Case BriefsHigh Courts

Madhya Pradesh High Court: G.S. Ahluwalia, J., dismissed the petition finding no ground for interference in the impugned order.

The petitioner has approached the Court under Article 226 of the Constitution of India whereby she has challenged the impugned order dated 15-06-2020. The petitioner who is holding the position of ANM has been transferred from Sub-Health Centre, Bhageh to Sub-Health Center, Chhimak.

Counsel for the petitioner, Prashant Sharma has relied heavily on the circular dated 6-9-2018 issued by the Secretariat Health Services, State of M.P. stating that no ANM should be attached to any other health organisation or headquarter other than their original place of posting.

The counsel for the respondent, Anmol Khedkar has contended that the transfer was requested by the petitioner herself and that she has been transferred within the tehsil.

While perusing the facts and averments made by the parties, the Court observed that the petitioner has completed 7 years of service at Sub-Health Centre, Bhageh and that petitioner’s services are required at Sub-Health Centre, Chhimak in wake of the ongoing Covid19 pandemic. The crux of the aforementioned circular is that ANM’s should continue working at their places of posting and they should not be attached to any other headquarter or health organisation. The circular in no way acts as a roadblock in the process of transfer of an ANM. Besides, the petitioner has been transferred within the same tehsil.

Eventually, the Court held that it cannot act as an appellate authority in cases of routine transfer or transfer based on an exigency. Decisions revolving around the transfer of employees fall within the domain of the authorities. No employee can make demands for posting at a particular place.

Hence, the Court dismissed the petition in the situation where there’s an absence of justifiable reasons for interference with the impugned order.[Sarita Vimal v. State of M.P., 2020 SCC OnLine MP 1597, decided on 22-07-2020]

Yashvardhan Shrivastav, Editorial Assistant has put this story together

Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: Ajay Mohan Goel J., dismissed the petition being devoid of merits.

The facts of the case are such that the petitioner happened to be a Medical Officer by virtue of which he was appointed in the rural area of the State of Himachal Pradesh. An Office Memorandum issued by the Government of Himachal Pradesh, permitting employees of the Government of Himachal Pradesh to go on Extraordinary Leave subject to approval by the competent authority. In this case, the petitioner after applying for Extraordinary Leave misconducted himself by proceeding on leave without the same being sanctioned in his favour. The application also made an alternative prayer of being granted premature retirement which was rejected by the authority concerned. Due to willful absence from duty, a memorandum was issued to him. An inquiry under Rule 14 of the CCS (CCA) Rules, 1965 was proposed to be held against him. The Article of Charges framed against the petitioner were that his willful absence was in violation of Rule 3 of the CCS (Conduct) Rules, 1964 and that he was indulging in private practice at Rampur which was very unbecoming of a Government servant. The Disciplinary Authority found the petitioner to be guilty of charges. The petitioner was given an opportunity to be heard, dissatisfied by which, he was dismissed from services with immediate effect. Aggrieved by the same, an appeal was filed before the instant court which was dismissed again. Hence, the instant petition in the nature of certiorari and mandamus was filed challenging the above-aggrieved orders.

Counsel for the petitioners Shalini Thakur submitted that disciplinary proceedings were bad in law and the order was a non-speaking order’. It was further submitted that the punishment which has been imposed upon the petitioner is harsh and not in proportion with the alleged misconduct of the petitioner.

Counsel for the respondents Ajay Vaidya submitted that the Disciplinary Authority and the Appellate Authority have rightly passed appropriate orders, keeping in view the conduct of the petitioner and the report of the Inquiry Officer which established that the petitioner willfully absented himself from duty without having the approval of the same.

The Court observed that its power of judicial review against the decision of the Disciplinary Authority or the Appellate Authority does not lie. The Court cannot act as an Appellate Authority, but primarily has to see as to whether the Disciplinary proceedings were conducted in a manner which is in consonance with the CCS (CCA) Rules, 1965.

Courts observation on “speaking order”

“….that speaking orders does not ipso facto mean that they have to be lengthy orders also. If the order, may be brief, spells out the reasons as to why it has been passed, then it is a speaking order and it is not necessary that only lengthy order can be said to be a speaking order.”

Courts observation on “doctrine of proportionality”

“….the doctrine of proportionality has to be taken into consideration while imposing punishment upon an employee in case he is found guilty of misconduct, but in my considered view, there cannot be any straitjacket formula in this regard and the proportionality will depend upon facts of each and every case.”

The Court in light of facts, submissions and observations held that a Medical Officer cannot be equated with any other employee and the issue of willful absence from service in the case of a Medical Officer has serious and different connotations as compared to any other employee. Hence the punishment which has been imposed upon the petitioner by the Disciplinary Authority and upheld by Appellate Authority cannot be said to be harsh or disproportionate to the misconduct of the petitioner.

In view of the above, the impugned order upheld and the petition dismissed.[Hemant Kumar v. State of H.P., 2020 SCC OnLine HP 1707, decided on 10-09-2020]

Arunima Bose, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: Dealing with the questions relating to interpretation of Section 47-A of the Indian Stamp Act, 1899 and the Tamil Nadu Stamp (Prevention of Undervaluation of Instruments) Rules, 1968 as amended from time to time, the bench of UU Lait and Indu Malhotra, JJ has held,

“There is nothing in the scheme of the Act which purports to restrict the exercise of suo motu power under Section 47-A, and confines it to cases where knowledge of any illegality or infirmity in the proceedings undertaken by the subordinate officers must be gathered from sources other than through a pending appeal.”

Under sub-section (1) of Section 47-A of the Act, if there is reason to believe that the market value has not been truly set forth in the Instrument tendered for registration, a reference can be made to the Collector, who (i) after giving the parties reasonable opportunity of being heard; and (ii) after holding an enquiry in such manner as may be prescribed by Rules, has to determine the correct value of the concerned property.

As per Rule 7 of the Rules, after considering the representations in writing and those urged at the time of hearing as well as all the relevant factors and evidence, the Collector must pass an order determining the market value of the concerned property and assess the element of duty payable on the instrument of transfer. Such order is required to be passed “within three months from the date of first notice”.

Here are the issues decided by the Court:

Whether Rule 7 of the Rules prescribing 3 months’ time for the Collector to pass an order determining the market value of the properties and duty payable on the instrument from the first notice, is directory or mandatory?

Explaining why requirement of the passing of order within 3 months from the date of first notice cannot be mandatory, the Court said,

“Form I notice itself must give twenty-one days to the concerned persons to respond. Depending upon their response, their statements would be recorded and/or certain information may be required to be called for, whereafter the Order in Form II is to be issued provisionally determining the market value. The concerned persons are entitled to raise objections in writing and must be afforded hearing. After fulfilling these requirements, the order in terms of Rule 7 can be passed. All these stages may not be completed in three months.”

The Court further explained that Section 47-A by itself does not prescribe any timeline. If the stipulation or fixation of period of three months from the first notice in terms of Rule 6 or from notice in Form II is taken to be mandatory it would lead to a situation of incongruity. The fact that Form II notice had been issued, would mean that on a prima facie view of the record and material, the value stated in the instrument was not the correct value; which in turn would mean that prima facie the Government Coffers were being denied the rightful dues.

“If for any reason the proceedings are not completed within three months and, therefore, must be held to be vitiated, the public interest would suffer, and the persons who were prime facie responsible for suppressing the real value, would stand to gain.”

The Court, hence, held that the amendment of Rule 7 incorporating the period of three months was essentially to guide the public officials to complete the process as early as possible but was not intended to create a right in favour of those who had prime facie conducted themselves prejudicing public interest.

Whether the appellate authority has power under Section 47A of the Act to enhance the market value of the property while deciding the appeal filed by the registrants?

Explaining the scope of appellate authority’s power under Section 47-A, the Court held that while entertaining an appeal, if an obvious illegality is noticed by the revisional authority, it can certainly exercise suo motu power to undo the mistake, or rectify an error committed by the subordinate officer authority, subject to such restrictions as are imposed on the exercise of the power by the statute.

Stating that nothing in the scheme of the Act purports to restrict the exercise of suo motu power under Section 47-A, and confines it to cases where knowledge of any illegality or infirmity in the proceedings undertaken by the subordinate officers must be gathered from sources other than through a pending appeal, the Court said,

“Unless the statute expressly or even by necessary implication restricts the exercise of power, there would be no occasion to read into the power, any other limitations.”

The Court, further, said that it makes no difference as to what was the source of the information or knowledge, so long as the power is exercised within the confines of the limitations or restrictions imposed by the statute, and is in accordance with law. Apart from the restrictions imposed by the statute, none can be read into the exercise of power on the ground as to the nature or source of information.

[Inspector General of Registration, Tamil Nadu v. K. Baskaran, 2020 SCC OnLine SC 509 , decided on 15.06.2020]

Case BriefsSupreme Court

Supreme Court: In an appeal against the order where the Madras High Court had after giving detailed findings on merits, relegated to the statutory remedy of filing the appeal before Appellate Authority (Alternative Remedy) under section 45 IA (7) of Reserve Bank of India Act 1934, the bench of Arun Mishra and MR Shah, JJ ordered that the proceedings before the Appellate Authority will not be affected by the findings recorded by the High Court. It said,

“Since the petitioner has been relegated to the statutory remedy of filing the appeal, the observation made by the High Court shall not come in the way of the petitioner.”

The Court was hearing the case wherein the RBI had cancelled the registration of petitioner company Nahar Finance and Leasing Limited for non-compliance of the minimum criteria of net owned fund. Hence,

  • a Writ petition was filed by the said company challenging the order of the cancellation of registration on the ground of natural justice as the cancellation order showed that the RBI rejected the replies of the company in one line.
  • The single judge granted time for compliance.
  • RBI filed a Writ Petition against the order of the Single Judge.
  • Division bench set aside the judgment of the Single Judge after deciding the matter on merits and relegated the parties to Appellate Authority (Alternative Remedy) under section 45 IA (7) of Reserve Bank of India Act 1934.

Advocate Swarnendu Chatterjee, in his plea, had argued that the High Court has,

“put a full stop which is akin to civil death of the petitioner companies even when it was relegating the matter to the appellate authority.”

The Madras HC verdict in Viswapriya Financial Services and Securities Limited V. Executive Director, Reserve Bank of India, No 1932 of 2015 was also referred to wherein the Honourable Division Bench remitted the matter to the Appellate Authority but refrained from giving any finding on merit and especially on similar issue regarding opportunity of being heard prior to cancellation of registration under section 45 IA (6) of Reserve Bank of India Act, 1934 was also not given as the bench was remitting the matter to the Appellate Authority envisaged under subsection 7 to section 45 IA of Reserve Bank of India Act, 1934. Pertinently the honourable Division Bench therein had directed the Appellate Authority to consider the matter independently without being influenced by the judgments of learned Single Judge and Division Bench.

[Nahar Finance and Leasing Ltd v. Regional Director, RBI, Special Leave to Appeal (C) No(s).17243-17245/2019, order dated 29.07.2019]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Dhiraj Singh Thakur, J., dismissed a writ petition filed against the order of Special Tribunal, whereby the Tribunal directed the appellate authority to adjudicate the appeal afresh keeping in mind Rule 52 of the Jammu & Kashmir Agrarian Reforms Rules, 1977 (the Rules).

The main issue that arose before the Court was whether Rule 52 of the Rules would be applicable in the instant matter.

The Court observed that the petitioner had participated in the appeal proceedings for more than 2 years. This action on the part of the petitioner suggests that it had elected to accept the order of the Tribunal. The Court referred to the Supreme Court judgment of Joint Action Committee of Airline Pilots Association of India (ALPAI) v. Director General of Civil Aviation, (2011) 5 SCC 435, wherein it was held that in case if a party does not speak or protests in a matter where he should, then such a party is estopped from challenging the outcome of such a dispute, this doctrine is known as doctrine of election. The Court further observed that while deciding the issue of limitation in terms of Rule 52, the appellate authority must also consider the contents of the main appeal and only after that it should form an opinion if the case requires interference or not. The rule does not leave it to the discretion of the Appellate Authority to choose in which cases it may decide to go into the merits to decide whether it is a case for the exercise of revisional powers.

The Court held that in the instant case the appellate authority had only touched the issue of limitation without giving any consideration to the main merits of the case and without proceeding to the contents of the appeal, it was impossible to form an opinion in terms of Rule 52 of the Rules. Resultantly, the petition was dismissed and the order of the Tribunal was upheld.[Rano Devi v. State of J&K,2018 SCC OnLine J&K 836, order dated 16-11-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Rajendra Menon, CJ, and V. Kameswar Rao, J. dismissed an appeal preferred by the writ petitioner against the order of the Writ Court allowing the petition filed by the respondents against the order of Chief Information Commission.

The appellant had filed an application under the Right to Information Act, 2005. The CPIO concerned refused to furnish the same while giving the appellant an opportunity to carry out inspection of the record and copies thereof. The appellant filed an appeal before the Appellate Authority prescribed under the Act. The Appellate Authority dismissed the appeal. Thereafter, the matter reached to the CIC who decided the matter in favour of the appellant and directed furnishing of certified copies while also recommending disciplinary action against the Appellate Authority. Challenging the order of CIC, a writ petition was filed by the Union of India which was allowed by the Writ Court. Aggrieved by the same, the appellant filed the instant appeal.

The High Court perused Section 20 of the Act and observed that it was clear that sub-section (2) thereof makes only a CPIO liable for disciplinary action. Further, it was also observed that an Appellate Authority under Section 19(1) is classified as an officer senior in rank to the CPIO. meaning thereby that the CPIO is a different authority from the Appellate Authority. The legislative intent was only to take a disciplinary action against CPIO and not against the Appellate Authority as was evident from Section 20(2). Thus, it was held that no penal action could be taken against the Appellate Authority under RTI Act. As such the appeal was dismissed. [R.K. Jain v. Union of India,2018 SCC OnLine Del 10957, dated 29-08-2018]