Case BriefsSupreme Court

   

Supreme Court: In an appeal filed by the Food Corporation of India (‘FCI’) against the judgment of Tripura high Court wherein it held that demurrages cannot be recovered as a charge by the corporation, the division bench of Pamidighantam Sri Narasimha* and AS Bonappa JJ. after examining the contract, held that the parties did not intend to include liability on account of demurrages as part and parcel of the expression “charges” in the contract between them.

The issue is whether the demurrages imposed on the corporation by the Railways can be, in turn, recovered by the corporation from the contractors as “charges” recoverable under clause XII(a) of the contract between the parties?

The Court said that the scope of the expression “charges” must be understood as intended by the parties to the contract. Thus, the Court examined the expression “charges” in the context of its related words in the contract, which are costs, damages, registration fees, and expenses. These expressions indicate the different heads under which losses are recoverable from the contractors for acts of negligence, unworkmanlike performance of any service, breach of terms and failure to carry out the work in the context of the working of the contract. However, it said that these expressions are wide and do not aid in understanding the meaning of the expression “charges”, thus, the meaning must be understood in the larger context of the contract.

The Court said that the real question is whether the contractors had any obligation towards loading and unloading foodgrains from the railway wagons. After examining the contract, the Court said that there is no contractual provision requiring the contractors to undertake the task of loading and unloading foodgrains from the railway wagons.

Further, based on interpretation of the expression “charges” in the contractual context, it was opined that, it did not include liability on account of demurrages. Thus, the corporation cannot impose and collect demurrages from the contractors.

The Court while providing for intrinsic tools for interpreting a contract, said that interpretation of contracts concerns the correct intention of the parties to it and words and expressions used in the contract are principal tools to ascertain such intention. While interpreting the words, courts look at the expressions falling for interpretation in the context of other provisions of the contract and in the context of the contract as a whole. Further, courts do not resort to materials external to the contract for construing the intention of the parties, however, there are certain exceptions to this rule, for instance, in latent ambiguity, which cannot be resolved without reference to extrinsic evidence. Latent ambiguity exists when words in a contract appear to be free from ambiguity; however, when they are sought to be applied to a particular context or question, they are amenable to multiple outcomes.

The Court while comparing the present contracts with similar but not identical contracts entered by the corporation confirmed that the interpretation of the word “charges” in the contract is exclusive of liability for demurrages, as the present contract do not involve the task of loading and unloading foodgrains from the railway wagons as a part of the contractors’ responsibility. Thus, the liability of the contractors in the present contracts is clearly distinguishable from other contracts entered into by the FCI, having a different scope and objective, therefore the Court upheld the judgment of the High Court.

[Food Corpn. of India v. Abhijit Paul, 2022 SCC OnLine SC 1605, decided on 18-11-2022]

*Judgment by: Pamidighantam Sri Narasimha.


*Apoorva Goel, Editorial Assistant has reported this brief.

Tripura High Court
Case BriefsHigh Courts

   

Tripura High Court: The Single Judge Bench of S.G. Chattopadhyay, J. clarified that when a vehicle is confiscated as per the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter “the NDPS Act”) then in case, no owner comes forward to claim the ownership of the vehicle within 30 days, the court may pass an order directing the Drug Disposal Committee for disposal of the vehicle by sale. In no way does it bar the owner from approaching the court and filing an application for releasing the vehicle after expiry of 30 days.

In the present case, SI of Police, pursuant to secret information, spotted a truck and the truck along with its driver were detained and a search was carried out in the said truck. During the search of the truck, 215 kgs of dried ‘ganja’ in plastic packets was recovered and moreover, two fake registration plates were also recovered from the possession of the driver of the truck. Therefore, a case was registered under Sections 20(b)(iii)(c), 25, 27 and 29 of the NDPS Act and the truck was also seized.

The owner of the truck filed a petition before the Trial Court for the release of his truck and contended that he had no idea about the fact that the driver was carrying dried ganja in his truck. The owner claimed that only after delivery of the consignment did the driver fit and displayed the fake registration plate on the truck beyond his knowledge. The Special Judge disbelieved the contention of the owner and declined to release his truck. Hence, this petition.

The Counsel for the Respondent contended that the owner of the truck should have come and sought release of the truck within one month of its seizure in terms of the law. But he has come after a long lapse of time and that too without any genuine ground. The Counsel, therefore, submitted that the plea of the owner should not be accepted.

Section 63 of the NDPS Act provides the procedure relating to confiscation. For purpose of reference, the relevant statutory provision is extracted hereunder:

“(1) In the trial of offences under this Act, whether the accused is convicted or acquitted or discharged, the court shall decide whether any article or thing seized under this Act is liable to confiscation under section 60 or section 61 or section 62 and, if it decides that the article is so liable, it may order confiscation accordingly.

(2) Where any article or thing seized under this Act appears to be liable to confiscation under section 60 or section 61 or section 62, but the person who committed the offence in connection therewith is not known or cannot be found, the court may inquire into and decide such liability, and may order confiscation accordingly.

Provided that no order of confiscation of an article or thing shall be made until the expiry of one month from the date of seizure, or without hearing any person who may claim any right thereto and the evidence, if any, which he produces in respect of his claim:

Provided further that if any such article or thing, other than a narcotic drug, psychotropic substance, 1 [controlled substance], the opium poppy, coca plant or cannabis plant is liable to speedy and natural decay, or if the court is of opinion that its sale would be for the benefit of its owner, it may at any time direct it to be sold; and the provisions of this sub-section shall, as nearly as may be practicable, apply to the net proceeds of the sale.”

The Court opined that the above proposition of law does not support the plea that the owner of the truck must file an application for releasing the truck on bail within 30 days. In no way does it bar the owner from approaching the court and filing an application for releasing the truck after expiry of 30 days.

The Court thus, allowed the petition and directed that the truck be released to the owner on furnishing bail bond off Rs. 10,00,000 supported by two local sureties and under the following terms and conditions:

(i) The owner of the truck shall keep the truck in good condition, and he will not transfer the truck or bring about any change in the truck in any manner, whatsoever, until disposal of the case pending before the trial court and the confiscation proceeding, if any.

(ii) The truck shall be produced by the owner as and when directed.

[Abdul Kalim v. State of Tripura, 2022 SCC OnLine Tri 675, decided on 25-10-2022]


Advocates who appeared in this case :

For the Petitioner(s): S. Lodh;

For the Respondent(s): Ratan Datta, PP;

S. Debnath, Addl. PP.

Tripura High Court
Case BriefsHigh Courts

   

Tripura High Court: In appeals directed against the judgment passed by the Single Judge in a batch of writ petitions, the Division Indrajit Mahanty, CJ. and S.G. Chattopadhyay, J upheld the decision to revise the pay scales of the members of the respondent’s union, including employees of Tripura Jute Mills Ltd. on a par with their counterparts in 32 public sector undertakings/Statutory bodies/Govt. undertakings etc. entitling them to the revised pay scales w.e.f. 01.01.1996 and other allowances such as house rent allowance, career advancement scheme, compensatory allowance, dearness allowance etc.

On the recommendations of the 4th Pay Commission, Tripura State Civil Services (Revised Pay) Rules, 1999 were introduced, thereby revising the pay scale for its officers and employees. Further, the officers and employees of Tripura Jute Mills Ltd. (‘TJML’) were also included in the report of the 4th Pay Commission and recommendations were made for revision of their pay scale and allowances, thus, the State Government issued a separate notification w.e.f. 01.04.1999 for employees of TJML. However, the employees of TJML filed a suit in the High Court contending that in other 32 Government undertakings/statutory bodies in the State, the pay revision in terms of the recommendations of the 4th Pay Commission was made effective from 01.01.1996 and there was no reason as to why the officers and employees of TJML which was similarly situated would be treated differently.

The single judge relied on the decision in A.K. Bindal v. Union of India, (2003) 5 SCC 163, and held that, the petitioners could not make out any enforceable right and observed that TJML was a loss incurring unit and the officers and employees of the unit were not entitled to similar treatment with that of the employees of other Government undertakings. However, the division bench reversed the judgment of the single judge and held that if TJML was a loss incurring unit , then it was the bounden duty of the State Government to take remedial measures and the same could not be a ground to deny the claim of revision of pay scales as per recommendations of the 4th Pay Commission to the employees of TJML from the date on which officers and employees of other autonomous bodies were given the benefit. Further, the Supreme Court upheld the judgment of the division bench granting benefit of the 4th Pay Commission to Tripura Jute Mills Officers’ Association w.e.f. 01.01.1996 and allowed interest @6% on the amount due to each of the officers/employees w.e.f. the date of the division bench order.

Thereafter, the present respondent filed a writ petition, and the Single Judge directed the State to revise the pay scales of the members of the respondent’s union including employees of Tripura Jute Mills Ltd. on a par with their counterparts in 32 public sector undertakings/Statutory bodies/Govt. undertakings etc. entitling them to the revised pay scales w.e.f. 01.01.1996 and other allowances such as house rent allowance, career advancement scheme, compensatory allowance, dearness allowance etc. as considered by the division bench.

The Court observed that in the given facts and circumstances of the case, there is no reason to disagree with the findings of the Single Judge. There cannot be any doubt that the members of the workers’ union of TJML were not treated equally with the similarly situated workers of other Public sector undertakings (PSU)/Government undertakings/Statutory bodies etc. in the State in revising their pay scale in terms of the recommendations of the 4th Pay Commission.

Further, it was observed that the recommendations of the 4th Pay Commission have been made effective from 01.04.1999 in the case of the private respondents whereas the benefit of such pay revision is given to the employees of other PSUs w.e.f. 01.01.1996 and such discrimination has been made without any rational basis. Thus, there was no error committed by the Single Judge in directing the State to revise the pay scales of the members of the workers’ union including other employees of TJML on a par with their counterparts in the other 32 PSUs w.e.f. 01.01.1996 along with other allowances.

Moreover, the Court, while dismissing the appeals, directed the State to provide the benefit of the revised pay scales and allowances to the members of the workers’ union and other employees of TJML w.e.f. 01.01.1996 in terms of the impugned judgment of the Single Judge after adjustments of the dues already paid to them within a period of six months from the date of this judgment.

[State of Tripura v. Dr Parimal Kanti Chakraborty, 2022 SCC OnLine Tri 634, decided on 21.09.2022]


Advocates who appeared in this case:

For Appellant: Advocate General S.S. Dey

Additional Government Advocate D. Sarma,

Advocate A. Chakraborty

For Respondent: Senior Advocate P. Roy Barman

Senior Advocate D. Bhattacharya

Senior Advocate Samarjit Bhattacharjee

Advocate K. Nath

Advocate A. Debbarma

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: In a public interest litigation seeking issuance of show cause to the respondents as to why a writ of Mandamus shall not be issued, declaring the possession of all exotic animals/ birds illegal and the person in possession of them be forthwith prosecuted for violation under the Customs Act by the Department of Revenue Intelligence and under the Wildlife (Protection) Act, 1972(‘Wildlife Act’), Indrajit Mahanty, CJ. and S.G. Chattopadhyay, J. has observed that despite the settled legal position, the Court cannot direct the Central Government to forthwith make amendments against legislative will to include all exotic species in the Wildlife Act, 1972 and in the Notifications issued under Section 11-B, 123 and 135 of the Customs Act, 1962. Further, it can neither direct seizure/ confiscation contrary to existing provisions, nor can direct change in classification of such bailable offence to non-bailable offence, to enable arrest and prosecution of all the persons concerned with such undeclared stock of exotic animals / birds.

The Court noted that the respondent has issued an advisory dated 11.06.2020 for dealing with import of exotic live species in India and declaration of stock within six months of the issuance of the said advisory.

The Court cited the decision in Dinesh Chandra Sharma v. Union of India, (PIL CIV 12032 of 2020), wherein the Court has considered pre and post advisory period and observed that “exotic birds/ animals do not come under the purview of Wildlife (Protection) Act, 1972 and there is no provision under the Wildlife Act to issue licence or permission for dealing in exotic birds”. Further, it also referred to the ruling in Swetab Kumar v. Ministry of Environment, Forest & Climate Change and Others (Writ Petition (Civil) No. 540 of 2022), wherein the Court approved Dinesh Chandra (supra) and held that “any declaration made after the expiry of the window under the advisory shall carry no such exemption and the declarer shall have to comply with all requisite documentation under the extant laws and regulations”. It was also observed that the same advisory has also been the subject matter of challenge before various other High Courts. However, it has been upheld at all junctures.

The Court observed that the advisory is an executive direction to maintain inventory of exotic species and regulate the import of such species and the exemption that is provided in the advisory is limited to dispensation with explanation of source of exotic species. Further, the consequence of non-declaration within the time stipulated in the advisory is that the owner of exotic species is required to comply with all requisite documentation under the extant laws and regulations.

Moreover, the Court viewed that there is no change in the statutory provisions regarding the pre or post advisory period and cited the judgment of Anil Naidu v. UOI (Writ Petition No. 807 of 2019) as well as the judgment of Dinesh Chandra (supra), wherein it was clarified that the position regarding the inapplicability of the penal provisions of Wildlife Act, 1972 and the Customs Act 1962 regarding exotic species continue to apply as per extant laws and regulations despite advisory dated 11.06.2020.

The Court observed that it is settled as per the extant laws and regulations that:

(i) Domestic trade, possession, transportation and breeding of undeclared exotic animals/ exotic birds within India continues to be out of the purview of Wildlife Act, 1972.

(ii) There is no reverse burden to prove licit importation into India, because such undeclared exotic species are not included in Notifications issued under Section 123 of the Customs Act.

(iii) The undeclared ‘exotic animals/ birds’ continue to be out of purview of provisions of chapter IVA- Detection of illegally imported goods and prevention of disposal thereof, containing Sections 11A to 11G, as they are not notified under Section 11B. Thus, the person in possession of undeclared ‘exotic animals/ Birds would continue to be not bound to comply with requirements of Section 11-C to 11-F of the Customs Act regarding intimation of place of storage, precautions to be taken in acquiring, maintaining accounts or sale thereof.

(iv) The offence concerning exotic live species under Customs Act continues to be ‘bailable’ under Section 104(7) of the said Act, in absence of any notification under Section 135(1)(i)(c) of Customs Act, 1962 notifying exotic animals/ birds as “prohibited goods” and bail continues to be statutory as well as fundamental right.

The Court viewed that it can neither direct, nor expect the Government to take such drastic steps in haste, without assessment of impact and without detailed study, as such amendments in statutory provisions may result in drastic penal action against common man. Further, there are sufficient safeguards available in law to prevent cruelty to animals which are also applicable to exotic species and directing amendments in the Acts would lead to chaos and no public purpose will be achieved.

Thus, the Court observed that unless a person is caught smuggling exotic species on the international borders, no presumption can be drawn that domestic keeper have illegally imported the exotic species on the ground that such person has not declared ownership of exotic species within the stipulated time, or has acquired such species after the stipulated time, for any arrest/prosecution/confiscation based on presumption, as it would be unreasonable and violation of rights guaranteed under Article 14 and 21 of Constitution of India.

[Adwitiya Chakrabarti v. Union of India, 2022 SCC OnLine Tri 633, decided on 21.09.2022]


Advocates who appeared in this case:

Manoj Kumar Biswas, Advocate, for the Petitioner;

Government Counsel Mr. Biswanath Majumder, Advocate, for the Respondent.

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: In a public interest litigation concerning custodial torture on a 28-year-old woman in the police lockup, the division bench of Indrajit Mahanty, CJ. and S.G. Chattopadhyay, J. took suo motu notice of this grave and serious issue based on the newspaper report and observed that the victim was not formally arrested by police, but she was detained in police custody for a considerable period for the purpose of interrogation. Further, the medical reports clearly established that she was physically assaulted in custody, thus, directed the State to pay compensation to her.

The Court observed that from the facts and circumstances, merely based on a telephonic information received from the victim’s neighbour about her involvement in a theft case, police called her to the police station even without registering a case on the complaint received from the neighbour and without verifying the facts. Further, the medical reports clearly established that she was physically assaulted during interrogation in police custody.

The Court took note of the ruling in Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, wherein the Court held that “the prison authority and the police would have the responsibility to ensure that the person in custody is not deprived of his right to life, even if his liberty is circumscribed by the fact that the person is in confinement”.

It also took note of the ruling in Mehmood Nayyar Azam v. State of Chhattisgarh, (2012) 8 SCC 1, wherein it was held that “the police officers are under obligations to protect human rights of a person in custody and prevent all forms of atrocities to him/her”. It further referred to the decision in Ashwani Kumar v. Union of India, (2020) 13 SCC 585, wherein the Court reiterated that “a person detained in custody is entitled to live with human dignity and any form of torture would violate the right to life and is prohibited under Article 21 of the Constitution“.

Placing reliance on the decision in D.K. Basu v. State of W.B., (1997) 1 SCC 416, wherein the Court laid down the directions/guidelines with respect to rights of persons arrested/detained in police custody for interrogation; the Court has observed that the victim was not formally arrested by police but, undisputedly, she was detained in police custody for a considerable period for the purpose of interrogation. Thus, she was entitled to all the safeguards provided under the guidelines issued in the case of D.K. Basu (supra), but, apparently, she was deprived of those safeguards, and she was tortured and maltreated in police custody.

The Court viewed that the victim is entitled to monetary compensation for the wrongs done to her, thus, directed the State to pay a sum of Rs. 2,50,000/- to her.

[Court on its own motion v. State of Tripura, 2022 SCC OnLine Tri 635, decided on 21.09.2022]


Advocates who appeared in this case:

For Petitioner: Amicus Curiae A. Debbarma

For Respondent: Government Advocate D. Bhattacharya,

Advocate S. Saha

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: In a criminal revision petition filed for examining the legality, validity and propriety of the impugned judgment passed by the Trial Court and the Appellate Court, wherein the Court sentenced the petitioner under Section 448 of the Penal Code (IPC) to suffer rigorous imprisonment for 3 months and further sentenced him under Section 354 of IPC to suffer Imprisonment for one year and to pay a fine of Rs. 3,000/- with default stipulations, T. Amarnath Goud, J. has set aside the findings of the Courts below and observed that the discrepancies found in this case appeared to be abnormal in nature and is not expected from a normal person. Thus, due to the presence of some serious contradictions and inconsistencies in the statements during trial, it was very difficult to believe the projected case against the petitioner.

In this case, on 14.07.2014 at about 4.00pm the victim and her child were alone in the house, when the petitioner entered their dwelling and hit and pushed the victim on the ground and tore her clothes and outraged her modesty. The victim cried out for help, but the petitioner pressed her mouth and applied force upon her. Hearing her hue and cry, Tapan Tripura came to the spot and before he could enter the room of the victim, the accused-person immediately fled away from there. The police registered the case under Section 448/354 of IPC.

The petitioner argued that the Courts below committed erred in the matter of correctness, legality and propriety while passing the judgments and sentence to the petitioner. Further, the findings of the Courts below are not tenable because they did not discuss a single word of the cross-examination of the informant witnesses and the defence of the petitioners. The Courts below misconceived and misunderstood the legal position of law and as such, came to a wrong finding of convicting the petitioner.

The Court took note of the statements given by Tapan Tripura wherein he stated that on 14.07.2014 at about 4.00pm he was coming out to the road and at that time, he heard hue and cry from the victim’s house and saw that the accused person was coming out from the said house. But, during cross examination this witness has stated as follows: “at that time the victim did not tell me anything and I also did not ask her anything. Later, in the evening I came to learn that the petitioner had entered the dwelling of the informant and outraged the modesty of his wife (victim)by touching her on the chest”.

The Court observed that during examination-in-chief Tapan Taparia supported the fact that the victim told him that the Petitioner had touched her on the chest. Further, the Court took note of another statement of the witness given to the police wherein, he stated that “at that time, I thought that quarrel was going on between husband and wife and for that reason the petitioner had gone out of their house”. But later, the witness clarified in the evidence that he had heard about the incident from the victim and from his elder uncle.

The Court viewed that “the petitioner is a neighbour of the complainant and not just a stranger who, by taking advantage of an empty house, entered in and tried to outrage the modesty of the victim. The petitioner is known to all and more particularly, he was a neighbour of this locality. He is not just an unknown person to them. Thus, Section 448 of IPC does not attract in this case”.

Further, the court took note of the evidence of witnesses, particularly of Sri Tapan Tripura and observed that the version of the informant and Tapan Tripura is an improved version comparing to the complaint, and since the complaint itself is not specific for attracting Section 354 of IPC and as the petitioner has already suffered three months jail custody, the Court released him by setting aside the judgment of the Courts below.

Moreover, the Court has observed that the way prosecution has projected this case and due to the presence of some serious contradictions and inconsistencies in the statements in course of trial, it was very difficult to believe the projected case against the petitioner. Further, it viewed that “it is a settled proposition of law that the charge framed against the accused person must be established and proved beyond any shadow of doubt and suspicions, however, grave in nature, should not amount to proof”. Thus, the Court set aside the findings arrived at by the courts below.

[Nithuram Tripura v. State of Tripura., 2022 SCC OnLine Tri 620, decided on 13.09.2022]


Advocates who appeared in this case :

A. Acharjee, Advocate, for the Petitioner;

Additional Public Prosecutor S. Debnath., Advocate, for the Respondent.

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: In a batch of writ petitions filed for directing the State Government to provide similar Pension benefit as granted to the other similarly situated Tripura Government Undertakings, Arindam Lodh, J. has held that the writ court while exercising the power of judicial review under Article 226 of the Constitution of India will not as a court of appeal sit over the well-reasoned report of the expert body, thereby observed that providing grants or other benefits to any of the organizations is a matter of policy decision of the government and the court cannot direct the State or its instrumentalities to formulate such policy

The issues in the present matter were, whether the court can direct the State government to provide necessary funds to the corporation, and whether the court can determine the amount of pension an employee may be entitled to.

The Court took note of the report of the expert committee constituted by the State government, wherein it is found that provision of providing pension benefit to these organizations has been made either by adopting the Civil Services (Pension) Rules, 1972 or introducing separate pension scheme. Further, these autonomous bodies had created a separate scheme and had been able to generate their own funds from their own contribution and opened subscriber accounts with specified schemes of the organization like Life Insurance Corporation of India (LICI), banks etc. Moreover, the petitioners have already retired from service, and are drawing pension under Employees Provident Fund scheme.

The Court further noted that the service conditions including pension scheme of the employees of these corporations are governed by their respective statutes, as the corporations are government undertakings. Further, all the corporations are utilizing the funds provided by the State government even to the extent of 100%, and have been running in loss, though, these organizations are supposed to be profit making as observed by the expert committee. Thus, the court held that “the employees of these statutory organizations cannot claim, as a matter of right, the pensionary benefits, as provided to few of the corporations who have been able to generate their own funds with one-time support from the state government”

Furthermore, the Court viewed that the petitioners cannot be treated equally to the employees of those organizations whose pension schemes have been introduced under different schemes with the assistance of some other organizations like LICI, banks, etc., as the pension of the members of the petitioner’s organization is based on the pension scheme subscribed by them during his/her service tenure in the respective organization and are primarily controlled and regulated by the Employees Provident Fund Organisation. Thus, the petitioners cannot complain of discrimination having regard to the equity clause enshrined under Article 14 of the Constitution of India.

Moreover, the Court observed that providing grants or other benefits to any of the organizations is a matter of policy decision of the government, the court cannot direct the State or its instrumentalities to formulate certain policy because it would have a scaring effect having huge financial implication, thus, it should be left to the expert committee.

The Court also observed that the grant of pensionary benefit is not a one-time payment and extension of such benefit is a recurring expenditure with continuous liability involving huge government funds. The State Government and the corporation should ultimately take a policy decision as to whether such benefits should be provided to its employees or not, as it is outside the court’s jurisdiction to make an enquiry regarding the fund status of the respective corporation or to choose a scheme suitable to the employees of such corporation without the aid and advice of the expert body.

Moreover, the Court viewed that it is a settled proposition of law that the interference of the judiciary to such a policy matter having serious financial implication and/or having a cascading effect is not at all warranted and justified. Further, it held that “the writ court while exercising the power of judicial review under Article 226 of the Constitution of India will not as a court of appeal sit over the well-reasoned report of the expert body following the well-neigh principle of self-restraint in the matter of policy decisions of the government”. Thus, the Court dismissed the writ petitions.

[All Tripura EPS Pensioners’ and Employees’ Association v. State of Tripura, 2022 SCC OnLine Tri 619, decided on 06.09.2022]


Advocates who appeared in this case:

For Appellant(s): Advocate S. Saha

Advocate S. Datta

For Respondent(s): Advocate KC Bhattacharjee

Advocate B.S. Bhowmik

Advocate S. Bhattacharjee

Advocate AK Pal

Advocate D. Sarkar

Advocate A. Chakraborty

Advocate HC Chakraborty

Tripura High Court
Case BriefsHigh Courts

   

Tripura High Court: In a case relating to a revision petition filed by the State, challenging the order of the Sessions Judge allowing the petition filed by the accused for re-examination of witnesses under Section 311 Code of Criminal Procedure (CrPC) at the stage of examination of accused under Section 313 CrPC, T. Amarnath Goud, J. observed that a legal proposition that the Court cannot exercise power of re-summoning any witness, if once that power was exercised, cannot be accepted, and the power cannot be whittled down merely on the grounds that prosecution discovered laches only when the defence highlighted them during final arguments.

In this case the prosecution closed its evidence on 23.05.2022 and the next date was fixed on 03.06.2022 for examination of the accused persons under S. 313 of CrPC. On 03.06.2022, accused-persons filed a petition under Section 311 of CrPC with a prayer to recall and re-examine some witnesses, on the pretext that in his examination- in- chief one of the witnesses stated a statement that is missing from the statement recorded under Sections 161, 164 of CrPC.

The Court observed that the law is common that application of Section 311 of CrPC cannot be used to fill up the lacuna and the examination of the witnesses cannot be an endless process. Since the statement has been exhibited and is on record, calling of the witnesses for the purpose of contradiction will not serve any practical purpose and will only delay the trial. However, the very spirit of Section 311 of CrPC is to extend an opportunity for further re-examination or re-cross examination to either of the party if the same is essential to arrive at a just decision in the case.

The Court further observed that “lacuna in prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna”.

Moreover, it viewed that no party in a trial can be foreclosed from correcting errors, and if proper evidence was not adduced or a relevant material was not brought on record due to any in-adventure, the Court should be magnanimous in permitting such mistakes to be rectified, more so, when the rights conferred by Constitution of India upon a citizen.

The Court did not appreciate the argument of the state that the eye-witness might turn hostile in collusion with the accused-person, and observed that “to meet the ends of justice, the door cannot be shut against the accused-person without giving an opportunity and the State Government, having all infrastructures and fully equipped, cannot expressed its doubt against its witnesses. They can take all measures in the interest of truth to protect the witnesses from the clutches of the accused-person if there is any such apprehension of hostility”.

[State of Tripura v Sumit Banik, 2022 SCC OnLine Tri 582, decided on 12.08.2022]


Advocates who appeared in this case :

For Petitioner: Public Prosecutor S. Kar Bhowmik

Public Prosecutor R. Datta,

Advocate Srikanta Bol

For Respondent: Sr. Advocate P. K. Biswas

Advocate. P. Majumder,

Advocate. A. K. Banerjee

Tripura High Court
Case BriefsHigh Courts

   

Tripura High Court: T. Amarnath Goud, J. dismissed a second appeal which was filed under section 100 of the Civil Procedure Code, 1908 against the judgment which dismissed the appeal affirming the judgment passed by Civil Judge ( Senior Division) in connection with declaring the right, title & interest of the plaintiff over the suit land and recovery of possession of the suit land explaining the difference between burden of proof and onus of proof.

The Court at the time of admitting the appeal formulated the following question of laws:

1. Whether the allotment order issued by the Collector in favour of the respondent-plaintiff contraband sub-rule 7 of the Rule-15 of the Allotment Rules, 1962, as amended on 1982?

2. Any other substantial question of law shall be considered at the time of hearing?

The original plaint was filed by one Karibun Nessa wife of Rahamat Ullah in the Court of Civil Judge, against the defendant-appellant herein for declaration of her right, title and interest over the suit land described in the schedule of the plaint and for recovery of possession of the said land by evicting the defendant-appellant by removing all obstructions.

Counsel appearing for the appellant in support of his case has submitted that Courts committed wrong and illegalities in deciding both the suit and the first appeal. It was contended that the First Appellate Court ought to have considered that the learned trial Court did not properly appreciate the evidences both oral and documentary adduced by the parties and thereby ought to have allowed the first appeal setting aside the judgment and decree of recovery of possession passed by the trial Court.

The Court was of the view that in such a suit where the plaintiff / respondent has brought her suit for recovery of possession of the suit land based on title, it was for the plaintiff to prove her title and satisfy the Court that he she, in law, was entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored with her.

The Court relying on A. Raghavamma v. Chencharamma, AIR 1964 SC 136 explained that there is an essential distinction between burden of proof and onus of proof; burden of proof lies upon a persons who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff's title.

The Court noticed that the plaintiff has discharged her burden of proving her title and previous possession over the suit land but the appellant-defendant failed to rebut the proof of title and previous possession of the plaintiff over the suit land. Thus, it can be said that the Trial Court was very much justified in passing the impugned judgment and decree declaring the rights, title and interest of the Plaintiff over the suit and recovery of possession of the same from the defendant as in the case the defendant had not claimed adversary possession.

Another question that came for consideration was that whether the suit of the plaintiff was barred by Section-188 of Tripura Land Revenue & Land Reforms Act,1960 and Section-9 of the CPC as alleged by the Counsel for the appellant-defendant.

The Court in this aspect noted that the plaintiff / respondent had brought her suit before the Trial Court praying for declaration of her rights, title and interest over the suit land and also for recovery of possession of the suit land ousting the defendant/Appellant and removing all sorts of construct there over with costs of the defendants and also granting all other relief (s) as deemed fit and proper and the costs of the litigation.

The Court minutely perused the record and scanned the evidence and taking into account both the legal as well as factual aspect of the case and finds no reason at all to interfere with the concurrent findings of the two Courts below.

The Court while dismissing the appeal found that the suit of the plaintiff / respondent has nothing to do with the settlement of land revenue, or preparation of records of rights or any entry thereof. Thus, it made clear that the suit of the plaintiff was not barred by Section 188 of the TLR & LR Act or by Section-9 of the CPC as contended by the Counsel for the Appellant / defendant. The claim of relief of the plaintiff can no way be entertained by the Revenue Court and the so called relief sought in the plaint can be granted only by the regular civil court.

It was observed that “It is not for this Court to decide the validity of the allotment of land by the Government in favour of the respondents in this second appeal. If there is any violation of conditions or attraction of disqualifications, it is for the appropriate authorities to look into the matter.”

[Akbor Ullah v. Rahamat Ullah, RSA. No. 06 of 2020, decided on 05-08-2022]


Advocates who appeared in this case :

D. Deb, Advocate, for the Appellant(s);

S. Lodh, Advocate, for the Respondent(s).


*Suchita Shukla, Editorial Assistant has reported this brief.

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: Arindam Lodh, J. dismissed a petition filed for issuing writ of mandamus calling upon the respondents to show cause as to why the petitioner should not be made regular in the post of Scientific Assistant with all consequential service benefit.

Petitioner was first engaged on contract basis w.e.f. 30-10-2003 with the conditions that the authority may cancel the engagement letter at any point of time without any reason and without any prior notice before expiry of contract period. The petitioner completed 10 years of service on 07-11-2013. After completion of 10 years of his contract service, he prayed for regularization of his service in the post of Scientific Officer. The case of the petitioner was not considered, which prompted him to approach this court by filing the present petition.

The Court from the submissions of counsel appearing for the State-respondents noted that Department concurred to the proposal of Urban Development Department for creation of 1(one) post of Scientific Assistant in Kumarghat Municipal Council, subject to obtaining concurrence of the Finance Department. Further a note dated 21-12-2017 mentioned that “Finance Department concurs with the proposal of the Department for creation of 1(one) post of “Scientific Assistant” to accommodate one Sri Nipu Roy who was appointed on 31-10-2003 in Kumarghat Municipal Council subject to approval of Council of Ministers.” But, till today the Government has not taken any decision in regard to the creation of the said post.

The Court further held that ‘it is not within the domain of this Court to direct the State- Government to create any post. It is absolutely within the domain of the State policy.”

The petition was dismissed finding no merits however the Court remarked that since the petitioner has been rendering his valuable service, liberty is given to him to file a representation before the appropriate authority to consider the decision of the said Note dated 21-12-2017 since it is evident that service of one Binay Bhusan Paul who was engaged under the same engagement letter dated 10-11-2003 had been regularized w.e.f. 22-11-2011.

[Nipu Roy v. State of Tripura, 2022 SCC OnLine Tri 485, decided on 19-07-2022]


Advocates who appeared in this case :

Mr C.S.Sinha, Advocate, for the Petitioner(s);

Mr P.K.Dhar, Sr. G.A., Mr A. Dey, Advocates, for the Respondent(s).


*Suchita Shukla, Editorial Assistant has reported this brief.

Know thy Judge

“Zero tolerance towards corruption should be the top-notch priority for ensuring system based and policy driven, transparent and responsive governance. Corruption cannot be annihilated but strategically be dwindled by reducing monopoly and enabling transparency in decision making. However, fortification of social and moral fabric must be an integral component of long-term policy for nation building to accomplish corruption free society.”

Justice Ajay Rastogi

State of Gujarat v. Mansukhbhai Kanjibhai Shah,

2020 SCC OnLine SC 412


Justice Ajay Rastogi was born on 18th June 1958 in Jaipur to Shri. Harish Chandra Rastogi. He followed the footsteps of his father and joined the bar in 1982. During the years of his practice at Rajasthan High Court, he practised in different spheres of law but was specialized in service and labour laws.

♦Did you know? Justice Ajay Rastogi’s father Late Harish Chandra Rastogi was an eminent civil lawyer in Rajasthan High Court.

Justice Rastogi took oath as a Judge in the Rajasthan High Court on 02-09-2004. He was officiated as the Administrative Judge of the Rajasthan High Court on 19-07-2014 and continued till his elevation as Chief Justice of the Tripura High Court.

After his appointment as a judge of the Rajasthan High Court, Justice Rastogi remained Executive Chairman of the State Legal Services Authority from 14-10*2013 to 18-10-2016.

♦Did you know? Under his stewardship, Rajasthan Legal Services Authority won the National Award from National Legal Services Authority for three consecutive years.[1]

Justice Rastogi was also the Acting Chief Justice of the Rajasthan High Court w.e.f. 14-04-2016 to 13-05-2016.

Justice Ajay Rastogi was recommended by the Collegium for being appointed as Chief Justice of the High Court of Tripura on February 1, 2018 and took oath on 01-03-2018. He was elevated as Judge of the Supreme Court on 02-11-2018.

♦Did you know? The collegium had superseded Justice Maheshwari in October, 2018 when it recommended the elevation of the then Chief Justice of the Tripura High Court, Justice Ajay Rastogi — originally from the Rajasthan High Court — to the Supreme Court.[2]


 Career as an Advocate


Justice Ajay Rastogi practised in the Rajasthan High Court in Constitutional, Service and Labour Laws etc. His field of specialisation was Service and Labour Law.

Justice Rastogi was nominated as the standing counsel for the Rajasthan High Court in the year 1990 and continued as such till his elevation in the year 2004. He also worked as the standing counsel for Rajasthan Financial Corporation, Jaipur, Board of Secondary Education, Rajasthan, Ajmer, and of various Banking Institutions, Electricity Board & Educational Institutions etc.[3]

Justice Rastogi was also appointed President of the Rajasthan High Court Bar Association at Jaipur in the year 1999-2000.

Justice Ajay Rastogi had marked his presence in many remarkable cases as an advocate. Some of the significant cases represented by him are:


Notable Judgments at Supreme Court


The bench of NV Ramana and Ajay Rastogi, JJ, has agreed to examine the validity of a newly enacted law which makes the practice of instant divorce through triple talaq among Muslims a punishable offence entailing imprisonment of up to three years.[4]

Ajmer Vidyut Vitran Nigam Ltd. v. Hindustan Zinc Ltd., 2022 SCC OnLine SC 208

The Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., held that a modification changing tariff for inadvertent drawal from temporary supply rate to the regular supply rate cannot be considered to be a mere clarification and is rather a substantial alteration which cannot be made applicable retrospectively.

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Pawan Kumar v. Union of India, 2022 SCC OnLine SC 532

The Division Bench of Ajay Rastogi* and Sanjiv Khanna, JJ., reversed the impugned order of Delhi High Court whereby the High Court had upheld the dismissal order of appellant owing to suppression of information/false declaration in the verification form regarding criminal antecedent.

The Court held that the effect of suppression of material/false information involving in a criminal case is that it is left for the employer to consider all the relevant facts and circumstances available as to antecedents and keep in view the objective criteria and the relevant service rules, while taking appropriate decision regarding continuance/suitability of the employee into service.

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P. Ranjitharaj v. State of T.N., 2022 SCC OnLine SC 508

The Division Bench comprising Ajay Rastogi and Bela M. Trivedi, JJ., reversed the impugned judgment of the Madras High Court and held that when the delay in appointment is attributable to the State, it would not deprive the employees of their right to become the member of the Pension Scheme, 1978 merely on the ground that the Scheme was not applicable to their year of appointment, particularly when other candidates who participated in the common process of selection were availing the same.

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Union of India v. Ex. Constable Ram Karan, 2021 SCC OnLine SC 1041

The Division Bench of Ajay Rastogi* and Abhay S. Oka, JJ.,    set aside the judgment of the Delhi High Court wherein it had substituted the penalty of removal from service with confinement of respondent from 1.00 p.m. to 10.00 p.m. in quarter guard jail without noticing the mandate of the nature of punishments indicated under Section 11(1) of the Central Reserve Police Force Act, 1949 (CRPF). The Bench expressed,

“The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the Courts would frown upon.”

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Sudhir Kumar Atrey v. Union of India, 2021 SCC OnLine SC 971

The Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., expressed dismay over the manner adopted by the Western Command, Military Engineering Service in making appointments from the select panel of 29-06-1983 after a lapse of 4-5 years in the year 1987-1988.

“…the manner in which the appointments were made from the select panel of 1983 after it has outlived its life in the year 1987-1988 and ordinarily it was not open to be operated upon and such appointments are nothing but a clear abuse of the discretion vested with the competent authority.”

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V. N. Patil v. K. Niranjan Kumar, 2021 SCC OnLine SC 172

The bench of Indu Malhotra and Ajay Rastogi*, JJ., held that the aim of every Court is to discover the truth but it should be done judiciously.

The Court opined that though it is not necessary to record elaborate reasons in every case, the Courts should do so in order to facilitate the superior Courts to understand what weighed in with the Court to reverse the finding of the lower court.

“Wider the power, greater is the necessity of caution while exercise of judicious discretion”

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Rachna v. Union of India, 2021 SCC OnLine SC 140

While refusing the plea of last attemptees of the UPSC Civil Services (Preliminary) Examination, 2020 who had sought for an extra attempt to clear the exam in the wake of the COVID-19 pandemic, the bench of Justice AM Khanwilkar, Indu Malhotra and Ajay Rastogi*, JJ held that allowing extra attempt in such a case would set a precedent and also have cascading effect on examinations in other streams.

“… merely because the present petitioners made a complaint to this Court, cannot be taken into isolation for the purpose of seeking additional chance/attempt in the backdrop of Covid-19 pandemic, which has been faced by not only the candidates appeared in Examination 2020 but by the candidates appeared in the various examinations/recruitment tests held by the State Commissions or by other recruiting agencies and by and large, every member of the society in one way or the other but that does not in any manner give legitimate right to the petitioners to claim additional benefit/attempt which is otherwise not permissible under the scheme of Rules 2020.”

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While discussing its related to issuing mandamus to frame policy, the Court held that the Judicial review of a policy decision and to issue mandamus to frame policy in a particular manner are absolutely different and Courts cannot issue mandamus to frame policy.

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Gauri Shankar v. State of Punjab, 2021 SCC OnLine SC 96

The Division Bench of Indu Malhotra and Ajay Rastogi*, JJ., confirmed punishment of life imprisonment for remainder of natural life awarded to a man accused of murdering two minor children aged 4 years and 2 years in brutal manner by administering celphos to them.

The Court observed that a trial court while sentencing an accused to life imprisonment cannot order that such imprisonment is for the remainder of his/her natural life. The power only lies in the hand of High Courts and the Supreme Court to direct the same.

 “It is true that the punishment of remainder of natural life could not have been imposed by the learned trial judge but after looking into the entire case, we consider it appropriate to confirm the sentence of imprisonment for life to mean the remainder of natural life while upholding the conviction under Section 302 IPC.”

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Sudipta Chakrobarty v. Ranaghta SD Hospital, 2021 SCC OnLine SC 107

Criticising the National Consumer Disputes Redressal Commission (NCDRC) for its practice of passing ‘reasons to follow’ orders, the bench of Indu Malhotra and Ajay Rastogi, JJ has asked the President of the NCDRC to take necessary steps so that this practice is discontinued, and the reasoned Judgment is passed along with the operative order.

The Court also observed that in all matters where reasons are yet to be delivered, it must be ensured that the same are made available to the litigating parties positively within a period of two months.

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Soumitra Kumar Nahar v. Parul Nahar, (2020) 7 SCC 599

“In a custody battle, no matter which parent wins but the child is always the loser”

In a case involving prolonged Court battle over child custody rights, the Division bench of AM Khanwilkar and Ajay Rastogi*, JJ., held that the Courts should decide the issue of custody on a paramount consideration which is in the best interest of the child who is the victim in the custody battle.

“Rights of the child need to be respected as he/she is entitled to the love of both the parents. Even if there is a breakdown of marriage, it does not signify the end of parental responsibility.”

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Pankjeshwar Sharma v. State of J&K, 2020 SCC OnLine SC 984

“Negative equality cannot be claimed to perpetuate further illegality”

A 3-Judge Bench comprising of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi*, JJ. held that any appointments made deviating from merit in exceptional cases can be justified, like in instant case viz. to give quietus to litigation, however such appointments would be irregular appointments, though not illegal and the candidates left out of merit list has no right to claim the same benefit which was provided to some other candidates on basis of some erroneous concession granted by the State. The Court restated that negative equality cannot be claimed to perpetuate further illegality.

“In a situation where the posts in excess of those advertised had been filled up in extraordinary circumstances, instead of invalidating the excess appointments, the relief could be moulded in such a manner so as to strike a just balance keeping the interest of the State and the interest of the person seeking public employment depends upon the facts of each case for which no set standard can be laid down.”

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Prerit Sharma v. Bilu B.S., 2020 SCC OnLine SC 961

The 3-judge bench of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi, JJ., by passing an interim order directed that there will be no reservation for to in-service doctors in Super Specialty Medical Courses for the academic year 2020-2021.

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IN RE: CONTAGION OF COVID 19 VIRUS IN CHILDREN PROTECTION HOMES, 2020 SCC OnLine SC 1026

The 3-judge bench of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi, JJ., has issued directions to ensure education of children in Child Care Institutions which has suffered due to the COVID-19 pandemic.

Read more…

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State of Odisha v. Dilip Kumar Pratihari, 2020 SCC OnLine SC 603

The 3-judge bench of S.K. Kaul, Ajay Rastogi and Aniruddha Bose, JJ., in an application seeking condonation of delay of 587 days filed by State of Odisha, had imposed a cost of Rs. 50, 000 and directed that an enquiry be conducted and cost be recovered from the delinquent officer.

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Anun Dhawan v. Union of India, 2020 SCC OnLine SC 165

Displeased with the Centre and the States on repeated failures by them to file their replies on a PIL seeking setting up of community kitchens across the country, the 3-judge bench of N V Ramana, Ajay Rastogi and V Ramasubramanian, JJ., came down heavily and imposed cost of Rs. 5 lakh on them for not complying with its directions to file their affidavits on a.

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C. Bright v. District Collector, (2021) 2 SCC 392

The 3-judge bench of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ while upholding the Kerala High Court’s decision, held that the time-limit to take action by the District Magistrate has been fixed to impress upon the authority to take possession of the secured assets. However, inability to take possession within time-limit does not render the District Magistrate functus officio. Time-limits stipulated in the section, are directory and not mandatory.

Interpreting Section 14 of the SARFAESI Act, the Court said that

“… the secured creditor has no control over the District Magistrate who is exercising jurisdiction under Section 14 of the Act for public good to facilitate recovery of public dues. Therefore, Section 14 of the Act is not to be interpreted literally without considering the object and purpose of the Act. If any other interpretation is placed upon the language of Section 14, it would be contrary to the purpose of the Act.”

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Rekha Sengar v. State of Madhya Pradesh, 2021 SCC OnLine SC 173

“A strict approach has to be adopted if we are to eliminate the scourge of female feticide and iniquity towards girl children from our society.”

While rejecting the bail in the case where the investigative team has seized the sonography machine and made out a strong prima-facie case against the petitioner, the 3-judge bench of MM Shantanagoudar*, Vineet Saran and Ajay Rastogi, JJ held no leniency should be granted at this stage as the same may reinforce the notion that the PC&PNDT Act is only a ‘paper tiger’ and that clinics and laboratories can carry out sex-determination and feticide with impunity.

“The unrelenting continuation of this immoral practice, the globally shared understanding that it constitutes a form of violence against women, and its potential to damage the very fabric of gender equality and dignity that forms the bedrock of our Constitution are all factors that categorically establish pre­natal sex­ determination as a grave offence with serious consequences for the society as a whole.”

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Dakshin Haryana Bijli Vitran Nigam Ltd. v. Navigant Technologies Pvt. Ltd., 2021 SCC OnLine SC 157

While deciding the question as to whether the period of limitation for filing the Petition under Section 34 of the Arbitration and Conciliation Act, 1996 would commence from the date on which the draft award is circulated to the parties, or the date on which the signed copy of the award is provided, the bench of Indu Malhotra* and Ajay Rastogi, JJ., held that the period of limitation for challenging arbitral award can only commence from date of receipt of signed copy and not from the receipt of draft

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Priti Saraf v. State of NCT of Delhi, 2021 SCC OnLine SC 206

The bench of Indu Malhotra* and Ajay Rastogi, JJ, while discussing the exercise of the extraordinary powers of the High Court under Article 226 of the Constitution, or in the exercise of the inherent powers of the High Court under Section 482 CrPC in quashing a criminal proceeding, reiterated that the existence of civil remedies by itself is not a ground to quash criminal proceedings.

The Court held that in the matter of exercise of inherent power by the High Court, the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the Court.

“…the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception.”

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BSNL v. Nortel Network India Pvt. Ltd, 2021 SCC OnLine SC 207

A bench comprising of Indu Malhotra* and Ajay Rastogi, JJ., held that the period of limitation for filing an application under Section 11 of the Arbitration and Conciliation Act, 1996 would be governed by Article 137 of the First Schedule of the Limitation Act, 1963.

The Court opined that the period of limitation will begin to run from the date when there is failure to appoint the arbitrator. Moreover, the Court may refuse to make the reference in rare and exceptional cases, where the claims are ex facie time-barred and it is manifest that there is no subsisting dispute.

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Vikas Kishanrao Gawali v. State of Maharashtra, 2021 SCC OnLine SC 170

Deciding the issue whether reservation for OBCs can exceed upper ceiling of 50% in local elections for entirely scheduled areas, the 3-Judge Bench comprising of A.M. Khanwilkar*, Indu Malhotra and Ajay Rastogi, JJ., held that the total seats reserved in favour of SC/STs and OBCs in local bodies should not exceed 50 percent of the total seats.

The Court read down Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 which mandated that the State should provide 27 percent reservation for OBCs as it ultra vires the provisions of Articles 243D and 243T including Articles 14 and 16 of the Constitution.

“The challenge to the validity of Section 12(2)(c) of the 1961 Act is negatived. Instead, that provision is being read down to mean that reservation in favor of OBCs in the concerned local bodies can be notified to the extent that it does not exceed aggregate 50 per cent of the total seats reserved in favor of SCs/STs/OBCs taken together.”

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Pravat Chandra Mohanty v. State of Odisha, 2021 SCC OnLine SC 81

“When the protector of people and society himself instead of protecting the people adopts brutality and inhumanly beat the person who comes to the police station, it is a matter of great public concern.”

In a case where two police officers who had mercilessly beaten a man leading to his eventual death back in 1985, the Division Bench comprising of Ashok Bhushan* and Ajay Rastogi, JJ., held that Custodial violence a crime against humanity. The Court considered the fact that both the appellants were more than 75 years of age therefore reduced the sentence awarded for conviction under Section 324 IPC to six months instead of one year and directed to pay a compensation of Rs.3.5 Lakhs each to the legal heir of the deceased in addition to the compensation awarded by the High Court.

 “The custodial violence on the deceased which led to the death is abhorrent and not acceptable in the civilized society. The offence committed by the accused is crime not against the deceased alone but was against humanity and clear violations of rights guaranteed under Article 21 of the Constitution.”

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Hitesh Verma v. State of Uttarakhand, (2020) 10 SCC 710

A 3-judge bench comprising of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ, in a case where abuses were hurled by a person of upper caste at a person belonging to Scheduled Caste due to a property dispute between them, held that no offence had been committed under Section 3(1)(r) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 because the insulting or intimidating of a person belonging to a SC/ST community will not be counted as offence under the Act unless such insult or intimidation is on account of them being a member of the SC/ST community.

 “The property disputes between a vulnerable section of the society and a person of upper caste will not disclose any offence under the Act unless, the allegations are on account of the victim being a Scheduled Caste.”

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Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469

“To cast aspersion on their abilities on the ground of gender is an affront not only to their dignity as women but to the dignity of the members of the Indian Army –men and women – who serve as equal citizens in a common mission.”

In a path-breaking judgement, the Division Bench comprising of Dr. DY Chandrachud* and Ajay Rastogi, JJ has held that blanket non-consideration of women for criteria or command appointments absent an individuated justification by the Army cannot be sustained in law and violates the guarantee of equality under Article 14 of the Constitution.

The Court ordered that the permanent commission will apply to all women officers in the Indian Army in service, irrespective of their years of service.

“Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women.”

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Union of India v. Lt. Cdr. Annie Nagaraja, 2020 SCC OnLine SC 326

“A hundred and one excuses are no answer to the constitutional entitlement to dignity, which attaches to every individual irrespective of gender, to fair and equal conditions of work and to a level playing field.”

In yet another major verdict addressing the gender stereotypes and rights of women, the Division Bench of Dr. DY Chandrachud* and Ajay Rastogi, JJ., lifted the statutory bar on the engagement or enrolment of women in the Indian Navy and directed the Centre to grant Permanent Commission to women Navy officers.

“Performance at work and dedication to the cause of the nation are the surest answers to prevailing gender stereotypes. To deprive serving women officers of the opportunity to work as equals with men on PCs in the Indian Navy is plainly discriminatory. Furthermore, to contend that women officers are ill-suited to certain avocations which involve them being aboard ships is contrary to the equal worth of the women officers who dedicate their lives to serving in the cause of the nation.”

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Hindustan Unilever Ltd. v. State of Madhya Pradesh, 2020 SCC OnLine SC 905

The 3-judge bench comprising of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ., in a case relating to the adulteration of Dalda Vanaspati Khajoor Brand Ghee dating back to 1989 wherein the company was absolved of all charges but prosecution against it’s nominated office Nirmal Sen was continued, held that in the absence of the Company, the Nominated Person cannot be convicted or vice versa i.e. either both of them are convicted or none of them.

“Since the Company was not convicted by the trial court, we find that the finding of the High Court to revisit the judgment will be unfair to the appellant/Nominated Person who has been facing trial for more than last 30 years. Therefore, the order of remand to the trial court to fill up the lacuna is not a fair option exercised by the High Court as the failure of the trial court to convict the Company renders the entire conviction of the Nominated Person as unsustainable.”

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Umedsinh P Chavda v. Union of India, 2020 SCC OnLine SC 500

In a public interest litigation (PIL) seeking ban on sale of Coca cola, Thums Up and Soft Beverages, the 3-judge bench of Dr. DY Chandrachud, Hemant Gupta and Ajay Rastogi, JJ., has imposed a fine of Rs 5,00,000 on the petitioner for abuse of process.

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Joint Labour Commissioner and Registering Officer v. Kesar Lal, 2020 SCC OnLine SC 327

The bench of Dr. DY Chandrachud* and Ajay Rastogi, JJ has held that a service rendered at no matter how less consideration would still be a ‘service’ under Consumer Protection Act.

“So long as the service which has been rendered is not rendered free of charge, any deficiency of service is amenable to the fora for redressal constituted under the Consumer Protection Act 1986.”

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Notable Judgments at High Court


Krishna Sarkar v. Government of Tripura, 2018 SCC OnLine Tri 209

In a writ petition for the claim of compensation in a medical negligence case, Ajay Rastogi*, CJ., refused to quantify compensation on mere allegation of ‘Medical Negligence’.

“…the law will take its own course but merely on an allegation of a medical negligence it cannot be established unless the parties are being permitted to lead evidence in support of their respective claim and certainly, on the disputed question of fact of alleged medical negligence…”

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Tapas Chakraborty v. High Court of Tripura, 2018 SCC OnLine Tri 57

The Division Bench of Ajay Rastogi, C.J., and S. Talapatra, J., held that once a FIR is quashed under Section 482 CrPC, no inference should be drawn to impute any adverse antecedents which in any way may deprive an individual from seeking public employment.

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Sudhir Debbarma v. State of Tripura, 2018 SCC OnLine Tri 94

“The object of the die-in-harness scheme is to provide solace to the dependent family members of the deceased employee who have lost their breadwinner and left them to destitute and in financial crunch to be mitigated at the earliest”

In a case dealing with providing compassionate appointment and how these matters are being dealt in very insensitive or casual manner by the Government officials, Ajay Rastogi*, CJ., imposed cost of Rs. 50,000/- upon the respondents authorities in taking the matter so casually in deciding the application under the die-in-harness scheme and directed the authority to recover the same from the concerned defaulting officers who are so casual in disposing of the application.

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Abhyutthanam Society. v. State of Rajasthan, 2016 SCC OnLine Raj 1947

In a public interest litigation filed for ensuring effective implementation of the Right of Children to Free and Compulsory Education Act, 2009, the Division Bench of Ajay Rastogi*, A.C.J., and S. Talapatra, J., held that the State Government do not holding any authority to re-write the definition of Sec.2 (d) of the Right to Education Act, 2009.

The Court also directed the State government to include children belonging to OBC & SBC categories whose parents’ annual income not exceeding Rs.2.50 lakhs as part of the notification dated 28.3.2016.

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Ganga Devi v. State, 2014 SCC OnLine Raj 1906

The Division Bench comprising of Ajay Rastogi and J.K. Ranka, JJ., while taking note of the fact that the appellant had served more than fourteen and a half years of sentence in jail without parole and that she was aged about 79 years, granted her permanent parole.

“a liberal view is to be taken at least in this particular case when admittedly, the convict-petitioner is a woman and is almost touching the age of 80 years and one never knows longevity of life but with her age, at least in this fag end of her life, she needs company of her children and so also grand children if any and spend rest of her life peacefully with them.”

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Jayant Sharma v. State of Rajasthan, 2012 SCC OnLine Raj 3000

“The government employees have neither fundamental nor statutory or moral right to resort to strike.”

While deciding the issue whether making respondents eligible for Pre P.G. Medical Examination against seats reserved for in service category by granting extra ordinary leave without pay for 32 days period for which they remained on strike amounts to misconduct, Justice Ajay Rastogi* held that whether it amounts to misconduct or not, can only be established after the disciplinary enquiry contemplated under RCS (CCA) Rules is conducted

The Court while acknowledging that the service of the medical profession is a noble service, opined that the government employees have neither fundamental nor statutory or moral right to go on strike.

“The impact of such strikes either by students and medical community who are directly connected with the hospitals is totally different from the strike in factory or trading establishment, as the ailing patients cannot be left waiting or unattended. Hospital activity is not the same as the lifeless functioning of machines in a factory or movement of trading material or other forms of commerce where workmen are being provided certain protection under the provisions of the Industrial Disputes Act. Almost all the activities in relation to hospital are such as require constant and incessant attending and care, unlike financial losses; the loss of life or limb cannot be recouped.”


†Ritu Singh, Editorial Assistant, EBC Publishing Pvt. Ltd. 

* Judge who has penned the judgment.

[1] https://main.sci.gov.in/chief-justice-judges

[2] https://theprint.in/judiciary/scs-newest-judges-had-set-aside-aap-mla-disqualification-ruled-fashion-shows-are-taxable/179680/

[3] https://thc.nic.in/FCJprofile-HAR.html

[4] https://www.scconline.com/blog/post/2019/08/23/triple-talaq-sc-issues-notice-to-centre-on-plea-challenging-the-new-law/

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: Arindam Lodh, J., decided on a matter wherein the petitioner, in response to an advertisement notified by the respondents, had participated in the selection process for filling up the post of Assistant, Cashier, Single Window Operator etc.

The issue related to Para 11 of the notification:

“11. Biometric Data- Capturing and Verification

  1. The biometric data (right thumb impression or otherwise) and photograph of the candidates will be captured and verified during the process of recruitment on the following stages:

(i) Before the start of the Preliminary/Online examination.

(ii) At the time of entry and exit during Main examination.

(iii) At the time of document verification after the Main Examination for final selection based on merit.

(iv) At the time of reporting for the training.

  1. Decision of the Biometric data verification authority with regard to its status (matched or mismatched) shall be final and binding upon the candidates.
  2. Refusal to participate in the process of biometric data capturing/verification on any of the above mentioned occasions may lead to cancellation of candidature.
  3. If fingers are coated (stamped ink/mehandi/coloured etc.), ensure to thoroughly wash them so that coating is completely removed before the exam/time of document verification after final selection/joining day.
  4. If fingers are dirty or dusty, ensure to wash them and dry them before the finger print (biometric) is captured.
  5. Ensure fingers of both hands are dry. If fingers are moist, wipe each finger to dry them.
  6. If the primary finger (right thumb) to be captured is injured/damaged, immediately notify the concerned authority in the test centre. In such cases impression of other fingers, toes etc. may be captured.
  7. Please note that apart from the occasions mentioned above, LIC reserves the right to capture/verify biometric data of candidates at other stages as well.”

The petitioner appeared at preliminary examination and thereafter in the main examination, but, during the process, his finger prints and biometric impressions were found to be mismatched however he had succeeded in both the examinations.

In the call letter issued before the main examination some relevant instructions were issued regarding the biometrics.

By the communication dated 19-03-2020, the petitioner was informed that higher office of the respondents did not approve the continuation of the service of the petitioner as Assistant in view of his status as “Not Matched” in the Biometric authentication done on 03-02-2020.

Mr. Roy Barman, Sr. counsel appearing for the petitioner had submitted that the decision of the respondents discharging the petitioner from the service was arbitrary and illegal.

Counsel appearing for the respondents-LIC of India had submitted that the instant writ petition raised serious disputed question of facts which cannot be decided by this court in exercise of its jurisdiction under Article 226 of the Constitution of India.

The Court was of the opinion that there is no mechanism before this court to determine the issue raised in this writ petition conclusively as to how and whether the biometric impression concerning the petitioner was genuine or not.

The Court directed the respondents to dispose of the representation and examine the issue afresh as are available from the facts stated in the writ petition as well as in the representation. The Court further suggested that respondents may take the assistance of forensic examination to find out the claim of the petitioner qua authenticity of the thumb impression of the petitioner.[Subhradeep Mazumder v. LIC, 2021 SCC OnLine Tri 484, decided on 06-09-2021]


Suchita Shukla, Editorial Assistant has reported his brief.

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: Akil Kureshi, CJ., dismissed a petition which was filed challenging an order passed by the disciplinary authority imposing punishment of reduction of the petitioner’s pay by three stages for a period of four years with future effect.

Petitioner was working as Junior Engineer (Civil) with Border Road Task Force (BRTF) and on 20-01-2017 petitioner was served with a charge-sheet which contained one charge of deficiency of contract materials, irregularities in handing/taking over, improper maintenance and updating of site documents due to which loss to the tune of approximately 2.08 crores arises to Govt. The inquiry was conducted. The inquiry officer submitted his report on 22-07-2017 holding that the charge was proved.

The petitioner did not make any representation against the inquiry officer’s report whereupon the disciplinary authority passed the said order imposing punishment. The petitioner challenged the said order before the appellate authority, unsuccessfully. Hence, this petition.

The Court noted that before the inquiry officer the petitioner had in clear terms admitted the charge unconditionally, in fact during the preliminary inquiry as well as the departmental inquiry the petitioner accepted the charge and had declared the following:

“I GS-195496X JE (Civ) Vaibhav R Jadhav of 477 RMPL/112 RCC have received the brief given by Shri Sudhansu Tyagi, AE (Civ), Presenting Officer. I agree with the contents of the brief given by presenting officer. Once again I reiterate that I have accepted all charges leveled against me with free and cool mind. Since I have accepted all charges levelled against me, therefore, no defence and state witness to be examined by me. Further, after accepting the charge levelled against me no listed document to be examined by me. I again humbly request with disciplinary authority that a lenient view to be kept about me while deciding punishment about me as I was new to the organization.”

The Court was of the view that there weren’t any errors in the order. The first retraction of the admission of the petitioner came before the appellate authority where he contended that his acceptance of the charge was not free. He was promised that a minor punishment would be imposed if he admitted the charge and, therefore, the punishment would be deleted. The appellate authority examined this aspect but did not accept it and, therefore, dismissed the appeal.

The Court while dismissing the appeal stated that the petitioner had not produced any material to establish his averment that the admission of charge which he had made more than once, was forcibly extracted from him. In a writ petition, such a factual issue in absence of any material produced by the petitioner on a bare word cannot be accepted.

[GS-195496X JE(Civ) Vaibhav Jadhav v. Union of India, 2021 SCC OnLine Tri 480, decided on 17-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: S.G. Chattopadhyay, J., rejected an application filed for seeking pre-arrest bail whereby the petitioner was apprehending arrest registered under Sections 353,333,307 and 384 read with Section 34 IPC.

In the FIR dated 12-08-2021 informant alleged that he was going to his office for performing duty. Accused along with his associates stood on his way and attacked him with an iron rod. The accused gave several blows on his forehead with the said iron rod. Besides physically assaulting him, accused also destroyed his official papers and robbed him of a sum of Rs 7000/-.

Counsel for the applicant submitted that it would emerge from the injury report that the informant received simple injury. Counsel, therefore, submitted that the allegations of the informant that the accused gave repeated blows with an iron rod on his fore head was entirely false because had it been so, he would have received grievous injuries.

Counsel for the respondent submitted that the accused attacked the informant deliberately with deadly weapon when he was in the discharge of his official duty. He further submitted that the informant and the neighbouring people who witnessed the occurrence had consistently supported the allegations. It was contended that arrest and detention of the accused was necessary to ascertain the motive of the crime and book his associates because the FIR itself would show that the accused was being accompanied by his associates while committing the said offence.

The Court noted that from the injury report of the informant that after the alleged assault, he was treated in Gomati District hospital where doctor found swelling injuries on his neck, fore arm and other parts of his body and cut injuries were also found on his forehead and left elbow which supports the allegation that blows were inflicted by the accused on those parts of his body.

The Court was of the view that allegations against the accused were serious and sufficient incriminating materials supporting those allegations were available on record. Pre arrest bail of the accused at this stage is likely to impair a fair investigation.

The Court rejecting the application held that it would not be appropriate to grant pre-arrest bail to the accused.[Pran Krishna Das v. State of Tripura, 2021 SCC OnLine Tri 468, decided on 15-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: The Division Bench of Akil Kureshi, CJ. and S.G. Chattopadhyay, J., allowed an appeal which was filed challenging the order of the Single Judge.

Appellant was a company incorporated under the Companies Act which was engaged in plantation, production and sale of tea. It ran a tea estate in Tripura in the name of Murticherra Tea Estate.

Pursuant to the recommendation of the Advisory Board constituted by the State Government the respondent approved the standards and specifications of houses for the workers engaged in various tea estates across the State. The appellant in the original petition had challenged the formation of the Advisory Board and the standards and specifications of housing accommodation for tea plantation workers which was approved by the said Advisory Board on the ground that its composition did not conform to of the said rules. Petitioner had sought explanation as to why the notification should not be declared bad in law for not being issued following the requirements of Rule 54 of the Tripura Labour Plantation Rules 1954, and accordingly quashed.

Respondent filed counter affidavit contending that Sri Anjan Kr. Das, President of Tea Association of India (TAI) in its Tripura chapter and its Secretary, Sri P.K. Sarkar were included in the Advisory Board constituted under Rule 54 of the said Rules as members with their consent because both of them were present in the tripartite meeting in which it was decided that the Advisory Board under Rule 54 of the said Rules would be constituted and said Anjan Kr. Das and P.K. Sarkar would be the employers’ representative in the board. Consequently, the formation of the Advisory Board was notified by the State Government.

Single Judge had held that there was no defect in the formation of the Advisory Board which was duly notified by the State Government by notification and which was duly published in the Official Gazette.

The appellant had challenged the order of the single judge on the following grounds:

(i) Formation of the board was defective because employers’ representatives were never intimated about their inclusion in the said Advisory Board.

(ii) Since the Advisory Board was not formed in conformity with the statutory provisions, the actions taken by the board were illegal.

(iii) Learned Single Judge did not appreciate the fact that the respondent could not adduce any proof of delivery of the letter intimating the employers‟ representatives about the schedule of the meeting held on 24.01.2012 in which the housing scheme was finalized.

The Court perused Rule 54, Rule 55(1) of the said Rules and noted that there is no conflict between Rule 55 and the notification dated 04-01-2012 of the State Government whereby the said Advisory Board was constituted. It would appear from the composition of the Board that the Advisory Board consisted of three representatives of the employers and three of the workers and as such the notification composing the Advisory Board cannot be faulted with. It was further observed that in so far as the challenge of the appellant to the validity of the recommendation of the Advisory Board in respect of the housing scheme was concerned, the appellant as it appears from the record, had challenged the validity of the meeting on the ground that no meeting notice was served on the employers’ representatives intimating them about the schedule of the meeting and the finding of the Single Judge that notice was served on one of the representatives of the employers who refused to attend the meeting cannot stand because there is no proof of delivery of notice on any of the employers’ representatives.

Procedure relating to the meetings of Advisory Board is laid down under Rule 60 to 66 in Chapter IV of the said Rules which was also perused by the Court and it was clarified that service of notice of meetings of the Advisory Board on every member at least 15 days before such meeting along with list of business is compulsory unless an emergent meeting is called by the Chairman in which case a notice giving such reasonable time as the Chairman may consider necessary shall be sufficient.

The Court was of the opinion that the challenge of the appellant with regard to validity of the recommendations made by Advisory Board as regards the standards and specifications of houses for tea garden labourers on the ground that no notice of the meeting of the said Advisory Board was served on any of the representatives of the employers appears to be genuine.

The Court allowing the appeal held that they are unable to accept the findings of the Single Judge with regard to the validity of the recommendations made by the Advisory Board.[Fortuna Agro Plantation Ltd. v. State of Tripura, 2021 SCC OnLine Tri 46, decided on 13-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Advocates before the Court:

For Appellant(s): Mr S.M. Chakraborty and Ms P. Sen

For Respondent(s): Mr D. Sharma

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: Arindam Lodh, J., allowed a petition which was filed against the rejection of his application for reimbursement of medical bills by the State Finance Department and the Treasury Officer.

The petitioner was a retired Judicial Officer. In the year 2019, he went on a family tour and during travelling, he fell seriously ill and consulted with the Doctor and on an emergent situation he was compelled to be treated at the Asian Institute of Gastroenterology, Hyderabad. He also received further treatment at Kolkata the wife of the petitioner also had suddenly fallen ill in Kolkata and got treated in the Private Consulting Room of Prasida Ayurvedic Clinic, Kolkata. Since both the petitioner and his wife were on tour outside the State of Tripura and suddenly had suffered illness, they could not obtain referral certificate from the State Standing Medical Board. However, after returning to State, the petitioner submitted bills for reimbursement to the learned District & Sessions Judge, West Tripura Agartala. The said bills were forwarded to the Secretary of the Law Department, Government of Tripura by District and Sessions Judge. Objections were raised due to non-furnishing of referral certificate, Finance Department, Government of Tripura had regretted the medical bills of the petitioner, which compelled the petitioner to approach this Court for redress.

The Court after perusal of the facts and documents was of the opinion that it would be an absurdity for the petitioner and his wife to return to Agartala for the referral certificate from the competent medical board. Human life is precious. Article 21 of the Constitution of India enshrines the right to life which includes the valuable right to health. The Court further noted that present case was not the case where the petitioner at his own whims went to Hyderabad and Kolkata for his treatment. The sudden illness, the petitioner suffered in Hyderabad, was unforeseen and unexpected. Similar was the case of the wife of the petitioner who suddenly suffered illness in Kolkata and got treated to save her life.

The Court further relied on the judgment in Subal Das v. State of Tripura, WP(C) No. .895 of 2018 where it was held that,

“31. It should be kept in mind that the paramount consideration will be “emergency and its exigencies” considering a particular moment or situation faced by a patient, who may be an employee or family members of the employee. At the same time, this Court requests the State executives in the higher-ups of the administration to personally supervise these matters and not entirely depend upon the notes given by the staffs in the lower ranks, and furthermore, the officers should keep in mind the paramount considerations as are indicated above.”

The Court stated that to determine the emergent and immediate exigencies, the authorities concerned must be rationale to each and every separate and variable circumstances following Wednesbury’s Principle of Reasonableness so that it does not shock or hit the conscience of the Court, in addition, with utmost humane touch.

The Court while allowing the petition directed the respondents to reimburse the medical bills as forwarded by the learned District & Sessions Judge, West Tripura the respondent No.2 as well as the Law Department, Government of Tripura within a period of 3(three) months.[Jibesh Ranjan Datta v. State of Tripura,  2021 SCC OnLine Tri 452, decided on 07-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


For the Petitioner(s) : Mr N. Majumder

For the Respondent(s) : Mr D. Bhattacharjee and  Mr. K. De

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: S.G. Chattopadhyay, J., rejected a bail application which had been filed by accused petitioner for granting pre arrest bail to him under Section 438, CrPC. The petitioner had been booked for offence punishable under Section 409, IPC. He was alleged to have made fictitious salary bills to the tune of Rs 5,61,302/- in his department and drawing the same from government treasury he had got the entire amount of money transferred to his own bank account.

After the detection of the offence, the Deputy Inspector General of Police (HGS), A.D. Nagar police station, Agartala lodged the FIR with the Officer in Charge of A.D. Nagar police station on the basis of which the case was registered and investigation was taken up. Apprehending arrest, the petitioner had approached the Court and his counsel, Mr A.K. Pal submitted that despite being innocent, petitioner has returned the entire sum allegedly defrauded by him to his department by withdrawing the same from his bank account and that no purpose of investigation will be served by his arrest and detention.

Mr R. Datta, P.P on the other hand contended that in all likelihood, the petitioner alone would not have been able to commit such a crime. His arrest and detention was, therefore, necessary to book his associates. He further argued that the petitioner had defalcated huge amount of money of his own department by making fictitious salary bills. Simply for the reason that he has returned the money, his offence does not get extinguished.

The Court was of the opinion that nature of allegations was serious and materials collected by the investigating agency have made out a good prima facie case against the accused petitioner. The Court noted that without assistance of others, petitioner would not have been able to commit the offence alone. Therefore, his custodial interrogation may be necessary to book his associates.

The Court stated that the essential parameters for consideration of bail are the nature of offence, the punishment thereto, possibility of his tempering with the prosecution evidence in case of his release on bail, likelihood of his fleeing away from the jurisdiction of the court etc., and believed that in the given circumstances the extra ordinary relief available under Section 438 CrPC cannot be given to the accused petitioner. The Court thus, rejected the bail application.[Jayanta Ghosh v. State of Tripura, 2021 SCC OnLine Tri 447, decided on 03-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: Akil Kureshi, CJ., dismissed a petition which was filed challenging an order passed by the Director of Elementary Education imposing punishment of compulsory retirement on the petitioner as also an order passed by the Secretary, Education (School) Department, Government of Tripura dismissing the appeal against the order of the disciplinary authority.

In the year 1997, the petitioner was appointed as an undergraduate teacher in a Government school. On 06-05-2019 an incident took place when the petitioner had beaten up a Class-III student after which Inspector of Schools, therefore, issued a memorandum calling for the petitioner’s explanation for such incident. Petitioner had replied that he was taking the class of arithmetic of Class-III he had asked the students

to write down numbers from 9 to 99 and she could not write some numbers, such as, 19, 29, 47 etc. Since this was taught to the students ten days back and this girl could not give correct answers, he lost temper and beat her up with a cane which he was carrying in his hand.

Not satisfied with the explanation of the petitioner the department instituted an inquiry, the petitioner did not resist the allegations contained in the departmental inquiry during the course of the inquiry proceedings. The Inquiry Officer thereupon presented his report dated 25-09-2020 holding that the charge against the petitioner was proved. The disciplinary authority considered the inquiry report and the representation of the petitioner and imposed the punishment of compulsory retirement. Petitioners appeal against the disciplinary authority was dismissed.

Counsel for the petitioner, Mr Roy Barman submitted that the petitioner had candidly accepted the charge and regretted his actions and assured that such incidents shall not occur in future. The disciplinary authority therefore should have taken a lenient view and imposed any punishment other than dismissal, removal or compulsory retirement.

The Court stated that charge against the petitioner that stood proved thus was of a serious physical assault on a Class-III girl student causing injuries which required her to be hospitalized and the physical and mental trauma caused fever to her and thus Court further opined that conduct of the petitioner cannot be seen as a momentary loss of discretion on account of some unacceptable but otherwise explainable reason. The petitioner has tried to put it as a one of lapse on his part as something which is conventional though no longer legal.

The Court was of the view that in the facts of this case it cannot be stated that the punishment imposed by the disciplinary authority and confirmed by the appellate authority was disproportionate to the proved charge relying on the judgment of the Supreme Court in B.C Chaturvedi v. Union of India, JT 1995(8) SC 65.

The Court dismissed the petition and further held that Mere honesty of the petitioner in admitting the charge or his assurance that such an incident shall not recur are not the grounds for tempering with the order passed by the disciplinary authority in the present case.

[Chandan Shil Sharma v. State of Tripura, 2021 SCC OnLine Tri 427, decided on 23-08-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: Akil Kureshi, CJ., dismissed a writ petition which was filed aggrieved about non-payment of gratuity and pension after retirement.

The petitioner had joined the service of the Government of Tripura in the year 1992 as a Lower Division Clerk on a reserved post for Scheduled Tribe wherein she had claimed that she belonged to Laskar(Tripuri) community which was recognized as a Scheduled Tribe in Tripura.

The question of Laskar community being recognized as a Scheduled Tribe became a focal point of long legal controversy. Eventually, the Supreme Court had upheld the judgment of the Tripura High Court holding that the Laskar community is not a recognized Scheduled Tribe in the State of Tripura. It was however decided that those belonging to Laskar community and who had been granted any benefit of reservation up to 31-03-1990, the same shall not be withdrawn looking at the longstanding disputes.

The cancellation of the petitioner’s caste certificate and consequentially, her appointment in Government service also went through several legal stages. At one stage, the Judge allowed the petition and set aside the order passed by the State Level Scrutiny Committee(SLSC) cancelling her caste certificate, in the writ appeal the Division Bench confirmed the above order. SLSC once again passed a fresh order, cancelling the caste certificate of the petitioner and the government acting upon the order cancelled petitioner’s appointment which was based on the false claim of Scheduled Tribe status.

The petitioner aggrieved by this had approached the High Court and the Judge had stayed the implementation of the order and accordingly, the petitioner had rejoined the duties.

While this petition was pending the petitioner retired and the petition was eventually dismissed, the decision was challenged, which was again dismissed. In the present petition direction for release of her gratuity and pension was prayed for.

The Court after perusal of facts and documents opined that based on the cancellation of the caste certificate, her appointment also stood cancelled and these orders had achieved finality since Single Judge, as well as the Division Bench, had dismissed the petition challenging this order. The Court further held that in this view of the matter, the petitioner cannot claim post-retiral benefits of pension and gratuity.

The Court while dismissing the petition however held that on the principles of quantum meruit, the salary already paid to the petitioner for the work done cannot be a subject matter of recovery but the benefits of Government employment, promotion or admission in educational institutions on the strength of false claim of reserved category candidate, would be withdrawn once it is proved that the caste status was falsely claimed.[Sipra Debbarma v. State of Tripura, 2021 SCC OnLine Tri 380, decided on 29-07-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


For Petitioner(s): Ms A Debbarma and Mr Samarjit Bhattacharjee

For Respondent(s): Mr Biswanath Majumder, CGC and Mr S Dey

Tripura High Court
Appointments & TransfersNews

President appoints Satya Gopal Chattopadhyay, to be a Judge of the Tripura High Court with effect from the date he assumes charge of his office.


Ministry of law and Justice

[Notification dt. 04-03-2020]