Kerala High Court

Appointments & TransfersNews

Reconsideration of the proposal of transfer of Justice Amit Rawal, Judge, Punjab & Haryana High Court.

Collegium, vide Minutes dated 28-08-2019 recommended transfer of Justice Amit Rawal, Judge, Punjab & Haryana High Court, in the interest of better administration of justice, to Kerala High Court.

Upon being requested to send his response in terms of the Memorandum of Procedure, Justice Amit Rawal vide representation dated 2-09-2019, for reasons stated therein, has requested for reconsideration of his proposed transfer to Kerala High Court.

On reconsideration, the Collegium is of the considered view that it is not possible to accede to his request. The Collegium, accordingly, reiterates its recommendation dated 28-09-2019 for transfer of Justice Amit Rawal to Kerala High Court.

[Collegium Resolution dt. 03-09-2019]

Supreme Court of India

Appointments & TransfersNews

Proposal for the appointment of Shri Viju Abraham, Advocate as a Judge of the Kerala High Court.

“For purpose of assessing merit and suitability of Shri Viju Abraham we have carefully scrutinized the material already on record as well as the further information received from Kerala High Court. Having regard to all relevant factors, the Collegium is of the considered view that Shri Viju Abraham is suitable for elevation to the High Court.”

Collegium resolves to recommend that Shri Viju Abraham, Advocate, be appointed as a Judge of the Kerala High Court.

[Notification dt. 06-05-2019]

Supreme Court of India

Appointments & TransfersNews

Collegium comprising of Ranjan Gogoi, CJ and S.A. Bobde and N.V. Ramana, JJ., recommends for the appointment of following three Advocates, as Judges of the Kerala High Court:

1.  Conrad Stansilaus Dias
2. Mohammed Nias C.P.
3. Paul K.K.

Collegium stated in regard to the above names stated that,

“For purpose of assessing merit and suitability of the above-named recommendees for elevation to the High Court, we have carefully scrutinized the material placed in the file including the observations made by the Department of Justice therein. Apart from this, we considered it appropriate to have interaction with all the recommendees. On the basis of interaction and having regard to all relevant factors, the Collegium is of the considered view that S/Shri (1) Conrad Stansilaus Dias, (2) Mohammed Nias C.P., and (3) Paul K.K., are suitable for being appointed as Judges of the Kerala High Court.”

In view of the above, the Collegium resolves to recommend that S/Shri (1) Conrad Stansilaus Dias, (2) Mohammed Nias C.P., and (3) Paul K.K., Advocates, be appointed as Judges of the Kerala High Court. Their inter se seniority be fixed as per the existing practice.

[Dated 25-03-2019]

Collegium Resolution

Appointments & TransfersNews

The President, after consultation with the Chief Justice of India, is pleased to transfer Shri Justice Sarasa Venkatanarayana Bhatti, Judge of the Andhra Pradesh High Court, as a Judge of the Kerala High Court and to direct him to assume charge of his office in the Kerala High Court on or before 19th March, 2019.

[Notification dt. 05-03-2019]

Ministry of Law and Justice

Appointments & TransfersNews

The Collegium comprising of Ranjan Gogoi, CJ and A.K. Sikri, S.A. Bobde, N.V. Ramana and Arun Mishra, JJ., reiterates its recommendation dated 15th January, 2019 for transfer of Mr Justice S. Venkatanarayana Bhatti of Andhra Pradesh High Court to Kerala High Court.

[Dated: 19-02-2019]

Supreme Court of India

Case BriefsSupreme Court

Supreme Court: Kurian Joseph, J. delivered the judgment for himself and Sanjay Kishan Kaul, J. wherein it was held that forfeiture of gratuity, under the Payment of Gratuity Act, 1972 is not automatic on dismissal from service.

The respondent, an employee of the appellant bank, was dismissed on account of proved misconduct involving moral turpitude Consequently, the respondent was issued a show-cause notice as to why the gratuity amount payable to him should not be forfeited. Subsequently, an explanation of the respondent was rejected and the gratuity was forfeited. The respondent challenged the said forfeiture before the Kerala High Court which held that the gratuity was payable. Aggrieved thus, the appellant filed the instant appeal.

The question that arose for consideration before the Supreme Court was ‘whether forfeiture of gratuity is automatic on dismissal form service?’ The Supreme Court referred to Section 4 of the Act along with its earlier judgments in Beed District Central Coop. Bank Ltd. v. State of Maharashtra, (2006) 8 SCC 514; Y.K. Singla v. PNB, (2013) 3 SCC 472 and Jaswant Singh Gill v. Bharat Coking Coal Ltd., (2007) 1 SCC 663. The Court observed that forfeiture of gratuity, either wholly and partially is permissible under  Section 6(b)(ii) only in the event that termination is on the account of riotous or disorderly conduct or any other act of violence or on account of an act constituting an offence involving moral turpitude, when he is convicted. In the present case, there was no conviction of the respondent for the misconduct which according to the bank was offence involving moral turpitude. The Court finally observed that forfeiture of gratuity is not automatic on dismissal from service, it is subject to sub-sections (5) and (6) of Section 4 of Payment of Gratuity Act. The Court found that the there was no infirmity in the order impugned. Thus, the appeal was dismissed holding it to be sans merit. [Union Bank of India v. C.G. Ajay Babu,2018 SCC OnLine SC 962, dated 14-08-2018]

Appointments & TransfersNews

The President in exercise of the powers conferred by Article 223 of the Constitution of India, appointed Shri Justice Hrishikesh Roy, senior-most Judge of Kerala High Court, to perform the duties of the office of the Chief Justice of that High Court with effect from 30th May, 2018 consequent upon the retirement of Shri Justice Antony Dominic, Chief Justice, Kerala High Court.

Ministry of Law and Justice

Appointments & TransfersNews

The President in exercise of the powers conferred by clause (1) of Article 217 of the Constitution of India, appointed S/Shri Justices (1) Sathish Ninan, (2) Devan Ramachandran, (3) Somarajan P., (4) Smt. Shirey Y., and (5) Aettupanku Mohammedkhan Babu, Additional Judges of the Kerala High Court, to be Judges of the Kerala High Court with effect from the date they assume charge of their offices.

Ministry of Law and Justice

Appointments & TransfersNews

The President in exercise of the powers conferred by clause (1) of Article 217 of the Constitution of India, appointed Shri Justice Antony Dominic, Judge of the Kerala High Court, to be the Chief Justice of the Kerala High Court with effect from the date he assumes charge of his office.

Ministry of Law and Justice

(Department of Justice)

Hot Off The PressNews

Supreme Court: In the case where Kerala High Court annulled the marriage of a Hindu Girl to a Muslim Boy after her conversion to Islam calling it a case of Love Jihad, the Supreme Court ordered a probe by the National Investigation Agency (NIA) under the supervision of Retired Supreme Court judge Justice RV Raveendran. State had said that it had no objection to the National Investigation Agency carrying out the investigation, subject to this Court’s ensuring that the investigation is fair.

The Court also directed that Justice R.V. Raveendran be paid a consolidated fee of Rs.1,00,000/- for a sitting with National Investigation Agency at Bangalore, and Rs.2,00,000/ per day for travelling outside Bangalore, apart from reimbursement of all travelling, boarding, lodging and secretarial expenses, while discharging the responsibility entrusted to him.

NIA had told the Court that there is a possibility of this being a case of Love Jihad as many cases have come up where the Muslim boys have converted Hindu girls and have married them. The Court directed NIA to look into the matter in order to facilitate the Court in determining the extent of the ramifications of the issue and said that it will take a decision only after considering all the aspects i.e. NIA report, Kerala Police report and the views of the girl. The Court said that it will speak to the girl ‘Akhila’ in camera before taking a final decision.

The bench of JS Khehar, CJ and Dr. DY Chandrachud, J said that it was entrusting the task to the National Investigation Agency (NIA) as a neutral agency to get a “whole picture” and ascertain whether the particular instance was limited to a “small pocket” or was there “something wider” to the issue.

The issue reached the apex court as Kerala-native Shafin Jahan challenged the annulment of his marriage by the Kerala High Court which ordered the State police to probe such cases. It was alleged that the girl, a Hindu, who had converted to Islam and later married Jahan, was recruited by Islamic State’s mission in Syria and Jahan was only a stooge. The NIA has recently conducted probe into some cases of ‘love jihad’ in which women were allegedly being sent to Syria to join the ISIS. [Shafin Jahan v. Asokan KM, Special Leave to Appeal (Crl.) No(s). 5777/2017, order dated 16.08.2017]

Hot Off The PressNews

Kerala High Court: In the writ petition filed by Prasanth Sugathan, legal director of the SFLC, the Court passed an interim order allowing the petitioner to file his Income Tax Return manually without quoting the Aadhaar number.

The petitioner had challenged the mandatory requirement to quote Aadhaar number or enrollment ID for filing Income tax returns as per Section 139AA of the amended Income Tax Act, 1961. He had argued that the partial stay granted by the Supreme Court in Binoy Viswam v. Union of India, 2017 SCC OnLine SC 647,  in compulsory linking of PAN and Aadhaar would be futile if assesses were forced to quote their Aadhaar number while filing IT returns.

On 09.06.2017, the bench of Dr. A.K. Sikri and Ashok Bhushan, JJ had in Binoy Viswam v. Union of India, 2017 SCC OnLine SC 647, upheld the validity of Section 139AA of Income Tax Act, 1961 that makes the linking of Aadhaar Card to the Permanent Account Number (PAN) mandatory and said that the provision is neither discriminatory nor it offends equality clause enshrined in Article 14 of the Constitution. As per the order of the Court, those who have already enrolled themselves under Aadhaar scheme would comply with the requirement of sub-section (2) of Section 139AA of the Act. Those who still want to enrol are free to do so. However, those assessees who are not Aadhaar card holders and do not comply with the provision of Section 139(2), their PAN cards be not treated as invalid for the time being.

Source: CNN-News18

Case BriefsHigh Courts

Kerala High Court: Taking suo moto cognizance of the recent events, the Division Bench of Thottathil B. Radhakrishnan, Ag. C J. and Anu Sivaram J. directed State Government and State Police that no assembly or demonstration would be allowed in the court premises or on the roads surrounding them.

The Court held that access to justice is an indefeasible component of any society and it can in no manner be belittled by any individual or collective act, impairing or tending to impair the proper functioning of the Courts. Therefore, it is imperative that every seat of judiciary be insulated from any intrusion, as the intrusion would adversely affect the constitutional and societal goals to be achieved in an orderly society by the existence of judicial system. It was held that it is one of the primary duties of the Police wing of the State to maintain law and order and extend support by way of governance, in case where the access to justice is being challenged. The Police had public duty in terms of the Constitution and the statutes, to ensure that there is no impairment whatsoever in the conduct of court proceedings and the facilities for access to justice.

In the light of these observations, the Court directed the Government of Kerala, the State Police Chief and the Police officers under his command to ensure that no assembly or demonstration or collective expression of opinion is carried out within the premises of the High Court and also in the roads and streets surrounding them. It is directed that the restrictions imposed would extend to the use of public announcement system as well. All the restrictions imposed shall operate in regard of all road which surround the buildings of the High Court of Kerala and all leading roads to a distance of 200 meters from the roads that encircle the High Court buildings. The Court also directed that the gist of the order be published in at least two English newspapers and six vernacular dailies, having circulation throughout the State of Kerala. [Court on its own Motion v. State of Kerala, 2016 SCC OnLine Ker 10398, decided on 25 July, 2016.]

Case BriefsHigh Courts

Kerala High Court: Deciding upon the question as to whether an advocate could be permitted to appear in person as a power of attorney holder in the absence of a vakalat, the Court held that an advocate holds an exalted position as an officer of the court who should not identify with the cause of his client whom he represents in the lis.

A practising lawyer of the Madras High Court sought to plead the case on behalf of the appellants as a power of attornery holder on the  contention that he was not appearing in the robes of an advocate and that any person could function as such for the parties.

The Bench of  Chitambaresh and Ramakrishnan, JJ. held that any appearance, application or act in or to any court, required by law to be made by a party in such  court, may be made or done by the party in person, or by his recognised agent or by a pleader. The recognised agent by whom such appearance, application or act may be made or done can as well be a person holding power of attorney of the party which is evident from a conjoint reading of Rules 1 and 2 of Order 3 of the Code of Civil Procedure, 1908. The appointment of a power of attorney holder has nevertheless to be preceded by the grant of permission by court, as held in T.C. Mathai v. Sessions Judge, (1999) 3 SCC 614. However there is an embargo for a person enrolled as an advocate under the Advocates Act, 1961 to appear before any court, authority or person in any particular case under Section 32 thereof.

The Court observed that there is also an inbuilt limitation for a power of attorney holder in the matter of presentation of proceedings or to plead and argue on behalf of the principal in court. All petitions, appeals and other proceedings shall be presented in person by the party, or his advocate or the advocate’s registered clerk as per Rule 32 of the Rules of the High Court of Kerala. Decisions are legion that the power of attorney holder can only appear and conduct the judicial proceedings and would not normally be permitted to plead and argue on behalf of the principal. The power of attorney holder in the instant case has no interest in the subject property.

Declining the relief, the Court observed that an advocate cannot escape from the rigorous provisions of the Advocates Act by opting to plead and argue the case as power of attorney holder of the parties. [Brenda Barbara Francis v.  Adrian Mirinda, 2016 SCC OnLine Ker 8173,  order dated July 8, 2016]

Case BriefsHigh Courts

Kerala High Court: The bench comprising of Justice Shaji P. Chaly, allowed the writ petition and issued a mandamus directing the Kerala State Housing Board and others to ensure that various flats constructed under a housing scheme for residential purposes at the Chinnakkada Housing Accomodation Scheme Site II of the Housing Board, Kollam, are not being used for other commercial purposes.

The Housing scheme in question was meant for residential purposes. Further, Clause 19 of the Hire Purchase Agreement for those who opted for hire purchase also restricted use to residential purposes as does Regulation 6 (1) of the Kerala State Housing Board (Formation of Allottees Associations) Regulations, 2000). Nevertheless, various flats in the complex for being used as offices, godowns, training centres etc. Earlier alottees had raised the issue with the Board, whose inaction triggered O.P. No. 28612/2000 before the same court, wherein respondents 1 to 3 had been directed to see that flats were not used for any purpose other than those mentioned under the scheme and clause 19 of the Hire Purchase Agreement.

This Court characterized as undeniable  fact that owners and representatives-in-interest would be bound to obey the restrictive clause, and the housing scheme. The Court noted R.K. Mittal v. State of Uttar Pradesh  (2012) 2 SCC 232, wherein the Supreme Court held that a scheme which comprised a master plan and zoning plan specified as residential by the allotment by the Delhi Development Authority under the Industrial Development Area Act of 1976, must be implemented strictly.

The Court thereby held the Respondents bound to ensure the residential character of the flats and remove all commercial ventures within a period of three months, excepting an advocate who resided and maintained his office in the same flat because it is  not exactly constituting a commercial venture.  [Darelene Carmelita D’Cruz v. Kerala State Housing Board, 2016 SCC OnLine Ker 5341, decided 08-04-2016]

Case BriefsHigh Courts

Kerala High Court: Upbraiding the Judicial Magistrate who had remanded the petitioner to judicial custody contrary to its orders, in spite of having been granted pre-arrest bail under Section 438 of the Criminal Procedure Code, the Bench of Sudheendra Kumar, J.  held that once a pre-arrest bail was granted, the same would be in force until either the court or a higher court cancelled the order, on the instance of the Public Prosecutor, on the discovery of new material or circumstances, or of abuse of the indulgence by the accused.

The facts disclosed that the petitioner was arrested on 19.01.2016, and upon being produced the next day before the Judicial Magistrate, he produced the order under Section 438 passed by this Bench of the High Court. This was however disregarded by the Magistrate remanding the petitioner to judicial custody. The Court, upon being appraised of the remand of the petitioner and dismissal of his bail application, sought reasons from the Magistrate which were furnished albeit inadequate in the eyes of the Court. Further remonstrance from this Court led to an apology from the Magistrate.

The Court observed that judicial discipline is necessary for the existence of the judicial system. If judicial officers commit mistakes, the same will undermine the esteem of the judiciary. The judicial officers must be conscious about the importance of personal liberty vis-à-vis social interests and must be careful and diligent while discharging their duties.

The Court cited Jose George v. State of Kerala, 2006 (2) KLT 188, whereby it was held that grant of pre-arrest bail made it clear that the subject was not to be remanded to  judicial custody; Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, which held that the ordinary rule would be to not limit the operation of order under Section 438 CrPC, and allow its continuance to trial, and also that it was for the High Court or Court of Session to apply its mind in petitions for anticipatory bail under Section 438, not for the Judicial Magistrate under Section 43; and Siddharam Satlingappa Mhetre v. State of Maharashtra,  (2011) 1 SCC 694  whereby it was held the interim protection of anticipatory bail must be available till the end of trial unless it is cancelled by the court finding new material, circumstances, or on ‘ground of abuse of indulgence by the accused’. In deficit of any such circumstance, the bail application was allowed. [Nahif Ali v. Station House Officer, 2016 SCC OnLine Ker 5339, decided on March 1, 2016]

Case BriefsHigh Courts

Kerala High Court: The Court deciding an issue on arbitrariness of the cap imposed on financial concessions for the differently abled persons held that the concession granted by the Government was a privilege and hence, Article 14 of the Constitution  was not invalidated by a reasonable condition imposed.

The facts of the case were, the Kerala Government by Government Order dated: 31.03.1998 provided for tax concessions for certain motor vehicles, including luxury cars, being purchased by differently abled persons. Later, the Government imposed a cap of Rs 5 lakh on the value of the vehicle entitled for exemption. The appellant in the present case, suffered from 100% disability and was  totally wheelchair dependent and his son was specially abled. Given the needs of the family, he decided to buy a ‘bigger car’.

The cap came to be impugned by the appellant by a writ petition, which upon consideration was dismissed by a Single Judge. Thus aggrieved, the question came for consideration before the Division Bench.

It was argued that the imposition of a cap and limiting the value of purchase amounted to arbitrariness and fell foul of Article 14. It was submitted that the imposition of the cap with the view to prevent misuse of the privilege was irrational.

The Division Bench of Antony Dominic and D. M. Naidu, JJ  acknowledged the grounds of reasonableness and non-arbitrariness in classification of discrimination in terms of Article 14 of  the Constitution and held that the a privilege is different from a right. Dismissing the appeal, it was held  that the issue involved only a concession in the form of financial incentive for the physically challenged and therefore, the Government was justified in imposing suitable conditions, and the contentions of discrimination or unreasonableness did not apply. [C.H. Moideen Kunhi v. State of Kerala, 2016 SCC OnLine Ker 5340 decided on June 7, 2016]

 

Case BriefsHigh Courts

Kerala High Court:  Dismissing the criminal miscellaneous case where the petitioner having been  charged under Sections 304-A, 279 and 338 of the Penal Code, 1860 for causing death due to rash and negligent driving, sought quashing of the proceedings on the basis of a compromise entered into by the parties, the Court observed that such offences cannot be treated as a private dispute between the parties, so as to persuade the Court to accept a compromise and quash the proceedings.

The petitioner contended that a compromise had been entered into at the instance of mediators and the respondents had no objection to the proceedings being quashed. The Public Prosecutor however opposed the same, submitting that the Court was kept in the dark as to the terms of the settlement and the actual legal heirs of the deceased. Hence, if the offence under Section 304-A is quashed on the basis of a purported settlement with one of the legal heirs of the victim,  it would send a wrong signal.

The Bench of Raja Vijayraghavan, J. observed that an offence under Section 304-A IPC has the potentiality of making victims in many a layer thus creating a concavity in the social fabric. The impact on the society is felt all the more when accidents take place due to rash driving by drunken, negligent or adventurous drivers with no concern for others. The Court in exercise of powers under Section 482 CrPC cannot send a signal to the wrongdoer that payment of money can be a substitute for the crime committed against the society. The Court held that taking a lenient view of such an offence under Section 304-A will leave a wrong impression about the criminal justice system, encouraging further criminal acts, thus endangering the peaceful co-existence and welfare of the society at large. [Mohammed Ashraf v. State of Kerala, 2016 SCC OnLine Ker 4258, order dated May 18, 2016]