Calcutta High Court
Case BriefsHigh Courts

   

Calcutta High Court: The single bench of Krishna Rao, J., dismissed the writ petition appeal and held that there is no illegality in the WB Duare Ration Scheme, 2021, under which the state government provides delivery and supply of food grains at the doorsteps of the beneficiaries through Public Distribution System.

The present writ petition application was filed for declaring the notification dated 13-09-2021 which amended Clause 18 of the WB Public Distribution System (Maintenance and Control) Order, 2013(WBPDS Control Order) and the WB Duare Ration Scheme, 2021 dated 16-11-2021 as ultra vires to Essential Commodities Act, 1955(ECA), National Food Security Act, 2013 (NFSA), Central Control Order, 2015 and also Article 14, 19(I) (g), 21 and 254 of the Constitution of India.

The issue to be decided on

Is there a bar on the State Government to provide an additional benefit for delivery of food grains at the door steps under the Statutory Scheme contained in the NFSA, the rules framed, and the orders issued by the Central Government under the ECA?

Analysis and Decision

The Court stated that Section 24(2)(b) of the NFSA obligates the State Governments to ensure actual delivery of supply of food grains to the entitled persons at the prices specified in Schedule-I and Section 32 of the NFSA, enabling the Central Government or the State Governments, inter alia, to formulate other food-based welfare schemes. Further, the Court stated that Clause 35 of the WBPDS Control Order allows the State Government to amend or introduce fresh provisions that are not inconsistent with the Act.

On a conjoint reading of the above provisions, the Court opined that actual delivery of ration at the doorsteps of the beneficiaries is covered within the scope of authority and responsibility vested by the State Government. Therefore, the Court held that the decision of the State Government to deliver foodgrains at the doorsteps of the beneficiaries cannot be said to violate any provision of the NFSA and the Rules framed, or order issued under the ECA.

Hence, the Court found no illegality in the amendment of Clause 18 of the WBPDS Control Order dated 13-09-2021 and the WB Duare Ration Scheme, 2021 dated 16-11-2021.

[Sk. Manowar Ali v. State of W.B., 2022 SCC OnLine Cal 1679, decided on 16-06-2022]


Advocates who appeared in this case :

Saktinath Mukherjee, Sr. Adv, Debabrata Saha Roy, Pingal Bhattacharya, and Neil Basu, Advocates, for the Petitioners;

S.N. Mookherjee, Ld. A.G., Anirban Ray, Ld. G.P., Sirsanya Bandopadhyay, Sanjay Basu, Arka Kumar Nag, Piyush Agarwal, and Utsha Dasgupta, Advocates ,for the State

Ajay Chaubey, Sunil Gupta, and A. Jaiswal, Advocates, for the Union of India.

Central Government Notification
Legislation UpdatesRules & Regulations

The Central Government has notified Surrogacy (Regulation) Rules, 2022 which provides Form and manner for registration and fee for a surrogacy clinic and the requirement, and qualification for persons employed, at a registered surrogacy clinic.

Key points:

  • Surrogacy clinics shall have at least one gynaecologist, one anesthetist, one embryologist and one counselor. The clinic may employ additional staff by the Assisted Reproductive Technology Level 2 clinics; normally Director, Andrologist and shall appoint such staff as may be necessary to assist the clinic into day-to-day work.
  • Manner of application for obtaining a certificate of recommendation by the Board has been specified in Form 1.
  • The intending woman or couple must purchase a general health insurance coverage in favour of surrogate mother for a period of thirty six months from an insurance company or an agent recognized by the Insurance Regulatory and Development Authority established under the provisions of the Insurance Regulatory and Development Authority Act, 1999 for an amount which is sufficient enough to cover all expenses for all complications arising out of pregnancy and also covering post- partum delivery complications.
  • Number of attempts of any surrogacy procedure on the surrogate mother shall not be more than three times.
  • Consent of a surrogate mother shall be as specified in Form 2.
  • Gynaecologist must transfer one embryo in the uterus of a surrogate mother during a treatment cycle: Provided that only in special circumstances up to three embryos may be transferred.
  • Surrogate mother may be allowed for abortion during the process of surrogacy in accordance with the Medical Termination of Pregnancy Act, 1971.
  • An application for registration for a surrogacy clinic shall be made by the surrogacy clinic which is carrying out procedures related to the Surrogacy.
  • The appropriate authority shall, after making such enquiry and after satisfying itself that the applicant has complied with all the requirements, shall grant a certificate of registration in Form 4 to the applicant.
Case BriefsSupreme Court

Supreme Court: The bench of Sanjay Kishan Kaul and MM Sundresh, JJ has directed the Central Government to have a detailed deliberation with the State Governments and other stakeholders before legislating on matters pertaining to minority communities.

It was originally submitted before the Court that while referring to religious and linguistic minorities spread all over the Country it has been stated that a religious group that is majority in one State may be in minority in another State. The question which was posed was whether the Parliament or the State Legislature has the exclusive power to legislate on matters pertaining to minority communities and to protect their interest in accordance with the constitutional guarantees. It was stated that the Parliament and the State Legislature have concurrent powers to enact law to provide for the protection of minorities and their interests.

It was stated that the question involved in this writ petition has far reaching ramifications throughout the Country and therefore any stand taken without detailed deliberations with stakeholders may result in unintended complications throughout the Country.

Since in a fresh affidavit it was stated that the power is vested with the Central Government to notify minorities, the Court observed that issues raised will be finalized after having a wide consultation with the State Governments and other stakeholders.

The Court, hence, directed the Central Government to undertake the necessary exercise and file a status report at least 3 days before the next date of hearing i.e. August 30, 2022.

[Ashwini Kumar Upadhyay v. Union of India, 2022 SCC OnLine SC 693, order dated 10.05.2022]


Counsels

For petitioner: Senior Advocate C.S. Vaidyanathan, Petitioner-in-person Ashwini Kumar Upadhyay, Advocates Kapish Seth, Aniruddh Singh, Deepika Kalia and Ashwani Kumar Dubey, AOR

For Respondent(s):  SG Tushar Mehta and Advocates Kanu Agrawal, Chinmayee Chandra, Sourav Roy, Amrish Kumar, Raj Bahadur Yadav, Neha T. Phookan, R. B. Phookan, Gautam Talukdar, Nishanth Patil, Prakhar Srivastava

Business NewsNews

Central Government designates the Court of Additional Judicial Commissioner, Ranchi in the State of Jharkhand as a Special Court for the purposes of providing speedy trial of offences punishable with imprisonment of two years or more as per clause (a) of sub-section (2) of Section 435 of the Companies Act, 2013.


Ministry of Corporate Affairs

[Notification dt. 5-5-2022]

Case BriefsHigh Courts

Madras High Court: Stating that the past generations have handed over the ‘Mother Earth’ to us in its pristine glory, S. Srimathy, J., expressed that it is the right time to declare/confer juristic status to the “Mother Nature”.

Factual matrix

It was stated in the present matter that, the petitioner had served in the Revenue Department for the past 35 years and lastly served as Distillery Officer in the cadre of Deputy Collector in the Rajashree Sugars and Chemicals Private Limited. The petitioner attained superannuation in 2006 and was not allowed to retire but was placed under suspension because of the pendency of the disciplinary proceedings.

Further, in 2009, the Government decided to impose the punishment of compulsory retirement for the proven charges and later in 2012, by a Government Order, the petitioner was eligible for 2/3rd pension and the 1/3rd of the eligible pension and the retirement gratuity was reduced as penalty.

Petitioner contended that the Government did not provide any opportunity before imposing the punishment.

Hence, aggrieved with the above, petitions were filed.

Analysis and Decision

High Court opined that, since the co-delinquent’s disciplinary proceedings were quashed, the petitioner was entitled to the same benefit. The Bench added that the delinquents deserved to be treated equally in the matter of punishment in departmental proceedings for the acts of omissions and commissions.

The Bench while noting that the land in question was classified as “forest land”, observed that the mother nature ought to be preserved.

Indiscriminate destruction or change is leading to several complications in ecosystem, ultimately is endangering the very existence of the animals, flora and fauna, forests, rivers, lakes, water bodies, mountains, glaciers, air and of course human. Strangely the destruction is carried on by few humans. Any such act ought to be checked at all levels. 

Invoking the “parens patriae jurisdiction”, Court declared the “Mother Nature” as a “Living Being” having legal entity/legal person/juristic person/juridicial person/moral person/artificial person having the status of a legal person, with all corresponding rights, duties and liabilities of a living person, in order to preserve and conserve them.

Adding to the above, Court stated that, the State Government and the Central Government are directed to protect the “Mother Nature” and take appropriate steps to protect Mother Nature in all possible ways.

High Court held that, since the petitioner had issued patta to the Megamalai forest land, the petitioner ought to be punished.

Lastly, the Court concluded by stating that the punishment of compulsory retirement ought to be modified as a stoppage of increment for six months without cumulative effect and consequential monetary benefits shall be conferred on the petitioner.

In view of the above discussion, petitions were allowed.[A. Periyakaruppan v. Revenue Department, 2022 SCC OnLine Mad 2077, decided on 19-4-2022]

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J., held that, the Metropolitan Magistrate/ Judicial Magistrate of the first class is competent to take cognizance and try the offence punishable under the PC&PNDT Act on the complaint of an Appropriate Authority or any officer authorised on this behalf by the Central Government or the State Government or the Appropriate Authority under sub-Section (1) of Section 28 of the Pre-Conception and Pre Natal-Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.

Petitioners sought to quash the complaint by the Appropriate Authority for violation of Rules 4 and 9 of Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (PC&PNDT Rules) punishable under Section 23 of the Pre-Conception and Pre Natal-Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and the proceedings pursuant thereto including framing of charges against the petitioners.

Question for Consideration

Whether cognizance of the complaint filed by a single member of Appropriate Authority is illegal warranting quashing of the complaint and proceedings pursuant thereto?

On a perusal of Section 28 of PC&PNDT Act, it is evident that the Metropolitan Magistrate/Judicial Magistrate of the first class is competent to take cognizance and try the offence punishable under this Act on the complaint of an Appropriate Authority or any officer authorized in this behalf by the Central or State Government or the Appropriate Authority under Section 28(1). Further, the complaint could also be filed by any person who gave notice of fifteen days to the Appropriate Authority.

Central Government and the State Government can even authorize an officer other than the Appropriate Authority to file a complaint on which cognizance can be taken by the Court.

In the present matter, the complaint against the petitioner had been filed by Dr Aruna Jain was a single member authority.

The Bench stated that since the cognizance of the complaint of an Appropriate Authority or an officer authorized on this behalf is a sine qua non for taking cognizance of an offence under the PC&PNDT Act, the Appropriate Authority should be validly appointed.

The notification dated 4-7-2003 issued by the Ministry of Health and Family Welfare, Union of India appointing a three-member Appropriate Authority for the Union Territory of Delhi is in the exercise of its power conferred under clause (a) of sub-Section 3 of Section 17 PC&PNDT Act and not in respect of clause (b) of sub-Section 3 of Section 17 of the PC&PNDT Act.

High Court noted that the functions assigned by the appropriate authority are multifarious and in view, thereof the Act contemplating appropriate authorities at the State level and District, or part of the State level is duly conceived by Sections 17 (3) (a) and Section 17 (3) (b) PC&PNDT Act.

Hence, every time when a raid is conducted in different areas of the State, it cannot be accepted that an officer of the Department of Law will be available every time.

In view of the plain language of Section 17(3)(b) PC&PNDT Act, it cannot be held that even for part of State, a Multi Member Committee would be a validly constituted Appropriate Authority.

Therefore, by giving a purposive construction to Section 17(b) and (c) of the Act, the acts performed by the Appropriate Authority of filing complaints pursuant to valid notification cannot be quashed.

The Bench added that, incomplete and improper maintenance of records are indicative of the fact that ultrasound was being done without keeping proper records for concealment of facts so that unwanted pregnancies for particular sex can be terminated, there is thus clear violence of PC & PNDT Act and MTP Act.

High Court found no ground to quash the complaint filed by the respondent and the proceedings thereto. [Manish Gupta v. State NCT of Delhi, 2022 SCC OnLine Del 1154, decided on 22-4-2022]


Advocates before the Court:

For the petitioner: Mr. Amardeep Singh, Adv. with Ms. Shruti Khosla, Adv.

For the respondent: Mr. Rajesh Mahajan, ASC for State with Ms. Jyoti Babbar, Ms. Shrutika Vedi, Advs. With SI Vineet Kumar, P.S. Timarpur

Mr. Anil Soni, CGSC for UOI

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: While expressing that, it is the duty of the welfare Government to protect not only the citizens, but to continue with, all the Government work as expected, the Division Bench of S. Manikumar, CJ and Shaji P. Chaly, J., directed that Government servants should be prevented from engaging in a strike.

An Advocate, S. Chandra Chooden Nair had filed the present public interest petition, in order to bring to the notice of this Court the mala fide and illegal attempt of respondents 1 to 3 to aid and assist the General strike by permitting eligible leave with salary to the State Government employees taking part in the General Strike by not declaring died non in terms of the directions of this Court in WP (C) No. 5752 of 2019. 

Against the policies of the Central Government, respondents 1 to 3 had acted hand in glove with the trade unions and encouraged the Government servants and teachers to participate in the general strike by offering to regularise the absence in strike days as eligible leave with salary.

In WP (C) No. 5752 of 2019, the Government Order granting eligible leave and salary to the striking employees was challenged, and the Court quashed the impugned order directing the respondent 1 to 3 to verify the attendance register and take action in accordance with law.

However, no such steps as stated above have been taken by the respondents to date and infact they have extended unbridled support to the strike by declaring dies-non nor even mandating the compulsory attendance of government servants on the days of proposed General Strike.

Trade Unions offered eligible to leave and salary to the Government servants for abstaining from office.

Analysis, Law and Decision

This Court expressed that it had struck down the Government Order which granted permission to the employer, to grant eligible casual leave to the Government employees and teachers, who has not attended duty during the national general strike, taking note of the statutory provisions, circulars and other decisions.

Further, Rules 86 of the Kerala Government Servants’ Conduct Rules, 1960 makes it clear that no Government servant shall engage himself in any strike or any similar activities.

Government servants should not engage themselves in any concerted or organised slowing down or attempt at slowing down Government work or in any act, which has the tendency to impede the reasonably efficient and speedy transaction of Government Work. Concerted or organised refusal on the part of Government servants to receive their pay will entail severe disciplinary action.

Bench opined that the Government Servant should also take adequate steps to prevent the Government servants to engage in any activity specified in Rule 86 of the Rules.

Whether trade unions can call for a nationwide strike, in matters not related to trade union dispute under the Trade Unions Act, 1926, and when there is no industrial dispute with the employees in Kerala, within the definition of Industrial Disputes Act, 1947?

High Court expressed that, it is the duty of the Government to prevent the Government servant from joining in strikes.

Trade union activities pertaining to the statutory provisions under the Trade Unions Act, 1926, cannot be allowed to impede governance.

Elaborating further, the High Court added that the disciplinary action can be taken if only there was the participation of the Government, which fact again requires a detailed enquiry.

Merely because there is disciplinary action provided, that does not absolve the State Government from taking preventive action. What is prohibited in Rule 86 is different from what is provided in rule 14A of the Kerala Service Rules.

Lastly, the Court found that Government did not issue orders in advance preventing Government servants from taking part in the strike nor provided any machinery enabling others to attend office.

Bench directed the Government of Kerala to issue appropriate orders to prevent the Government servants from engaging in the strike and also to issue necessary orders forthwith to all the Heads of the Departments, to ensure that Rule 86 of the Government Servants Conduct Rules, 1960 and circular extracted above are not violated. [Chandra Chooden Nair S v. State of Kerala, WP (C) 10478 of 2022, decided on 28-3-2022]


Advocates before the Court:

Petitioner Advocate: SAJITH KUMAR V.,REMYA VARMA N.K,APARNA CHANDRAN,GODWIN JOSEPH,VIVEK A.V.

Case BriefsSupreme Court

Supreme Court: The Division Bench of M.R. Shah and A.S. Bopanna*, JJ., condoned the non pensionable sandwiched period between pensionable services rendered in Central and State government for the purpose of providing a single bock of pensionable service.

The appellant worked as a Technician in the Telecom Department during the period 05-02-1974 to 31-05-1984. Later on, the appellant joined the Technical Education Department on 31-05-1987, where he served till 30-06-2006 and got retired on attaining the age of superannuation. During the period between those services the appellant had worked in Steel Industries Limited, Kerala (SILK), a Public Sector Undertaking.

The appellant had requested the State to condone the period served by him in PSU and consider the services rendered by him under the Telecom Department and Education Department as one for granting pension which was rejected by the State. On application the Kerala Administrative Tribunal allowed benefit of pension to the appellant by condoning the period of break in service, as being permissible in the circumstance. However, the same was set aside by the High Court by the impugned judgment.

Admittedly, the service rendered by the appellant in ‘SILK’ which was a PSU was not pensionable service. Therefore, the said period of service acted as a disconnect between the two different pensionable service and the same needed to be condoned to provide a single block of pensionable service.

The case of the appellant was not that the non­ pensionable service be reckoned and the entire service from 05-02-1974 to 30-06-2006 be admitted for computing the pensionary benefits as assumed by the High Court.

Rather what the appellant sought was to exclude the service rendered in ‘SILK’ and condone that period from being treated as a disjoint or break between the two pensionable services.

The appellant had relied on a Government Order dated 12-11-2002 by which the government had declared that the employees of the State Government Departments who had left the former service in Central Government/ Central Public Sector Undertakings on their own volition for taking up appointment in State government Departments will be allowed to reckon their prior service for all pensionary benefits along with the service in the State Government Department.

Similarly, the Government Order dated 24-09-2014 the government had provided for condonation of the non­qualifying sandwiched period to reckon the qualifying service.

After perusing the referred Government Orders, the Bench opined that the benefit sought for by the appellant was provided and the sandwiched non qualifying service as break in the two services was condonable and the prior public service should be reckoned as qualifying service for pension.

Rejecting the State’s contention that the appellant had retired on 30-06-2006, while the Government Order was dated 24-09-2014 and as such could not be made applicable retrospectively, the Bench stated the issue had not been settled and not reached finality in the case of the appellant since his review petition dated 17-09-2014 was still pending when the Government Order was issued. Moreover, the said Government Order in para 2 had taken note of the several requests received to reckon the prior qualifying service.

In the backdrop of above, the Bench was of the opinion that the Tribunal was justified in its conclusion and the High Court had erred in setting aside the same. Accordingly, the impugned order was set aside and the order of the Tribunal was restored for its implementation.

[Valsan P. v. State of Kerala, 2021 SCC OnLine SC 953, decided on 21-10-2021]


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

For the Appellant: P.V. Surendranath, Senior Counsel

For the Respondent: C.K. Sasi


*Judgment by: Justice A.S. Bopanna

Legislation UpdatesRules & Regulations

The Central Government notified Boiler Accident Inquiry Rules, 2021. They shall come into force on the date of their publication in the Official Gazette.

Key features:

  • Inquiry of accidents: On receipt of a report of an accident to a boiler or boiler component under section 18 of the Act, a preliminary inquiry shall be conducted in the concerned State in whose jurisdiction the  accident has occurred.
  • Accidents resulting in any death: The Chief Inspector of the concerned State in whose jurisdiction any death has resulted due to the accident , based on preliminary inquiry, shall forward a report without delay  to the Technical Adviser in Form A.
  • Inquiry of accidents resulting in any death: Without prejudice to rules, where any death has resulted due to any accident, an inquiry shall also be conducted by the Central Government.
  • Constitution of inquiry committee: (1)The inquiry shall be conducted by an inquiry committee  consisting of the following, namely: 

(i) Technical Adviser Chairman;
(ii) a Chief Inspector or Director of Boiler Member;

(iii) a representative of Boiler and boiler component manufacturer or user of boilers in the Board
Member.

Note: The inquiry committee shall be constituted within fifteen days of receipt of report of accident resulting in any death from the Chief Inspector of the concerned state and inquiry shall be conducted within fortyfive days of receipt of report of accident from the Chief Inspector.

  • Procedure during inquiry: The inquiry committee shall make a careful examination of the damaged parts and shall take such measurements or sketches and may take such photographs for the purpose of report as they may deem necessary.
  • Use of Boiler after accident resulting in any death: The boiler shall not be put to use till the inquiry is completed.
Legislation UpdatesRules & Regulations

The Central Government after consultation with the Ayurveda, Siddha, Unani Drugs Technical Advisory Board, notifies Drugs (4th Amendment) Rules, 2021 to amend the Drugs Rules, 1945.

 

The amendment modifies the following provisions:

  1. Rule 153 dealing with Application for licence to manufacture Ayurvedic (including Siddha) or Unani drugs. The fee has been revised from one thousand to two thousand.
  2. Inserted a new provision Rules 153 B dealing with Application for Certificate of Good Manufacturing Practices for Ayurvedic, Siddha or Unani drugs manufacturing unit.
  3. Rule 154 dealing with Form of licence to manufacture Ayurvedic (including Siddha) or Unani drugs has been amended to make modifications in the period in which a licence to manufacture for sale of any Ayurvedic, Siddha or Unani drugs shall be issued in Form 25D  from the date of receipt of the application or from the date of compliance by the applicant of shortcomings. Earlier, the period was 3 months but now the period has been modified to two months.
  4. Rule 154 A dealing with Form of loan licence to manufacture for sale of Ayurvedic, Siddha or Unani drugs has been modified to insert the period within which a loan licence to manufacture for sale of any Ayurvedic, Siddha or Unani drugs shall be issued in Form 25E. The Loan License shall be issued within a period of two months from the date of receipt of the application or from the date of compliance of shortcomings.
  5. Rules 155 dealing with Certificate of renewal and 155A dealing with Certificate of renewal of a loan licence of the principal rules, shall be omitted.
  6. Rule 156 dealing with duration of license has been amended to modify the vaildity period from 5 years to remain perpetually valid.

Provided that the licencee shall submit a self declaration of adherence to the conditions of licence and the
provisions of the Drugs and Cosmetics Act and the rules made thereunder, every year from the date of issue of licence in form 25 D or from the date of submission of last self declaration, as the case may be .

Advance RulingsCase Briefs

Gujarat Authority for Advance Ruling, GST: Addressing the matter with regard to purchase of scrap/used vehicles by composition dealer from unregistered dealer, Division Bench of Sanjay Saxena and Arun Richard (Members) held that, in the said circumstance, no Reverse Charge Mechanism liability will be there.

Applicant sought Advance Ruling on the following questions:

  • Can Composition Dealer Purchase Scrap/Used vehicles from Unregistered Dealers? RCM on these purchases applicable or not?
  • Any Reverse Charge Mechanism exemption limit amount from purchase of Scrap and used vehicles from unregistered dealers?

Findings

Bench stated that in view of Section 9(3) of the CGST Act, Government may specify the categories of supply of goods or service or both on which the tax shall be paid on reverse charge mechanism by the recipient.

Vide Section 9(4) of the CGST Act, Government may specify a class of registered persons who shall, in respect of supply of specified categories goods or services or both received from an unregistered supplier, pay the tax on reverse charge basis as the recipient of such supply of goods or services or both.

Notification No.7/2019-Central Tax (Rate) dated 29-3-19 notifies that the specified registered persons shall, in respect of supply of goods or services or both, received from an unregistered supplier shall pay tax on reverse charge basis as recipient of such goods or services or both. However, subject goods are not notified vide said Notification 7/2019-CT(R).

Ruling

Composition Dealer purchasing Scrap/Used vehicles from the following Suppliers, namely: Central Government, State Government, Union Territory or a local authority are liable to pay tax on RCM basis.

No RCM tax liability for purchase of subject goods from unregistered dealers.[Ahmedraza Abdulwahid Munshi (Nadim Scrap), In Re., GUJ/GAAR/R/18/2021, decided on 30-06-2021]


Advocate before the AAR:

For the applicant: Shabbir Motiwala, Consultant

Legislation UpdatesNotifications

On September 15, 2021, the Central Government notified September 24, 2021 as the date on which the provisions of the  Medical Termination of Pregnancy (Amendment) Act, 2021(8 of 2021) will come into force.

Legislation UpdatesRules & Regulations

The Central Government, after consultation with the Governments of the State concerned,  notifies All India Services (Conduct) Amendment, Rules, 2021  to amend the All India Services (Conduct) Rules,1968, namely:-

Key Amendments:

  • In the All India Service (Conduct) Rules, 1968, in rule 11, after sub-rule (3), the following sub-rule shall be inserted, namely:-

“(4) Notwithstanding anything contained in sub-rules (1), (2) and (3), a member of the Service, being a member of the Indian delegation or otherwise, may receive and retain gifts from foreign dignitaries in accordance with the provisions of the Foreign Contribution (Acceptance or Retention of Gifts or Presentations) Rules, 2012, as amended from time to time”.

Legislation UpdatesRules & Regulations

The Central Government makes National Commission for Protection of Child Rights (Amendment) Rules, 2021 to amend the National Commission for Protection of Child Rights Rules, 2006. They shall come into force on the date of their publication in the Official Gazette.

The Amendment inserts a proviso in Rule 6(3) of National Commission for Protection of Child Rights Rules, 2006:

 

“Provided that a person who has held office for two terms as Member or two terms as Chairperson, shall not be eligible for re-nomination as a Member or Chairperson, as the case may be:

Provided further that a person who has held office-
(i) for two terms as Member; or
(ii) one term as a Member and one term as Chairperson, shall be eligible for one more term as Chairperson”

Case BriefsHigh Courts

Madras High Court: The Division Bench of N. Kirubakaran and M. Duraiswamy, JJ., while addressing the matter with the concern of printing images of Great leaders on currency notes, expressed that,

If every claim is started to be entertained, there will not be any end.

What is the use of printing images of Great Leaders, who fought for our Independence without following their principles, in currency notes?; merely because the portrait of Mahatma Gandhi is appearing in the currency, does it mean that the currency is used only for legal purposes. Whether the currency should have the portrait of a particular leader or otherwise is the policy of the Government.

 In the instant matter, petitioner appeared before the Court challenging the respondent’s order by which the petitioner’s claim for printing the image of Nethaji Subhash Chandra Bose in the currency notes was rejected.

Petitioner stated that if the image of Netaji Subash Chandra Bose will be printed in the currency note it will be a tribute paid to the great leader.

Analysis, Law and Decision

High Court stated that it was evident from the impugned order that, on the evidence of the Government of India, a Committee was constituted by the Reserve Bank of India in October, 2010 for designing the future currency notes and the Committee deliberated on the issue o changing the existing image of Mahatama Gandhi and inclusion of certain other personalities in the new design Bank notes. However, the Committee decided that no other personality could better represent the ethos of India than Mahatma Gandhi and therefore, no other personality image was decided to be included in the currency note.

The above decision of the Committee was accepted by the Ministry of Finance.

Bench added that it is not underestimating the fight and sacrifice made by Netaji Subash Chandra Bose and great leaders for freedom moment of this Country.

There are many known heroes and unsung heroes. If everybody starts making such a claim there will not be an end.

Court emphasized that, Central Government as well as Reserve Bank of India have already constituted a Committee and took a decision that it is only the father of the Nation Mahatma Gandhi could represent the ethos of India and therefore, it was decided to retain the Mahatma Gandhi’s image in the currency notes and no other personality image is decided to be included.

Hence, Bench lastly held that only the government can take a decision and this Court cannot substitute the views of the Committee report which had been accepted by the Government.

In view of the above, petition was dismissed. [K.K. Ramesh v. Union of India, 2021 SCC OnLine Mad 5022, decided on 10-08-2021]


Advocates before the Court:

For Petitioner: Mr K.K. Ramesh (Party-in-Person)

For Respondents: Mrs L. Victoriya Gowri, Assistant Solicitor General of India

Legislation UpdatesStatutes/Bills/Ordinances

Constitution (One Hundred and Fifth Amendment) Act, 2021 receives President’s assent on August 20, 2021. It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

Key Highlights:

  • Inserts a proviso in Article 338B of the Constitution:

“Provided that nothing in this clause shall apply for the purposes of clause (3) of article 342A.”.

  • In article 342A of the Constitution,—

(a) in clause (1), for the words “the socially and educationally backward classes which shall for the purposes of this Constitution”, the words “the socially and educationally backward classes in the Central List which shall for the purposes of the Central Government” shall be substituted;

  • Inserted the following Explanation and proviso in Article 342A

‘Explanation.— For the purposes of clauses (1) and (2), the expression “Central List” means the list of socially and educationally backward classes prepared and maintained by and for the Central Government.

(3) Notwithstanding anything contained in clauses (1) and (2), every State or Union territory may, by law, prepare and maintain, for its own purposes, a list of socially and educationally backward classes, entries in which may be different from the Central List.’.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench comprising of S. Manikumar, CJ., and Shaji P. Chaly, J., asked the Union government if petrol and diesel should fall under GST regime, the Bench granted six weeks time to the Centre to decide the same.

The petitioner-Kerala Pradesh Gandhi Darshanvedi had filed the instant PIL the following reliefs:

  1. To issue a writ of mandamus or any other writ or order directing the Centre and Ministry of Petroleum and Natural Gas to include petrol and diesel under the GST regime.
  2. To issue a writ of mandamus or any other writ or order directing the GST Council to recommend the inclusion of petrol and diesel under the GST regime so as to achieve a harmonized national market as contemplated under Article 279 A (6) of the Constitution of India.
  3. To declare that the non-inclusion of petrol and diesel under the GST regime was violative of Article 14 and 21 of the Constitution of India.

The petitioner had also submitted a representation to the Government of Kerala to request the GST Council to include the petrol and diesel in the GST regime and had also proposed that till a decision is taken by the GST Council, the Government of Kerala may refrain from levying the state tax on petrol and diesel.

However, the stand taken by the Centre government and the Ministry of Petroleum and Natural Gas was that inclusion or deletion of GST is a policy decision. Adopting the same line of argument, and placing reliance on the decision in Union of India v. Shiyaad, W.A.No.2061 of 2017, the GST Council submitted that a no mandamus can be issued to the GST Council to take any decision and that the Union government is the competent authority to take a decision on the above said issue.

In the light of the above, the Bench directed the GST Council to forward the representation made by the petitioner to the Centre government. Similarly, the Centre government was asked to take an appropriate decision within a period of six weeks.[Kerala Pradesh Gandhi Darshanvedhi v. Union of India, 2021 SCC OnLine Ker 2778, decided on 21-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. Arun B. Varghese and Adv. Aiswarya V.S.

For the Respondents: ASG P.Vijaykumar, Sr. Counsel P.R.Sreejith, SPL GP Gopikrishnan Nambiar

Case BriefsCOVID 19High Courts

Bombay High Court: The Division Bench of Sunil B. Shukre & Avinash G. Gharote, JJ. addressed various Mucormycosis related issues prevalent in Maharashtra.  The Bench warned,

“This is a sort of war like situation for Maharashtra and in particular city of Nagpur, which calls for rapid response and mighty one. We hope that these entreaties would be positively answered by the Central Government and if not, further loss of lives of a few more patients, unfortunate as it may be, may be a fait accompli.”

The Indian Medical Association (IMA) had submitted a report before the Court pertaining to prevalence and spread of fungal infections. It not only highlighted types of fungal infections but also the causes, symptoms, precautions, which the Bench opined that if considered seriously and implemented by all the hospitals presently treating the Covid patients and also patients with fungal infections, there will be a considerable reduction in prevalence and spread of the fungal infections.

Shortage of Drugs

Noticing that raw materials used for manufacturing drugs to cure Mucormycosis which are Amphotericin B (Lipid Complex) and Amphotericin (Liposomal) are imported for their bigger part, the Bench stated that the State Government, as well as the Central Government, need to take the issue of shortage of drugs available for treating the fungal infections seriously. The Bench reminded the governments,

“After all, such invaders; fungii are the invaders; require speedy action and they do not wait for anybody to respond to them. It’s not the case that once they raid a house i.e. body of the patient, they would lie dormant and wait for the house owner to make his preparations and then have a word or duel of resistance with them. The response to be given in such situations is akin to a response given in a war like situation.”

Believing that unless quick action is taken, destruction is inevitable, the Bench directed the Central and the State Government to take immediate steps for increasing the production capacity of Indian manufacturers involved in producing these drugs and if needed, press the entire State machinery into service for increasing of the production capacity.

Reportedly, number of patients suffering from Mucormycosis in Nagpur alone was 1584 on 29-05-2021 and out of these patients 830 patients had been operated on.  The data further showed that out of 1584 patients, eye exenteration had taken place in 74 cases and so far 69 patients had succumbed to Mucormycosis. The Bench expressed alarm over the situation and remarked that in Nagpur city the situation is no longer a rare fungal infection, that it has already assumed a form of an epidemic. Therefore, the Bench reiterated that the Central Government and State Government, and additionally, Indian Society in general need start taking effective measures for restricting the spread of fungal infections. These measures would be of maintaining of individual cleanliness and hygiene through improvement of immunity levels by remaining on good diet and also keeping contributing ailments like Hyperglycemia, diabetes and the like under control to making available in sufficient quantities drugs required for treating these infections.

Deficit Allocation of Drugs to Maharashtra

Raising concerns on inefficient method of drug allocations, the Bench expressed concerns that the State of Maharashtra and in particular city of Nagpur having very high prevalence of Mucormycosis infection remain in crying state for Amphotericin B and the patients were not getting enough number of vials per day for the treatment because of deficit allocation and short supply to State of Maharashtra; due to which many patients had lost organs of their body while others had even lost their eyes and a sizable number of patients were dead. Hence, the Bench reiterated that the situation could be improved by sensible allocation of Amphotericin B to the State of Maharashtra.

“But, the steps that it (Central Government) had to take or it must take, considering the fundamental duty of the State and also the concept of welfare State in the Directive Principles of State Policy, its response appears to be not on the expected lines.”

Import of Raw Material

Some public spirited importers from Nagpur who had forward to extend their helping hands had highlighted their problem in importing of the raw-material required for manufacturing of the required drugs. Noticing that major hurdles that these interested importers were facing were in respect of the delay occurring at the level of Drugs Controller General of India (DCGI) in granting registration to the private players, the Bench directed the Central government to actively consider the suggestion of interested importers that procedure for obtaining registration of DCGI for making import of the drugs or raw material should be done away with atleast during the pandemic and the Authority to grant permission for import of the drugs and/or raw material for drugs be delegated to the Food and Drugs Administration of individual States.

In the backdrop of above, the Bench directed the Divisional Commissioner, Collector and Commission of Nagpur to extend all the help to make available the requisite man power and paraphernalia for increasing the check-ups and survey of all the hospitals in Nagpur city in order to find out any deficiency, lacunae, and other incidental factors which contribute to spread of fungal infections. The State government was also directed to invoke relevant provisions of Section 136, Companies Act, 2013 for dealing with erring companies which are unwilling, defaulting and non-responsive regarding their CSR and are reluctant to make contributions at this hour of need.[Court on its own motion v. Union of India, 2021 SCC OnLine Bom 790, order dated 02-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

Amicus Curiae: S.P.Bhandarkar

For Union of India: ASGI U.M.Aurangabadkar with Adv.Santok Singh Sokhi and Adv. Deshmukh
For Respondents: GP. Ketki Joshi Addl. GP D.P. Thakare and AGP N.S. Rao

For Respondent 4 and 10: Adv. S.M.Puranik and Adv. B.G.Kulkarni, respectively

For MADC:  Adv. C.S.Samundra

Case BriefsSupreme Court

Supreme Court: Taking note of the depleting strength of the members of the NCLT and NCLAT, the 3-judge bench of L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat, JJ has issued certain directions and has asked the Government to complete the reappointment process “at the earliest and not later than two months”.

The direction came in the petition filed by the National Company Law Tribunal and Appellate Tribunal Bar Association seeking direction to the Central Government

  • to fill up the vacancies of Chairman, NCLAT and President of NCLT without any further delay.
  • to issue letters of appointment to the candidates pursuant to the Selection procedure initiated in 2019 and to fill up the remaining vacancies of Members of NCLT and NCLAT.
  • to extend the term of six Members of the NCLT and NCLAT for a further period of five years as they are completing the tenure by June, 2021.

The Additional Solicitor General Balbir Singh had told the Court that the process for appointment of candidates who have been selected pursuant to the procedure which was initiated in 2019 shall be expedited and orders of appointment shall be issued soon. In respect of the process to be initiated for filling up the existing vacancies, a search cum Selection Committee has to be constituted. The Court, hence, directed that the Selection Process shall be initiated at the earliest.

On the issue of extension of the term of the Members of the NCLT and NCLAT who are completing their tenure in June, 2021 is concerned, Attorney General KK Venugopal submitted that the government has initiated the process for reappointment by requesting the Chief Justice of India to constitute a committee for the purposes of the reappointment of members to the NCLT and NCLAT.

As per Section 413 of the Company’s Act 2013, the President or other members of the Tribunal shall hold office for a period of 5 years and shall be entitled for reappointment for another term of 5 years.

The petitioner, however, requested that the members who are completing their tenure should be permitted to continue till the process of reappointment is completed.

“… there are 39 members at present for a sanctioned strength of 63 and the depletion of the strength of the members will adversely affect the smooth functioning of the Tribunals.”

The Court, hence, directed the Government to complete the process within two months and said,

“As the Government has already initiated the process of reappointment by writing to the Hon’ble Chief Justice, we trust and hope that the reappointment process should be completed expeditiously, as there is no necessity of issuance of any advertisement for participation of other eligible candidates. Reappointment of members can be considered separately without waiting for the process of fresh appointments to commence.”

[National Company Law Tribunal and Appellate Tribunal Bar Association v. Ministry of Corporate Affairs, 2021 SCC OnLine SC 406, order dated 31.05.2021]


For Petitioner(s) Mr. A.S. Chandhiok, Sr. Adv. Mr. Virender Ganda, Sr. Adv. Mr. Ajay Kumar Jain, Adv Mr. Rakesh Kumar, Adv Mr. Vipul Ganda, Adv Mr. Vishal Ganda, Adv Mr. Satyajit A. Desai, Adv. Mrs. Anagha S Desai, AOR Ms. Aastha Trivedi, Adv Ms. Guresha Bhamra, Adv Mr. Tejasvi Chaudhry, Adv Mr. Satya Kam Sharma, Adv.

For Respondent(s) Mr. KK Venugopal, Ld. AG Mr. Balbir Singh, Ld. ASG Mr. R. Balasubramanium, Sr. Adv. Mr. Zoheb Hossain, Adv Ms. Shradha Deshmukh, Adv. Ms. Chinmayee Chandra, Adv. Mr. Shyam Gopal, Adv. Mr. Ankur Talwar, Adv. Ms. Suhasini Sen, Adv. Mr. Gurmeet Singh Makker, AOR

Case BriefsCOVID 19High Courts

Bombay High Court: The Division Bench comprising of Ravindra V. Ghughe and B. U. Debadwar, addressed the issue relating to supply of dysfunctional ventilators through PM Cares Fund. The Bench slammed the Center for contending that the ventilators were in working condition and the deficiencies were with the hospital staffs, the Bench remarked,

We would have appreciated had the affiant avoided entering into a blame game and instead shown sensitivity towards the patients, it being the paramount object of the welfare State to take care of the health of its citizens.

Whether the Ventilators Supplied through PM Cares Fund dysfunctional?

Regarding the use of the 113 ventilators supplied through PM Cares Fund a report was prepared by the Committee of eight doctors of the GMCH who deal with ICU and the utilization of ventilators. The said report indicated that the ventilators developed errors from day one. About 25 ventilators were installed in the Medicine Department and 25 ventilators were distributed to the District and private hospitals. All such 25 ventilators were returned by the ICU departments of the concerned hospitals, as they were not functioning properly and patients had started complaining about breathlessness and associated symptoms within hours of the ventilators having been switched on. The report suggested that Private hospitals also returned the ventilators stating that they were not working properly. Although, a Team of three technicians of the Manufacturer visited the GMCH, and a Company Service Engineer joined the Team and calibrated `in-put oxygen’ regulators of two ventilators, they worked well overnight and next day by afternoon patients complained about poor oxygen and showed signs of restlessness.

The Committee noted that even after major repairs, the results indicate the failure of the ventilators. In the final conclusion, the Committee opined that these machines are unsafe for patients use and it was decided not to test any of these machines on patients, henceforth.

Stand Taken by the Central Government  

The ASGI contended that the alleged 150 ventilators were never supplied through the P.M. Cares Funds thereby, completely denying that these ventilators were funded through the P.M. Cares Funds, as was earlier announced. However, to defend the same, ASGI submitted that the ventilators manufactured by M/s Jyoti CNC Automation Limited, were modern ventilators, which were highly complex and sophisticated medical equipments. Shifting the blame on the Hospitals the ASGI contended that Doctors and paramedics were not properly trained to operate such ventilators at Aurangabad. It was also submitted that after the Dean of the Government Medical College submitted a report, the MoHFW sought an explanation from the Manufacturer and as per the said explanation there was no material before the MoHFW to conclude that the ventilators were not working satisfactorily.

Explanation Given by the Manufacturer

On the other hand, the Manufacturer alleged that the Government Medical College, Aurangabad was non-cooperative right from the acceptance of the delivery and the local District Collector had to direct the GMCH for unloading and accepting the ventilators. It was submitted that there was nothing on record to demonstrate that the ventilators were malfunctioning. Applying the same scheme as that of Central government, the Manufacturers contended that the user manual and training videos were not followed by the operators and that the infrastructure available at the GMCH is inadequate hence, the ventilators were not being used properly. Lastly, it was argued that 300 ventilators were performing satisfactorily in other States of India and other regions of Maharashtra and Aurangabad, therefore, there was no fault on the part of the manufacturer and it could not be held responsible for inadequacies on the part of the GMCH.

Observations and Findings of the Court

The Amicus curiae highlighted before the Court that not a single hospital/institution which was delivered with such ventilators had submitted that even one ventilator was operating satisfactorily. Noticing that the subject “Public Health and Hospitals” is at entry-6 in the State list and the legislative powers as well as executive and administrative powers of the State Government pertaining to the said subject are covered by Article 162, the Bench opined that it is the State Government which would be answerable on this subject. Hence, before accepting or acquiring such medical equipments/instruments by any medical facility/hospital, the State Government should make it mandatory for the Manufacturer to undertake fullest cooperation and assistance in the event of the equipment becoming dysfunctional. The Bench slammed the Center Government stating that,

We are unable to appreciate the contention of the ASGI that the ventilators are in perfect operating conditions and it is the hospitals who do not have trained personnel to operate the said ventilators properly. We find that such statements demonstrate insensitivity on the part of Ministry of Health and Family Welfare (MoHFW).

The Bench opined that instead of expressing whole hearted support to ensure that such costly instruments are put to optimum utilization in the interest of the lives of the patients, the affiant found it advantageous to contend that there was no merit in the report of the Dean of the Government Medical College. Hence, the tenor of the Center government was that the ventilators were in working condition and the deficiencies were with the hospitals and the doctors/paramedics/technicians. On such submissions made by ASGI, the Bench expressed,

We find that he (ASGI) is questioning the report of the Dean, and does not even remotely refer to the six reasons as regards the malfunctioning of the ventilators cited by the GMCH. The ASGI has addressed us as if he is holding the brief for the Manufacturer.

In the backdrop of the above, the Bench directed the MoHFW to take all remedial steps and ensure that the ventilators would operate normally and all defects, if any, would be removed. The Bench warned the MoHFW to refrain from questioning the reports of the Medical Experts and respect the same in the larger interest of the society and concentrate on rectifying the ventilators.

Overcharging by Ambulance Operators

On the issue of ambulance operators openly demanding multi-fold times of the approved rates of Ambulances as disclosed by an sting operation carried out by a local reporter, the Bench held that since the District Collector of every district is the authority under the Disaster Management Act, all aggrieved patients/relatives of patients would be at liberty to complain to the District Collector, if they had suffered such overcharging of Ambulance fare and the District Collector would deal with such complaints in accordance with the procedure as is laid down.[Registrar (Judicial) v. Union of India, 2021 SCC OnLine Bom 761, Order dated 28-05-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

Amicus Curiae: Satyajit S. Bora
For State of Maharashtra: Chief PP D. R. Kale
For Union of India: ASGI Ajay G. Talhar
For the respondent 8: Adv. S. G. Chapalgaonkar
For the respondent 22: Adv. K. N. Lokhande
For the respondent 25: Adv. R. K. Ingole