Case BriefsSupreme Court

Supreme Court: In a case where the Madras High Court dismissed a writ petition without deciding the validity of Section 40(a)(iib) of the Income Tax Act on the ground that the matter is still sub judice before the Income Tax Authority, the 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah*, JJ has held

“When the vires of Section 40(a)(iib) of the Income Tax Act were challenged, which can be decided by the High Court alone in exercise of powers under Article 226 of the Constitution of India, the High Court ought to have decided the issue with regard to vires of Section 40(a)(iib) on merits, irrespective of the fact whether the matter was sub judice before the Income Tax Authority. Vires of a relevant provision goes to the root of the matter.”


Background


In the present case, a show cause notice was issued for the Assessment Year 2017-stating that the VAT expense levied on the appellant is an exclusive levy by the State Government and therefore squarely covered by Section 40(a)(iib) of the Income Tax Act and therefore VAT expenditure is not allowable as deduction in accordance with Section 40(a)(iib) of the Income Tax Act, while computing the income of the appellant.

The appellant had argued that the amount which is deductible in computing the income chargeable in terms of the Income Tax Act is not being allowed under the garb of the aforesaid provision and that

“ (…) the said provision is discriminatory and violative of Article 14 of the Constitution of India, inasmuch as there are many Central Government undertakings which have not been subjected to any such computation of income tax and are enjoying exemption.”

The High Court dismissed the said writ petition without deciding the validity of Section 40(a)(iib) of the Income Tax Act by observing that the issue of raising a challenge to the vires of the provision at this stage need not be entertained as the matter is still sub judice before the Income Tax Authority, even though it is open to the aggrieved party to question the same at the appropriate moment.


What the Supreme Court Said


Once the show cause notice was issued by the assessing officer calling upon the appellant – assessee to show cause why the VAT expenditure is not allowable as deduction in accordance with Section 40(a)(iib) of the Income Tax Act, while computing the income of the appellant, it can be said that the cause of action has arisen for the appellant to challenge the vires of Section 40(a)(iib) of the Income Tax Act and the appellant may not have to wait till the assessment proceedings before the Income Tax Authority are finalised.

“The stage at which the appellant approached the High Court and challenged the vires of Section 40(a)(iib) of the Income Tax Act can be said to be an appropriate moment.”

Therefore, it was held that the High Court ought to have decided the issue with respect to the challenge to the vires of Section 40(a)(iib) of the Income Tax Act on merit and has failed to exercise the powers vested in it under Article 226 of the Constitution of India by not doing so.

The Court, hence, without expressing any opinion on merits with respect to legality and validity of Section 40(a)(iib) of the Income Tax Act, remanded matter to the High Court.

[Tamil Nadu State Marketing Corporation v. Union of India, CIVIL APPEAL NO.    3821  OF 2020, decided on 25.11.2020]


*Justice MR Shah has penned this judgment 

For appellant: Senior Advocate Rakesh Dwivedi

For Union of India: Additional Solicitor General K.M. Natraj

Case BriefsHigh Courts

Allahabad High Court: Ram Krishna Gautam, J., held that as per Section 482 Criminal Procedure Code, 1973, while exercising the inherent jurisdiction, High Court cannot make any comment on the factual matrix as the same remains under the trial court’s domain.

The instant application was filed under Section 482 Criminal Procedure Code, 1973 against the State of U.P. and Wsima Begum for quashing the charge sheet as well as the criminal case under Sections 420, 467 and 468 of Penal Code, 1860.

Applicants Counsel, Nazrul Islam Jafri, S.A. Ansari mentioned that allegations made against the applicant made out a case of civil liability as the applicant was alleged to have gotten her name mutated after the death of her husband under Section 34 of Land Revenue Act.

Applicant was married to Sagar Ali under Muslim Rites and customs and was blessed by one female child.

Applicant was subjected to cruelty with regard to dowry hence a criminal case was filed against her husband and in-laws.

Unfortunately, the husband of the applicant and his mother were murdered by unknown assailants. Due to the enmity and litigation, Parvej lodged a criminal case against the applicant and her family members on the basis of frivolous allegations under Section 147, 148, 149, 302, 307, 115 and 120-B of IPC read with Section 7 of Criminal Law Amendment Act.

Applicant, after the death of Sagar Ali, filed an application for getting her name along with her minor daughter’s name mutated at the place of Sagar Ali over his agricultural property.

In light of the above-stated, the application was allowed and the names were mutated in the revenue records.

Further, it has been stated that OP-2 claiming to be the second wife of Sagar Ali moved an application before the Court of Nayab Tehsildar challenging the above mutation order on the ground that she was the legally wedded wife of Sagar Ali. Hence the present applicant was fully aware of those facts even then, she got her name mutated with the wrong contention.

Tehsildar on hearing both sides, in 2014 had set aside the mutation order.

Analysis 

Civil Suits regarding agricultural land of Sagar Ali and his mother Ikhlasi Begum, with regard to disputed “will”, said to be executed by Sagar Ali, is pending before the competent Civil Court.

Ummeda Begum claimed herself to be successor along with her daughter Zoya for the property of late Sagar Ali and late Ikhlasi Begum. She claimed herself to be the only successor wit no other inheritor.

Court noted that in many other previous litigations it was fully in the knowledge of Ummeda Fatima that Sagar Ali was married to Wasima Begum, who was blessed with one female child. Even after knowing this fact mutation application was moved with an incorrect affidavit and incorrect application of documents.

U.P. Revenue Code Section 114 (c) provides that “A person who commits the murder of a [Bhumidhar, asami or government lessee], or abates the commission of such murder, shall be disqualified from inheriting the interest of the deceased in any holding.”

The prima facie case was disclosed for cognizable offence and it was not a ground for quashing of the FIR.

Offence of moving application, with false and fictitious contention, claiming herself to be sole survivor along with her minor daughter over the property of late Sagar Ali and his mother Ikhlasi Begum, and thereafter, fabricating oral and documentary evidence for it and getting name mutated, knowing the legal situation of debarring of inheritance and conviction in that criminal case of murder, prima facie, makes out offences for which charge-sheet was filed.

Section 482 CrPC, provides that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

In the decision of the Supreme Court in Hamida v. Rashid, (2008) 1 SCC 474, Supreme Court propounded that “Ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 at an interlocutory stage which after filed with some oblique motive in order to circumvent the prescribed procedure, or to delay the trial which enable to win over the witness or may disinterested in giving evidence, ultimately resulting in miscarriage of Justice.”

Abuse of Process of Court

In the Supreme Court decision of Dhanlakshmi v. R. Prasan Kumar, 1990 Supp SCC 686, it was propounded that “To prevent abuse of the process of the Court, High Court in exercise of its inherent powers under section 482 could quash the proceedings but there would be justification for interference only when the complaint did not disclose any offence or was frivolous vexatious or oppressive.”

Hence in view of the above, the exercise of inherent jurisdiction under Section 482 CrPC is within the limits, propounded as above. Therefore, this Court will not make any comment on the factual matrix because the same remains within the domain of the trial court.

Prayer for quashing the impugned order as well as the proceeding of the aforesaid complaint case was refused.[Ummeda Fatima v. State of U.P., 2020 SCC OnLine All 1358, decided on 19-11-2020]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Javed Iqbal Wani J., while dismissing the present petition, discusses the ambit and scope of Article 227 of the Constitution and the statutory restriction of filing written statement within a stipulated period as mentioned under Order VIII Rule 1, Code of Civil Procedure.

Background

In the instant petition, Supervisory Jurisdiction of the present Court is invoked by the petitioner for quashing order dated 10-03-2016 (impugned order), passed by the Second Additional District and Sessions Judge, Jammu. In terms of impugned order, the right to file written statement of the defendant petitioner herein is closed by the Trial court after the court notices that the defendant has failed to deposit costs imposed upon him for setting aside ex-parte proceedings initiated by order dated 20-01-2016.

 Observations

On ambit and scope of Supervisory Jurisdiction under Article 227

Court considered the case of Shalini Shyam Shetty v. Rajendra Shankar Pati, (2010) 8 SCC 329, wherein the Court discussed the scope and ambit of Supervisory Jurisdiction, at length;

“(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.

 (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227.

(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority’.

(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) High Court’s power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court’s power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court’s jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo moto.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality

The Court further clarified the said premise, citing Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423, which overruled the decision in Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675; “Accordingly, we answer the question referred as follows: (i) Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution; (ii) Jurisdiction under Article 227 is distinct from jurisdiction under Article 226. Contrary view in Surya Dev Rai is overruled.”

On application of Order VIII Rule 1 of Code of Civil Procedure, 1908

The Court while making an observation over the applicability of Order VIII Rule 1, said, “(…) defendant indisputably has failed to file the written statement within the stipulated period of time prescribed under Order VIII Rule 1 or proviso appended thereto, even  if it is assumed that the summons were served upon him on 11-03-2015 when he appeared before the Trial court notwithstanding the permission granted to the defendant to file the same in terms of order dated 20-01-2016 i.e. when his ex-parte proceedings were set aside by the Trial court. Since the defendant failed to file the written statement within the period prescribed under Order VIII CPC, the closure of right to file the same in terms of impugned order by the Trial court becomes irrelevant and insignificant.”

 Decision

Reiterating the scope of Supervisory Jurisdiction, the Court dismissed the present petition along with the connected IAs. [Ghulam Mohd. v. Manzoor Ahmed, OW104 No. 97 of 2016 & IA No. 01 of 2016, decided on 21-11-2020]


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Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Prashant Kumar Mishra and Gautam Chourdiya, JJ., observed that,

Application for anticipatory bail under Section 438 Criminal Procedure Code, 1973 should ordinarily be filed before the Sessions Court at the first instance. Such an application can be filed directly before the High Court when there exist exceptional, rare or unusual reasons.

Two bail applications under Section 438 of the Code of Criminal Procedure, 1973 were filed by the applicants before the High Court without availing the remedy before the Sessions Court.

Applicants counsel on 16-09-2020 placed reliance on the decision of this Court in Ratnesh Singh Chouhan v. State of Chhattisgarh, MCRCA No. 918 of 2019, decided 23-07-2019, to argue that the anticipatory bail applications can be filed directly before the High Court.

A plain reading of the provision of Section 438 CrPC necessitates an immediate conclusion that the jurisdiction conferred on the High Court and the Sessions Court for entertaining prayer for anticipatory bail is concurrent in nature.

Controversy as to whether the application would be maintainable before the High Court only after exhaustion of the remedy before the Sessions Court has been posed before the different High Courts on ‘n’ number of occasions.

It was observed that Allahabad High Court in two different cases rendered its opinions as follows:

Harendra Singh v. State of U.P., 2019 SCC OnLine All 4571: It was held that the bail application filed under Section 438 of the CrPC is not maintainable before the High Court without exhausting remedy before the Sessions Court.

Vinod Kumar v. State of U.P., 2019 SCC OnLine All 4821: In this decision, it was held that such application can be filed directly before the High Court with a rider that strong, cogent compelling reasons and special circumstances must necessarily be found to exist in justification of the High Court being approached first and without the avenue as available before the Sessions Court being exhausted.

Bombay High Court in its decision of Mohanlal Nandram Choudhari v. State of Maharahstra,2007 (4) MhLJ 9held that the choice of choosing the Court, whether Sessions Court or High Court for moving an application under Section 438 CrPC cannot be left to be decided by the accused.

Catena of Judgments follow the common thread that albeit Section 438 CrPC confers concurrent jurisdiction on the High Court and the Sessions Court, an application should ordinarily be filed before the Session Court at the first instance and not directly before the High Court.

Adding to the above it was observed that for filing an application directly before the High Court the applicant has to demonstrate and satisfy the High Court that there exists exceptional, rare or unusual reasons for the applicant to approach the High Court directly.

Bench on perusal of the merits of the bail applications found that there were no exceptional circumstances in the cases at hand which would entitle them to move the anticipatory bail applications directly before the High Court.

Since the Court held that the bail applications are not maintainable directly before the High Court, no interim protection could be continued however the Sessions Court was given a direction to decide the anticipatory bail applications at the earliest as and when the applicants move before the Sessions Court. [Hare Ram Sharma v. State of Chhattisgarh, 2020 SCC OnLine Chh 639, decided on 18-11-2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ has held that the High Court is not obliged to frame substantial question of law, in case, it finds no error in the findings recorded by the First Appellate Court.

The Court was hearing the case relating to suit for permanent injunction wherein the High had dismissed the second appeal without framing any substantial question of law. It was contended before the Court that framing of substantial question of law is mandatory in terms of Section 100 CPC and hence, the matter should be remitted back to the High Court for determination of the substantial question of law framed by the appellants.

On this, the Court explained that Sub-section (1) of Section 100 CPC contemplates that an appeal shall lie to the High Court if it is satisfied that the case involves a substantial question of law. The substantial question of law is required to be precisely stated in the memorandum of appeal. If the High Court is satisfied that such substantial question of law is involved, it is required to formulate that question. The appeal has to be heard on the question so formulated. However, the Court has the power to hear appeal on any other substantial question of law on satisfaction of the conditions laid down in the proviso of Section 100 CPC.

Therefore, if the substantial question of law framed by the appellants are found to be arising in the case, only then the High Court is required to formulate the same for consideration. If no such question arises, it is not necessary for the High Court to frame any substantial question of law.

“The formulation of substantial question of law or reformulation of the same in terms of the proviso arises only if there are some questions of law and not in the absence of any substantial question of law.”

It was the case of the appellants that the First Appellate Court had ordered that the question of jurisdiction of Civil Court would be decided first, however the appeal was decided without dealing with the said issue., thereby causing serious prejudice to the rights of the appellants. Similarly, the application under Order XLI Rule 27 of the Code was not decided which was again prejudicial to their rights.

The Court, however, found that such substantial questions of law did not arise for consideration. The issue of jurisdiction was not an issue of fact but of law. Therefore, it could very well be decided by the First Appellate Court while taking up the entire appeal for hearing.

It was noticed that the suit was simpliciter for injunction based upon possession of the property, hence, the said suit could be decided only by the Civil Court as there is no mechanism prescribed under the Land Revenue Act for grant of injunction in respect of disputes relating to possession. The Civil Court has plenary jurisdiction to entertain all disputes except in cases where the jurisdiction of the Civil Court is either expressly or impliedly barred in terms of Section 9 CPC. Since there is no implied or express bar of jurisdiction of the Civil Court in terms of Section 9 CPC, the Civil Court has plenary jurisdiction to decide all disputes between the parties.

Hence, it was held that the High Court did not commit any illegality in not framing any substantial question of law while dismissing the appeal filed by the appellants.

[Kirpa Ram v. Surendra Deo Gaur,  2020 SCC OnLine SC 935, decided on 16.11.2020]


*Justice Hemant Gupta has penned this judgment 

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Jyotsna Rewal Dua, JJ., dismissing the present claim against the increment accrued post-retirement, reiterated the effect of relevant Pension Rules and settled precedents.

Brief Facts

Petitioner was appointed as Technical Assistant in the Department of Industries (Geological wing) on 01-03-1968 in the pay scale of Rs 250-550. He retired as Senior Hydrogeologist on 31-03-2003 in the pay scale of Rs. 10025- 15100. His grievance is that even after rendering twelve months of continuous service from 01-04-2002 to 31-03-2003, he has been retired without giving him the benefit of one increment which was due to him on 01-04-2003. A petition in this regard was moved before the Himachal Pradesh State Administrative Tribunal which was later dismissed by an order dated, 08-08-2016. Aggrieved by the same, the petitioner herein prays for the following reliefs, namely;

  1. To quash the order dated 08-08-2016, by the State Administrative Tribunal as it failed to give due consideration to the grounds raised by the petitioner.
  2. To strike down the offending part of impugned provision of R 56(a) of Fundamental Rules being unconstitutional to the extent it causes undue hardship and is discriminatory to the petitioner as it deprives him from getting the benefit of due and legitimate one increment even after rendering 12 months continuous and uninterrupted service for the reason that his date of birth falls on 1st April which also happens to be his date of next increment.
  3. Alternatively, the respondents may kindly be directed to grant necessary relaxations in favour of the petitioner by invoking the provision of FR 5-A as undue recurring financial hardship has been caused to the petitioner in his pension and pensionary benefits and thereby enabling the petitioner to get the benefits of one increment since the petitioner has already rendered 12 months continuous and uninterrupted service in the time scale of his post but on superannuation, has been illegally deprived of the benefits of one increment due to the wrong interpretation of FR 56(a) by the Respondents, with a further prayer to grant consequential necessary benefits flowing therefrom alongwith admissible interest on the arrears accruing thereto.

Contentions

Counsel for the petitioner, B. Nandan Vashishta and Rajesh Kumar, placed reliance on a ruling by the High Court of Madras, P. Ayyamperumal v. Registrar, CAT, WP No. 15732 of 2017, wherein it was observed, that on completing one year of service from 01-07-2012 to 30-06-2013, the petitioner therein became entitled to the benefit of increment which accrued to him ‘during that period’ though the increment fell due on 01-07-2013 when he was not in service. The counsel also brought into light that the Supreme Court dismissed an SLP and later a review petition against the same, insisting upon the rightful claim of the petitioner. He further pressed upon the observation of Delhi High Court in Gopal Singh v. Union of India, 1969 SCC OnLine Del 53 whereby relying upon the aforementioned judgment, the writ petition was allowed and respondents were directed to grant notional increment to the petitioner with effect from 01-07-2019 for the service rendered by him from 01-07-2018 to 30-06-2019.

Additional Advocate General, Vinod Thakur and Shiv Pal Manhans, placed reliance upon a decision rendered on 29-07-2020 by the Madhya Pradesh High Court in Madhav Singh Tomar v. M.P. Power Management Co. Ltd., WP No. 9940 of 2020, wherein relying upon an earlier order passed by a Division Bench of the High Court in writ appeal No. 717 of 2016, the writ petition claiming next annual increment due immediately after retirement was dismissed keeping in view the Fundamental Rules governing service conditions of the petitioner. Reliance was also placed upon a Full Bench decision of Andhra Pradesh High Court delivered on 27-01-2005 in Principal Accountant General v. C. Subba Rao, where the impugned order of the Tribunal holding the employee entitled to an annual increment that fell due on 01-01-2002 after his retirement on 31-12-2001, was quashed and set aside.

Observations

The Court made significant observations including relevant rules and cases;

FR 56 (a); a Government servant retires on the last day of the month in which he attains the age of superannuation. In case his date of birth is the first of a month, then he shall retire on the afternoon of the last day of the preceding month on attaining age of superannuation. Petitioner with the date of birth as 01-04-1945 had retired from sevice on 31-03-2003 on attaining 58 years of age.

FR 17(1); provides that an officer shall begin to draw pay and allowances attached to the post with effect from the date when he assumes duties of that post and shall cease to draw them as soon as he ceases to discharge those duties.

Rule 5 of CCS Pension Rules; says that date of retirement of the person shall be treated as his last working day and his claim to pension shall be regulated by provisions of rules in force at the time of his retirement.

Rule 83(1) of CCS Pension Rules; pension becomes payable from the date a Government servant ceases to be borne on the establishment.

Rule 34 of CCS Pension Rules provides for determination of average emoluments with reference to emoluments drawn by a Government servant during last ten months of the service. Under Rule 33 ‘emoluments’ means basic pay as defined in Rule 9(21)(a)(i) of Fundamental Rules which a Government servant was receiving immediately before his retirement.

Denying any claims of availing the increment by the petitioner, subsequently accrued, the Court observed, “The petitioner was not on duty on 01-04-2003. Increment can be drawn only when an employee is on duty. The increment in terms of FR 24 & 26 did not become due during the period of service of the petitioner. Therefore, increment on 01-04-2003 cannot be sanctioned in favour of petitioner on the ground that he had completed twelve months of continuous service. The date of increment falls due on the first day of the succeeding month after the retirement. Petitioner retired on the basic pay drawn by him on 31-03-2003, that is, his date of retirement. His pension has to be determined accordingly. Petitioner had become pensioner on 01-04-2003. He cannot be held entitled to any increment which may fall due post his retirement. He is entitled only to those increments which fall due to him during the period of his service.”

With respect to the contention of the petitioner that the judgment by the Madras High Court was upheld by the Supreme Court, by rejecting SLP as well as Review petition against the same, the Court observed, “It is settled law that an order refusing Special Leave to Appeal may either be a speaking order or the non speaking one. In either case, it will not attract doctrine of merger. In the instant case, the order refusing Special Leave to Appeal is non-speaking, therefore, it does not stand substituted in place of the order under challenge. In this regard, it would be appropriate to refer to paragraph 44 of the judgment passed by apex Court in (2000) 6 SCC 359 titled Kunhayammed v. State of Kerala, relied upon in (2019) 4 SCC 376, titled Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd., Kollegal.”

The Court further cited State of Orissa v. Dhirendra Sunder Das, (2019) 6 SCC 270, where the principle of law was reiterated that dismissal of an SLP in limine without giving any detailed reason does not constitute any declaration of law or a binding precedent under Article 141.

Decision

Dismissing the present petition on lack of merits, the Court concurred with the findings of the tribunal and further took up the task of clarifying the effect of the dismissal of SLP, in the absence of any speaking order.[Hari Prakash v. State of Himachal Pradesh, 2020 SCC OnLine HP 2362, decided on 06-11-2020]


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Case BriefsHigh Courts

Chhattisgarh High Court: Goutam Bhaduri J., allowed the petition by stating that replacing present guest teachers with a new set of appointments is detrimental for students and is in violation of Article 21 of the Constitution of India.

The facts of the case are such that the petitioner is working as a guest teacher in the school since 2019-2020 however a fresh notification was issued for the appointment of Guest Teachers. Aggrieved by the same, instant petition has been filed to quash the said notification.

Counsel of the petitioners submitted that in the earlier occasion also the dispute arose when the advertisement was made and it was observed by the coordinate bench of this Court in WPS No. 6633 of 2018 on 05-10-2018, that the guest teacher shall not be removed by another set of Guest Teachers. It was further submitted that that now that the academic session is over, the respondents should not be permitted to go in for a fresh recruitment process for filling up of the posts of Guest Teachers for the subject in which the petitioner was taking classes.

The Court relied on judgment Manju Gupta v. State of Chhattisgarh WPS No. 4406/2016, decided on 27-02-2017 and observed that

…the Petitioners’ status is that of a Guest Lecturer but that does not mean that they do not have any right. There is always a legitimate expectation of the Petitioners that since the filling up of the posts has not been initiated by way of a regular appointment or by contractual appointments; the Petitioners would be permitted to continue.

The undisputed fact is that the Petitioners were given appointment only on undertaking given by them pursuant to an advertisement by the Respondents. In the undertaking which was made to be furnished by the Petitioners, they were made to undertake that their appointment would be till the posts are filled up by regular/contractual appointment. This by itself clearly gives an indication that unless the Respondents fill up the sanctioned vacant posts by either regular recruitment or by way of contractual appointment, the Petitioners would continue as Guest Lecturers.

 The Court thus held that the Respondents would not be entitled to filling up the posts of Guest Lecturer by replacing the Petitioners unless the Respondents come up with a stand that the services of the Petitioners were dis-satisfactory however not precluding the State Government from going in for filling up of the post by way of a regular appointment or by way of engaging contractual teachers under the rules for contractual employment.

In view of the above, petition stands disposed off.[Akhilesh Kumar Mishra v. State of Chhattisgarh, 2020 SCC OnLine Chh 509, decided on 04-11-2020]


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Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia J., while rejecting the present petition observed that the ingredients of Section 37 NDPS Act seem to be adequately met in the given factual matrix and, “Therefore, the present is not a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his favour.”

 The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release under Sections 20, 25 and 29 of the NDPS Act. As per the case of the petitioner, he is innocent and been falsely implicated in the present case. Neither is he in a position to tamper with the prosecution evidence nor in a position to flee from justice. Therefore, no fruitful purpose will be served by keeping him behind the bars for an unlimited period, so he be released on bail.

It is submitted by the counsel for the State, S.C. Sharma, Additional Advocate General with Kuldeep Thakur, Deputy Advocate General, that the petitioner was caught red-handed in exclusive and conscious possession of a huge quantity of charas. In case he is enlarged on bail, the petitioner may flee from justice or tamper with the prosecution evidence, as the trial is yet to begin.

The Court discussed the rationale of Mohan Lal v. State of Punjab, (2018) 17 SCC 627, and emphasized how it cannot find relevance in the present facts and circumstances. The Court observed, “True it is that there is presumption of innocence until a person is held guilt and the prosecution cannot be allowed to rest its case on preponderance of probabilities. However, for grant of bail each case has to be examined on vital contours, viz., to secure the presence of the accused for trial, his being in a position to tamper the prosecution evidence, his chances of fleeing etc. and this list of contours can be stretched depending upon facts and circumstances of each case.”  Acknowledging the fact that the contraband was obtained from the floor of the car the Court said, “There is reasonable apprehension that the petitioner was well aware qua the contraband, its quantity and it being transported in the said car, thus he had active role in the commission of the offence, being accomplice of co-accused.”

While rejecting the bail application, the Court said that there exists a prima facie case against the petitioner and the co-accused and allowing the bail application may have serious implication upon fair trial and justice. The Court found conscious possession of contraband substances, an essential ground for disallowing the same.[Pradeep Kumar v. State of Himachal Pradesh,  2020 SCC OnLine HP 2222, decided on 02-11-2020]


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Case Briefs

Punjab and Haryana High Court: While dealing with a peculiar set of facts in a petition for protection of life and liberty, Karamjit Singh, J., dismissed the same on the ground of maintainability.

The factual matrix in the instant case is that the present petition has been filed seeking directions to respondent 2 and 3 to provide protection to their life and liberty at the hands of respondents 4 to 7. The petitioner is married to respondent 4 but they have been living separately on account of matrimonial dispute and differences. Later, petitioner 1 started living with petitioner 2, who is already married to someone else.

It is revealed that respective marriages of both the petitioners are still in force and they are in a live-in relationship with one another. Considering this, the petition cannot be maintained.

The Court relied on the judgement in Parvinder Kaur v. State of Haryana, 2020 SCC OnLine P&H 1166 where this Court had directed that if the petitioners perceive any threat to their life, they may approach the police authorities who will take cognizance of their request. In a similar fashion, in the present case, if the petitioners approach the police authority concerned, protection might be provided after threat assessment, if necessary.

The Court has remarked that this order shall, in no way serve as validation and recognition of the said live-in relationship and will not entitle them to any protection against legal action. In case the petitioners have committed an offence, then they will be dealt with by following the due procedure under Indian law.

In view of the above, the petition has been disposed of.[Anita Kumari v. State of Punjab, 2020 SCC OnLine P&H 1780, decided on 23-10-2020]


Yashvardhan Shrivastav, Editorial Assistant has put this story together

Case BriefsHigh Courts

Karnataka High Court: R. Devdas, J., while allowing the present Writ Petition, directed the Medical Council to issue the No Objection Certificate to the Petitioner pending departmental enquiry.

 Brief Facts

  1. That the petitioner, after completing MBBS graduation registered with respondent 5; Karnataka Medical Council and was thereby selected to the post of General Duty Medical Officer by the Karnataka Public Services Commission.
  2. That the petitioner was consequently appointed to the post of General Duty Doctor at Primary Health Centre, Alur Village, Chamarajanagar Taluk and District by way of notification dated 16-12-2015.
  3. That the petitioner thereafter appeared for the entrance examination for pursuing Post Graduation Diploma in Otolaryngology conducted by the Karnataka Examination Authority and secured admission with the Mysore Medical College for the same.
  4. That due permission was taken by the petitioner from respondent 4 with respect to the said enrolment, via communication letter dated, 26-05-2016 and before completing the admission process, charge of his position was handed over to the rightful authority.
  5. That after completion of the course, the petitioner moved a request dated 27-10-2018, for appointment at any government hospital or Primary health Centre to which, an order dated 15-12-2018 was passed recruiting the petitioner at Munduru, K.R. Nagar.
  6. That the petitioner made a representation to the Medical Council, dated 07-09-2019, so to practice as a private doctor, requesting for a NO OBJECTION CERTIFICATE (NOC).
  7. That the aforementioned representation was made contending that the petitioner has discharged his duties in rural area for more than one year as stipulated under the Medical Registration Rules.
  8. That the petitioner also made a parallel application to the Registrar of the Karnataka Medical Council for the registration of Additional Qualification as a Postgraduate diploma holder.
  9. That it is imperative to secure a NOC for the petitioner in order to apply against the recent vacancy for ENT as advertised by the Special Recruitment Committee and Chief Administrative officer, Health & Family Welfare.
  10. That the present petition is filed seeking a writ of mandamus against the respondent authorities to consider the representations made and include the PG Diploma of the Petitioner under the register of the R-5 Council.

 Issue

  • Whether the petitioner has fulfilled the statutory requirement for the issuance of No Objection Certificate by the Medical Council?

 Observation & Decision

While allowing the present Writ Petition, the Court observed,

“(…) As per the Karnataka Compulsory Service Training by Candidate (Counseling, Allotment and Certification) Rules, 2015, a person who has completed MBBS Degree or Post Graduate Degree and Diploma is required to undergo one year compulsory service training in Government Hospital or Medical College Institutions in rural areas. It is also a fact that on completion of the PG Diploma Course, when the petitioner reported back to duty, the authorities have issued a movement order asking the petitioner to take charge as a Duty Doctor, at PHC, Munduru, K.R. Nagar, which is also a rural area. The movement order was issued on 19-12-2018 and till date the petitioner has been serving at the said place. Therefore, the petitioner has completed more than one year in the rural area. The discrepancy pointed out by the respondent is required to be dealt with in the disciplinary proceedings initiated by the respondent authority.”

[Dr Anand Kumar v. State of Karnataka, 2020 SCC OnLine Kar 1632, decided on 09-10-2020]


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Appointments & TransfersNews

Collegium Resolution

Supreme Court Collegium has approved the proposal for appointment of following Additional Judges of Gauhati High Court as Permanent Judges of that High Court:

1. Justice Sanjay Kumar Medhi, and

2. Justice Nani Tagia.


Supreme Court of India

[Collegium Resolution dt. 12-10-2020]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Vipin Sanghi and Rajnish Bhatnagar, JJ., in regard to Triple Talaq observed that,

Prima facie it appears that the object of Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 is to discourage the age-old and traditional practice of pronouncement of talaq by a Muslim husband upon his wife by resort to talaq-e-biddat.

Issues in the instant petition have been pending for consideration before the Supreme Court in WP (C) No. 994 of 2019.

In view of the above, Bench stated that since the matter is pending before the Supreme Court, hence it would wait for the judgment of the Supreme Court.

Petitioners Counsel, Tarun Chandiok and Naseem Ahmed had moved the present application with the prayer that pending the consideration of the petition, all FIRs registered under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 be stayed.

Substantial Question of Law

Further, it added to its submissions that the minimum number of Judges who should sit for the purpose of deciding any case involving substantial question of law as to the interpretation of the constitution, or for the purpose of hearing any reference under Article 143 should be five.

Bench rejected the above-stated submission stating that there is no provision either in the Constitution or in any other law which required this Court to place the matter before a Larger Bench at this stage.

Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019

Bench noted that the present petition is not in the nature of a Public Interest Litigation. Hence Court denied invoking Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.

Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019

Petitioner also submitted that Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 declares the practice of triple talaq as popularly known, to be void and illegal.

What does the said provision state:

“any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal”. Section 2(c) defines talaq to mean “talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband”.

Triple Talaq

Petitioner’s Counsel also added to its submissions that once triple talaq has been rendered void and illegal, there is no justification for criminalizing pronouncement of triple talaq, since such triple talaq would have no legal effect on the status of the Muslim Marriage.

Since it is of no consequence and does not end the marital status of the wife – who may be subjected to triple talaq, there is no purpose of penalising the said Act. Section 4 of the said Act provides “any Muslim husband who pronounces talaq referred to in Section 3 upon his wife shall be punished with imprisonment for a term which may extend to 3 years and shall also be liable to fine.”

Counsel relied on the decisions of the Supreme Court in Shayara Bano v. Union of India, (2017) 9 SCC 1 and Behram Khurshid Pesikaka v. State of Bombay, (1955) 1 SCR 613.

Bench held that,

“Legislation is presumed to be valid, unless it is declared to be invalid, or unconstitutional by a Competent Court, and is struck down.”

Court observed that the prima facie it appears that the object of Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 is to discourage the age-old and traditional practice of pronouncement of talaq by a Muslim husband upon his wife by resort to talaq-e-biddat i.e. triple talaq.

Purpose of Section 4 appears to provide a deterrent against such practice.

Merely because triple talaq has been declared to be void and illegal, it does not mean that the legislature could not have made the continuation of such practice an offence.

High Court in view of the above discussion, did not grant any interim relief. [Nadeem Khan v. Union of India, 2020 SCC OnLine Del 1336, decided on 13-10-2020]

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., directed the confiscated goods to be released on a provisional basis noting the delay on the part of Authorities in the adjudication of the matter.

Petitioner a dealer registered under the Goods and Services Tax Act who imports toys from China. It also purchases goods from Delhi-based dealers.

Dealer’s Stand

Dealer’s state that the returns till March 2020 have been filed and there are no arrears. Due to the lockdown restrictions amidst the pandemic, the business was shut down since April, 2020.

Following the partial lifting of restrictions, the petitioner reopened the business. Superintendent, CGST conducted a search at the petitioner’s place of business.

After the search operation, mahazar was drawn which was followed by a seizure order.

The said orders of seizure and prohibition issued by respondent 3 have been put to a challenge.

Analysis & Decision

Bench while addressing and analysing the issue, stated that,

Lord Atkin in his celebrated dissent in Liversidge v. Anderson, (1942) AC 206, proclaimed that laws speak the same language in war as in peace and that the words have only one meaning.

Likewise, laws speak the same language during normal as well as in pandemic times.

“…contemporary imperatives demand that courts, whenever possible, ought to adopt that approach which will kick- start the economy.”

Court also referred to Section 67 (1) and (2) of the Central Goods and Services Tax Act, 2017 which talks about the Power of inspection, search and seizure.

Supreme Court in ITO v. Lakhmani Mewal Das, (1976) 3 SCC 757, held that 

“…the existence of the belief can be challenged by the assessee but not the sufficiency of reasons for the belief. The expression “reason to believe” does not mean a purely subjective satisfaction on the part of the officer. It must be held in good faith. It cannot be merely a pretence. It is open to the Court to examine whether the reasons for the formation of the belief have a rational connection with or a relevant bearing on the formation of the belief and are not extraneous or irrelevant for the purpose of the section.”

Evading GST

In the present matter, the impugned proceedings were initiated based on the intelligence developed by CGST (HPU), Madurai that the petitioner is evading GST by mis-declaring the goods while importing.

It has been shown that the stock register was not maintained at the petitioner’s place of business, hence the Court doesn’t want to quash the seizure order, through the order of prohibition has to be necessarily interfered with.

No show-cause notice to date after the lapse of 40 days was issued.

In view of the above, Court stated that the respondent may not be in a hurry, they can afford to wait. Officials who get their salaries in the first week of every month may not be conscious of the cost of delays in such cases.

Further, the Court added that Adjudication proceedings may go on for months. That is why the statute provides for the provisional release of the detained goods.

Therefore, the Court directed the respondents to release the goods on a provisional basis and on taking a personal bond with a payment of Rs 2 lakhs.

While parting with its decision, Bench stated in regard to the Chinese products that,

“…general market is flooded with Chinese goods. The public must make a conscious choice to encourage swadeshi products.”

“The Indian entrepreneur must rise to the occasion. He must ask himself as to why the chinese products are preferred and he must come out with alternatives. There must be no compromise in quality. At the same time, the price factor should also be borne in mind.”

Petition was partly allowed in the above terms. [Tvl.Rising International Co. v. Commr. of Central GST and Central Excise,  2020 SCC OnLine Mad 2951, decided on 06-10-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Lok Pal Singh, J., allowed a writ petition which was filed in the nature of the certiorari, seeking quashing of the order passed by the Uttarakhand Technical Education Board (Respondent 3) and subsequent order by the Additional Director of Education.

An advertisement was issued by Respondent 3 inviting applications for appointment on the, including Mathematics, post of Assistant Teacher L.T. Grade in various subjects at both the Region i.e. Garhwal region and Kumaon region. Petitioners had applied for the post of Assistant Teacher L.T. Grade (Maths) and had given their option for Kumaon region and second option for Garhwal region. After completion of counseling, the petitioners, on being selected against the vacant posts, as per their merits and preference, were selected for Kumaon Region by the Selecting Body. On the basis of the recommendation of the Selecting Body, the Appointing Authority, namely, the Additional Director (Secondary Education), Kumaon Mandal, appointed the petitioners as Assistant Teacher L.T. Grade at Kumaon Region. Petitioners had joined their duties as Assistant Teacher L.T. Grade at their respective postings. Thereafter, Respondent 5 raised his grievance before respondent 3 that as per his merit and option, he was entitled for Kumaon Region but he has been allotted Garhwal Region and the candidates who were less meritorious to him, belonging to same category were allotted Kumaon Region. When his case was not considered he had filed a writ where the co-ordinate Bench of this Court had directed respondent 3 to decide the representation of the petitioners. Consequently, respondent 3 passed an order stating that the four candidates who were lower in merit; their region is being changed with the candidates who were higher in merit. Thus, the instant petition was filed.

The counsel for the petitioner, Maneesh Bisht submitted that the Co-ordinate Bench of this Court had only directed to decide the representation of respondent 5 and that it was incumbent upon respondent 3 to give an opportunity of hearing to the petitioners at that point of time. He further submitted that the petitioners had joined their services at the place where they have been appointed at the recommendation of respondent 3 and which after being implemented the respondent 3 becomes functus officio.

The Court while allowing the appeal explained that it is a fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case. In the present case, while passing the impugned order, opportunity of hearing was not given to the petitioners, which was against the principle of natural justice and the order impugned is not sustainable in the eye of the law. Petitioners were permitted to continue their services in Kumaon Region.[Kamal Kapri v. State of Uttarakhand, 2019 SCC OnLine Utt 1832, decided on 13-12-2019]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Rajiv Sahai Endlaw and Asha Menon, JJ., dismissed an application filed under Section 151 CPC expressing surprise that advocates moved the application seeking the legal opinion of the Court.

The present application was filed invoking Section 151 of the Code of Civil Procedure, 1908 by the appellant, respondents 3 and 5 seeking clarification on the following:

“Whether the share in the property received by a son on the partition of a HUF is “HUF” or “individual” in his hands?”

Bench stated that “neither Section 151 CPC nor any other provision of law vests in this Court, acting as the Company Appeal Court, advisory jurisdiction.”

Court was surprised to note that the advocates are moving applications seeking the legal opinion of the Court. The application is thoroughly misconceived.

Dismissing the matter, Court added that,

“one of us (Justice Rajiv Sahai Endlaw) will be demitting office on 13th August, 2021 and the advocates are at liberty to approach him for advice at that time, by deferring the execution of the sale deed till then!”

Advocate Lalit Gupta stated that he did not even sign the application and his name has just been added without consulting him. [Balraj Kishan Gupta v. Panna Lal Giridhar Lal (P) Ltd., 2020 SCC OnLine Del 1265, decided on 18-09-2020]

Case BriefsHigh Courts

Bombay High Court at Goa: While dismissing a writ petition under Article 227 in a dispute caused by “troubling trees”, Dama Seshadri Naidu, J., found himself bound by law that wants the spreading tree to move away from the man.

The petition arose out of a dispute between neighbours caused by the leaning of growing trees from the petitioner’s house to his neighbour’s compound. Justice Naidu noted the dispute in the following words:

Here, a couple of trees have asserted themselves and grown, as they should have, freely in the direction they liked. They have leaned, too, on to the neighbour’s compound. That has spelled trouble for them and litigation for their owners. For they faced axe, and their owner court proceedings.

The neighbour approached the statutory authorities complaining of the “trouble” caused by the trees.

Here, Justice Naidu observed that the causes people, at times, espouse in the name of constitutional remedies reveals the depths the adjudication has descended to. “In the name of a right to remedy, sometimes we trivialise”, he added. He then made a reference to an interview of Justice M.N. Venkatachaliah, former Chief Justice of India, given to “Outlook” (6-7-2015) and noted:

Not long ago did Shri Justice M.N. Venkatachaliah, the former Chief Justice of India, lamented about what we are doing in the name of constitutional adjudication: erecting our egos and prejudices into principles. …

The dispute between the petitioner and his neighbour reached the Conservator of Forests, an appellate authority under the Preservation of Trees Act, 1984. By the order of Conservator of Forests, both the parties agreed to share the cost of cutting the mango tree, and as regards the other coconut tree, the parties agreed to implement the directions of the Deputy Collector concerned. Now, aggrieved, the petitioner − owner of the trees − petitioned the High Court.

The dilemma of a Judge while deciding a cause on misplaced priorities of man can be best put in the words of Justice Naidu as he expressed while delivering the oral order: (*liberty to weave a verse out of Judge’s expression is taken)

A seed or a sapling believes it owns the earth, so it anchors itself with its roots deep into the ground.

It feels it owns the sky, so it tries to grow higher and higher, as if to touch the sky.

It also feels even the space between these two belongs to it. So it spreads, sways, and hangs from above, as it grows.

But it does not know man—almost an alien to planet earth—has invaded it, colonised it. As every coloniser does, he pounds, plunders and pillages it.

So man makes laws and the laws are human-centric. He commands the aborigines, the trees, to behave themselves. Poor trees, they do not know how?

So the axe falls, for the law is amoral—almost; for the law brooks no disobedience—always.

 Nature expects the man to move away from a spreading tree, but the law wants the tree to move away from the man.

And I am bound by law; though not a tree, I am not free. Therefore, I decide this case, decide it in the man’s favour, and against the tree.

So it is the requiem for a falling tree and a failing human.

In the ultimate analysis, Justice Naidu noted that impugned order passed by the Conservator of Forest was seemingly a consensual one, reflecting the will of the parties rather than the power of the court or authority. Besides, there was no reason to exercise the supervisory jurisdiction against an order passed by supposedly an expert in the field. Failing to spot perversity in the order impugned, the Court dismissed the writ petition. [Vithal Kamat Sambari v. State of Goa, 2019 SCC OnLine Bom 12709]

Case BriefsHigh Courts

Bombay High Court: Manish Pitale, J., referred questions of seminal importance for consideration of a larger bench.

One significant question in the present petition is as follows:

Question pertains to Section 5 (3) of the Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1977 [MEPS Act] and Rule 15 of the Maharashtra Employees of Private School (Conditions of Service) Regulation Rules, 1981 [MEPS Rules].

Controversy

Whether entire sub-rules (1) to (6) of Rule 15 of the MEPS Rules apply to an employee appointed on probation or only sub-rule (6) of Rule 15 of MEPS Rules applies to such an employee appointed on probation, when read with Section 5(3) of the MEPS Act.

M.M. Agnihotri, Petitioners Counsel submitted that only sub-rule (6) of Rule 15 of the MEPS Rules read with Section 5(3) of the MEPS Act would apply to an employee appointed on probation.

Termination of Service

In the present case, the service of respondent 1 was terminated during the period of probation by stating that his service was found to be unsatisfactory during such a period.

Supreme Court in Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36, held that where a person was appointed on probation, the termination of his service during or at the end of the period of probation will not ordinarily and by itself be a punishment and a person so appointed had no right to continue to hold such post.

Supreme Court in High Court of Judicature, Patna v. Pandey Madan Mohan Prasad, (1997) 10 SCC 409, considered the validity of the termination of service of a Munsif appointed on probation in the context of non- communication of adverse remarks in confidential reports to the employee.

In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta, (1999) 3 SCC 60, in the context of when an order of termination of service of an employee appointed on probation could be said to be stigmatic, the Supreme Court specifically held that use of words ‘unsatisfactory work and conduct’ in the termination order will not amount to a stigma.

The above-mentioned decisions clearly distinguish the rights that an employee appointed on probation can claim, as compared to a confirmed employee. This is particularly so when the order of termination of service cannot be said to be stigmatic in nature.

Crux of the controversy

While taking action of termination of service under Section 5(3) of the MEPS Act for unsatisfactory work or behaviour of an employee appointed on probation, only sub-rule (6) of Rule 15 of the MEPS Rules applies or all the sub-rules i.e. sub-rules (1) to (6) of Rule 15 of the MEPS Rules apply to such an employee?

In the Supreme Court’s decision in Progressive Education Society v. Rajendra, (2008) 3 SCC 310 Court had an occasion to refer to Section 5(3) of the MEPS Act and Rules 14 and 15 of the MEPS Rules.

In the above-stated decision, the Supreme Court specifically found that the documents upon which the Management was placing reliance were not above suspicion and that the requirement of Rule 15(6) and 14 of the MEPS Rules had not been complied with prior to the invocation of powers under Section 5(3) of the MEPS Act.

In the said case, it has been interpreted that failure to communicate adverse remarks would mean that the work of the probationer was satisfactory.

Analysis

A perusal of the various judgments clearly shows that there are two sets of views on the same material.

There cannot be any doubt about the fact that only sub-rule (6) of Rule 15 of the MEPS Rules refers to “an employee appointed on probation”. This has some significance.

Whether, the position of law laid down by the Supreme Court and this Court in series of judgments as regards the rights of an employee appointed on probation, while challenging a non-stigmatic order of termination of service issued during or on completion of probation, enjoins that only sub-rule (6) of Rule 15 of the MEPS Rules read with Section 5(3) of the MEPS Act would apply to the case of an employee governed by the said Act and Rules, or that entire Rule 15 of the MEPS Rules read with Section 5(3) of the MEPS Act would apply?

Supreme Court has specifically observed that the rights of an employee appointed on probation under the said Act and Rules create a different situation.

In the decision of Progressive Education Society v. Rajendra, (2008) 3 SCC 310, it was stated that although Rules 14 and 15 of the MEPS Rules have been specifically referred to, particular emphasis has been placed by the Supreme Court only on sub-rule (6) of Rule 15 of the MEPS Rules.

While Rules 14 and 15 of the MEPS Rules cannot override Section 5(3) of the MEPS Act, the requirements of sub-rule (6) of Rule 15 of the MEPS Rules would be a factor which the School Management has to take into consideration while exercising power, which it undoubtedly has and is recognized under Section 5(3) of the MEPS Act.

In the case of High Court of Judicature at Patna v. Pandey Madan Mohan Prasad Sinha, (1997) 10 SCC 409 Supreme Court specifically held that non-communication of adverse remarks cannot be a ground to hold that an order simplicitor terminating the service of a probationer stands vitiated.

Bench in view of the above decisions found substance in the contention raised on behalf of the petitioners that only sub-rule(6) of Rule 15 of the MEPS Rule would apply to an employee appointed on probation under the aforesaid Act and Rules and it is the requirement of only the said sub-rule that needs to be satisfied in the context of the action that the Management can take under Section 5(3) of the MEPS Act.

Section 5(3) of the MEPS Act, the Management can terminate the service of an employee appointed on probation not only for unsatisfactory work, but also for unsatisfactory behaviour.

Rule 15 (6) of the MEPS Rules, refers to an employee appointed on probation and it requires the Head only to objectively assess an employee appointed on probation and to maintain a record of such assessment.

This, coupled with the decisions of the Division Bench of this Court and followed by Single Judges of this Court held that only Rule 15 (6) of the MEPS Rules applies to an employee appointed on probation, shows that there is a clear conflict of opinions in this matter.

Hence, the bench held that the above-stated controversy needs to be put to rest by an authoritative pronouncement of a larger bench of this Court.

Court stated that papers be placed before the Chief Justice to consider whether the present writ petition can be more advantageously heard by a Larger Bench of this Court on the following questions:

(i)  Whether only sub-rule (6) of Rule 15 of the MEPS Rules applies to an employee appointed on probation when the Management seeks to take action under Section 5(3) of the MEPS Act or entire Rule 15 from sub-rules (1) to (6) of the MEPS Rules apply to such an employee appointed on probation?

(ii)  Whether the judgment of the Hon’ble Supreme Court in the case of Progressive Education Society and another v. Rajendra and another (supra) lays down that entire Rule 15 of the MEPS Rules applies to an employee appointed on probation, particularly in the context of power available to the Management under Section 5(3) of the MEPS Act?

(iii)  Whether failure to adhere to requirements of sub-rules (3) and (5) of Rule 15 of the MEPS Rules would ipso facto vitiate an action taken by the Management under Section 5(3) of the MEPS Act, despite the fact that the Management satisfies the requirement of sub-rule (6) of Rule 15 of the MEPS Rules by ensuring that performance of an employee appointed on probation has been objectively assessed by the Head and record of such an assessment has been maintained?

(iv) Whether non-compliance of sub-rule (5) of Rule 15 of the MEPS Rules would vitiate an order of termination of service simplicitor issued by the Management under Section 5(3) of the MEPS Act when the said sub-rule deems that “work of an employee is satisfactory”, while Section 5(3) of the MEPS Act gives power to the Management to terminate the service of an employee appointed on probation not only for “unsatisfactory work”, but also for “unsatisfactory behaviour”?

(v) Whether it would be sufficient compliance on the part of the Management while acting under Section 5(3) of the MEPS Act, if it complies with only sub-rule (6) of Rule 15 of the MEPS Rules by ensuring that the performance of an employee appointed on probation is objectively assessed and the Head maintains a record of such assessment, and principles of natural justice stand satisfied by issuing notices/warnings for unsatisfactory work to such an employee appointed on probation, considering the limited rights available to such an employee as per the law laid down from the case of Parshotam Lal Dhingra v. Union of India (supra) in the year 1958 and onwards? [Gramin Yuvak Vikas Shikshan Mandal, Kinhi Naik v. Shivnarayan Datta Raut, 2020 SCC OnLine Bom 966, decided on 22-09-2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge Bench of SA Bobde, CJ and AS Bopanna and S. Ramasubramanian, JJ has ordered a revised schedule for appointment of judicial officers in the State of West Bengal for the year 2020. For the conduct of Madhya Pradesh HJS (District Judge – Entry Level) (Direct Recuitment from Bar) Examination 2020 , the Court has asked the Examination Committee of the Madhya Pradesh High Court to review the situation once in a month and take a decision to conduct the above examination.

High Court of Calcutta

The High Court of Calcutta has approached the Court seeking a modification of the timeline fixed by this Court in Malik Mazhar Sultan vs. U.P. Public Service Commission, (2008) 17 SCC 703 for filling up of vacancies of judicial officers for the year 2020. As per the Malik Mazhar case, the schedule is to commence with the notification of the number of vacancies being issued by the 31st March every year and the whole process coming to an end with the issuance of appointment letters by 30th September indicating the last date of joining as 31st October, 2020.

Admittedly, even the first step namely that of notifying the vacancies, has not been taken due to the announcement of lock down by 24.03.2020.

Therefore, the Court ordered a revised schedule for appointment of judicial officers in the State of West Bengal for the year 2020 as follows:

High Court of Madhya Pradesh

High Court of Madhya Pradesh approached the Court seeking deferment of MPHJS (District Judge – Entry Level) (Direct Recuitment from Bar) Examination 2020 till the Examination Committee finds it suitable to conduct the examination. The notification for recruitment was published on 16.01.2020 and preliminary examination was fixed to be held on 16.03.2020. However, the examination got postponed due to the current Pandemic. On 24.08.2020, a new notification was issued fixing the date of preliminary examination as 30.09.2020. But due to the increase in the number of persons affected by Covid-19, a request was received from the MP High Court Bar Association on 29.08.2020 seeking postponement of the examination.

A total of 3113 candidates are likely to appear for the examination and out of them 1942 candidates belong to other States. The examinations are to be conducted at Bhopal, Indore, Gwalior and Jabalpur.

During the period from 25.03.2020 to 08.08.2020, 8 judicial officers, 52 judicial employees, and 46 Advocates tested positive for Corona. Therefore, the Court directed the Examination Committee of the Madhya Pradesh High Court to review the situation once in a month and take a decision to conduct the above examination. The first of such review shall be conducted in the first week of November, 2020.

The Court said that the the High Court may endeavour to hold the above examination as soon as the situation becomes conducive and the time-schedule shall stand extended accordingly.

[Malik Mazhar Sultan v. U.P. Public Service Commission,  2020 SCC OnLine SC 764, order dated 22.09.2020]

Case BriefsHigh Courts

Gujarat High Court: Sangeeta K. Vishen, J., allowed an application directing the respondent to allow the petitioner to appear in the examination for the subject – Foundation Engineering while observing that technical glitches could be faced during an online examination.

The petitioner, an engineering student had approached the High Court against the Gujarat Technological University which had barred him to appear for the pre-check trial test declaring that he had failed in the test which was conducted for the subject. The counsel for the petitioner, N.M. Kapadia contended that the petitioner was unable to answer the entire set of questions due to technical glitches during the online examination. He further contended that when the pre-check trial test was conducted on 15-9-2020, the technical glitch was again experienced by the petitioner as well as other students. Accordingly, the University, on the same day had tweeted that “Students who are not able to successfully submit today’s Pre-check trial test can re-appear tomorrow i.e. 16-9-2020 from 11:00 to 11:30 AM Login will start from 10:15 AM Students can appear using the same credentials used by them today and that are displayed in their student portal.” It was submitted that thereafter, the petitioner had appeared in the pre-check trial test on 16-9-2020. It was further contended that as is discernible from the contents of the affidavit-in-reply filed by the respondent 1 – University, it suggests that there is the least likelihood of any malfunction. The University does not say that there was no malfunction in the system. The stand of the University was that remedial examination was available to the petitioner, as the petitioner had failed in one of the subjects; the same would grossly affect the career of the petitioner inasmuch as, the petitioner will carry two mark sheets for the same subject, for no fault of him. It was contended that right to education is a fundamental right and the same cannot be tinkered with by the University in such a fashion.

The Court while allowing the application directed the respondent to allow the petitioner to appear in the examination for the subject – Foundation Engineering. The Court further observed that the fact that the situation complained of was beyond his control and stated that

As the technology is and we all know, it has the tendency of uncertainties, be it network issues, device issues, etc. When working with technology, technical glitches cannot be ruled out and must be taken into consideration.”

[Harsh Hiteshbhai Gandhi v. Gujarat Technological University, 2020 SCC OnLine Guj 1328, decided on 18-09-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Uttaranchal High Court: N.S. Dhanik, J., partly allowed a criminal revision which was preferred against the Judgment and order passed by the District and Sessions Judge whereby he had confirmed the judgment and order passed by Chief Judicial Magistrate and also against the judgment and order passed by Chief Judicial Magistrate in a Criminal Case under Section 3/7 of the Essential Commodities Act, whereby the revisionist were convicted for the offence punishable under Section 3/7 of the Essential Commodities Act and sentenced to undergo one-year simple imprisonment and to pay a fine of Rs 5,000.

The informant lodged an FIR alleging therein that on information, the informant came to know that two Nepali people who often smuggling the cement, compost, kerosene oil, etc from Tankpur to Nepal upon their motorcycles. The informant along with other police officials reached the Gandhi Park and seeing two persons who were tying the plastics canes in their motorcycles outside the warehouse of Naresh Chandra Gupta. Both tried to run away, but they were arrested on the spot. From the possession of the accused persons, Jaricanes were recovered and on asking regarding the said recovery, they told that they had purchased the Kerosene oil from the Naresh Chandra Gupta (present revisionist) and 20 litres kerosene oil was also recovered from the warehouse of Naresh Chandra Gupta. After investigation, the charge sheet against the accused revisionist for the offence punishable under Section 3/7 of the Essential Commodities Act was filed. The Counsel for the revisionist, Mr. Bhuwanesh Joshi submitted his arguments only on the quantum of sentence. He submitted that the revisionist had served about 27 days in the jail and that he was a poor person and the matter relates back to the year 2008.

The Court while partly allowing the revision modified and reduced the sentence to three months considering the contention that matter related back to the year 2008 and ends of justice would be sub-served if the jail sentence of the revisionist is reduced adjusting the period already undergone by him, although the sentence of the fine was enhanced from Rs 5,000 to Rs 10,000.[Naresh Chandra Gupta v. State of Uttarakhand, 2020 SCC OnLine Utt 550, decided on 16-09-2020]


Suchita Shukla, Editorial Assistant has put this story together