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Prof. Faizan Mustafa demitted office as the Vice-Chancellor of NALSAR, Hyderabad, he has returned to the Department of Law, Aligarh Muslim University on Monday. He has begun by teaching criminal law to the students of the fourth semester.
He shall also be taking constitutional law classes later on.
Rajasthan High Court: In a case of an illegal termination of a Manager of Kotak Mahindra Bank being pending for relief and having no effective hearing owing to the post of Deputy Labour Commissioner being vacant, Arun Bhansali J. instructed the State to appoint competent authority which was thereby appointed.
The Petitioner was appointed as Senior Manager with the respondent-bank Kotak Mahindra Bank. The petitioner received several awards and accolades for his exceptional performance but on a not so fateful day, he was terminated from his services with immediate effect without any notice or enquiry whatsoever for alleged admitted indulgence in fraudulent activities prejudicial to the interest of the Bank by routing the direct business through DSA (Direct selling agents).
A complaint was filed under Section 10-A of the Industrial Dispute Act (‘ID Act') with an objective to resolve the dispute through conciliation before the Joint Labour Commissioner and Labor Conciliation Officer, Labour Department/Office, Jodhpur. However, owing to vacancies in the office of the Labour Department and thus due to no effective hearing, no action could have been undertaken.
Being aggrieved of the illegal termination order by the respondent bank, the Petitioner filed a Complaint under Section 28-A(2) of the Rajasthan Shops and Commercial Establishments Act, 1958 (‘1958 Act') read with Rule 24B of the Rajasthan Shops and Commercial Establishments Rules, 1959 (‘1959 Rules'). Hence, in the absence of an efficacious remedy to provide any relief against the prima facie illegal termination by the respondent bank, the present writ petition was preferred before the instant Court.
The petitioner contended that the illegal termination was justified as per Clause 19 of the employment agreement which is void ab initio being in contravention to the applicable law. It was further contended that though the petitioner has availed himself of his remedy under the Rajasthan shops and Commercial Establishments Act, on account of the office of the Labour Commissioner at Jodhpur being vacant present petition was filed.
Counsel for respondent submitted that steps have already been taken for appointment of Joint Labour Commissioner and needful is likely to be done by the next date of hearing.
Thus, it was brought to the notice of the Court that the competent authority, i.e. the Dy. Labour Commissioner has been appointed vide order dated 14-07-2022, and hence in light of this, the Court disposed of the petition.
However, the Court remarked that it is expected of the competent authority to deal with the matter filed by the petitioner with utmost expedition.
[Aaraj Sharma v. State of Rajasthan, S.B. Civil Writ Petition No. 7614/2022, decided on 27-06-2022 and 21-07-2022]
Advocates who appeared in this case :
Mr. Siddharth Tatiya, Advocate, for the Petitioner(s);
Mr. Himanshu Shrimali, Advocate, for the Respondent(s).
*Arunima Bose, Editorial Assistant has reported this brief.
Jammu and Kashmir and Ladakh High Court: While deciding the instant appeal wherein substantial questions of law were raised vis-a-vis SectionS 80, CPC; the Single Judge Bench of Vinod Chatterji Koul, J., held that the language of Section 80 is very clear in stating that at the time of filing a suit, if the plaintiff can establish that there is an urgency to seek relief, then the Court on its satisfaction, may dispense off with the requirement of notice before filing a suit under Section 80.
Facts and Legal Trajectory of the case: The Chief Medical Officer, Pulwama, issued advertisement on 06-02-2012 inviting applications from eligible candidates of District Pulwama, for the posts of Female Multipurpose Health Worker (hereinafter FMPHW) for Sub Centre Amlar. The advertisement was issued under the National Rural Health Mission (NRHM). The prescribed qualification was Diploma in FMPHW and that the candidate should be resident of the locality where the Health Institution is located so as to ensure continuous presence for 24 x 7 days’ service.
In pursuance of the afore-stated advertisement, the appellant and the respondent applied for the post. The appellant was appointed on 19-05-2012 as FMPHW at Sub-Centre Amlar, Block Tral, and joined her duties on 21.05.2012. The respondent, however filed a suit seeking to declare the appellant’s appointment null and void as the officials acted in derogation to the rules and guidelines as stated in the advertisement and were under a mistaken assumption in considering Nowpora as a village. The Trial Court held that the appointment of the appellant was illegal.
Aggrieved by the decision, the appellant approached the Principal District Judge, Pulwama, who dismissed the appeal. The appellant then approached the High Court claiming that there are substantial questions of law that require the High Court’s consideration.
The Substantial Questions of Law in this case: The Court while considering the instant appeal, framed the following questions of law-
Whether in judging the appointment of the appellant as FMPHW, did the Trial Court introduce a criterion which is foreign to the advertisement notice as also the norms fixed by the Government?
Observations and Decision: While deliberating upon questions framed, the Court observed that Questions I and II are interconnected as they require consideration of S. 80, CPC.
With the above-stated observations, the Court dismissed the appeal but allowed the appellant to make representations before official respondents if it is permissible.
[Raisa Banoo v. Shameema, 2022 SCC OnLine J&K 586, decided on 21-07-2022]
Advocates who appeared in this case :
G. A. Lone, & Mujeeb Andrabi, Advocates, for the Appellant;
Rayees Ahmad Ganaie, GA and Showkat Ali Khan, Advocates, for the Respondents.
*Sucheta Sarkar, Editorial Assistant has prepared this brief.
Gauhati High Court: The single Bench of Michael Zothankhuma, J., disposed of the writ petition and held that a cousin cannot be included within the definition of ‘member of family’ under the provisions of Assam Public Services (Preferential Appointment) Rules, 1999 (hereinafter as APS Rules, 1999).
A writ petition was filed by the petitioner stating that he was the cousin of the deceased Gajendra Bijoy Rabha, who was a martyr in the Assam Movement and hence, was entitled to be given a preferential appointment as per the provisions laid down of the Assam Public Services (Preferential Appointment) Rules, 1999.
Dismissing the petition, the Bench observed that under Rule 2 (d) of the APS Rules, 1999, a preferential appointment is provided to only certain categories of family members which includes a son or daughter of the spouse or a brother or sister of a martyr or a physically disabled person. Therefore, the Bench held that a cousin cannot be included within the definition of ‘member of family’ under the APS Rules,1999. Hence, the petitioner was not entitled to preferential appointment in Assam Public Services as per the provisions of the rules.
[Jackie Rabha v. Principal Secretary to the Govt of Assam, 2022 SCC OnLine Gau 1074, decided on- 18-07-2022]
Appearances
For the Petitioner: MD B Islam, Advocate
For the Respondent: GA, Assam
The President appoints following Additional Judges of the Bombay High Court, in that order of seniority for a period of two years with effect from the date they assume charge of their respective offices.
Bombay High Court: The petitioners challenged the order of a School Tribunal, whereby they were directed to reinstate the respondent/employee. Quashing the order of the Tribunal, the Bench of Rohit B. Deo, J. clarified that the advertisement of posts is not limited to posts that are reserved. It is necessary to advertise the posts in open category as well under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. It stems from the constitutional rights provided under Article 14 and 16.
The respondent was terminated from the petitioner institution on account of the appointment not being in accordance with Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977(“Act’’), not holding the eligibility education at the time of the appointment, and wilful absence from work. The School Tribunal rejected the above-mentioned grounds and directed for the reinstatement of the respondent in the petitioner school.
The High Court, primarily clarified on the requirement to advertise the post in open category under the Act. The Bench was in disagreement with the judgment laid in Nita Ramesh Danane v. Dombivali Mitra Mandal (2008) 8 SLR 72 (Bom) and that was relied on by the School Tribunal. Nita Ramesh had held that the requirement of advertisement applies to reserved posts and in case of appointments to the open category, there would be no requirement of issuing an advertisement.
The High Court, held that the pronouncement in Nita Ramesh is in opposition to the decision given by the Division Bench in Priyadarshni Education Trust v. Ratis Bano, 2007 SCC Online Bom 720. The rationale of issuing an advertisement while making appointments in open category is to ensure that every eligible person is aware of the vacancy available. Such an action will give effect to the concept of equality provided under Articles 14 and 16 of the Constitution of India. The judgment in Priyadarshni Education Trust had further laid those educational institutions are not at par with private employer even if initially the institution is unaided.
On the issue of acquiring eligibility qualification subsequent to appointment, the Bench said that ‘it is trite law that the employee must be eligible to hold the post as on the date of the appointment if not on the date of the advertisement, as the case may be’ and ‘an employee, who was not qualified as on the date of the appointment, cannot be treated as regularly appointed with effect from the date on which he acquired the eligibility qualification’.
The employee in the present case did not have the right to hold the post, and therefore was not in the position to make any grievance or pray for any relief, even if it is assumed that he was terminated. The High Court held the order of the School Tribunal to be erroneous and quashed the same. No order for any compensation was made, as the same is only permissible when the order of termination is held to be illegal or improper. [Late Sanjay Gandhi Shikshan v. The Deputy Director of Education, Writ Petition 2260 of 2010, decided on April 19, 2022]
Appearances:
For Petitioners: Mr Pushkar Deshpande
For Respondents: Ms T.H. Khan, AGP (R1), Mr A.Z. Jibhkate (R2).
President appoints (i) Shri Sunder Mohan, and (ii) Shri Kabali Kumaresh Babu, to be Additional Judges of the Madras High Court, in that order of seniority, for a period of two years, with effect from the date they assume charge of their respective offices.
President appoints S/Shri Justices (1) Murali Purushothaman, (2) Ziyad Rahman Alevakkatt Abdul Rahiman, (3) Karunakaran Babu and (4) Dr Kauser Edappagath, Additional Judges of the Kerala High Court to be Judges of the Kerala High Court with effect from the date they assume charge of their respective offices.
President appoints S/Shri (i) Shailendra Singh, (ii) Arun Kumar Jha, (iii) Jitendra Kumar, (iv) Alok Kumar Pandey, (v) Sunil Dutta Mishra, (vi) Chandra Prakash Singh, and (vii) Chandra Shekhar Jha, to be Judges of the Patna High Court, in that order of seniority, with effect from the date they assume charge of their respective offices.
[Notification dt. 1-6-2022]
President appoints S/Shri Justices (1) Govindarajulu Chandrasekharan, (2) Veerasamy Sivagnanam, (3) Ganesan Ilangovan, (4) Smt. Ananthi Subramanian, (5) Smt. Kannammal Shanmuga Sundaram, (6) Sathi Kumar Sukumara Kurup, (7) Murali Shankar Kuppuraju, (8) Smt. Manjula Ramaraju Nalliah and (9) Smt. Thamilselvi T. Valayapalayam, Additional Judges of Madras High Court to be Judges of Madras High Court with effect from the date they assume charge of their respective offices
Ministry of Law and Justice
[Notification dt. 31-5-2022]
President appoints (i) Smt. Shampa Dutt (Paul), to be an Additional Judge of the Calcutta High Court for a period of two years with effect from the date she assumes charge of her office and (ii) Shri Siddhartha Roy Chowdhury, to be an Additional Judge of the Calcutta High Court, with effect from the date he assumes charge of his office, till 27-12-2023.
[Notification dt. 31-5-2022]
President is pleased to appoint Amit Sharma, to be an Additional Judge of the Delhi High Court, for a period of two years with effect from the date he assumes charge of his office.
President appoints Anish Dayal, to be a Judge of the Delhi High Court.
Ministry of Law and Justice
[Notification dt. 31-5-2022]
Supreme Court: 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.
The Court remarked,
“The premise on which the High Court has proceeded is not sustainable for the reason that the appellants along with other applicants had participated in the self-same selection process pursuant to advertisement dated 9th September 2001”
The undisputed facts of the instant case were that 53 vacancies for Assistant Public Prosecutor Grade-II were advertised by the Tamil Nadu Public Service Commission in the year 2001. After undertaking the process for selection, 51 persons, including those who were lower in order of merit to the appellants, were appointed by the Government by order dated 24-09-2002.
Pertinently, the names of the appellants were withheld for want of further verification. The Commission on verification granted clearance to both the appellants and intimated the same to the State Government on 03-09-2002 (much before the appointments were made on 24-09-2002). Despite all the formalities being completed, without any reasonable cause or justification, the State Government had withheld the appointments of the appellants, and finally, both the appellants were appointed on 23-08-2005 and 23-04-2004 respectively.
Meanwhile, vide notification dated 06-08-2003, an amendment was made under the Tamil Nadu Pension Rules, 1978. Pursuant to which the State Government introduced a new Contributory Pension Scheme applicable to the Government employees who were recruited on or after 01-04-2003.
The grievance of the appellants was that their names were cleared by the Commission much earlier than the date of appointment of the other 51 candidates by the order dated 24-10-2002, but the State Government failed to include their names while appointments of other selected candidates, including those who were lower in order of merit.
Therefore, the appellants contended that their names were withheld for two-three years by the State without any reasonable cause/justification, and the delay in appointments could not be attributable to them in any manner. The appellants argued that because of their later appointments, the Government had denied them the benefits of the Scheme, 1978 which was applicable to the employees appointed on or before 01-04-2003.
The Court observed that when those who are lower in order of merit to the appellants were appointed and no justification had been tendered by the State as to why the names of the appellants were withheld for two-three years, the delay in making appointments could not be held to be attributable to the appellants in any manner.
Hence, the Court found that in the given circumstances, when all other candidates who had participated along with the appellants were appointed on 24-09-2002 including those who were lower in the order of merit, there was no reason for withholding the names of the appellants. The Court held,
“Merely because they were appointed at a later point of time, would not deprive them of claiming to become a member of Tamil Nadu Pension Rules, 1978, which is applicable to the employees who were appointed on or before 1st April, 2003.”
In light of the above, the Court set aside the finding recorded by the High Court. The State was directed to treat the appellants to be a member of the Tamil Nadu Pension Rules, 1978 for all practical purposes and benefits as members of the Rules, 1978 to which the appellants were entitled, including retiral benefits. [P. Ranjitharaj v. State of Tamil Nadu, 2022 SCC OnLine SC 508, decided on 25-04-2022]
Supreme Court: The Division Bench of Dinesh Maheshwari and Aniruddha Bose, JJ., issued notice to Topworth Urja & Metals Ltd. in a case alleging oppression and mismanagement in appointment of additional directors.
The question of law before the Court was whether a non-member/non-shareholder director is barred from raising a dispute regarding oppression/mismanagement and the illegal appointments of directors before the Civil Court u/s 430 of the Companies Act, 2013?
The appellant, Manish Kumar was holding the directorship in the respondent Company, which was engaged in the business of manufacturing of state-of-art range of steel, pipes, tubes, mining offered steel et cetera. The grievance of the appellant was that the respondent company had illegally appointed respondents 2 to 6 as the Additional Directors of the company. Further, the appellant alleged that the appointment was made without giving notice to the appellant and other aggrieved directors.
Therefore, the appellant had approached the Civil Court, alleging that the conduct of the company amounted to mismanagement qua the directorial appointments which were per se illegal in nature and were made with the intention to siphon off funds. The Civil Court had dismissed the application and relegated the appellant to National Company Law Tribunal (NCLT) to agitate his issues.
Aggrieved, the appellant approached the Bombay High Court seeking declaration that the alleged appointment of directors was illegal and void-ab-initio and to restore status quo ante with respect to directorship as on 23-11-2021. The appellant argued that he being a director without being a shareholder was not a ‘member’ within the meaning of Section 2(55), therefore, he could not seek relief for oppression before NCLT u/s 241 of the Act, 2013, since the said section is restricted to “a member of the Company”.
Rejecting the contentions of the appellant, the High Court held that the word ‘matter’ used in Section 430 is of wide amplitude and it cannot be read in a constricted way to limit it to an individual, but it will have to be given the widest meaning to cover any matter which the Tribunal is empowered to determine under the Act and this would necessarily cover the dispute regarding the affairs of the Company alleged to be conducted prejudicial to the interest of the Company or even any allegation of oppression or mismanagement.
Therefore, dismissing the appeal, the High Court observed that if any person, who is interested in the affairs of the Company alleges mismanagement or oppression, he shall not be restrained from knocking the doors of the Tribunal merely because the words employed in Section 241.
The High Court held that the words ‘any member’ if read constrictively and confining it only to member as defined, it would result in defeating the intention of law makers, who created the special Tribunal with exclusive jurisdiction only for corporate and reduce the multiplicity of litigation before different forums, including civil courts and to provide justice at close range.
The appellant had challenged the impugned High Court order stating that both the Civil Court and the High Court had fell into grave error by misinterpreting the law on the issue of jurisdiction under Section 430 of the Companies Act, 2013 and relegating the appellant to approach NCLT.
Further, the appellant alleged that the both the Civil Court and the High Court had erroneously relied on Chiranjeevi Rathnam vs. Ramesh, (2017) SCC OnLine Mad 23049, and had failed to appreciate the plain interpretation of the wording of Sections 2(34), 2 (55) and Section 244 of the Act, 2013.
Reliance was placed by the appellant on the decision of NCLT in Jithendra Parlapalli v. Wirecard India (P) Ltd. (judgment dated 16-02-2022), wherein the NCLT had, by detailed reasoning, distinguished the judgment of Chiranjeevi (supra) and held that, a non-member director cannot file an application before NCLT under Sections 241 and 242 of Companies Act, 2013 due to the embargo under Sec. 244 of the Companies Act, 2013.
The Court had issued notice to the respondent company.
[Manish Kumar v. Topworth Urja & Metals Ltd., Special Leave to Appeal (C) No. 9191 of 2022, order dated 18-05-2022]
Appearance by:
For Petitioner(s): Siddharth Bhatnagar, Sr. Adv.
Swarnendu Chatterjee, AOR
Aditya S., Adv.
Pranav Auhad, Adv.
Darshana Naval, Adv.
Yashwardhan Singh, Adv.
Supreme Court: The Division Bench of M.R. Shah* and B.V. Nagarathna, JJ., reversed the impugned order of the Rajasthan High Court whereby the High Court had directed Income Tax Department to grant grace marks to the applicant and treat him as a person belonging to general category.
Restoring the findings of the Central Administrative Tribunal, the Court held that the CBDT had introduced a grace marks policy to enable marginally failing candidates to pass the examination and the purpose of benefit was not to allow the reserved category candidate to switch over to the general category. The Court held,
“…once the respondent – original applicant passed in his own category, there was no question of allowing/granting him any further grace marks.”
The original applicant, who belonged to the Scheduled Tribes (ST) category, was working as a lower Division Clerk in the Department of Income Tax. Later on, he was promoted to the posts of Tax Assistant, Sr. Tax Assistant and Office Superintendent.
With a view to regulate the departmental examination for Income Tax Inspectors, the competent authority introduced modified rules for Departmental Examination for Income Tax Inspectors – 1998. As per the modifications, a candidate securing a minimum of 45% marks in five subjects except in Hindi was entitled to be declared as pass. For the members of SCs and STs, the minimum qualifying mark was 40%. Further, for the benefit of those candidates who marginally failed to secure minimum marks, irrespective of their category, on falling short of passing up to five marks, the Central Board of Direct Taxes (CBDT) introduced the policy of awarding grace marks.
It was the case of the original applicant that he had secured more than 45% marks in each subject except the subject of “Other Taxes”. Hence, he was entitled to grace marks in the subject of “Other Taxes”, but the same was not given to him as he was treated qualified in the category of Scheduled Tribes. The applicant contended that since he had got 43 marks in “Other Taxes” had he been given two grace marks, he would have been declared eligible for promotion against general vacancies.
The Tribunal, by a reasoned and detailed judgment and order, dismissed the application preferred by the applicant by observing that the CBDT circular providing grace marks cannot be interpreted to mean that a person, who has passed in his own category can be given further grace marks to enable him to move in the general category on his own merit.
However, the said order was reversed by the High Court of Judicature for Rajasthan at Jodhpur. The High Court had directed the Income Tax Department to extend the grace marks to the applicant in the subject of “Other Taxes” by treating him as a person belonging to general category.
Observing that the CBDT had introduced the grace marks policy with the purpose of enabling the marginally failing candidates to pass in the examination, the Court opined that once the respondent – original applicant passed in his own category, there was no question of allowing/granting him any further grace marks.
The Court explained that only in a case where any candidate belonging to any category is marginally failing to pass the examination, he is/was to be allowed the grace marks so as to allow him to obtain the minimum passing marks required and that too by allowing up to five grace marks.
Therefore, the Court opined that the Tribunal had rightly not accepted the arguments of the applicant. Further, the Court held that the High Court, while passing the impugned judgment and order, had not at all appreciated and/or considered in its true spirit the object and purpose of grace marks policy introduced by CBDT.
Consequently, the impugned judgment and order were quashed and set aside. The judgment and order passed by the Tribunal dismissing the O.A. was restored.
[Union of India v. Mukesh Kumar Meena, 2022 SCC OnLine SC 525, decided on 28-04-2022]
Appearance by:
For Union of India: Advocate Nachiketa Joshi
For the Applicant: Advocate Sumant Bhardwaj
Kamini Sharma, Editorial Assistant has put this report together
