Case BriefsHigh Courts

Delhi High Court: Jyoti Singh, J., refused to entertain a writ petition filed by a member of All India Services holding that the remedy lies with Central Administrative Tribunal.

Petitioner qualified the Civil Services Examination in the year 1986 and was allocated Indian Police Service (IPS) and assigned Haryana Cadre.

Petitioner assailed the empanelment dated 18-02-2019 made by UPSC and the subsequent appointment of respondent 4 as DGP, State of Haryana vide appointment order dated 18-02-2019.

Appointment of respondent 4 was initially challenged by the petitioner in the Supreme Court which was disposed of with the order that petitioner may approach the jurisdictional High Court.

UPSC Counsel raised an objection to maintainability and submitted that this Court has no jurisdiction to entertain the petition.

He contended that, IPS is an All India Service, and thus petitioner is amenable to the jurisdiction of Central Administrative Tribunal.

Senior counsel for the petitioner further submitted that the present petition had been filed in terms of the liberty granted by the Supreme Court and thus it is not open to respondents to raise any objection to its maintainability.

Decision

Petitioner is a member of an All India Service, which is covered under Section 14(1)(b)(i) of the Administrative Tribunals Act, 1985

Section 14(1)(b)(i) of the Act provides that, save as otherwise expressly provided in the Act, the Central Administrative Tribunal shall exercise on and from the appointed day, all the jurisdiction, power and authority exercisable immediately before that day, by all Courts in relation to all service matters concerning a member of any All India Service.

Section 3(q) of the Act defines ‘Service Matters’ as all matters relating to conditions of a service and includes matters with respect to tenure, confirmation, seniority, promotion etc.

Constitution Bench of Supreme Court observed in the case of L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, that the Tribunals created pursuant to Article 323-A or under Article 323-B of the Constitution of India are competent to hear matters entrusted to them and will continue to act as only Courts of ‘first instance’ in respect of the areas of law for which they have been constituted.

Insofar as the jurisdiction of the High Courts is concerned, Supreme Court further observed that the jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution of India, is a part of the inviolable basic structure of the Constitution.

While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred on the High Courts and the Supreme Court.

Thus, in view of the above stated Supreme Court decision, High Court cannot entertain the present petition and remedy of the petitioner lies only before the CAT. [Prabhat Ranjan Deo v. UPSC, WP(C) No. 3334 of 2019, decided on 13-07-2020]

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Shashi Kant Gupta and Saurabh Shyam Shamshery, JJ., allowed the plea by the wife seeking  the approval of being appointed as the guardian of her husband lying in vegetative state.

The Court while acknowledging the fact that there was no legislative enactment providing appointment of a guardian for a person lying in a comatose state considered the fact that they have been called to discharge ‘parens patriae’ jurisdiction. However under Article 226 of the Constitution of India they can pass orders and given directions as are necessary for subserving the ends of justice when no remedy is provided in any statute in respect to persons lying in comatose condition.

The petitioner had approached the High court praying to be appointed as the guardian of her husband who had been lying in a vegetative state in order to protect his interest and administer his investments, business, bank accounts etc. and utilize them when in need to meet expenses towards medical treatment and family welfare. Petitioner’s Counsel, Bidhan Chandra Rai, submitted that petitioner’s husband had been in comatose state for past one and a half years and the Doctors’ had advised that he would remain so until his eventual demise and now the petitioner has the sole responsibility of meeting the medical expenses and marrying her two daughters. It relied on the decision of the Kerala High Court in the case of Shobha Gopalakrishnan v. State of Kerala, 2019 SCC Online Ker 739, whereby a division bench appointed the legal heir of the victim as the guardian, reliance was also placed on the judgment of Delhi High Court, in the case of Vandana Tyagi v. Government of National Capital Territory of Delhi, 2020 SCC Online Del 32, which followed the suit.

The Court while allowing the petition further observed the case of Shobha Gopalakrishnan (supra) wherein certain broad guidelines with regard to appointment of guardian qua a person lying in a comatose state were laid, since no specific provision was available in any statute in this regard. The guidelines framed appear to be formidable and sound and, therefore, can be used as framework for formulating guidelines that need to be implemented in the State of Uttar Pradesh till such time, the legislative enactments are framed and specific provisions are made as to how guardians are to be appointed qua persons in a comatose state. [Uma Mittal v. Union of India, 2020 SCC OnLine All 777 , decided on 15-06-2020]

Case BriefsHigh Courts

Delhi High Court: Rajnish Bhatnagar, J., while addressing petition in regard to matrimonial discord resulting into husband committing suicide held that,

“…deceased/husband appears to be a weak character who was not in a position to face the ups and downs of life and he adopted the short cut method in order to bring an end to his agony and worldly affairs.”

On the rise of matrimonial disputes between the husband and wife i.e. deceased and petitioner/accused, respectively, petitioner left and started residing with her parents at Sikkim.

Allegations such as — gold jewellery and cash all worth 18 Lakhs was taken by the petitioner which actually belonged to the deceased.

After the said allegations were made, a complaint was filed by the police and deceased filed two cases including a petition under Section 9 of Hindu Marriage Act for Restitution of Conjugal Right.

Deceased suffered with stress and depression due to the pertaining circumstances and faced continuous threats from the petitioner resulting into committing suicide.

Deceased left a suicide note stating that the petitioner and his family members were responsible for his death.

Ramesh Gupta, Senior Counsel, for the petitioner submitted that there was no direct and proximate link between cruelties allegedly inflicted by the petitioner.

The alleged Gold Jewellery was petitioner’s Stridhan and all the other allegations are vague and false.

“…court should not act as a mouthpiece of the prosecution.”

Further, the Senior Counsel adding the following to his submissions:

Court has undoubted power to sift and weigh the evidence for finding out whether or not a prima facie case is made out against the accused.

He further urged that for the invocation of Section 306 of Penal Code, 1860, ingredients of Section 107 of the IPC have to be satisfied and it has to be established that there was instigation, provocation, incitement, or encouragement from the side of the petitioner to the deceased who committed the act of such a desperate nature.

It is further urged that the deceased was of hypersensitive nature, who failed to cope up with the hardships of life.

Analysis and Decision of the Court

Scope of this Court

At the time of framing of charge, the Court is not supposed to look into the evidence of the case in detail and is only to consider whether there is a strong suspicion against the accused on the basis of the material that comes before it. The court has the power to sift the evidence for the limited purpose of finding out, whether or not a prima facie case is made out against the accused.

However, the Court is not supposed to delve deeply into the merits of the matter and start a roving expedition into the evidence.

There is no one fixed definition that may be ascribed to the term prima facie’ nor can the term strong suspicion have a singular meaning.

Trial Court charged the petitioner for the offence under Section 306 IPC for abetting the murder of her husband.

What did the suicide note contained?

“…I am unable to face the present circumstances for which my wife Reena Prasad is responsible. Due to her false allegations against me, I am committing suicide. I wish that after my death, my dead body be handed over to my in laws. I love my wife very much but she loves money.”

“… I do not have enough means to fight court cases against Reena. Whatever cases she has filed against me are all false.”

“… I can not think clearly ever since my wife has left me. It is my desire that after my death, the money which has been taken away by my wife be utilized to pay my debts.”

Bench on perusal of the facts and the suicide note placed stated that the ingredients of abetment are totally absent in the instant case for an offence under Section 306 IPC.

Taking the totality of material on record, tone and tenor of the suicide note and facts and circumstances of this case into consideration, it leads to the irresistible conclusion that it is the deceased and he alone and none else is responsible for his death.

Deceased appeared to be hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide.

In High Court’s opinion, Trial Court had failed to apply the law properly to the facts of the present case and committed an error in reading the suicide note which is shorn of ingredients of Section 306 IPC.

Reading of the suicide note clearly shows that the petitioner at no point of time instigated, goaded, incited and encouraged the deceased with such an intention that he should commit suicide.

Thus High Court found trial court’s Order to be of complete non application of the law in the right perspective and allowed the present revision petition. [Reena v. State (NCT of Delhi), 2020 SCC OnLine Del 630  , decided on 08-06-2020]

Op EdsOP. ED.

Amid the din against the CAA-NRC combine, a fresh challenge under a seldom employed and much less provocative provision of the Constitution of India has emerged. As per ­­the ostensible remit of Article 131 of the Constitution, the challenge has emerged in the form of Governments of constituent States of the Indian Union challenging the constitutional validity of a lawfully enacted statute by Parliament. In challenging the validity of a law that has sharply divided public and political opinion, the move throws up some interesting questions as to the invocation of such a remedy under the scheme of our federal Constitution.

Ambit of Article 131

Article 131 is in many respects an anathema to the Government’s oft-quoted catchphrase ‘cooperative federalism’. The Constitution Framers were well aware that disputes between the Union and the constituent States is an inevitability for any federal polity and therefore provisioned for either the Government of India or a State Government to by-pass the judicial hierarchy and directly approach the Supreme Court under its original and exclusive jurisdiction. However, the remit of Article 131 is tempered on certain counts and the same assumes great significance vis-à-vis the issue at hand.

A bare perusal of Article 131 manifests that (1) exclusive jurisdiction vests in the Supreme Court of India to the exclusion of any other court, (2) there must exist a ‘dispute’, (3) said dispute must be between either the Government of India i.e. the Central Government and one or more constituent State or States or between two or more of such constituent States of the Union of India, and most importantly (4) the dispute must involve a question of law or a question of fact upon which the extent or the very existence of a legal right is predicated. Two integral constituents of Article 131 i.e. ‘dispute’ and ‘legal right’ must therefore be emphasised.

Maintainability of the Suit

The  Supreme Court, vide its law settling judgments in State of Rajasthan  v. Union of India[1]  as well as State of Jharkhand v. State of Bihar[2] have authoritatively established that ‘dispute’ must involve the assertion and/or vindication of a legal right of the Government of India and/or that of a constituent State of the Union. A caveat in that regard is that a genuine legal right must have been asserted by way of the suit concerned and any issue merely touching upon political concerns would be outrightly rejected by the Supreme Court.

It becomes absolutely fundamental to take into consideration that any invocation of Article 131 must concern itself with the rights, obligations, duties, powers, immunities and liberties only insofar as the parties to the suit are concerned. The Supreme Court has further established, vide the above cited judgments, that an original suit under Article 131 must not and cannot be likened to a civil suit in terms of the Code of Civil Procedure, 1908 (CPC) and therefore in the matter at hand it is not necessary that the plaintiff States must assert the ‘legal right’ unto themselves.

Evidently, Article 131 has been manifested to not be encumbered with any such narrow expositions and a suit thereof would be maintainable so far as it brings into question any dispute centred around the legal or constitutional right asserted by the defendant Government of India not in consonance with such rights and powers asserted by the plaintiff States. However, this is precisely where the plaintiff States’ suit falters for nowhere in the respective plaints, have the States of Kerala as also Rajasthan challenged or brought into question the constitutional power of the Government of India to enact the Citizenship (Amendment) Act, 2019. In fact, vide the respective plaints it has been submitted that by virtue of Article 256, the constituent States of the Union shall be constitutionally obligated and duty bound to implement the provisions of the Amendment Act, 2019 unless the Supreme Court deems it unconstitutional.

It is no one’s case that the validity of a Central legislation cannot be challenged by the Government of a State under Article 131. However, the same has to be tempered by way of the Constitution Bench judgment in State of Rajasthan[3]whereby two conditions were laid out as already exhibited hereinabove. For invoking Article 131 therefore, there has to be a dispute between the legal/constitutional right or authority or power asserted by the defendant vis-à-vis the plaintiff. The constitutional power of the Central Government to enact the Amendment Act, 2019 as per List I (Union List) of the VIIth Schedule having nowhere been challenged, the pre-requisite conditionalities under Article 131 are not satisfied.

In fact, the  Supreme Court, vide its judgment in State of Jharkhand[4]  furthered the abovecited position of law and came to the conclusion that there isn’t any bar to a test of constitutional validity of a statute under the original jurisdiction of the Supreme Court. However, the same has to concern a disputed question of law/fact that impinges, erodes, diminishes or even outrightly strips the legal right asserted by a ‘party to the proceedings’.

Notably, the plaintiff States have predicated the ‘dispute involving questions of law and fact’ on the alleged violation of the fundamental rights of their inhabitants. This is erroneous on two primary grounds; one, the Amendment Act, 2019 does not in any manner deem to take away or abridge the rights of Indian citizens for it is merely an enabling provision to speed up the grant of Indian citizenship for certain religious communities and two, the said averment is grossly dehors the constitutional scheme of our federal polity wherein the constitutional power to regulate affairs pertaining to ‘Citizenship, naturalisation and aliens’, ‘Extradition’ and ‘Admission into, and emigration and expulsion from, India; passports and visas’, vests with Parliament to the absolute exclusion of State Legislatures. Evidently thus, the State Governments are merely manufacturing a ‘dispute’ where none exists as per the scheme of the Constitution of India.

In conclusion, the reader must be apprised of the fact that the question pertaining to invocation of jurisdiction under Article 131 insofar as it concerns a challenge to the constitutional validity of a statute has in fact been referred to a larger Bench of the Supreme Court in light of the apparent conflict between the two judgments in State of Madhya Pradesh v. Union of India[5] and the abovecited State of Jharkhand v. State of Bihar[6]. Regardless, the same doesn’t alter or dilute the ambit and scope of Article 131 as laid out by State of Rajasthan[7]  judgment.


*Authors are practising Advocates in Delhi.

[1] (1977) 3 SCC 592

[2] (2015) 2 SCC 431

[3] State of Rajasthan v. Union of India, (1977) 3 SCC 592

[4] State of Jharkhand v. State of Bihar, (2015) 2 SCC 431

[5] (2011) 12 SCC 268

[6] (2015) 2 SCC 431

[7] State of Rajasthan v. Union of India, (1977) 3 SCC 592

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: A Division Bench of Vasantha Kodagoda and Arjuna Obeyesekere, JJ., dismissed an appeal filed against the Judgment of the Commissioner-General of Inland Revenue.

The petitioner had stated that he was a building contractor and his business was registered with the Department of Inland Revenue (the Revenue) for the payment of Value Added Tax (VAT). He had admitted that he had delayed the filing of the VAT returns due to which the Revenue had disallowed the claims he had made for VAT refunds. The Revenue had served the Petitioner a Certificate of Tax in default in a sum of Rs 11,137,283. Further, the petitioner had appealed and the penalty on the sum had been waived and the sum in default had been reduced to Rs 6,405,616. The revenue had filed a case against the petitioner in the district court to recover the specified sum. The petitioner stated that he had faced many difficulties while carrying out several projects in 2009 in the district of Mannar and that he was discriminated by public servants on the basis of his ethnicity due to which payments due to the Petitioner for work had been delayed disrupting the smooth functioning of his business which is why the petitioner had made an application to the revenue. The Court after going through the application observed that even though the petitioner had explained the difficulties faced but was unable to produce any document in support of his facts and it was concluded that an exemption cannot be granted to him aggrieved by which the petitioner had appealed to the Commissioner-General of Inland Revenue but his appeals had been rejected, thus the instant application, as well as a Writ of Mandamus compelling the Revenue to grant an exemption, was filed. 

The Court while dismissing the appeal explained that there was considerable delay in invoking the jurisdiction of this Court as the application was filed almost six years after the appeal was rejected, it observed that the Petitioner had not offered any explanation for the delay and further the petitioner was not alleging that the decision of the Commissioner-General of Inland Revenue was illegal, thus the application deserves to be dismissed. [Hitibandara Attapattu Mudiyanselage Ananda Parakrama Kumara Aigama v. Nadun Guruge, CA (Writ) Application No: 108 of 2019, decided on 02-12-2019]

Case BriefsHigh Courts

Uttaranchal High Court: Lok Pal Singh, J., addressed an application that sought to quash criminal proceedings under Sections 420, 468, 471 of Penal Code, 1860 and Section 66(D) of Information Technology Act pending in Judicial Magistrate Court.

In the present matter, a complaint was lodged against the applicant that he committed forgery for purpose of cheating by using as genuine the forged and fraudulent document with the intention to cause damage to the Trust and hacked the information stored in the computer.

A charge-sheet was submitted by against the applicant in respect of selfsame offences. Further, Magistrate took cognizance and summoned the applicant to face the trial in respect to the mentioned offences.

Siddhartha Singh, applicant for the counsel submitted that the applicant was an old trustee and was appointed as the President of Kailashanand Mission Trust. He submitted that proceedings against the applicant are nothing but the outcome of the revengeful activity of the complainant and his associates. Complainant concealed the fact of the applicant being the President of the Trust and went on to lodging an FIR against him in the name of him being an “Unknown Hacker”.

According to the applicant’s counsel, the entire proceedings are nothing but an abuse of process of law and Court.

Senior Advocate, Rakesh Thapliyal on behalf of the complainant due to nefarious activities of the applicant, Swami Kailashanand was annoyed with him and by way of a resolution of trust, he cancelled all rights of the applicant and even removed him from the post of Manager of Trust.

He further submitted that various complaints were filed against the applicant for forging Trust’s letter pad, seals and receipt book and resolutions.

Applicant’s Counsel while relying on the Supreme Court case in, International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) v Nimra Cerglass Technics (P) Ltd., (2016) 1 SCC 348, argued that in order to bring a case for offence of cheating, it is not merely sufficient to prove that a false representation was made, but it is further necessary to prove that the representation was false to the knowledge of accused and was made in order to deceive complainant.

According to the ruling in Supreme Court case of Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, in which certain principles in respect of exercise of jurisdiction under Section 482 CrPC are laid down, one of the principles which hold significance in the present matter is following:

“…Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not.”

Thus, in the present matter, High Court stated that in view of the above, a bare perusal of FIR as well as the charge sheet, it is apparent that foundation of criminal offence is laid against the applicant. Jurisdiction under Section 482 CrPC should not be exercised to stifle or scuttle the legitimate prosecution. Court stated that in the present case, this is not the stage to quash the charge sheet.

Hence, Since, prima facie case is made out against the applicant, the Magistrate has rightly taken cognizance and summoned the applicant to face the trial in respect of the offences complained of against him. [Vijay Kumar Gupta v. State of Uttarakhand, Criminal Misc. Application No. (C-482) No. 1087 of 2016, decided on 18-12-2019]

Case BriefsForeign Courts

United Kingdom Supreme Court: A Full Bench of Lord Carnwath, Lady Black, Lord Briggs, Lady Arden and Lord Kitchin, JJ. dismissed the instant appeal on the ground that the license conferred a possessory right and there is no basis on which Court should interfere with the Judgment of lower court of appeal.  

The appellant was the owner of the Manchester Ship Canal and adjacent riparian land. Vauxhall Motors Ltd, the respondent, bought the land adjacent to the riparian land to construct a vehicle manufacturing plant. The respondent needed to discharge surface water and treated industrial effluent from the planned manufacturing complex into the canal, and acquired a small part of the riparian land for the same from the appellant, leaving a small strip of land between the canal and the factory site across which the respondent acquired the right to discharge the surface water and industrial waste by the means of a license. The license was terminated when Vauxhall failed to pay its annual rent. Vauxhall then claimed equitable relief from forfeiture which was granted by the lower court. 

Katherine Holland on behalf of the appellant argued that only a tenant and not licensee may ask for relief against forfeiture as a lease confers proprietary interests in the land while a license does not. She also submitted that possessory rights define the boundary of equitable relief from the forfeiture of rights in relation to chattels and the same can’t be applied to rights over a land. 

William Norris on behalf of the respondent argued that a better boundary than one which merely accommodated possessory rights would be one which extended the equitable jurisdiction in relation to all forms of rights to use property, provided only that the right of termination is intended to secure the payment of money for the performance of other obligation.  

The Court rejected the claim that possessory rights in relation to chattels and other personality equates to something more akin to ownership, and therefore a proprietary interest in relation to land. It was held that the lower court was right to conclude that the rights granted by the license fell within that possessory class to which the jurisdiction to grant relief extends.[Manchester Ship Canal Ltd. v. Vauxhall Motors Ltd., [2019] 3 WLR 852, decided on 23-10-2019]

Case BriefsHigh Courts

Tripura High Court: Arindam Lodh, J. dismissed a writ petition by the petitioner challenging the show cause notice issued against him whereby the dealership of his fair price shop was threatened to be cancelled. 

The counsel appearing for the petitioner is K. Nath and learned Additional GA appearing for the State-respondent is D. Sharma.

Petitioner was appointed as a dealer of a fair price shop in 1968. A show-cause notice was issued upon him in 2018 stating that he had violated the guidelines provided under Tripura Foodgrains Dealers Licensing Order, 1964 for his personal gain. The petitioner replied to the show cause stating that he was aged 86 years and suffering from Parkinson’s disease due to which he could not move independently. As a result, he had to appoint one person or employee for the smooth functioning of the fair price shop licensed to him. Thus, he urged that the person in whose favour he had executed a power of attorney (one Ratan) for running the dealership of shop, not be treated as a proxy dealer. 

The Court noted that it was evident from the Power of Attorney that the petitioner had bestowed the responsibilities and the liabilities upon Ratan and that he has no involvement with the running of the shop. Thus, it was true that the petitioner has not been running the business for which the dealership was provided to him. Further, it was also admitted by the petitioner that he has nominated a person (apart from his family members) to run his fair price shop. 

The Court also took note of a memorandum dated 18-03-2011 issued by the Director, Food, Civil Supplies & Consumer Affairs, Government of Tripura wherein it was clearly mentioned that “no F.P. Shop shall be allowed to run by any person other than the original licensee (i.e. in favour of whom the license has been issued by the Licensing Authority) for an unlimited or unreasonable period”. 

In view of the above, it was held that the petitioner was running his business of contradictory to the directives of the government, and the court had no jurisdiction to invade or replace the decision of the government. Thus, due to lack of merit, the petition was dismissed.[Sachindra Chandra Das v. State of Tripura, 2019 SCC OnLine Tri 500, decided on 20-11-2019]

Case BriefsHigh Courts

Bombay High Court: K.R. Shriram, J., dismissed a criminal appeal filed against the order of the Metropolitan Magistrate whereby he had acquitted the accused-respondent for the absence of the complainant-appellant and his advocate at the stage when the case was placed for evidence.

It may be noted that the matter was listed before the trial court on 31 occasions, out of which, the complainant (appellant herein) was absent 11 times. On the 31st occasion as well, when the matter was placed for evidence, the complainant and his advocate were absent. Consequently, the trial Magistrate passed the impugned order mentioned above. In the instant appeal, it was submitted by the complainant that it was due to inadvertence of his counsel, who misheard the next date of hearing, that the complainant was not able to present himself before the trial court on the day the impugned order was passed.

On facts, the High Court found that the pleas made by the appellant were unsubstantiated and no relief could be given to him.

Explaining the mandate of Section 256 CrPC, the Court observed:

“Section 256 mandates that if the complainant does not remain present on the appointed day after the summons has been issued on the complaint and unless attendance of complainant has been dispensed with, the Magistrate shall acquit the accused. If the Magistrate feels that the order of acquittal should not be passed on that date, the Magistrate has to give reasons.”

Reiterating that speedy trial is a fundamental right of the accused, the Court noted that the Magistrate cannot allow a case to remain pending for an indefinite period.

The Court observed that “the Magistrate in terms of sub-section (1) of Section 256 exercises wide jurisdiction”. In the present case, it was noted, the Magistrate had acquitted the accused as provided under Section 256 because he did not find any reason to adjourn the hearing of the case to some other day. As noted above, out of the 31 dates, on 11 dates the complainant was absent but still the Magistrate did not dismiss the complaint on those dates.

In such a situation, the High Court was of the opinion that there was no illegality in the impugned order so as to require any interference. The appeal was, therefore, dismissed. [Champalal Kapoorchand Jain v. Navyug Cloth Stores, 2019 SCC OnLine Bom 4805, decided on 26-11-2019]

Cyril Amarchand MangaldasExperts Corner

Background

Section 9-A was inserted in the Code of Civil Procedure, 1908 (“the Code”) as an amendment specific to the State of Maharashtra by the Code of Civil Procedure (Maharashtra Amendment) Act, 1970 and by way of abundant caution, was reintroduced in the Code vide the Code of Civil Procedure (Maharashtra Amendment) Act, 1977. The insertion of Section 9?A in the Code was guided by peculiar circumstances, i.e. at such time, the practice was followed to initiate declaratory suits without giving valid notice to the government under Section 80 of the Code. The plaintiff would undertake to issue such notice and would pray for ad interim injunction. After the expiry of the period for issuance of such notice, the plaintiff would withdraw the suit and file a fresh one praying for and successfully obtaining fresh ad interim reliefs from the Court. This vicious cycle was sought to be avoided by the introduction of Section 9-A in the Code in 1970.

Thereafter, in 2018, the Code of Civil Procedure (Maharashtra Amendment) Act was notified. The Statement of Objects and Reasons of this amendment inter alia, noted that Section 9-A was leading to judicial bottlenecks in the form of the application for interim relief being pending and as a consequence, the interim relief was being continued as final relief in most cases. Further, the orders passed under Section 9-A was amenable to their own challenge, leading to a multiplicity of proceedings without any consideration of the matter on merits.

Section 9-A was accordingly deleted by the above amendment. However, by a second amendment in 2018, it was provided that the proceedings pending under Section 9-A on the date of the introduction of the amendment and any preliminary issue framed under Section 9-A would be decided at the time of final determination of the other issues framed under Order XIV of the Code, and that any ad-interim relief granted under Section 9-A may be confirmed, vacated or modified at the stage of final hearing of the interim application.

The Judgment in Nusli Neville Wadia v. Ivory Properties

In Nusli Neville Wadia v. Ivory Properties[1] (“Nusli Wadia case”), the correctness of Foreshore Cooperative Housing Society Limited v. Praveen D. Desai (Dead) through Legal Representatives[2] (“Foreshore”) was considered to determine the scope of the term “jurisdiction of the court” in Section 9-A of the Code.

In Foreshore (supra), it had been held that the term ‘jurisdiction’ in Section 9A was wide enough to include the issue of limitation and that the term could not be read in a restricted sense to include only territorial, pecuniary or subject matter jurisdiction. In order to determine whether the position taken in Foreshore (supra) was correct in law, the Supreme Court discussed a plethora of judgments passed by the Supreme Court itself as well as various High Courts to determine whether jurisdiction was an issue of law and fact, whether limitation could be included within the ambit of jurisdiction, and the scope of Section 9-A vis-à-vis Order XIV, Rule 2 of the Code.

Whether Jurisdiction includes limitation in its ambit

Foreshore (supra) held that although the plea of limitation was a mixed question of law and fact, Section 9-A was a self-contained scheme with a non-obstante clause that mandates the court to follow the provision. Further, it held that the question of limitation was synonymous with jurisdiction, and if the same was raised, it had to be tried as a preliminary issue by the Court.

In the Nusli Wadia case (supra), during the course of arguments before the Supreme Court, Mr Fali S. Nariman contended that no issue which was a mixed question of fact and law could be tried as a preliminary issue under the Code and that the plea of limitation is always a mixed question of fact and law, and therefore cannot be decided without reference to the starting point of the limitation period which will be purely factual.

Eventually, in the Nusli Wadia case (supra), it was held that the “jurisdiction to entertain” in Section 9-A could not be understood within the wide ambit that was held in Foreshore (supra) and had to be interpreted in the narrow sense. The case drew the distinction between jurisdiction and limitation by holding that in the event that the Court does not have the jurisdiction to entertain the suit, it means that the Court does not have the power to entertain the suit. When a suit is barred by limitation, it means that it is not possible for the Court to grant the relief as prayed for. While the difference between the two is subtle, the Nusli Wadia case (supra) has clarified that the scope of Section 9-A is limited to the maintainability and the competence of the Court to receive the suit for adjudication.

Jurisdiction under Section 9-A v. Order XIV, Rule 2

Order XIV, Rule 2, which was amended in 1977, mandates that the Court has to pronounce judgment on all issues, and sub-rule (2) states that the Court may try the issue of jurisdiction of the Court or a bar to the suit created by an law before the settlement of other issues, only if the preliminary issues are based on law.

While the Supreme Court, in the Nusli Wadia case (supra), held that Section 9-A was not repugnant to Order XIV, Rule 2, it also clarified that the scope of Section 9-A was limited as compared to the same of Order XIV, Rule 2. Pertinently, it held that the jurisdiction to entertain can be contemplated under Section 9-A only if it is a pure question of law, and not a question of law and fact. It also emphasized that no evidence can be recorded to decide the preliminary issue of jurisdiction under Section 9-A of the Code as the Code does not contemplate two full-fledged trials being held to decide preliminary issues as well as the other issues.

By holding the above, the Supreme Court has effectively reconciled Section 9-A of the Code with Order XIV, Rule 2. Consequently, while jurisdiction may be tried as a preliminary issue, for all the remaining cases under Section 9-A, the Court will also have to adhere to the principles of Order XIV, Rule 2. In other words, only issues of law can be treated as preliminary issues.

Jurisdiction under the Arbitration and Conciliation Act, 1996

While the Nusli Wadia case (supra) did not specifically deal with the scope of jurisdiction in arbitration proceedings, the judgment in Indian Farmers Fertilizer Cooperative Limited v. Bhadra Products[3] (“Indian Farmer’s case”) has been referred to in the judgment. The Indian Farmers case was referred to in order to understand the meaning of jurisdiction in different legislation and the interpretation of the same in case law.

In the Indian Farmers case (supra), it was observed that limitation did not fall under the ambit of jurisdiction under Section 16 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”) and accordingly held that when a jurisdictional challenge is upheld, it is an appealable order under Section 37 of the Arbitration Act. While the Indian Farmers case sought to clarify the scope of jurisdiction in arbitration proceedings, since the Nusli Wadia case (supra) has not opined on it, it is probable that the judgment in the Nusli Wadia case (supra) will have an effect on the interpretation of the term in the future.

Conclusion

With the repeal of Section 9-A applicable to the State of Maharashtra, there has been certain ambiguity regarding the treatment of the cases in which issues were formed under Section 9-A before the repeal. However, the judgment in the Nusli Wadia case (supra) has clarified not only the interpretation of the term “jurisdiction” in Section 9-A but also the context in which it has to be read. While the term “jurisdiction” has been mentioned in the Code in several places, as the title of this article suggests, each occurrence of the term is a different colour, a different meaning.

Since Section 9-A refers to the “jurisdiction of the court to entertain such a suit”, it is clear that the Court should have the inherent jurisdiction to receive the suit in order to consider the merits of the same. The Court has indicated that “jurisdiction” under Section 9-A will be limited to territorial, pecuniary and subject-matter jurisdiction, and can be treated as a preliminary issue only when it may be resolved solely based on law and admitted facts. The judgment in the Nusli Wadia case (supra) may have helped to clarify the position of law in the cases that are still under the old regime of Section 9-A, however, challenges to the 2018 Amendment, especially the sunset clause, continue to be heard in the High Court of Bombay and have been referred to a larger bench.


 † Ankoosh Mehta (Partner), Dhvani Shah (Senior Associate) and Sanika Gokhale (Associate), Cyril Amarchand Mangaldas.

[1]  (2015) 6 SCC 412.

[2]  (2015) 6 SCC 412.

[3]  (2018) 2 SCC 534.

Legislation UpdatesNotifications

S.O.3955(E).— In exercise of the powers conferred by sub-sections (1) and (2) of Section 396 of the Companies Act, 2013 (18 of 2013), the Registrar of Companies Jammu shall have jurisdiction in respect of Union territory of Jammu and Kashmir and Union territory of Ladakh, for the purpose of registration of companies and discharging the functions under the aforesaid Act.

2. This notification shall come into force with effect from 31-10-2019.


Ministry of Corporate Affairs

[Notification dt. 30-10-2019]

Case BriefsHigh Courts

Bombay High Court: S.S. Shinde, J. dismissed a petition while reiterating the decisions of the Supreme Court in the case, Nikita v. Yadwinder Singh, Criminal Appeal No. 1096 of 2019, wherein it was held that,

“At the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging the commission of offences under Section 498-A of Indian Penal Code.”

In the present case, the petitioner and respondent married each other and Respondent 2 thereafter migrated to North Carolina, USA with the petitioner. On shifting to Carolina, in a matter of few years, Respondent 2 gave birth to a child with whom she left petitioner’s home and went to her brother’s place in Columbus. Petitioner after meeting Respondent 2 in Columbus filed a divorce and custody petition in the Supreme Court of California.

Further, it has been stated that, while the Supreme Court attempted to serve summons to Respondent 2, she deliberately evaded the service and shifted to Meerut in India. In the year 2015, Petitioner gave divorce to the Respondent 2 after which, Respondent 2 field permanent custody petition in Family Court, Bandra.

In 2016, Respondent 2 filed a Domestic Violence Case under Section 12 of Protection of Women from Domestic Violence Act, 2005 before the Metropolitan Magistrate Court, Mulund, that passed the maintenance order and in the year 2017, Sessions Court dismissed the Criminal Appeal filed by the petitioner.

Submissions of the parties

Counsels for the Petitioner, Prashant Pandey, Vijayalaxmi Shetty, Darshit Jain, Irfan Unwala and M.A. Khan, submitted that there was more than two years delay in filing the complaint by Respondent 2 before the Magistrate’s Court. When there was a delay, on the said ground alone, the Magistrate ought to have dismissed the complaint. Further, it was submitted that Magistrate has no jurisdiction to entertain the complaint since the alleged domestic violence is not committed in India.

Counsel appearing on behalf of the Respondent 2, Shaheen, submitted that Respondent 2 is residing at Mumbai with her brother, and therefore, she has instituted proceedings before Magistrate’s Court at Mumbai.

Petitioner was constantly threatening Respondent 2 and when Respondent 2 asked the petitioner about the renewal of visa, the petitioner flatly refused for such renewal. Petitioner relied on the Supreme Court case of Nikita v. Yadwinder Singh, Criminal Appeal No. 1096 of 2019 in respect to the jurisdiction of complaint received in regard to the commission of offences under Section 498A of Penal Code, 1860.

What the High Court held?

The bench in light of the Supreme Court decision stated above and along with the observations of the Courts below held that, there is no substance in the contention of counsel for the petitioner that, Magistrate’s Court at Mumbai has no jurisdiction to entertain the complaint.

In respect to the question of limitation for filing proceedings under Section 12, the Court relied on Supreme Court decision in Krishna Bhattacharjee v. Sarathi Choudhury, (2016) 2 SCC 705, wherein it was held that,

“…regard being had to concept of “continuing offence” and demands made by the wife, application made by appellant wife under Section 12 of the 2005 Act after about 2 years of judicial separation, not barred by limitation.”

Another point that the Court noted in respect to the alleged harassment was that the Courts below made prima facie observations about the same. Since the order passed by Magistrate directed the petitioner to pay interim maintenance is an interim order and the proceedings for the same are still pending, the Court stated that it would not be appropriate to give elaborate reasons about the allegations on harassment and domestic violence.

Thus, the Court in view of the above rejected the writ petition. [Mohammad Zuber Farooqi v. State of Maharashtra, 2019 SCC OnLine Bom 2295, decided on 25-09-2019]

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, 2019 SCC OnLine Del 10129, 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]