Jharkhand High Court
Case BriefsHigh Courts

   

Jharkhand High Court: Anubha Rawat Choudhary, J., while disposing of the instant petition filed against the order passed by the State and the Road Construction Department cancelling the benefits granted under Assured Career Progression (‘ACP') held that if the petitioner is found entitled to any benefit under ACP, then the State will ensure that the monetary benefit of the same is also remitted to the petitioner.

Facts:

The petitioner was an employee of the Road Construction Department and retired in the year 2014. Initially he was appointed to the post of Peon and then promoted to the post of correspondence clerk. He was granted 1st ACP on 09-08-1999 and the 2nd ACP on 06-12-2002 but the petitioner did not pass the required departmental examination. At the time of examination, the petitioner had not attained the age of 50 which was a pre- requisite for granting exemption from passing the departmental examination.

In a memo dated 10-02-2012, it was mentioned that the petitioner has reached his superannuation and has a clear service record therefore, a recommendation is made for his exemption from passing the departmental examination.

Arguments:

The counsel for the petitioner contends that the ACP benefits granted to the petitioner in the year 2002 were cancelled 3 years after the date of superannuation and 15 years from the date of grant of the said benefits.

The counsel for the petitioner contended that no opportunity was given to the petitioner to be heard before cancelling the ACP benefits.

Further the counsel contended to immediately release the entire post retiral benefit including gratuity and arrears of pension due since August 2014 which was arbitrarily withheld on account of cancellation of ACP benefits granted to the petitioner in the year 2002.

The counsel for the respondent contended that the petitioner has already been paid substantial retirement benefit.

The counsel for the respondent further contended that the letter was only a recommendation which was made while the petitioner was still in service.

Observation and Analysis:

The Court stated that the promotion given in the year 1978 to the post of correspondence clerk was not cancelled. A recommendation was made at a later stage for granting exemption to the petitioner from passing the required departmental examination, but the outcome of such recommendation was not brought on record by either party.

Further, the Court directed the petitioner to file a representation before the Superintending Engineer, Road Construction Department who will look into the matter and pass appropriate order, considering the various circulars/ guidelines of the Government regarding grant of exemption from passing the departmental examination.

The Court also held that if the petitioner is found entitled to any benefit arising out of any order which will be passed pursuant to this order, then the State will take steps to ensure that the monetary benefit of the same is also remitted to the petitioner within a period of three months from the date of passing of the reasoned order.

[Lodo Oraon v. State of Jharkhand, 2022 SCC OnLine Jhar 845, decided on 12-07-2022]


Advocates who appeared in this case :

Mr. Prem Pujari Roy, Advocate, for the Petitioner;

Mrs. Darshana Poddar Mishra, A.A.G.-I, Advocates, for the Respondents.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: In a case filed by a social activist seeking direction to State to provide minimum wages to the women workers employed under mid-day meal scheme and to provide other benefits like Maternity Leave and other Leaves including medical benefits and insurance benefits, a Division Bench of Alok Aradhe CJ. And S. Vishwajith Shetty J. held that no writ of mandamus can be issued to the respondent-State to provide minimum wages to the Head Cooks and Cooks employed under the scheme as the provisions of Minimum Wages Act, 1948 apply to the jobs which have been mentioned in the Schedule appended to it which is not the case in light of the present facts. It also made clear that other benefits sought have already been extended by the State.

The present petition was filed as a public interest litigation espousing the cause of women workers employed under the ‘Bisi Oota Mid-day Meal Scheme” in the State of Karnataka on paltry amount of Rs.1,000/- per month. It was stated that the aforesaid women workers who have been employed under the scheme for preparation of meals for school children, have been denied the benefit of minimum wages thus violating the fundamental rights of the said women workers under Articles 14 and 21 of the Constitution of India.

In compliance with the directions laid by the Supreme Court in the case of PUCL v. UOI, (2013) 11 SCC 505, the State notified a Mid-Day Meal Scheme. Under the scheme, Cooks were to be recruited for the purposes of preparing the meals and for serving the same to the school children of the schools falling under the category of Government-run schools and Government aided schools. The scheme envisaged the constitution of Selection Committee for selection of Cooks after invitation of applications.

The Court noted that under the aforesaid scheme, Cooks were engaged by the Government of Karnataka on contract basis and initially, an honorarium of Rs.1,000/- per month was paid to them. However, the amount was increased over a period of time due to demands from various quarters in this regard, subsequently enhancing the amount to Rs 2700 and Rs 2600 given to Head Cooks and Cooks respectively.

The Court observed that the Government has also undertaken measures of providing insurance and compensation like, in case of untimely death or injury, compensation to the extent of Rs.1,00,000/- and Rs.75,000/- respectively is payable. The provision for payment of Rs.30,000/- has also been made in case any burn injuries are sustained by any person employed under the scheme

The State Government, by an order dated 18-05-2015, has made a provision for insurance under the ‘Rastriya Bhima Yojana’ wherein any person employed under the scheme can avail of the benefit of insurance by depositing Rs.12/- per annum as subscription and the Cooks employed under the scheme are entitled for payment of Rs.2,00,000/- in case of death and Rs.1,00,000/- in case of injury.

The Court noted that so far as the claim of the Head Cooks and Cooks employed under the Scheme for grant of minimum wages is concerned, the Minimum Wages Act, 1948 applies in case of “scheduled employment”. The provisions of the Minimum Wages Act, 1948 apply to the jobs which have been mentioned in the Schedule appended to the Act. The scheme is not one of the jobs mentioned in the Schedule and therefore, the provisions of the Minimum Wages Act, 1948 do not apply to Head Cooks and Cooks.

Thus, the Court held that the claim of minimum wages by the Head Cooks and Cooks employed under the scheme is not covered under the provisions of Minimum Wages Act, 1948.

It further remarked “Medical benefits and insurance benefits have already been extended to the Head Cooks and Cooks employed under the scheme.”

[Nowhera Shaik v. State of Karnataka, 2022 SCC OnLine Kar 1479, decided on 10-08-2022]


Advocates who appeared in this case :

Ashish Krupakar (Absent), Advocate, for the Petitioner;

J Sathish Kumar, AGA for R1 to R3, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

New Jersey Supreme Court
Case BriefsForeign Courts

   

Supreme Court of New Jersey: While considering whether certain workers employed by East Bay Drywall, LLC, were properly classified as employees or independent contractors as per the “ABC Test” set forth under the Unemployment Compensation Law; the Supreme Court of New Jersey held that East Bay did not supply sufficient information to prove the workers' independence under the ABC Test and the Commissioner's findings of the same was not arbitrary, capricious, or unreasonable. The Court decided that East Bay misclassified its workers as independent contractors. The Bench of the Court comprising Stuart Rabner, CJ., and Anne M. Patterson, Lee Solomon and Fabiana Pierre-Louis JJ., joined the opinion delivered by Jose L. Fuentes, J.

Facts and Legal Trajectory: East Bay (a business registered as an employer), is a drywall installation business that hires on a per-job basis. Once a builder accepts East Bay's bid for a particular project, East Bay contacts workers to see who is available. Workers are free to accept or decline East Bay's offer of employment. East Bay provides the workers with the raw materials necessary to complete the drywall installation. The workers perform the labor but must provide their own tools and arrange for their own transportation to the worksites. East Bay does not dictate who or how many laborers the workers must hire to complete the project and also does not direct how the workers install drywall. However, East Bay remains responsible for the finished product.

On 30-06-2013, East Bay ceased reporting wages to the Department of Labor and Workforce Development (hereinafter Department). Consequently, an auditor for the Department conducted a status audit that reviewed the workers hired between 2013 and 2016, to determine whether they were independent contractors, as defined by the ABC Test, or employees of East Bay, requiring the employer to contribute to the unemployment compensation and temporary disability funds. In addition to meeting with East Bay's principal and accountant, the auditor requested documentation such as tax forms, business cards, and business insurance to determine whether the workers' businesses were independent entities. The auditor found that approximately half of the alleged sub-contractors working for East Bay between 2013 and 2016 — four individuals and twelve business entities (total- 16) should have been classified as employees. East Bay owed $42,120.79 in unpaid unemployment and temporary disability contributions as per the findings of the auditor.

East Bay challenged the results of the audit and requested a hearing in the Office of Administrative Law, which concluded that three of the workers were employees but the other thirteen were independent contractors. The Commissioner of the Department determined that all sixteen workers failed all three prongs of the ABC Test and that they were therefore employees of East Bay. The Appellate Division affirmed the Commissioner's final determination as to five workers but reversed as to the eleven other workers. The Department then appealed for the eleven workers, and the Court granted certification.

What is the ‘ABC Test' under Unemployment Compensation Law? 1

The ABC test is used in some states to determine whether a person is an employee or an independent contractor for the purpose of determining state unemployment tax. Some courts use this test to look at whether a worker meets three separate criteria (prongs) to be considered an independent contractor:

  1. The worker is free from the employer’s control or direction in performing the work.

  2. The work takes place outside the usual course of the business of the company and off the site of the business.

  3. Customarily, the worker is engaged in an independent trade, occupation, profession, or business.

Observations and Conclusion: The unanimous decision of the Court was delivered by temporarily assigned Justice Jose L. Fuentes, P.J.A.D.

  • The Court observed that The Unemployment Compensation Law (UCL), N.J.S.A. 43:21-1 to -71, acts as a “cushion against the shocks and rigours of unemployment”. The law requires that employers and employees make contributions to the unemployment compensation and temporary disability benefit funds. However, even if a worker receives compensation for work performed, the worker will not be considered an employee if the ABC Test is fulfilled.

  • Regarding the ABC Test, the Court observed that test is conjunctive; thus, all three prongs must be satisfied for a worker to be considered an independent contractor. The ABC Test presumes a worker is an employee therefore, the party challenging the classification carries the burden to establish the existence of all three criteria of the ABC test.

  • It was further observed that East Bay did not supply sufficient information to satisfy prong C burden regarding the eleven entities whose classification has been challenged by the Department. Prong C of the ABC Test broadly asks whether a worker can maintain a business independent of and apart from the employer. If the worker “would join the ranks of the unemployed” when the relationship ends, the worker cannot be considered independent under prong C.

  • The information East Bay provided is insufficient to prove the entities' independence. The probative value of refusal to accept or complete work is limited because, like an employee, even a bonafide independent contractor is not free from the pressure to accept a job. “A certificate of insurance could be a significant indication of independence, and business registration information may bolster the inference of independence. Here, however, these documents do not elucidate whether the disputed entities were engaged in independent businesses separate and apart from East Bay”.

  • The Court concluded that the instant case presents one of those less-obvious situations of whether the workers are truly independent business entities. Thus, consideration of the prong C factors is appropriate; but, in attempting to meet its burden, East Bay has provided little or no documentary evidence to address those factors. “For example, East Bay has not provided evidence that the entities maintained independent business locations, advertised, or had employees”.

  • It was further stated that any business practice that requires workers to assume the appearance of an independent business entity, can give rise to speculation that such a practice was intended to obscure the employer's responsibility to remit its fund contributions. “That type of subterfuge is particularly damaging in the construction context, where workers may be less likely to be familiar with the public policy protections afforded by the ABC test and consequently particularly vulnerable to the manipulation of the laws intended to protect all employees. Such a business practice also undermines the public policy codified in the UCL”.

Decision: With the afore-stated observations, the Court held that, since each entity at issue fails prong C of the ABC Test, therefore they can be properly classified as an employee. The Court remanded the matter to the Department for calculation of the appropriate back-owed contributions.

[East Bay Drywall, LLC v. Department of Labor & Workforce Development, (A-7-21) (085770), decided on 02-08-2022]


Advocates who appeared in this case :

Christopher Hamner, Deputy Attorney General, Advocate, for the Appellant;

Jennifer B. Barr, Advocate, for the Respondent;

Ravi Sattiraju, Advocate, for the Amicus Curiae.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.


1. ABC Test, LII, Cornell Law School

Tripura High Court
Case BriefsHigh Courts

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

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

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

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

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

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


Advocates who appeared in this case :

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

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


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

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

Madhya Pradesh High Court
Case BriefsHigh Courts

   

Madhya Pradesh High Court: The Division Bench of Ravi Malimath, CJ. and Vishal Mishra, J. allowed a writ petition directing the respondents to pay costs for the delay in compassionate employment.

The case of the writ petitioner is that his father, who was working as an Assistant Veterinary Officer died in harness on 08-12-2000. The petitioner had made an application for grant of compassionate appointment. He was granted a contractual appointment vide order dated 26-06-2002 as Samvida Shala Shikshak Varga-II. The appointment was for a period of three years. Thereafter, by the order dated 26-11-2002, merely after a period of five months, the appointment was cancelled on the ground that the said post was not available. Thereafter, he made several representations to the respondents, but nothing came out of it. Hence, the instant writ petition was filed after the Single Judge had dismissed the petition.

Counsel for the respondents contended that the impugned order was passed in the year 2002 and the petition was filed in the year 2014. Hence, it has to be dismissed on the ground of delay itself. It was further contended that since as on the date of death of the petitioner’s father, no post was vacant in the regular establishment, he was granted the appointment on contract basis. Thereafter, it was cancelled, since no such post was vacant.

The Court heard the arguments and was of the view that contentions of the State cannot be accepted. The Court further explained that appointment on compassionate grounds is an appointment to a regular post. Therefore, all consequences will follow. An appointment based on contract would entail the consequences that arise out of a contractual appointment. The rules do not permit substitution of an appointment on compassionate grounds through contractual appointment. Therefore, the appointment of the petitioner on contractual ground is illegal. Even assuming the posts were not available that does not give a right to the respondents to convert an appointment on compassionate grounds on contractual basis.

The Court further opined that the delay if any is to be held against the respondents and not against the petitioner. The Court allowing the petition held that the ends of justice will be met by directing the respondents to pay costs to him. Following directions were issue:

(a) The respondent No.3 is directed to appoint the petitioner on compassionate grounds to one of the three posts which the respondents claim are vacant. The same to be done within a period of eight weeks from the date of receipt of a copy of this order.

(b) The respondents are directed to pay costs in a sum of Rs.1,00,000/- (Rs. One Lakh only) to the appellant jointly and severely within a period of eight weeks.

[Dharmendra Kumar Tripathi v. State of Madhya Pradesh, Writ Appeal No. 977 of 2021, decided on 12-07-2022]


Advocates who appeared in this case :

Mr Ram Narayan Tiwari, Advocate, for the appellant;

Mr S.S Chauhan, Advocate, for the respondents.


*Suchita Shukla, Editorial Assistant has reported this brief.

Foreign LegislationLegislation Updates

The Senate Bill 22-234 has received the assent of Governor. The legislation is intended to update the notice requirements regarding unemployment insurance that employers must provide to employees upon termination.

Key Points:

  • Division of unemployment insurance is required to issue revenue bonds, power to levy bond assessments and the state treasurer, as the advisor to the division to issue the bonds.
  • The requirement that an individual wait at least one week before becoming eligible for unemployment compensation has been repealed. It will take effect when the unemployment compensation fund reaches a balance of at least $1 billion.
  • The Division is required to study how to implement a dependent allowance for individuals receiving unemployment compensation.
  • Section 4 and 10 deals with employment support fund. The Department of Labor and Employment requires the state treasurer to credit .00035 of the premium each employer and to submit to the division and require to grants to one or more third-party administrators for the purpose of providing recovery benefits to eligible individuals.
  • Employer is required to provide an employee with certain information about unemployment compensation upon the employee’s separation from employment.Employers hold on solvency surcharge has been extended and sub-section (7)(c) of Section 6 is repealed, effective 01-01-2024.
  • Section 8 requires the transfer from money received by the State under the federal “American Rescue Plan Act 2021”. The money in fund is only used to repay the outstanding balance of federal advances.
  • Section 11 deals with the waive in the division which determines such repayment to be inequitable.
  • Section 12 requires the State Treasurer to transfer $ 600 million from the revenue loss restoration cash fund.

*Disha Srivastava, Publication Assistant has reported this brief.

Gujarat High Court
Case BriefsHigh Courts

   

Gujarat High Court: Biren Vaishnav, J. allowed petitions which were filed challenging the awards of the Labour Court ordering reinstatement of the employees of Patan Nagarpalika who had raised the issue of early retirement age.

The respondent (now deceased) who was working with the Patan Nagarpalika had raised an industrial dispute before the Labour Court contending that the stand of the petitioner — Nagarpalika in retiring them at the age of 55 on and from 30-09-2007 is bad. It was his case that he was entitled to continue till the age of 60. The stand of the Municipality before the Labour Court was that the Municipality had power to retire a municipal servant at any time on or after he attains the age of 55 years on giving him three months’ notice according to Rule 5 of the Rules framed under Section 271 of the Gujarat Municipalities Act, 1963. The Labour Court had allowed the petitions and ordered reinstatement.

The Court held that it was within the powers of the municipality in exercise of powers under Section 271 of Gujarat Municipalities Act, 1963 to frame rules. Proviso to Rule 5 indicates that the action can be taken by a municipality against an employee where employee reaches the age of superannuation. This, of course, is subject to he being given three months notice and notice pay in lieu thereof.

Relying on the decision of a Division Bench of Gujarat High Court in context of the same municipality dated 03-03-2020 rendered in Special Civil Application Nos. 22332 of 2005, the Court affirmed that the section gives specific powers to make rules and the operation of Rule 5 and consequential retirement was held valid. The petitions were allowed finding that there was sufficient compliance of Rule 5, inasmuch as, notice of three months was given.

[Chief Officer v. Solanki Kanubhai Danabhai (deceased), R/Special Civil Application No. 1697 of 2020, decided on 27-06-2022]


Advocates who appeared in this case :

Ms Dhara Shah, Advocate, for the Petitioner 1;

Mr Prabhakar Upadyay, Advocate, for the Respondent 1.


*Suchita Shukla, Editorial Assistant has reported this brief.

Telangana High Court
Case BriefsHigh Courts

   

Telangana High Court: M Laxman, J. allowed the appeal and remanded the matter for adjudication on merits and held that the deceased beedi worker falls under the definition of ‘workman' as per Section 2(n)(ii) and Clause 2 of Schedule II of Employees’ Compensation Act, 1923 as well as Section 2(k) of Factories Act, 1948.

A claim was filed seeking compensation under Employees’ Compensation Act, 1923 on death of Yeddandi Yellavva, who is the daughter of the appellant herein which was thereby dismissed. Thus, the present appeal was filed assailing the dismissal order as the death happened during the course of employment while rolling the Beedies.

The Court observed that on perusal of Section 2(n) of the Employees' Compensation Act, 1923 states that any person employed in any such capacity as is specified in Schedule-II, comes under the definition of ‘Workman'. Clause 2 of Schedule-II clearly shows that any person employed otherwise than in clerical capacity in any premises or within the precincts where the manufacturing process is defined under Section 2(k) of Factories Act, 1948 will fall under the definition of ‘workman'.

Further, it was noted that Section 2(k) Factories Act, 1948 also makes it clear that the process of making any article or substance with a view to usage, sale, transport, delivery or disposal is constituted as manufacturing process. The rolling of Beedies is nothing but making of any article or substance with a view to usage or sale or transport. Therefore, the activity of the deceased being the Beedi roller, clearly falls within the definition of a workwoman.

The Court thus held “the order of the Commissioner for Employees Compensation and Assistant Commissioner of Labour at Karimnagar, requires being set aside. The matter requires to be remanded for adjudication of the claim on merits”

[Yeddandi Venkataiah v. Prabhudas Kishoredas Tobacco Products Ltd., C.M.A.No.2065 of 2002, decided on 09-06-2022]


Advocates who appeared in this case :

K. Vasudeva Reddy, Advocate, for the Appellants;

B.G. Ravinder Reddy, Advocate, for the Respondents.


*Arunima Bose, Editorial Assistant has reported this brief.

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SC allows Tamil Nadu to grant 50% reservation for in-service doctors in Super Specialty Medical Courses

The Court, hence, held that no case was made out for continuing the interim protection which was granted for the academic year 2020-2021 vide interim order dated  27th November, 2020.

Read more…

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Medical College| Does permission to start post graduate courses for subsequent academic year result in effacing deficiencies found in previous academic year? Supreme Court answers

If an institution is seeking grant of permission for undertaking admissions for the academic session 2022-23, it must fulfill the requirements of minimum standard as on 31st December 2021.

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2006 Meerut Fire Tragedy| Organizers held guilty! 60:40 liability to compensate victims fixed on Organizers & State

The court was dealing with the writ petition preferred by the victims of the fire tragedy which occurred on 10.4.2006, the last day of the India Brand Consumer Show organized at Victoria Park, Meerut, Uttar Pradesh by Mrinal Events and Expositions. The incident claimed the lives of 65 persons and left 161 or more with burn injuries.

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Husband suspects paternity of child; Supreme Court allows DNA test while granting conditional compensation of 30 lakhs to wife if suspicion proves to be wrong

In a case where the husband had disputed paternity of child on suspicion, though the Division Bench comprising of Indira Banerjee and A.S. Bopanna, JJ., directed to conduct DNA test, the Bench granted a conditional compensation of thirty lakhs to the wife if the suspicion proves to be wrong and respondent-husband turns out to be the father of the child.

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Medical Admissions| SC directs allotment of in-service PG seat to Lady Doctor with experience in Madhya Pradesh’s Naxal/Tribal regions

The appellant, a mother of a 5-year-old, has been working as a Medical Officer with the State of Madhya Pradesh on a regular basis for over 11 years. Out of the 11 years of service, she has served for 6 years in District Betul which is a notified tribal district and has served in a Community Health Centre at Katangi in the District of Balaghat for the remaining period.

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Even a single crime committed by a ‘Gang’ is sufficient to prosecute an accused under the Gangsters Act

“The definition clause does not engulf plurality of offence before the Gangsters Act is invoked.”

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Delinquent postal officer voluntarily deposits defrauded amount with interest after detection of fraud. Was he able to escape punishment of removal from service?

“Being a public servant in the post office, the delinquent officer was holding the post of trust. Merely because subsequently the employee had deposited the defrauded amount and therefore there was no loss caused to the department cannot be a ground to take a lenient view and/or to show undue sympathy in favour of such an employee.”

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Appointment of Teachers| Can obtaining a degree in one branch of a subject be considered equivalent to obtaining degree in the subject as a whole?

“As per the settled proposition of law, in the field of education, the Court of Law cannot act as an expert normally, therefore, whether or not a student/candidate is possessing the requisite qualification should better be left to the educational institutions, more particularly, when the Expert Committee considers the matter.”

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It’s time for the University to put an end to ‘Yuddh Kand’ and allow appellant to move from ‘Karm Kand’ to ‘Karm Phal Kand’

“The entire controversy appears to have arisen as a result of the tug of war in the year 2006 between the then Chancellor and the then Vice Chancellor, making the appellant a victim in the line of fire. Unfortunately, the High Court omitted to take note of all this.”

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No right to keep goods and wares at hawking place overnight; Supreme Court dismisses plea of hawker of Sarojini Nagar market

The petitioner was a hawker in the Sarojini Nagar Market, who had approached the Delhi High Court seeking permission to leave his goods and wares at the place of hawking overnight.

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Forum Shopping and Power of High Court u/s 482 CrPC; Supreme Court tells when to convert a civil complaint into criminal case

“Forum shopping has been termed as disreputable practice by the courts and has no sanction and paramountcy in law.”

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Person being the highest bidder deposits sale amount for auction property and obtains injunction against Municipality; SC declares the sale non-est for lacking government sanction

The Court opined that no concluded contract ever came into force and in the absence of any approval granted, no right would accrue.

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2G Spectrum Scam| Supreme Court rejects ex-licensee’s refund demand of Rs 1454.94 crores Entry Fee, holding him faulty as a confederate of fraud

“…as a beneficiary and confederate of fraud, the appellant could not be lent the assistance of this Court for obtaining the refund of the Entry Fee.”

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Candidates can’t claim appointment to unfilled posts in absence of provision for waiting list

“In absence of any specific provision for waiting list and on the contrary, there being a specific provision that there shall not be any waiting list and that the post remaining unfilled on any ground shall have to be carried forward for the next recruitment.”

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Income Tax| If such orders continued to be passed, we will impose substantial costs on Assessing Officer which will be recovered from his/her salary: Read why SC stayed Bombay HC’s order

The Division Bench comprising of M.R. Shah and B.V. Nagarathna, JJ., stayed the impugned order of Bombay High Court wherein the High Court had quashed the assessment order under Income Tax Act, 1961 and had further cautioned that if such orders continued to be passed, the Court will be constrained to impose substantial costs on the concerned Assessing Officer to be recovered from his/her salary.

Read more…


Cases Reported in SCC


2022 SCC Vol. 2 Part 4

In 2022 SCC Volume 2 Part 4, read a very interesting decision, wherein a death row convict subjected a 5-year-old girl to rape, killed her by strangulation, and then disposed of her body, tied in a gunny bag, into a stream and the 3-Judge Bench of the Supreme Court finding hope for reformation and rehabilitation commuted his death sentence to life imprisonment.

2022 SCC Vol. 3 Part 1

In a pertinent decision, Supreme Court while rejecting claim for interest the compared it to the Shakespearean character Shylock and remarked,

“…the holder of the Bond has received their ‘pound of flesh’, but they seem to want more. Additional sum in our estimation is not merited as SIBCO has already received their just entitlement and burdening the defendant with any further amount towards interest would be akin to Shylockian extraction of blood from the defendant.”

2022 SCC Vol. 3 Part 2

In 2022 SCC Volume 3 Part 2, read a very interesting case wherein a case where a Constable’s name was recommended by the Superintendent of Police but the same was dropped down by the Inspector General of Police for promotion under the 10% quota of outstanding performance for inclusion in the B-I List for promotion to the post of Head Constable in the year 2004, Supreme Court held that mere recommendation of the SP at the initial stage is not sufficient to claim a right for promotion.


 

Case BriefsHigh Courts

Bombay High Court: Ravindra V. Ghuge, J., decides a matter as to whether the benefit of compassionate appointment can be granted to the legal heir of the employee, who took voluntary retirement and was never certified as being medically unfit to perform any work, though the reason for opting for retirement was a serious medical condition.

The wife of the deceased addressed the Chief Executive Officer of Zilla Parishad contending that she had no knowledge that her husband had applied for voluntary retirement. Further, she added that he could not sign, and somebody had filled in an application for retirement on his behalf, by way of mischief.

What was the controversy?

After the deceased was granted voluntary retirement in the backdrop of the medical opinion that he was not medically unfit, whether it would entitle petitioner 2 to compassionate appointment?

High Court took into consideration the plight of the deceased and the ignominy that he was suffering. The office colleagues of the deceased used to notice his severe medical problem and he was living a normal life since he was not able to perform any duties, he had become unwanted and undesirable.

After the deceased was relieved on 5th May, 2019, he was admitted to the hospital and passed away within 3 months in the hospital. In view of the said, the time lag after he was relieved and his death, supported the Court’s view.

The Advocate for the Zilla Parishad referred to Cause ‘B’ of Government Resolution to contend that legal representatives can be considered for compassionate appointment if the father/mother was relieved from employment due to a medical condition prior to completing the age of 50 years.

The above view, in Court’s opinion, was discriminatory and capricious.

It was clear that the deceased did not seek voluntary retirement at the stroke of superannuation, also he did not pretend to be ill or incapacitated to facilitate employment for his son.

As per the facts and circumstances of the case, he was indeed seriously ill and the neurological problem that he was suffering from, was life-threatening considering the MRI scan of his brain conducted by the neurosurgeon. His physical condition continued to deteriorate, and the entire department confirmed the view that he was incapacitated, and he was not in a condition to perform any work, even soft work.

In view of the above, the petition was partly allowed.

The following directions were issued:

  • Petitioner 2, son of the deceased be enlisted in the list of the eligible candidates for compassionate appointment, considering his representation made before he graduated.
  • His seniority in the list of eligible candidates would be from the date when he became an Engineering Graduate.
  • The Chief Executive Officer, Zilla Parishad would consider the availability of a vacancy on which the petitioner 2 could be appointed and accordingly issue an appointment order as and when such vacancy arises.

[Anita Bhujang Wagalgave v. State of Maharashtra, 2022 SCC OnLine Bom 942, decided on 12-4-2022]


Advocates before the Court:

Mr. A.D. Sonkawade, Advocate for petitioners

Ms. R.P. Gaur, AGP for respondents 1 and 2

Mr. S.S. Manale, Advocate for respondent Nos. 3 and 4

Case BriefsHigh Courts

Gujarat High Court: Biren Vaishnav, J. allowed a petition which was filed challenging the order of termination passed by the respondent – authority, by which, the services as Assistant Motor Vehicle Inspector, Class-III of the petitioner has been terminated on the ground of lodging of an FIR under Sections 7, 8, 12, 13(1)(D) and 13(2) of the Prevention of Corruption Act.

Counsel for the petitioner submitted that even otherwise summary report has been filed in context of the FIR in question, the short ground on which the petitioner has assailed the order of termination that it was contrary to the law laid down in a decision rendered by the Division Bench of this Court dated 24-07-2020 rendered in Letters Patent Appeal No.1596 of 2019 in case of State of Gujarat v. Chetan Jayantilal Rajgor where the Court had explained the importance of full scale inquiry before any action could be taken by the authority against the accused.

The Court considered the decision relied on by the counsel of the petitioner and quashed the order of termination. The petition was allowed and the respondent-authority was directed to reinstate the petitioner without back-wages within ten weeks from the date of order. It was further clarified that respondent authorities will not be precluded from proceeding against the petitioner for the alleged misconduct.[Hiren Dahyabhai Rathod v. State of Gujarat, R/Special Civil Application No. 15471 of 2020, decided on 13-04-2022]


Mr Jit P Patel for the Petitioner(s) 1

Mr Krutik Parikh, AGP for the Respondent(s) 1


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Sanjay Kishan Kaul and M.M. Sundresh, JJ., issued notice to BCI to respond to suggestions made before the Court at the earliest with regard to introducing changes in Bar examination.

The instant appeal was filed by Bar Council of India (BCI) to assail the impugned order of the Gujarat High Court wherein the High Court had read down Rules 1 and 2 respectively of the Bar Council of Gujarat (Enrollment Rules) under Section 28(2)(d)  read with Section 24(1)(e) of the Advocates Act, 1961so as to read that a person may be either in full or part time service or employment or is engaged in any trade, business or profession, who otherwise is qualified to be admitted as an Advocate shall be admitted as an Advocate, however, the enrollment certificate of such a person shall be withheld with the Bar Council and shall lie in deposit with the Council until the concerned person makes a declaration that the circumstances mentioned in Rule 2 have ceased to exist and that he or she has started his/her practice.

Noticeably, Rule 1 and Rule 2 of the Bar Council of Gujarat (Enrollment) Rules provide prohibition from admission of a person who is otherwise qualified to be admitted as an advocate, but is either in full or part time service or employment or is engaged in any trade, business or profession, as an advocate. Noting the impracticality of the requirement to resign from work even before appearing for the exam, the High Court had remarked,

“The lady is in a helpless situation. Today, if she gives up her job being a single mother, and god forbid if she is unable to clear the All India Bar examination, then she would be left without any means of livelihood.”

As the case reached the Supreme Court, following interesting suggestions were made by the parties:

  1. Instead of reading down the Rules, suggestions were made to avoid link between enrollment and ability to take exams.
  2. It is a difficult decision of economic necessity for those in jobs to resign from job to write bar examination.
  3. It was debated by the BCI that persons in job wanting to take the Bar exam cannot be given provisional enrolment, however, a roll number can be issued to take the examination and that exam should be treated in furtherance the aspect of enrollment as and when it arises.
  4. A suggestion was made that succeeding in bar exam cannot give liberty to indefinitely postpone decision to seek enrollment or not. Thus, the result of the Bar exam, if successful, would hold good for three years within which the candidate can take the choice and if he continues his job for a longer period of time, he may be again required to take the Bar exam at the appropriate stage, as such long hiatus period may otherwise snap the link.
  5. Amicus Curiae K. V. Vishwanathan has suggested that there can be a viva exam for such candidates.
  6. Emphasis was also made on a more monitored process by the BCI to ensure that a law college which obtain recognition once, does not rest on that and maintain the parameters as set forth by the Bar Council.
  7. Instead of focusing on a rote ability, the Bar exam should focus on analytical thinking process to make the process of enrolment more meaningful.
  8. To restrain the candidates from taking advantage of random answers made without any consequence of a wrong answers, suggestion was made to introduce 1/4th negative mark for every wrong answer. However, the same need not be uniform throughout the paper but in certain nature of questions posed, and should be introduced in that particular section. Amicus Curiae pointed out that in UK the exams are based on the ‘Miller Pyramid Scheme’ of evaluation in all aspects of reading, writing, expression and communication of a prospective Bar entrance is evaluated. In USA some questions are marked with no provision of negative marking and there may be questions, in the very nature of things there, there may be more than one answer possible.
  9. Lastly, emphasis was also placed on evolving a fair system for juniors to find placement in chambers.

Considering the aforementioned suggestions, the Bench directed BCI to on the aforesaid process with expedition and issue instructions to S.N. Bhatt, senior counsel for BCI before next date of hearing. The matter is listed on 12-04-2022 for further hearing.

[Bar Council of India v. Twinkle Rahul Mangaonkar, C.A. No(s). 816-817 of 2022, decided on 15-03-2022]


Appearance by:

Amicus Curiae: K.V. Vishwanathan, Sr. Advocate

Others Present: R. Venkatraman, Amartya Sharan, Rahul Sangwan, M.G. Aravind, Chanakya Dwivedi, K. Sivagnanam, Advocates

For Appellant(s): S.N. Bhatt, Sr. Advocate, Durga Dutt, AOR, N.P.S. Panwar, D.P. Chaturvedi, Tarun Kumar Thakur, Parvati Bhat, Advocates

For Respondent(s): Anushree Prashit Kapadia, AOR, Megha Jani, Priyanka Rathi, Advocates


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Sheel Nagu and Sunita Yadav, JJ. while hearing a petition under Article 227 against order the Central Administrative Tribunal, Jabalpur Bench., dismissed the petition.

The petition was moved to CAT against the order cancelling candidature of the petitioner to the post of Chemical Processor Worker (Semi-skilled) in Ordnance Factory, Itarsi on grounds of petitioner not being acquitted honourable/clean for offences punishable under Sections 376, 384, 509 of IPC read with Section 4 of POCSO Act.

Counsel for the petitioner pointed out the Trial Court’s finding that the genesis of the incident, the complaint was made by prosecutrix to save her from disrepute and urged the Court to treat the acquittal clean and honourable.

The Court reiterated the well-settled principle that unless the acquittal in criminal trial is honourable and clean, the employer has enough discretion to find a candidate to be unfit for employment, subject to various other factors like sensitivity, and since the employment would be under the Ministry of Defence, the element of sovereignty of the nation comes into being. The Court also said that the reliance put forward by the petitioner has no avail in the present case and hence the petition was dismissed.[Vinod Kumar v. Union of India (Ministry of Defence), Misc. Petition No. 503 of 2022 decided on 08-02-2022]


Appearances by:

For Petitioner: Sri Vijay Kumar Tripathi, Advocate.

For Respondents: Sri J.K. Jain, Asstt. Solicitor General.

Case BriefsHigh Courts

Karnataka High Court: Sreenivas Harish Kumar, J., disposed of the petition and modified the judgment of the appellate court.

The facts of the case are such the petitioner was driving KSRTC bus and thereby caused an accident by dashing against a private bus due to rash and negligent driving. The petitioner was tried in the Court of JMFC, Belthangady, for the offences punishable under Sections 279 and 337 of IPC, held guilty and sentenced to two months simple imprisonment and fine of Rs1, 000/- with default sentence period of 15 days imprisonment in relation to offence under Section 279 IPC i.e. Penal Code, 1860, and two months simple imprisonment with fine of Rs 500/- and a default sentence period of 15 days for the offence under Section 337 IPC. The appeal preferred before IV Additional District and Sessions Judge, Dakshina Kannada, Mangaluru, was also dismissed, and hence the instant revision petition was filed.

Counsel for petitioner Mr Keshava Bhat submitted that the photograph of the accident scene clearly shows that probably two buses collided with each other because of the width of the road being very narrow. In this view, a lenient view may be taken and the petitioner may be just subjected to fine with an observation that the conviction is not a stigma to his employment.

Counsel for respondent Mr K S Abhijith submitted that when there is no scope for appreciation of evidence, another view cannot be taken with regard to accident and there is no scope for reducing the quantum of sentence also.

The Court observed that the evidence shows that the accident occurred when two buses were taking turn in a curve, however because of consistent findings of both the courts below, I do not find it necessary to re-appreciate the evidence because there is no perversity in them.

The Court stated that the petitioner is a driver in the KSRTC. Examined whether there is scope for imposing fine only, section 279 IPC provides for sentencing the accused with imprisonment which may extend to six months, or with fine which may extend to Rs.1,000/-, or with both. Similarly, section 337 IPC provides for sentencing an accused for imprisonment of either description for a term which may extend to six months, or with fine which may extend to Rs.500/-, or with both.

The Court thus held Therefore having regard to the sentencing structure provided in both the sections, I am of the opinion that the sentence may be confined to fine only instead of subjecting the petitioner to imprisonment. [Devendrappa H. v. State, Criminal Revision petition no. 1145 of 2021, decided on 17-01-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J., Whether the Insurance Company can be absolved of its liability to pay compensation under the Employees Compensation Act, 1923, if the employee who has succumbed to an accident which took place during the course of employment, is a minor?

Appellants filed a claim based on the premise that the deceased was aged 18 at the time of the accident and was receiving wages of Rs 5,500 per month and compensation of Rs 6,22,545 was assessed.

The insurer opposed the above-said claim before the Commissioner/Labour Court, and it was disputed that the accident suffered by the deceased arose out of or in the course of employment with the OP.

Further, it was denied that there was any nexus between the alleged injury and the alleged accident and since the police papers revealed the deceased’s age was 15 years, it was stated that the claim was not maintainable under the Workmen’s Compensation Act, 1923, hence the same shall be dismissed.

Analysis, Law and Decision

Workmen’s Compensation Act, 1923 does not prohibit payment of compensation to a minor.

There is no age limit for a person to be employed as an employee under the Workmen’s Compensation Act, though Article of the Constitution of India, employment of child labour before 14 years in any factory or mine or any hazardous employment, there are enactments in the form of Child & Adolescent Labour (Prohibition & Regulation Act), 1986 where engaging services of children below 14, in any hazardous avocation, is an offence.

Elaborating further, it was stated that Workmen’s Compensation Act is a beneficial piece of legislation and if a person engaged by an employer, as an employee is a minor and his appointment, though is prohibited by any law in existence, meet with an accident and sustain a disability which can be a total or partial disability, the moot question is:

Whether an employee should be denied the compensation merely on the ground that the employer had engaged him by contravening the law and he shall be kept out of the benefits which would have been otherwise available to him on account of an accident which he has suffered, which occurred in his workplace and out of the course of his employment or whether his family can be denied compensation on his death?

Bench expressed that the impugned decision took a harsh stand and refused to fasten liability of compensation on the Insurance Company by recording that the deceased was a minor and insurance company was not liable to pay compensation on the said ground.

The insurance policy in the present matter clearly covered two persons and the liability covered a person employed by the insured for operation and maintenance or loading/unloading which covered a cleaner.

Labour Court’s approach defeated the very spirit and rationale behind the Employees Compensation Act and the claimants who were the parents of the deceased were held entitled to recover compensation only from the employer with very negligible chance of recovering the compensation.

High Court disapproved the above approach of the labour court and opined that the Insurance Company cannot be absolved of its liability to pay compensation to the claimants, the dependents of the deceased. Therefore, the impugned judgment of the Commissioner was modified to the limited extent of fixing the liability jointly and severally upon the employer and the Insurance Company.

First Appeal No. 246 of 2015

In this matter, Insurance Company was aggrieved by the award of compensation to the parents of the deceased, who succumbed to the injuries in the accident.

Labour Court had directed the employer and the Insurance company jointly and severally liable to pay compensation.

Claimant 1 had set up a claim under the Workmen’s Compensation Act by filing the application claiming that his son was employed by the OP on his Motor Tempo as loader and the said tempo met with an accident due to which the son died.

High Court stated that when the written statement on oath before the Commissioner and the certificate issued by the employer is juxtaposed against his statement recorded by the police during the course of investigation, the statement recorded under oath, admitting that deceased Deepak was his employee, assumed importance.

Bench expressed that in view of the inconsistency in the statement given to the police by the employer, denying any employer-employee relationship on one hand and the statement on oath filed in the form of written statement before the Commissioner, the Commissioner has rightly given weightage to the statement on oath and accepted the employer-employee relationship.

In view of the above, Court found no reason to interfere with finding of the Commissioner. [Mohammed Ali Abdul Samad Khan v. Dawood Mohd. Khati, 2021 SCC OnLine Bom 6670, decided on 10-12-2021]


Advocates before the Court:

Mr. Amol Gatne i/b Ms. Swati Mehta for the appellants in First Appeal No.169 of 2014 and for the respondents in First Appeal No.246 of 2015.

Mr. D.R. Mahadik for the appellant in FA No.246/2015 and for respondent in FA No.169/2014.

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Vipin Sanghi and Sanjeev Narula, JJ., decided a matter while reasoning out on why a person with Bipolar Disability should be granted reservation under the mental illness category for the appointment as Judicial Officer.

Background

The present petition was preferred to assail the notice/result published by the Registrar General, Delhi High Court dated 21-5-2019, whereby the candidature of the petitioner for Delhi Judicial Services-2018 under the category of Persons with Disabilities was rejected on account of the petitioner’s mental capacity not being found to be permanent in nature.

For the above, the respondent relied upon the Disability Certificate issued by the All-India Institute of Medical Sciences.

Issue for Consideration

Whether the petitioner who is certified to have been suffering from the mental illness i.e., BPAD which is in remission and is likely to improve, is entitled to the benefit of Reservation provided to PwD under the RPwD Act?

Analysis, Law and Decision

High Court relying on the Supreme Court decision of Pankaj Mahajan v. Kajal, (2011) 12 SCC 1, wherein the nature of the said illness was considered i.e. BPAD in the context of a claim for divorce on the ground of the wife being incurable of unsound mind, and on the ground of cruelty. In this decision, Court accepted the position that BPAD was a lifelong/permanent and incurable mental illness, premised on statements and evidences led by medical doctors.

This Court in view of the above-cited Supreme Court decision along with medical literature concluded that Bipolar Affective Disorder was a serious lifelong and permanent incurable mental illness that can, at best, be suppressed with medications and treatment, but cannot be cured.

People who suffer from Bipolar Disorder can live a healthy life, albeit they will have to take treatment all their lives.

In the present matter, the petitioner had been suffering from Bipolar Affective Disorder since 2010 and was in treatment for the same since 2010.

In Court’s opinion, the petitioner successfully competed with other PwD candidates, and he was permanently disabled. Hence, he cannot be denied reservation on an assumed basis, as done by the respondent.

The true reason why the respondent rejected the petitioner’s candidature was not that his mental illness was not of permanent nature, or that it may fall below 40% but because the respondent was of the opinion that the medical condition of BPAD rendered the petitioner incapable of rendering service as a Judicial Officer.

Bench expressed that,

Once the posts are advertised – seats are reserved for, inter alia, persons with mental illness, it is not open to respondent to deny the petitioner reservation under the RPwD Act, merely on the basis of an opinion or belief entertained by it – that the petitioner would not be able to discharge his duties as a Judicial Officer due to his mental illness.

Parliament granted reservation, inter alia, to PwD – who suffer from mental illness (which does not include retardation, as taken note of hereinabove), so that such persons get an opportunity to lead a normal life with encouragement and dignity.

It was also stated that

“Merely because they may need medication and treatment throughout their lives, or may suffer setbacks from time to time, cannot be a reason to deny them equal opportunity to assimilate in the society, make their contribution and have a life of dignity.”

Further, the Court elaborated its above observation stating that, such person has a fully developed mind like any normal human being. They may suffer from a substantial disorder of thinking, mood, perception, orientation or memory that may grossly impair judgment, behaviour, capacity to recognize reality or ability to meet the ordinary demand of life, but with medication and treatment such manifestations can be kept at bay.

Why Respondent was not right in not granting reservation to the petitioner?

High Court added that,

  • the respondent could not place any medical opinion on record to come to the conclusion that a person suffering from BPAD and is under remission, would not be able to discharge his responsibilities as a Judicial Officer.
  • Respondent cannot discriminate against any person with a disability in any matter relating to employment.
  • Respondent has no competence to take a decision on the issue of whether the post of a Judicial Officer should be exempted from the rigor of Section 20(1), having regard to the type of work carried out in the establishment of the judicial service.
  • Mere apprehension that there is a possibility that, in future, the petitioner’s disability may deteriorate – once he is appointed as a judicial officer and takes charge, and he may not be able to handle the responsibilities because of its stressful nature, cannot be a reason to deny him the benefit of reservation – to which he is statutorily entitled, and discriminate against him on the basis of his disability.

In view of the above reasons, denial of reservation was in clear breach of Sections 20 and 30 of the RPwD Act.

In the Supreme court decision of LIC of India v. Chief Commissioner for Disabilities, (2002) 101 DLT 434, it was held that a possible future eventuality cannot be a ground to deny employment.

The intent and object of the RPwD Act is to protect and preserve the rights of disabled persons, and employment is an essential aspect of utmost importance and the RPwD Act has to be read liberally, keeping in mind that it is a beneficial and social welfare legislation which has to be given effect to in order to protect the rights of the PwD, and not to defeat their rights.

 Concluding the matter, High Court set aside the notice which declared the petitioner’s disability to be not permanent.

The direction was issued to the respondent to declare the petitioner as selected to the Delhi Judicial Service without any further delay since he was the only qualified candidate in the ‘mental illness’ category.

Upon his appointment, the petitioner would retain his notional seniority along with his other batchmates and he would be deemed to have joined his post along with his other batchmates, though he would not be entitled to any back wages.

 In view of the above petition was disposed of. [Bhavya Nain v. High of Delhi, WP (C) No. 5948 of 2019, decided on 8-5-2021]


Advocates before the Court:

For the Petitioner:

Mr. Arvind K. Nigam and Mr. Mohit Mathur, Senior Advocates with Mr.Kawal Nain, Mr. Rohit Dadwal, Mr. Mehtaab Singh Sandhu and Mr.Pratishth Kaushal, Advocates.

For the Respondent:

Mr. Viraj R. Datar, Ms. Meenal Duggal, Advocates.

Foreign LegislationLegislation Updates

The California’s Governor has signed Assembly Bill 1003, concerning wage theft by employer, into law on September 28, 2021. The highlights of the new legislation are:

 

  • The legislation creates a new offence for the intentional theft of wages by an employer, punishable as either a felony or a misdemeanor.
  • The legislation creates a new type of grand theft for the intentional theft of wages in an amount greater than $950 from any one employee, or $2,350 in the aggregate from two or more employees by an employer in any consecutive 12-month period.
  • The new legislation allows wages, tips, or other compensation that are the subject of a prosecution to be recovered as restitution.
  • The grand theft is punishable either as a misdemeanor by imprisonment in a county jail for up to 1 year or as a felony by imprisonment in county jail for 16 months or 2 or 3 years, by a specified fine, or by a fine and that imprisonment.

*Tanvi Singh, Editorial Assistant has reported this brief.

Legislation UpdatesRules & Regulations

The Government of Himachal Pradesh has amended Himachal Pradesh Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Rules, 2008. The amendment introduces new rates towards financial assistance for the education of the children of the Beneficiary.

 

Key Amendments:

1. Following Rules have been inserted

  • Rule 298: Female Birth Gift Scheme: The Board may provide a sum of Rs. 51000/- only in shape of FDR which may be given to the beneficiary on the birth of his/her female child (upto 2 girls), which will be enchashed at the completion of 18 years of the said daughter. If the girl in whose name an FDR has been made unfortunately dies before attaining the age of eighteen years, the FDR will get transferred to the third girl child of beneficiary if any,  otherwise the entire amount will be paid the nominee.
  • Rule 299: Mentally Retarded Children Benefit Scheme: A financial assistance for the care of mentally retarded or handicapped children with disability of 50% and above beneficiary @ Rs 20000 per year will be provided to him/her on production of valid medical certificate issued by competent authority.
  • Rule 300: Widow Pension: The widow of a deceased beneficiary will be provided a pension of sum of Rs. 1500/- per month after the death of the said beneficiary, provided that she is not employed in any Govt./semi-govt.  or autonomous body under the Government of India/Government of Himachal Pradesh on regular, contract or daily wage basis.
  • Rule 301: Hostel Facility Scheme: A beneficiary will be provided a maximum amount of Rs. 20000/- for the expenses incurred by him/her on lodging, boarding and food of his children living in any hostel.
  • Rule 302: Mukhyamantri Awas Yojna: A beneficiary who is already enrolled either under Pradhan Mantri Awas Yojna or Mukhya Mantri Awas Yojna, will be provided a financial assistance of Rs. 1,50,000 to build his/her home.

2. Rule 281(1) has been modified to provide new rates for financial assistance for education of children of the beneficiary from the Fund.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Lok Pal Singh, J., allowed a petition which was filed mainly seeking a writ, order or direction directing the respondents to provide employment to the petitioner in terms of the agreement executed between their forefather and sugar factory.

At the time of establishment of the Kisan Sahkari Chinni Mill Ltd. some farmers provided their land for the Mill, in lieu whereof, they were given share in the respondent Mill as per the area of their land. Besides this, the land owners/shareholders and the respondent Mill were entered into an agreement whereby it was provided that on the basis of land provided, employment will be given to the farmer himself, his son/grandson as per their qualification in the factory.

The grievance of the petitioner was that he was the heir /member of one of such family whose land was acquired for the purpose of establishment of factory but he had been denied employment by the respondent.

Counter affidavit had been filed by the respondent 2 stating that as per the agreement executed between shareholder Chandan Singh and the respondent Mill, employment was provided to two grandsons of Late Shri Chandan Singh. Petitioner was great grandson of shareholder Shri Chandan Singh and was therefore not entitled to get the employment.

The fact that the land of the petitioner’s grandfather was taken for the establishment of the sugar mill was not disputed and no compensation was paid for the land acquired, instead a share certificate was issued to the land donor and a unilateral letter was written on behalf of the sugar mill which suggests that employment will be provided to the landowner, his son/grandson, as per their eligibility.

The Court noted that in the instant case, on the one hand, the petitioner had been deprived of the land, whereas on the other, he was being denied employment by the respondent. The respondent 2 Sugar Mill, which was an instrumentality of the State, should have considered the fact that the land owner who donated the land for establishment of sugar mill, their future generation should not be left starving. The interpretation of the agreement by the respondent to the effect that either the son or grandson will be provided employment was unsustainable in the eyes of law.

The Court allowed the petition and held that denial of employment to the petitioner by the respondent mill was arbitrary and illegal.[Shashikant Singh v. State of Uttarakhand, Writ Petition (S/S) No.862 of 2019, decided on 17-09-2020]


Suchita Shukla, Editorial Assistant has reported this brief.