs) standing in the name of appellant.

In the present case, appellant company had filed a Company Petition claiming rectification in the register of member of respondent-company, seeking cancellation of entry of the name of petitioner in the Register of Members of respondent-company showing 906599 equity shares purported to have been credited on the basis of conversion of 906599 CCDs standing in the name of the petitioner. The aforementioned Company Petition under Section 59 of the Companies Act, 2013 was then dismissed by NCLT, Hyderabad claiming that the issues raised were complex and could not be dealt with by NCLT. NCLT ruled that in Ammonia Supplies Corpn. (P) Ltd. v. Modern Plastic Containers (P) Ltd., (1998) 7 SCC 105 it was held that in case of a serious dispute as to title, the matter could be relegated to a civil suit. Aggrieved by the said order, the instant appeal was filed.

Learned counsel for appellant Arun Kathpalia, argued that after passing of Companies Act, 2013 the aforementioned case did not hold good in the light of the bar on civil courts. He submitted that in Shashi Prakash Khemka v. NEPC Micon, 2019 SCC OnLine SC 223 the Supreme Court had held that after Companies Act, it is not in dispute that were a dispute to arise today, the civil suit remedy would be completely barred and the power would be vested with the NCLT under Section 59 of the said Act”.

Further, Section 430 of the Companies Act, states that “Civil court will not have jurisdiction to entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine by or under this Act or any other law for the time being in force and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any other law for the time being in force, by the Tribunal or the Appellate.”

On the basis of above arguments and in view of the law laid down in NEPC Micon case, it was held that NCLT had jurisdiction to deal with all the cases which dealt with questions regarding rectification and all questions incidental and peripheral to rectification, for the purpose of deciding the legality of the rectification. It was opined that in the present matter, there were really no complex questions involved and even if it were then the same had to be decided by the NCLT and in appeal, this Tribunal was bound to consider whether or not entry made in the Register of Members could be upheld

Hence, the impugned judgment was set aside and cancellation of entry of the name of the appellant in the register of members of respondent 2 showing equity shares purported to have been credited on the basis of conversion of CCDs standing in the name of the appellant was directed.[MAIF Investment India PTE Ltd. v. Ind-Barath Power Infra Ltd., 2019 SCC OnLine NCLAT 203, decided on 28-05-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: S.K. Awasthi, J.  dismissed the petition on the ground that trial court and not Special Court are competent to take cognizance when offences were made under the Penal Code, 1860.

A petition was made under Section 397 read with Section 401 of Code of Criminal Procedure, 1973 against the order passed by Additional Sessions Judge.

Facts of the case were that Mukesh and Radheyshyam Mandwani and applicant Sunil were the directors of the company, having an immovable property at Indore. The applicant tried to grab the property without calling any meeting of the company and had also forged the resignation of the complainant and indicted his real brother as director of the company. An FIR was lodged against the applicant for offences under Sections 420, 467, 468, 471 and 120-B of the Penal Code, 1860 and charge sheet was filed. A discharge application on the ground that the trial court was not competent to take the cognizance and Special Court should take the cognizance was rejected by the trial court. Hence, the revision petition was made.

Vijay Asudani, counsel for the applicant argued that a special court can try offence other than offence under the provisions of Companies Act with which the accused may under the CrPC be charged. It was further submitted that the trial court failed to appreciate that the Complainant was the ex-director and shareholder of the company and the fact that the non calling of the meeting, preparation of forged resignation are offences under the Companies Act, 2013 and thus only special court were competent to take cognizance of the offence and thus impugned order should be set aside and applicant should be discharged from the charges made under the Penal Code.

Counsel for the complainant submitted that in order to gain the control over assets of the company and to deceive, betray and cheat the complainant made the complaint under the Penal Code. It was further submitted that the jurisdiction of the Special Court is limited to the offences punishable under the Companies Act, 2013 and not under the Penal Code or any offences committed under any other law. Thus, prayed for the dismissal of the revision petition.

The Court opined that provision of Section 436 (2) of the Companies Act, 2013 also provide that while trying an offence under the Companies Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973 be charged at the same trial. In this case, the police registered the offence punishable under the Penal Code and not under Companies Act, 2013. It was held that no criminal trial has been initiated against the applicants for any of the offence which is punishable under the provision of Companies Act, therefore, in absence of any offence punishable under the Companies Act, Special Court is not having jurisdiction to try the case which is punishable under the Penal Code and court of Indore has territorial jurisdiction to try the case for the commission of offence punishable under Sections 420, 467, 468, 471 and 120-B of IPC. Thus, the revision petition was dismissed. [Sunil Mandwani v. State of M.P., 2019 SCC OnLine MP 1248, decided on 27-06-2019]

Case BriefsHigh Courts

Gauhati High Court: A Division Bench of Manojit Bhuyan and Manish Choudhury, JJ. dismissed a writ petition seeking transfer of proceedings from one Foreigners’ Tribunal to another Foreigners’ Tribunal, for being devoid of merits. 

The writ petition seeking the aforesaid transfer was filed on the following grounds:

  1. The Tribunals were located far away from the permanent place of residence of petitioners which caused them physical and financial inconvenience, in presenting their witnesses for examination. 
  1. Access to justice, being a basic and inalienable human right and a facet of right to life guaranteed under Article 21 of the Constitution, the Tribunal dealing with citizenship status of petitioners must be reasonably accessible in terms of distance, and the petitioners’ access to the adjudicatory process must be affordable.
  1. Foreigners’ Tribunals, which are created under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964, are unlike other Tribunals created under Article 323A and 323B of the Constitution of India. 
  1. Foreigners’ Tribunals are more like Courts of Executive Magistrates, where opinion is rendered in a summary procedure, and cases before it can be transferred. Thus, Section 24 of the Code of Civil Procedure, 1908 could not create any embargo in the transfer of a proceeding from one Foreigners’ Tribunal to another.

The issue, in this case, was that when a Foreigners’ Tribunal is given to decide a reference received from the registering authority of that district or part thereof, can another Tribunal of a different district, not ordinarily having the jurisdiction to decide such a reference emanating from the other district, assume jurisdiction to decide the reference and whether the High Court, in exercise of its powers under Article 226 of the Constitution, can confer such jurisdiction to the other Foreigners’ Tribunal to decide a transferred reference.

The Court, relying on Mamoni Rajkumari v. State of Assam, 2017 SCC OnLine Gau 998 and State of Assam v. Moslem Mondal, 2013 SCC OnLine Gau 1 observed that a Foreigners’ Tribunal discharged quasi-judicial functions and thus provisions governing Section 24 CPC would not be attracted in a proceeding before it. 

It was opined that inconvenience caused to witnesses in travelling a long distance to contest the reference cases could be eased as para 4(c) of the  Foreigners’ (Tribunals) Order vested the Foreigners’ Tribunals with the power to entertain prayer for the examination of witnesses and for production of documents by issuing Commissions. 

Ruling on the main issue of the case, the Court held that in absence of any enabling provision to transfer a reference case from one Foreigners’ Tribunal to another, and in view of conclusion that the existence of jurisdictional fact was a sine qua non for assumption of jurisdiction by a Tribunal, a petition for transfer of proceedings could not be allowed. [Shariful Islam v. Union of India, 2019 SCC OnLine Gau 2420, decided on 07-06-2019]

Case BriefsHigh Courts

Karnataka High Court: The Division Bench of Abhay S. Oka, CJ and H.T. Narendra Prasad, J. dismissed the appeals on the ground of delay and laches.

Under the provisions of Karnataka Acquisition of Lands for Grant of House Sites Act, 1972 (the Act of 1972), lands of appellants were acquired. The complete process was followed. Firstly, the Preliminary Notification under Section 3(1) of the Act of 1972 was published on 24-07-1976. Secondly, the final Notification followed on 22-01-1979. Lastly, an award was made for compensation on 09-04-1982 and redetermined dated 04-02-1999.        

Counsel for the appellants, K.N. Nitish submitted that the lands were never acquired. As per Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the acquisition proceedings had lapsed. It was further submitted that no record was placed by the respondents to show that the land was acquired by the fourth respondent (Town Municipal Council). The counsel also submitted that the fact that compensation was not accepted by the appellants was not disclosed by the respondents. The appellants remain aggrieved as they have not been paid the redetermined compensation. 

The Court observed that the writ petitions were filed thirty-four years after the award was made and forty years after the first preliminary notification was issued. Considering the enormous delay, the Single Judge rightly declined to exercise the jurisdiction under Article 226 of the Constitution of India. The Court upheld the view taken by the Single Judge. [K.M. Krishna v. State of Karnataka, Writ Appeal Nos. 777-779 of 2019(LA-HS), decided on 18-06-2019]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of M.S. Sanklecha and M.S. Sonak, JJ. while allowing the petition filed against the order of the Maharashtra Appellate Authority for Advance Ruling for Goods and Service Tax (“Appellate Authority”) constituted under the Maharashtra Goods and Services Tax Act, 2017, observed that the Appellate Authority is well within its jurisdiction to advert to ‘new grounds’ in support of its decision.

The petitioner JSW Energy Ltd. proposed to enter into an arrangement with JSW Steel Ltd. involving inter alia conversion of coal and other inputs into electricity and conversion of electricity into Steel on a job work basis. In order to ascertain whether the proposed arrangement, indeed qualifies as “job work” as defined under Section 2(68) of the CGST Act, 2017 and consequently whether the petitioner is entitled to benefits under the CGST and MGST, the petitioner, applied to the Advance Ruling Authority seeking advance ruling on the applicability of GST to the proposed arrangement.

The Advanced ruling Authority held that the proposed work amounted to “manufacture” and not “Job work”, and as such, GST was leviable. Aggrieved, the petitioner applied to the Appellate Authority which disagreed with the reasoning given by Advanced Ruling Authority. It was of the opinion that the expressions “job work” and “manufacture” are not mutually exclusive. However, it upheld the operative part of the order of the Advanced Ruling Authority on two different grounds (“new grounds”).

Senior Advocate Rafique Dada, representing the petitioner, argued that the Appellate Authority exceeded its jurisdiction in introducing or relying upon new grounds which were never raised before the Advance Ruling Authority by the Revenue. Counsel Pradeep S. Jetly appearing with J.B. Mishra for Union of India, submitted that there was no scope for challenging the impugned order. H.B. Takke, AGP supported the submissions made by Pradeep S. Jetly.

The High court held that scope of proceedings where an assessee or a potential assessee seeks advance ruling is different from the scope of proceedings before other Appellate Tribunals. It was held: “The Appellate Authority, in a given case, may be entitled to uphold the conclusion of Advance Ruling Authority, albeit, for reasons other than reasons which prompted the Advance Ruling Authority to base its decision. Ultimately, the Appellate Authority is required to give its ruling on the question posed by taking into account the relevant circumstances and eschewing irrelevant ones. Therefore, is the Advance Ruling AUthority may have missed a particular point, it is not as if the Appellate Authority is precluded from adverting to such point and basing its ruling on the same.”

However, finding on facts of the case, that the Appellate Authority did not provide an opportunity to the petitioner to meet the new grounds, the High Court held that it violated the principles of natural justice. This vitiated the order passed by the Appellate Authority. Resultantly, the Court quashed the impugned order and remanded the matter back to the Appellate Authority for disposing of the petitioners’ appeal in accordance with the law. [JSW Energy Ltd. v. Union of India, 2019 SCC OnLine Bom 988, decided on 07-06-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan and R.C. Khulbe, JJ. contemplated a writ petition, where the petitioner who was an Assistant Professor, sought certiorari to quash the order of recovery of money along with interest. The petitioner further sought mandamus to direct the respondent-State University to re-examine petitioner’s case and subsequently withdraw the order.

The factual matrix of the case are, that the petitioner had earlier invoked the jurisdiction of Court wherein the validity of the order passed by the respondent-University directing the petitioner to deposit a sum of Rs 1,75,000 was questioned. For the aforementioned case the Divisional Bench had observed that it was an admitted fact that, when the petitioner had proceeded on study leave, he had executed a bond with the State of Rajasthan although the petitioner was a temporary employee of the Government of Rajasthan. Finding no merit in the writ petition, the Division Bench dismissed the same. But in 2019 the concerned officer from the department issued an order for recovery of the amount of the bond with interest, executed at the time of study leave granted to the petitioner to secure the Ph.D. Degree, which was in question in the instant writ.

S.S. Yadav, counsel for the petitioner, submitted that the Division Bench had erred in holding that the petitioner was a temporary employee, and that the Rules were applicable to temporary employees only. Since the petitioner was a permanent employee, Rule 110 (1) would alone apply in which event, the petitioner need not pay the said amount for not complying with the bond; the cause of action for both the writ petitioners were different, though the petitioner had filed an application, seeking review of the order passed by the Division Bench earlier. It was further submitted that the impugned order of 2014 made no reference to the petitioner having invoked the review jurisdiction of the Court; and consequently, the petitioner was entitled to again invoke the jurisdiction of the Court under Article 226 of the Constitution.

The Court, observed that petitioner’s contention that a new cause of action had arisen as a result of the Office Order of 2019 did not merit acceptance and, since it was the very same cause of action based on the order of 2014 whereby Rs 1,75,000 was sought to be recovered from the petitioner, on which the present writ petition was based, it is difficult to accept that the petitioner was again entitled to invoke the jurisdiction of Court, in effect, questioning the very same order of 2014. Further, it was stated that bare perusal of the order passed by the Division Bench clearly showed that, while dismissing the writ petition, liberty was not granted to the petitioner to again invoke the jurisdiction of this Court by way of a separate writ petition for the very same cause of action.

The Court held, “The judgment of a competent Court is binding inter-parties and cannot be re-agitated in collateral proceedings. An order or judgment of a Court/Tribunal, even if erroneous, is binding inter-parties. The binding character of judgments, of Courts of competent jurisdiction, is, in essence, a part of the rule of law on which administration of justice is founded.” Since a review petition was already filed by the petitioner the aforementioned writ was dismissed.[Vidya Sagar Singh v. G.B. Pant University of Agriculture and Technology, 2019 SCC OnLine Utt 473, decided on 16-05-2019]

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J. dismissed a writ petition wherein the petitioner husband sought quashing of FIR registered under Section 498-A, 406 and 34 IPC at Police Station, Paschim Vihar, Delhi.

The petitioner, who was represented by Hitender Kapur, Advocate, took three grounds seeking to quash FIR: (i) lack of territorial jurisdiction contending that no offence has taken place in Delhi and thus Police Station has no jurisdiction to investigate and the Trial Court has no jurisdiction to try the offence; (ii) that the FIR was not lodged within the period of limitation; (iii) that on the face of the FIR the allegations are not made out.

Rajesh Mahajan, ASC with Jyoti Babbar, Advocate appeared for the State, while Kamal Gupta, Advocate represented the respondent wife.

(i) Territorial Jurisdiction

The High Court followed the decision in Rupali Devi v. State of U.P., (2019) 5 SCC 384, wherein it was held that even in cases where there is no allegation of harassment or demand of dowry at the parental place of the complainant who comes to take refuge at her parental place, she can lodge an FIR in the said Police Station, which can be investigated by the officer of the said Police Station and the Trial Court having jurisdiction on the said Police Station would have jurisdiction to try the said offence.

Moreover, the case of the complainant in the FIR itself was that her costly items, jewellery, etc., were taken on the ground that they were to be kept in a locker in Delhi so that it could be safe, thus the jewellery and costly items were retained in Delhi. Marriage being performed at Delhi, the entrustment of articles also took place at Delhi. Hence in view of Section 181(4) CrPC, the Court at Delhi would have jurisdiction to try the offence. Thus, this Court finds no merit in the first argument raised.

(ii) Limitation

On facts, it was held that the complaint was filed within the period of limitation. It was also observed that it is trite law that while taking cognizance even if there is delay in matrimonial matters the Court has to see whether it is in the interest of justice to condone the delay in taking the cognizance.

(iii) Nature of allegations

It was noted that the complainant has alleged that the accused person used to taunt her for the kind of clothes given to them at the function and at the wedding and that the same was not as per their demand and status. Allegations were also made regarding entrustment if costly items including jewellery. The Court was of the view that prima facie, the allegations constituting offence punishable under Sections 498-A and 406 IPC were made out.[Ankur Narang v. State (NCT of Delhi), 2019 SCC OnLine Del 8933, decided on 30-04-2019]

Case BriefsHigh Courts

Uttaranchal High Court: Lok Pal Singh, J. dismissed a writ petition filed by a village pradhan challenging the order of District Court (revisional court) whereby matter pertaining to the validity of his election as pradhan was directed to be considered afresh by the Prescribed Authority.

Petitioner was elected as the village pradhan of village Bahadurpur. Respondent filed an election petition under Section 12-C of the UP Panchayat Raj Act, 1947 against the petitioner on the ground of unfair practice, etc. Prescribed Authority formulated two issues, whether the petition was barred by provisions of Rule 11, Order 7 Code of Civil Procedure, 1908 and whether the petition had not been filed in accordance with the law. Prescribed Authority recorded the finding that the plaintiff was required to issue a notice to the opposite party under Section 80 of CPC but the same has not been done, hence the election petition was barred. The petitioner preferred civil revision against this order which was allowed and the matter was remanded back to Prescribed Authority for deciding the matter afresh on merits. Aggrieved thereby, the Petitioner approached this Court under Article 227 of Constitution of India seeking a writ of certiorari for quashing the order passed by the revisional court.

Counsel for the petitioner Aditya Pratap Singh, submitted that the election petition had rightly been dismissed by the prescribed authority as the election petition was barred by the provisions of Rule 11, Order 7 CPC, and the revisional court had exceeded its jurisdiction in passing the impugned order. Counsel for the respondent, Ajay Veer Pundir and Narain Dutt submitted that there was no requirement to serve notice under Section 80 CPC in an election petition and the prescribed authority had committed patent error in law by dismissing the election petition.

The Court relied on the judgment of Kushuma Devi v. Sheopati Devi, 2019 SCC Online SC 482, in which it was held that every judicial or quasi-judicial order shall be supported with the reasons which support its conclusion, as the revisionary court while examining the correctness of the order is entitled to know the basis on which a particular conclusion was arrived at in the order. It was opind that the prescribed authority had not recorded any reasons for its order.

It was opined that reasons recorded in judgment are the life of law and in their absence, the judgment could not be said to be legal. The Prescribed Authority had travelled beyond the issues which were under the consideration and the revisional court was justified in remanding the matter back to the prescribed authority and hence writ petition was dismissed.

Further, the Court opined that without framing an issue in regard to notice under Section 80 CPC, the Prescribed Authority had held the election petition to be barred by Order 7 Rule 11 CPC. Thus, the findings recorded by Prescribed Authority in this regard were illegal, and therefore the revisional court’s order remanding the matter back to Prescribed Authority for fresh consideration was valid.

In view of the above, the petition was dismissed.[Narendra Singh v. Anil Kumar, 2019 SCC OnLine Utt 471, decided on 14-05-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Appellate Tribunal (NCLAT): The Bench comprising of S.J. Mukhopadhaya, J. (Chairperson) and A.I.S Cheema, J. and Kanthi Narahari, Members, Judicial and Technical, respectively; declined to intervene and place any opinion for the appeal made by Ex-Directors and Promoters of Bhushan Power and Steel Limited which stated that:

“More than 270 days have been passed and the final order is yet to be passed by the Adjudicating Authority.”

The present appeal was filed by ‘Committee of Creditors’ against the order passed by Adjudicating Authority (National Company Law Tribunal), Principal Bench, New Delhi, wherein the order was reserved.

Facts and Background of the case explained:

Appellate Tribunal by order dated 04-02-2019 remitted the matter back to the Adjudicating Authority for consideration of the ‘Resolution Plan’ submitted by ‘JSW Steel’.

Thereafter, the matter was heard and Judgment had been reserved. While the Judgment was still pending, Punjab and Haryana High Court passed certain directions directing the Adjudicating Authority to follow a certain  procedure giving reference to the Supreme Court’s decision and held that “any order passed by the Adjudicating Authority/NCLT, which is contravention, contradiction or derogation of the directions of Supreme Court should not be taken into consideration.”

Senior Counsel, Mukul Rohatgi with Advocates Arvind Kr Gupta and Henna George, appeared for the erstwhile directors and promoters of Bhushan Power and Steel Limited.

Solicitor General and Senior Advocate Tushar Mehta with Advocates Bishwajit Dubey, Spandan Biswal, Srideepa Bhattacharya, Sylona Mohapatra and Surabhi Khattar, appeared for the Committee of Creditors of Bhushan Power and Steel Limited.

Decision in the present appeal:

NCLAT declined to entertain the present appeal stating that the matter is still pending before the Adjudicating Authority, therefore they are not inclined to entertain the appeal by erstwhile directors and promoters of Bhushan Power and Steel Limited.

Bench also commented that it is unclear on how Punjab and Haryana High Court’s vacation Bench passed an order as noted above when the matter is still pending. It was also stated that the mentioned Court has no territorial jurisdiction over Delhi, where Principal bench of NCLT, New Delhi is situated.

Further, the Bench stated that, Adjudicating Authority is supposed to decide the case on merit in accordance with law uninfluenced by any order except the decision of this Appellate Tribunal and Supreme Court.

Hence, in view of the above, the appeal stands disposed of. [Committe of Creditors of Bhushan Power and Steel Ltd. v. Mahendra Kumar Khandelwal, 2019 SCC OnLine NCLAT 201, decided on 11-06-2019]

Case BriefsHigh Courts

Kerala High Court: A. Muhamed Mustaque, J. set aside an order given by the Minority Commission whereby Tahsildar and Village Officer were directed to issue the revenue documents to the Respondent 2.

In the present case, Jenny John (Respondent 2) a member of minority community approached the Minority Commission with a complaint that he was denied revenue documents which he intended to receive for the purpose of quarrying. The Minority Commission gave orders directing Tahsildar and the Village Officer to provide him with the necessary documents. The present writ petition was filed challenging the order given by the Minority Commission and to decide whether the Commission had jurisdiction to pass such an order.

The learned Special Government Pleader Sri Jaffarkhan, by referring to Section 9 of the Kerala State Commission for Minorities Act, 2014, contended that the Commission had exceeded its jurisdiction while issuing the impugned order.

Learned counsels for Respondent 2, Mr K. Anand and Mr K. Noushad, contended that he was denied those documents because he belonged to a minority community.

The Court observed that the Constitution of India envisages protection to the minority to ensure a sense of security and treatment at par with the majority. In order to safeguard them from possible discrimination, the State of Kerala enacted the Act of 2014 whereunder a Minority Commission was constituted for the purpose of educational advancement, welfare, protection, empowerment of minority, etc.

It was opined that though the claim for documents from the Revenue Department was related to the economic aspiration of an individual member of the community, it was not protected under the Constitution. Section 9 of the Act pertained to collective nature of right or benefits for the minority community, and a claim made by an individual would not have any bearing in the matter unless it was shown that he was deprived of the benefit for the reason that he belonged to a minority community. This, clearly, was not the case in the present matter as Respondent 2 intended to convert a land assigned for agricultural purpose for non-agricultural use. It was observed that the issue herein was the right use of a particular land and not the status of Respondent 2.

In view of the above, it was held that the question as to whether Respondent 2 could use the land for non-agricultural purposes was not within the jurisdiction of Minority Commission. The impugned order was set aside granting Respondent 2 the liberty to pursue a remedy in an appropriate manner.[Tahsildar (Land Records) v. Kerala State Minority Commission, 2019 SCC OnLine Ker 1486, decided on 25-03-2019 ]