Jharkhand High Court
Appointments & TransfersNews

President appoints Pradeep Kumar Srivastava, to be an Additional Judge of the Jharkhand High Court, for a period of two years with effect from the date he assumes charge of his office.


Ministry of Law and Justice

[Notification dt. 3-6-2022]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Sujit Narayan Prasad, J., addresses a very pertinent question of whether the Jharkhand Lokayukta Act, 2001 provides power for issuance of direction upon the disciplinary authority to take action against erring officials or can it’s order be limited to a recommendation.

A petition was filed under Article 226 of the Constitution of India, whereby and whereunder the order passed by respondent 2 had been assailed, primarily on the ground that under the provision of Section 12(3) and Section 12(5)(A), the Lokayukta had no power to direct the disciplinary authority to take action on the basis of the fact-finding report.

Analysis, Law and Decision

High Court on taking into consideration the import of the statutory provision specifically as provided under Section 12(3) and 12(5)(k) of the Jharkhand Lokayukta Act, 2001 came to the conclusive finding that the statute does not provide power for issuance of direction upon the disciplinary authority to take action against the erring officials.

Bench held that the statute provides power upon the Lokayukta to make recommendations on the basis of the fact-finding if any irregularities had been surfaced in the course thereof.

High Court found from the impugned order that the order had been passed making the recommendation to the competent authority to suspend the petitioner along with other public servants whose name had been referred and to initiate a departmental proceeding, apart from that, an FIR had also been recommended to be instituted.

Further, it appeared that after making recommendation, the stipulation had been made to the effect that such recommendation was being made, so that, in future, such occurrence may not be repeated.

The order had been passed upon the authority concerned to communicate to the Office of the Lokayukta about the action taken report within the 3 months.

Hence, it was evident that the impugned order, initially contained a recommendation of suspending the public servants and initiating the departmental proceeding against them as also instituting an FIR. If the order would have been up to the stage of recommendation, then it would have been said to be in consonance with the provision of Section 12(3) and 12(5)(k) under which the power has been conferred by the Lokayukta to take decision by making recommendation before the competent authority, so that, the recommendation, if required be acted upon.

“…stipulation as has been made to the effect that such recommendation is being made, so that, such occurrence may not be repeated and the action taken report be also furnished within the period of three months, is changing the nature of recommendation making it as a direction.”

Therefore, High Court expressed that since the provision of Section 12(3) does not confer power upon the Lokayukta to pass such direction commanding upon the disciplinary authority to take action against whom irregularities were found to be true in course of inquiry.

Bench relying upon the decision of this Court in WP (C) No. 263 of 2019, held that the Lokayukta’s impugned order shall be modified to the extent that the same will be treated to be recommendation.

“…the authority before whom, the finding along with the recommendation has been sent, is directed to act strictly in pursuance to the provision of Section 12 of the Act, 2001, so that the purpose for which, the Lokayukta Act, 2001 as has been enacted, be achieved, keeping this into consideration the Chief Secretary of the State is directed to ensure compliance of this order.”

In view of the above petition was disposed of. [Jai Prakash Narayan Sinha v. State of Jharkhand, 2022 SCC OnLine Jhar 99, decided on 10-2-2022]


Advocates before the Court:

For the Petitioners: Shilpi Sandil, Advocate

For the State: P.A.S. Pati, Advocate

For the Respondent 2: Rajesh Kumar, Advocate

Jharkhand High Court
Appointments & TransfersNews

Supreme Court Collegium has, on reconsideration, resolved to reiterate its earlier recommendation for the elevation of Shri Pradeep Kumar Srivastava, Judicial Officer as Judge in the Jharkhand High Court.


Supreme Court Collegium 

[Collegium Statement dt. 1-2-2022]

Appointments & TransfersNews

Appointment of Two Judges [Patna High Court]


President appoints Nawneet Kumar Pandey and Sunil Kumar Panwar to be the Judges of Patna High Court, in that order of seniority, with effect from the date they assume charge of their respective offices.



Appointment of Additional Judge [Chhattisgarh High Court]


President appoints Deepak Kumar Tiwari to be an Additional Judge of the Chhattisgarh High Court for a period of 2 years with effect from the date he assumes charge of his office.



Appointment of 4 News Judges [Jharkhand High Court]


President appoints Gautam Kumar Chaudhary, Ambuj Nath, Navneet Kumar and Sanjay Prasad to be the Judges of Jharkhand High Court, in that order of seniority, with effect from the date they assume charge of their respective offices.



Appointment of 1 New Judge [Madhya Pradesh High Court]


President appoints Purushaindra Kumar Kaurav, to be a Judge of the Madhya Pradesh High Court, with effect from the date he assumes charge of his office.


Ministry of Law and Justice

[Notifcation dt. 6-10-2021]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: The Division Bench of Ravi Ranjan, CJ., and Sujit Narayan Prasad, J., addressed the disturbing incident pertaining to death of an elephant calf. Reprehending the conduct of the forest staffs, the Bench stated,

“The duty of the Forest Guards as also the Range Officers is to guard not only the forest but also the animals for which the staffing pattern to that effect has been made but even though the elephant calf reported to have died 3-4 days ago, nobody was aware about the death which suggests about the functioning of the employees/officers of the Forest Department…”

The Court had taken suo motu cognizance of a news report published in the Daily Hindi Newspaper (Hindustan) about the death of an elephant calf, that too, within a period of 10 days of one such incident.

Noticing that the above-mentioned incident remained unreported for a long time as the death was said to have occurred 3-4 days ago, the Bench termed it very disturbing as under the staffing pattern in the department of Forest and Environment, Jharkhand, hierarchy starts from the post of Forest Guard, Rangers and then Divisional Forest Officers and thereafter, the other higher hierarchy is there to control such incidents.

Finding it shocking that the incident remained unreported for considerable period of 3-4 days, the Bench stated it is the duty of the Forest Guards as also of the Range Officers to guard not only the forest but also the animals for which the staffing pattern to that effect had been made but even though the elephant calf reported to have died 3-4 days ago, nobody was aware about the death which suggested lackadaisical functioning of the Forest Department within the State of Jharkhand. The Bench reminded,

“It appears to us that the aforestation programme by large was restricted to reclaiming, conserving and developing flora, however, though the flora is required to be conserved and developed simultaneously fauna is also required to be reclaimed and preserved by taking necessary steps so that ecological balance is maintained.”

In the backdrop of above, the Secretary, Forest and Environment, Principal Chief Conservator of Forest, Chief, Wild Life Warden, and Divisional Forest Officer of the Division concerned were directed to remain present through video conferencing on the next date of hearing. [Suo Motu v. State of Jharkhand, W.P. (PIL) No. 3498of 2021, decided on 10-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the State: Rajiv Ranjan, Advocate General and Piyush Chitresh, AC to AG

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Kailash Prasad Deo J. allowed the appeal and directed respondent-Railway to pay a sum of Rs 8 Lacs in view of a recent notification dated 22-12-2016 issued by the Ministry of Railways.

The factual matrix of the case is such that the deceased, who has a ticket bearing no. 88302375, was travelling from Asansol to Madhupur by boarding train no. 12369/12327 UP on 11-09-2015 and fell down at Chittaranjan Railway Station due to intense jostling and sustained serious injuries and died on the spot. A case was registered. The appellants have preferred the instant appeal against the Award/Judgment dated 31-01-2017 passed by Member (Judicial), Railway Claims Tribunal, Ranchi Bench, whereby the claim application of the appellants/parents of the deceased have been dismissed on the ground that the deceased Pulis Marandi died because of his reckless, imprudent violating all safety norms demanded during train travel with imminent possibility of endangering both life and limbs of a passenger by stating that the case of the deceased comes under clause (b) of proviso to Section 124-A of Railways Act and as such, exempted the railway to pay compensation.

Counsel for the appellant Mrs Chaitali Chatterjee Sinha submitted that Railway Claims Tribunal has committed error on two counts; firstly that the deceased Pulis Marandi was possessing a passenger ticket, but boarded on an express train, secondly that the deceased has purchased ticket upto Chittaranjan and boarded train going to Madhupur and sustained injury while trying to get down at Chittranjan Station, as such, died in an accident because of his own fault. It was further submitted that no contrary evidence has been brought on record to strengthen the argument of the Railway, that it was a passenger ticket and deceased has boarded in an express train or super fast train. It was also brought to notice that the case of the deceased comes under Section 123 (c) of the Railways Act and not under exception Clause (b) of proviso to Section 124-A of the Railways Act. No evidence has been brought on record to substantiate that the case of the deceased comes under exception clause (b) of proviso to Section 124-A of the Railways Act, as such, the impugned award may be set aside.

Counsel for the respondent Mr Vijay Kumar Sinha has submitted that the deceased has boarded express train, having passenger ticket upto Chittaranjan Railway Station and wrongly pleaded in the claim application that deceased was travellling from Asansol to Madhupur and thus the Tribunal has rightly dismissed the claim application as it is a case which comes under exception clause (b) of proviso to Section 124-A of the Railways Act.

 The Court observed that under the aforesaid circumstances, once the ticket number has been brought on record which indicates that it was from Asansol to Madhupur, the railway ought to have brought on record any material to show that this ticket was never sold by the railway or this ticket was never issued for the express train and only on the argument, that deceased was holding ticket for passenger train will not suffice the purpose to declare the deceased not a bonafide passenger under Section 2 (29) of the Act in a benevolent legislation like Railways Act, 1989.

The Court thus held that the deceased was having ticket, to be a bonafide passenger as defined under Section 2 (29) of the Act and the deceased was victim of an Untoward Incident as defined under Section 123 (c) of the Act. “Accordingly, the impugned order dated 31.01.2017 passed by Member (Judicial), Railway Claim Tribunal, Ranchi in OA (IIU) / RNC / 2015 / 01014 is hereby set aside.”

[Gunadhar Marandi v. Union of India, M.A. No. 448 of 2017, decided on 01-06-2020]


Arunima Bose, Editorial Assistant has reported this brief.

Jharkhand High Court
Appointments & TransfersNews

Elevation of 5 Judicial Officers as Judges in Jharkhand High Court


Supreme Court Collegium has approved the proposal for elevation of the following Judicial Officers as Judges in the Jharkhand High Court:

1. Shri Pradeep Kumar Srivastava

2. Shri Gautam Kumar Choudhary,

3. Shri Ambuj Nath,

4. Shri Navneet Kumar, and

5. Shri Sanjay Prasad.


Collegium Resolution

[Statement dt. 1-09-2021]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: A Division Bench of Dr Ravi Ranjan, CJ and Sujit Narayan Prasad, J., took suo motu cognizance to monitor the progress of the case taking into consideration the seriousness of the matter.

 The instant court took suo motu cognizance about the incidence regarding the sad and unfortunate demise of Shri Uttam Anand (deceased), District and Additional Sessions Judge-VIII, Dhanbad on the basis of the letter written by Principal District and Sessions Judge, Dhanbad treating the letter as the writ petition in the nature of Public Interest Litigation.

Counsel for the State submitted that Special Investigating Team has already been constituted under the Superintendent of Police (City), Dhanbad by whom two persons have been apprehended and further that a high ranking officer of the State Police can head the Special Investigating Team suggesting the name of Mr Sanjay Anand Lathkar, IPS, Additional Director General (Operation).

The Court observed that a speedy, fair and professional investigation is required in the matter and apprehending a pawn would be meaningless unless the conspiracy is fully uncovered and the mastermind is nabbed. Time would be the essence of the matter in this investigation. Delay as well any flaw in the investigation may eventually affect the trial adversely.

The Court directed “the Secretary, Department of Personnel and Training, Government of India and the Director, Central Bureau of Investigation to forthwith come up with appropriate order/notification for taking over the investigation.”

The Court also directed The State Government, through the Chief Secretary of the State and Director General of Police and the Head of the Special Investigating Team “to extend full co-operation to the Central Bureau of Investigation by extending all logistic support.”

The Court last questioned what steps are being taken to provide security to the court premises of the Civil Court, Dhanbad and residential premises of the judicial officers in the district of Dhanbad so that they may perform their judicial work without feeling any insecurity?

The matter is next posted for 12-08-2021 at the top of the list.[Court on its own motion v. State of Jharkhand, 2021 SCC OnLine Jhar 515, decided on 03-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For the State: Mr Rajiv Ranjan, Advocate General

For the U.O.I.: Mr Rajiv Sinha, A.S.G.I.

For the Victim Family : Mr Sanjeev Sahay

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: The Division Bench of Dr Ravi Ranjan, CJ and Sujit Narayan Prasad, J., directed State to decide to conduct Rath Yatra Puja.

The instant writ petition was filed under Article 226 of the Constitution of India on behalf of the members of Jagannathpur Mandir Nyas Samittee by way of public interest litigation inter alia for issuance of direction upon the Respondent 2 to 6, to allow the Petitioner Trust Committee to perform/celebrate the ritual/festival of Lord Jagannath Rath Yatra scheduled on 12.07.2021 and 20.07.2021 with COVID-19 appropriate Standard operating procedures (SOPs) absolutely in the manner the Rath Yatra at Puri has been ordered to be conducted by the Supreme Court of India.

Counsel for the petitioner submitted that there is a temple situated in the district of Ranchi, Jharkhand of Lord Jagannath having been established in the year 1691 and since then Rath Yatra festival is being celebrated every year in June/July and during this period, 10 days Mela/Fair is also being organized and the same is concluded after the return of the Lord Jagannath to his home, similarly as the festival in the Lord Jagannath Temple situated at Puri in being celebrated.

The Court relied on SC ruling Odisha Vikash Parishad v. Union of India, (2020) 7 SCC 264 wherein Rath Yatra was allowed with COVID-19 appropriate conditions and subject to some other conditions as laid down therein.

 The Court thus directed “the State to take its own decision with regard to the grievance of the petitioner well before the Rath Yatra Puja. However, while taking such decision, directions of the Supreme Court in this regard should be followed.”

[Jagannathpur Mandir Nyas Samittee v. State of Jharkhand, 2021 SCC OnLine Jhar 454, decided on 09-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For the Petitioner: Mr. Ajit Kumar

For the Respondents: Mr. Sachin Kumar

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: In an interesting case Sanjay Kumar Dwivedi, J., had held that the 10% reservation to Economically Weaker Sections cannot be applied retrospectively.

The petitioners had preferred this writ petition for quashing the Advertisement No.05/2019, so far as it relate to the appointments to be made on the post of Assistant Engineer (Civil) to the extent of retrospective applicability of 10% reservation for Economically Weaker Section (EWS) reservation. The prayer was also made for quashing of the decision to conduct single selection process on the vacancies of the year 2013 and 2015 respectively.

Background

The facts of the case were that the Road Construction Department vacancies for the post of Assistant Engineer (Civil) were published in the year 2013 wherein petitioners had applied to participate in the selection process for their direct recruitment. The number of unreserved posts advertised was 105 vacancies. There was no EWS reservation of 10% quota applicable at that point of time. Later on, by another Advertisement No. 06 of 2015, the department earmarked vacancies to be filled up for the post of Assistant Engineer (Civil) in the year 2015. The petitioners eligible on all counts, applied to participate in the selection process for their direct recruitment. The number of unreserved posts advertised was 93 vacancies again; there was no EWS reservation of 10% quota applicable at that point of time. However, no selection test was conducted pursuant to above two advertisements.

The grievance of the petitioners was that the respondent-department further published Advertisement No.05 of 2019 to make appointment on the post of Assistant Engineer (Civil). The earlier advertisements had been superseded by the current advertisement, which contains merged vacancies of advertisements of 2013 and 2015 and also current vacancies of 2019. Due to merger of vacancies, the seats which were available in the year 2013 and 2015, had been brought under the cover of current advertisement of the year 2019, wherein 10% reservation for EWS had been made applicable retrospectively for all the earlier vacancies. Aggrieved with the merger part of the earlier advertisements, the petitioners had filed the instant petition.

Grievance of the Petitioners

The counsel for the petitioners, Mr. Saurabh Shekhar submitted that the petitioners were not EWS candidates, and therefore, the applicability of reservation quota would adversely affect their right on earlier vacancies, on which the provisions of EWS could not be made applicable retrospectively. It was further submitted that 52 seats had been earmarked for EWS candidates separately, but these seats had been carved out from the unreserved quota, as the reservation point had been increased by 10%, thereby, enhancing the upper limit of reservation 60%, but that had to be done on post facto vacancies. Therefore, the counsel contended that the petitioners would suffer as the vacancies in unreserved quota had been reduced by applicability of EWS in the vacancies of earlier selection process.

Whether EWS reservation can be given effect retrospectively or not?

Reliance was placed by the Court on M. R. Balaji v. The State of Mysore, AIR 1963 SC 649, wherein the Constitution Bench of the Supreme Court had rejected the argument that in the absence of a limitation contained in Article 15(4), no limitation can be prescribed by the Court on the extent of reservation. It had also been observed that a provision under Article 15(4) being a special provision must be within reasonable limits. Again, in Indra Sawhney v. Union of India, reported in 1992 Supp (3) SCC 217, the Constitution Bench of the Supreme Court had approved the view taken in the case of M. R. Balaji by providing proposition that the extent of reservation shall not exceed to 50% of the appointment of post except in certain extraordinary situation taking together with reservation in favour of Scheduled Caste and Scheduled Tribe category candidates.

Admittedly, 103rd Amendment Act, 2019 which introduced the reservation for EWS was made effective w.e.f. 14-01-2019. The Government of Jharkhand by way of resolution dated 15-02-2019 had also adopted the said amendment. In view of Clause 11 of that resolution, it was clear that the reservation would be effective w.e.f. 15-01-2019 in subsequent advertisement. Thus, that reservation could not be allowed to be made effective with retrospective effect, which was against the mandate of the Constitution which is the fountain of all the Statutes. The Bench clarified,

“At the time of advertisement of 2013 and 2015, 10% reservation for EWS was not there and by way of clubbing the vacancies, 10% reservation for EWS has been provided in the vacancy of 2013 and 2015, which is against the mandate of the Constitution of India. The merger of earlier advertisements, which has been made effective retrospectively, is against the constitutional scheme.”

Hence, reservation for EWS which had been made effective in the garb of resolution dated 15-02-2019, along with the vacancy of the year 2013 and 2015 could not be allowed. The Bench stated,

“The respondent-State has already come out with advertisement of the year 2013 and 2015 respectively, which was cancelled subsequently. This appointment was required to be completed adhering to the extent of reservation up to 50%. Thus, the said vacancies are required to be filled up in terms of Rule of that time.”

In view of the above, the impugned Advertisement No. 05 of 2019 was set aside and the Court declared that retrospective application of 10% EWS quota is against Articles 14 and 16 of the Constitution of India. Consequently, the State Government was directed to modify the impugned Advertisement to the extent that 10% quota for EWS should not be made effective retrospectively for the vacancy of the year 2013 and 2015. Similarly, ongoing appointment process were declared contrary to the constitutional mandate and hence, held to be illegal.

Accordingly, the State was directed to advertise those posts separately within eight weeks and modify the impugned advertisement of 2019 in light of 103rd Amendment of Constitution.[Ranjeet Kumar Sah v. State of Jharkhand, 2021 SCC OnLine Jhar 78, decided on 21-01-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioners: Mr. Saurabh Shekhar, Advocate

For the Respondent-State: Mr. Rajiv Ranjan, Advocate General, Mr. Mohan Kumar Dubey, A.C. to A.G.

For the Respondent-JPSC: Mr. Sanjay Piprawall, Advocate

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: S.N.Pathak, J., held that the employees of Telco Recreation Club cannot claim parity in pay and other benefits at par with the regular employees of Telco Ltd. The Bench held that,

“When the initial appointment letter of the workmen has not been issued by the petitioner-Management, the question of parity in pay etc. with the employees of the petitioner-Management does not arise.”

Factual Matrix of the Case

The petitioner Company-Telco Ltd., was a leading manufacturer and seller of automobiles in the Country. In 1958, the company had started a separate department under the name and style of “Telco Recreation Club” for carrying activities of welfare and recreation of its employees. The said Telco Recreation Club was a Society registered under Societies Act having a separate legal entity of its own with its own source of income, its own constitution and bye-laws and had no direct connection with the petitioner-company and the petitioner company, under its corporate responsibility, provide financial assistance to several Societies in the area including the said Club.

The case of the petitioner-company was that it had no control over TELCO Recreation Club, which was run and managed by a Managing Committee elected/ selected by its members, yet one Indra Deo Prasad on behalf of 21 persons employed in Telco Recreation Club made a claim of parity in pay and other benefits at par with the regular employees of Telco Ltd. It was also the stand of the company that the government of Bihar had found Telco Recreation Club to be an independent establishment and had made a reference being Ref. Case No. 06 of 1991 to Industrial Tribunal, Ranchi, which was never challenged or objected by the employees of the said Club and therefore, the petitioner-company could not be treated to be the employer of the workmen of Telco Recreation Club.

Decision by the Labour Court

 The Labour Court held that there existed a relationship of employer and employees between the parties, and Telco Recreation Club was a department/wing of the company, and that petitioner-company provided all facilities to said Club and had direct control over the Managing Committee of the said Club as the General Manager of Telco Ltd. was the President of the Club; the reference was maintainable. The Labour Court had further held that the concerned workmen were also permanent employees of  Teclo Ltd., and hence, they were entitled to get pay and other benefits at par with the employees of Telco Ltd. Accordingly, the issue was decided in favour of the workmen.

Findings of the Court

Considering the rival submission of the parties and on perusal of Judgments brought on record, the Bench reached the conclusion that the impugned Award suffered from patent illegalities and was based upon errors of law. Admittedly, there was no relationship of employer-employee between the petitioner-Management and the concerned workman. The Bench clarified,

“Neither in the appointment of workmen nor in the process of their engagement, the petitioner-Management has played any role, therefore, the industrial disputes against the petitioner-Management is wholly illegal and uncalled for.”

The concerned workmen were being governed by the rules, regulations and bye-laws of the Club and not the petitioner-Management. Even the disciplinary control was of the Club and not of the Management. Hence, the findings of the Tribunal were totally perverse and error of law. Finding force in the arguments of the petitioner-company that the Club was incorporated as a separate body and concerned workmen were admittedly appointed by the Club and not by the petitioner-Management, the Bench opined that the claim of the concerned workmen was not sustainable.

Reliance was placed by the Court upon the decision of Supreme Court in Bengal Nagpur Cotton Mills v. Bharat Lal, (2011) 1 SCC 635,  wherein it had held that two of the well-recognized tests to find out whether the contract labourers are the direct employees of the principal employer are-

  • Whether the principal employer pays salary instead of the contractor?
  • Whether the principal employer control and supervises the work of the employees?

Accordingly, the Bench held that in the instant case on both these counts, the workmen had failed to establish their case as they could not establish that they were working directly under control and supervision of the management, hence, the question of the employer-employee relationship did not arise at all.

Placing reliance on Bhuwanesh Kumar Dwivedi v. Hindalco Industries, (2014) 11 SCC 85,wherein, the Supreme Court had held that, “where Labour Court commits patent mistake in law in arriving at a conclusion contrary to law, the same can be corrected by the High Court. In the instant case, the Tribunal has committed a patent error of law to hold that the employer-employee relationship exists between the petitioner-Management and the concerned workman”; the Bench opined that

“In the instant case, the concerned workmen have sought for parity in pay and other benefits at par with the regular employees of TELCO Ltd. whereas the fact is that the petitioner-Management has never issued appointment letters to them rather these workmen were appointed by the Club, which is a separate entity.  When the initial appointment letter of the workmen has not been issued by the petitioner-Management, the question of parity in pay etc. with the employees of the petitioner-Management does not arise and as such the impugned Award suffers from patent illegalities and is fit to be interfered.”

In the backdrop of above, the impugned Award was quashed.  [Management of Motors Ltd. v. State of Jharkhand, 2021 SCC OnLine Jhar 413, decided on 18-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Sr. Adv. Kamal Nayan Choubey, Sr.Adv. V.P. Singh, Adv.  Amit Kumar Das, Adv. Rashmi Kumar and Adv. Arun Kumar Singh

For the Respondents:     Sr. Adv. Ajit Kumar and Adv. Kumari Sugandha

For the State: GP-III O.P. Tiwari

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Sanjay Kumar Dwivedi, J., heard the instant petition whereby the petitioner had requested for quashing the order dated 05-12-2018 by which the candidature of the petitioner had been rejected.

Jharkhand Staff Selection Commission (JSSC) had published an advertisement inviting applications for appointment on the post of Graduate Trained Teacher under Combined Graduate Trained Teacher Competitive Exam, 2016. As per the advertisement, the cut-off date of age was 01-01-2016 on which the minimum age required was 21 years and maximum age for Extremely Backward Class (List-I) and Backward Class (List-2) was set at 42 years. The petitioner appeared and was declared successful in the counselling. The documents of the petitioner was examined and while calculating the age of the petitioner, it was found that the petitioner had already crossed 42 years of age. Consequently, the candidature of the petitioner had been rejected. Aggrieved by the impugned order, the petitioner had approached the Court by way of a writ petition.

Grievance of the petitioner was that he had completed 41 years 11 months and 30 days of age on 31-12-2015 and on 01-01-2016; the petitioner was 42nd years of age. The petitioner submitted that his date of birth was 01-01-1974 and in the light of age calculator on the website of JSSC, the petitioner was found 42 years on 01-01-2016. thus, his candidature was arbitrarily rejected.

Whereas, the respondent argued that petitioner’s age had been rightly calculated. It was submitted that so far the age calculator on the website of JSSC was concerned that was erroneous and was not required to be relied as the same was not a part of the advertisement and the said calculator had been removed from the website of JSSC. The Respondent relied on the case of Pradeep Kumar Sonthalia v. Dhiraj Prasad Sahu reported in 2020 (1) JBCJ (HC), wherein it had been held that,

“As already stated, a legal day commences at 12 o’clock midnight and continues until the same hour the following night. It would therefore appear that the appellant having been born on January 2, 1956, he had not only attained the age of 28 years but also completed the same at 12 o’clock on the midnight of January 1, 1984.On the next day i.e. on January 2, 1984, the appellant would be one day more than 28 years.”

The Bench, after going through the materials available on record observed that, in the advertisement, it had been clearly stated that maximum age for Extremely Backward Class (List-I) and Backward Class (List-2) was 42 years. The petitioner belonged to this Class. The cut-off date was fixed for calculating the age as on 01-01-2016. The date of birth of the petitioner was 01-01-1974. Hence, the Bench opined,

“On calculation of date of birth of petitioner, it transpires that the petitioner has completed 42 years of age on 31-12-2015. It is well-settled precedent that if a person born on 1stof a month is said to complete on entire year in terms of age on the last date of the previous month of next year.” 

Hence, it was held that, in the advertisement, it had been substantiated in the cleat terms that maximum age was 42 years and that the petitioner had already completed 42 years on 31-12-2015. He had entered in 43rd years on 01-01-2016. Therefore, the Bench refused to deviate from the advertisement. The instant petition was dismissed holding that the age of petitioner had been rightly calculated and as such no relief could be extended to the petitioner.[Ajay Kumar Mandal v. State of Jharkhand,  2021 SCC OnLine Jhar 280, decided on 08-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. Deepak Kumar Bharati,

For the Respondents-State: G.A. I Ashok Kumar Yadav,

For the Respondent-JSSC: Adv. Sanjay Piprawall

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: The Division Bench comprising of Aparesh Kumar Singh and  Anubha Rawat Choudhary, JJ., heard the instant Commercial Appeal challenging the judgments passed by the Commercial Court whereby the appellant’s plea for setting aside the arbitral award was rejected.

Background

 The Government of Bihar, Orissa and West Bengal had conceived a plan to make Galudih right bank main canal to be the main link for supply of irrigation water to then State of Bihar (now State of Jharkhand), State of Orissa and State of West Bengal parallel to Swarnrekha Multi-purpose project. State of Bihar had invited tenders for excavation of Galudih right bank main canal in which the appellant participated and was allocated the work; vide letter no. 272 dated 06-03-1986. The work order was followed by two separate agreements between the parties for KM 43.05 to KM 50.25 and KM 50.25 to KM 56.04 respectively with identical terms and conditions numbered as LCB – 03 of 1985-86 and LCB – 04 of 1985-86 both dated 12-03-1986.

Findings of the Arbitrator  

It was in the abovementioned background that a sole arbitrator was appointed by the Supreme Court to resolve the controversy regarding the said project. Pursuant to which the Arbitrator had ruled out in controversies arising in Commercial Appeal No.6 of 2020 and Commercial Appeal No.7 of 2020 that the appellant had completed 67% of the work allotted under the agreement within a period of twenty-four months. Also some extra work over and above the terms of the agreement was done by the appellant on being directed by the executive engineer. The Arbitrator held that the reason for non – completion of the project were entirely and wholly attributable to the respondent. Identical findings had been recorded in Commercial Appeal No.7 of 2020 except that the claimant completed 82% of the work allotted under the agreement within a period of twenty-four months.

Award regarding Payment

In the matter of Commercial Appeal No.6 of 2020, the Arbitrator held that the appellant would be entitled of payment for execution of 67% of the contracted work plus the extra work executed by the appellant, and towards the unfinished work the appellant was held to be entitled of total Rs.3,77,86,645/-. Further, observing that sum of Rs.3,18,17,831/- had already been paid, the Arbitrator adjusted the sum and held that the appellant instead of Rs.3,77,86,645/- would be entitled to Rs.59,68,814 with 9% interest and Rs.50,00,000/- with interest at 9% was also awarded in favour of appellant from 02-10-2018, i.e., date of award till the date of payment.

Whereas, in the other matter, i.e., Commercial Appeal No.7 of 2020, the Arbitrator said that the appellant would have get Rs.1,88,41,196 for 82% of the contracted work as completed by him and Rs.38,72,458 towards damages for the unfinished work, i.e., Rs.2,27,13,654. However, the award was adjusted against the payment of Rs.2,67,59,598 which was already paid by the respondent to the appellant. Thereby, the appellant was directed to refund Rs.40,45,994 to the respondent with 6% interest.

Contentions of the Appellant

The appellant contended that since the claim was filed before the Arbitrator post-2015 amendment, therefore the same was to be governed by the amended provisions of the 2015 amendment in the Arbitration and Conciliation Act, 1996 in view of the pronouncement by the Supreme Court in Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131. It was argued that the Arbitrator had miscalculated the amount payable to the appellant by adjusting certain sums allegedly payable to the respondents even when there was no counter-claim or claim of set-off filed before the Arbitrator. It was further submitted regarding the work already executed, but not measured, that the claim could not be rejected merely because the appellant did not participate at the time of measurement. He submitted that upon a comparison of the two records, it was apparent that the Arbitrator had committed an error of record.

Findings of the Court

In ONGC Ltd. v. Western Geco International Ltd., (2014) 9 SCC 263, it was held that Section 34, as amended, would apply only to applications that had been made to the Court on or after 23-10-2015, irrespective of the fact that the arbitration proceedings may had commenced prior to that date. Thus, the Bench said since the awards, as well as the petitions challenging the awards, were filed after 23-10-2015, section 34, as amended in 2015 would apply to the instant case

Distinction amongst, Counter-claim, Set-off, Payment and Adjustments

 In order to draw distinction amongst, counter-claim, set-off, payment and adjustments, the Bench relied on the judgment of Patna High Court in Jayanti Lal v. Abdul Aziz, 1955 SCC OnLine Pat 83, wherein, it had been held that a payment refers to a satisfaction, or extinguishment of a debt effected prior to the raising of the defence of payment, while a plea of set-off prays for satisfaction or extinguishment thereof commencing in the future after the date of the plea. A question of set off, therefore, can arise only in respect of dues which are outstanding, and which have not already been adjusted.

In Cofex Exports Ltd. v. Canara Bank, 1997 SCC OnLine Del 515, it was held that, “a payment is the satisfaction or extinguishment of a debt prior to filing of the written statement and adjustment contemplates existence of mutual demands between the same parties in the same capacity.” Further, A plea of adjustment was distinguished from a plea of a set off or counter claim, “Adjustment like payment is relatable to a period anterior to the date of such plea being set out before the court. A plea was in the nature of payment, adjustment and the like can be raised in defence as of right. The plea if upheld has an effect of mitigating or wiping out the plaintiff’s claim on the date of the suit itself. A counter claim or a plea of a set off is a claim made by the defendant. It does not extinguish the plaintiff’s claim; it exonerates the defendant from honouring plaintiff’s claim though upheld.”

Verdict

The Bench opined that essentially the plea raised by the respondent before the Arbitrator was a plea of payment/adjustment. While citing Mcdermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181, wherein, it had been held that Ss. 55 and 73 of the Indian Contract Act did not lay down mode and manner as to how and in what manner the computation of damages or compensation had to be made, the Bench said that the mode and manner of calculation of damages having not been specifically prescribed under Indian law, the formula as suggested by the appellant before Arbitrator i.e., Hudson formula was not binding on the Arbitrator nor non-consideration of the formula could have been a ground for challenge under section 34 of the aforesaid Act of 1996 as amended in the year 2015.

Further, noticing that the respondents had invited the appellant for final measurement, but the appellant’s representative was not present at the time of measurement, the Court opined that in absence of final measurement, the Arbitrator had rightly passed a reasoned order rejecting Part II of the claim A of Statement A and accordingly, the same also did not call for any interference. So far as the adjustment was concerned, the Bench said the same was a matter of interpretation of contract. Hence, the adjustments neither being ex facie illegal nor shocking the conscience of the court did not fall within the grounds enumerated under Section 34 of Arbitration and Conciliation Act, 1996 as amended in 2015.

Lastly, the Court observed that, the Court below had failed to examine the case in the light of 2015 amendment read with the law interpreted by the Supreme Court in Ssangyong Engg. case while passing the award against the appellant when it di directed the appellant to pay an amount of Rs.40,45,994 with an interest @ 6% to the respondents till the date of adjustment, even though the respondent had neither made any counter claim nor any set off. Holding that such direction certainly shocks the conscience of the Court and suffer from patent illegality calling for interference under Section 34 (2-A), the Court set aside the award passed by the Arbitrator in Commercial Appeal No.7 of 2020 to that extent.[R.K. Construction (P) Ltd. v. State of Jharkhand, 2021 SCC OnLine Jhar 286, decided on 13-01-2021]


Appearance before the Court by:

For the Appellant: Adv. Salona Mittal

For the Respondents: A.A.G. II Sachin Kumar, and Adv. Deepak Kumar Dubey


Kamini Sharma, Editorial Assistant has reported this brief.

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Anubha Rawat Choudhary J., while setting aside the impugned order, reiterated, “…once the institute is recognized as a minority institution, its minority status would entitle the managing committee of the institution to make appointment of teachers against the vacancies subject to satisfying the condition of eligibility prescribed for such appointments under the relevant provision”

The present appeal was moved challenging the order dated 14-08-2018 passed by the writ court in WP(S) No. 1122 of 2011, whereby a direction was issued to the respondents for considering the case of the writ petitioner for permanent absorption on vacant and sanctioned post of teacher in Sanskrit subject, in the respondent’s school. It is to be noted that the writ court while passing the aforesaid direction has recorded that the case of petitioner fits into the eligibility condition for consideration for permanent absorption in view of the fact that the petitioner has rendered 14 years service on the date of advertisement having possessed the requisite qualification.

Placing reliance on findings of the Supreme Court in determining the validity of Bihar Non-Government Secondary Schools (Taking over of management and control) Act 1981, Court said, “…the right of the managing committee of a recognized minority school to appoint a person of their choice has been held to be a constitutional right under Article 30 of the Constitution of India and the School Service Board is vested with limited power to see that the person proposed to be appointed possesses the requisite qualifications prescribed and that the prescribed method of selection was followed by the management. This power has been held to be regulatory in nature in order to ensure educational excellence in the minority school and at the same time the right of the managing committee of a recognized minority school to appoint a person of their choice as teacher/non-teaching staff has been preserved in the light of Article 30 of the Constitution of India.”  [Reference was drawn to Sindhi Education Society, (2010) 8 SCC 49 and Chandana Das v. State of West Bengal, (2015) 12 SCC 140]

Court further observed that the writ court before issuing directions for absorption, failed to appreciate the fact that the respondent school is a minority institution enjoying protection under Article 29 and 30, and therefore, has a fundamental right to manage its affairs without any undue interference. It was said, “… admittedly in the instant case, the name of the writ petitioner was never recommended by the respondent-minority school either for regularization or for appointment pursuant to advertisement issued in the year 2010 and accordingly, a direction for absorption/regularization of the writ petitioner in the services of the minority school in the vacant sanctioned post would amount to giving a complete go by to the right of the respondent-minority educational institution to get a person appointed on the basis of recommendation to be made by the Managing Committee of the minority school. The learned single judge has ignored the distinction between a Government School and a Minority School receiving aid by way of salary to the teachers appointed against the sanctioned post.”

Setting aside the decision of the writ Court, it was conclusively held that the direction issued for absorption of the writ petitioner, in spite of his name having been rejected by the Managing Committee of the respondent minority school in the selection process would bear serious implications upon the right of the respondent Minority School to appoint teachers of their choice subject to the regulatory provisions contained in the Act of 1981. Further, the impugned direction of the writ court will amount to denial of the right conferred under Article 30 of the Constitution of India upon the respondent minority school to administer the minority institution and amounts to curtailment of the right of the respondent minority school to appoint teachers of their choice through appropriate selection process amongst those who possess the eligibility and qualification prescribed.[State of Jharkhand v. Subhadra Jha, 2021 SCC OnLine Jhar 64, decided on 19-01-2021]


Sakshi Shukla, Editorial Assistant ahs put this story together

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: S. N Pathak J., upheld the award applying the principle of equal pay for equal work.

 The facts of the case are that the respondent –workman was appointed by the petitioner management i.e Food Corporation of India on the post of Hindi Typist in on casual basis without any appointment letter being issued to him or being appointed against any sanctioned post. On 06.05.1984, the casual service of the workman was terminated which was challenged by him before the Central Government Industrial Tribunal No. 1 at Dhanbad which held that the workman completed 240 days of service and since he had not been paid retrenchment compensation, so his termination of service was wrong and he must be reinstated with full back wages and also entitled for pay protection vide award dated 08.08.1990. Later, the Management on 03.02.1995, issued Circular inviting applications from internal candidates fulfilling eligibility criteria for filling up the post of Hindi Typist, the workman/respondent did not apply for the same and chose to raise industrial dispute claiming regularization of service under Section 10 of the Industrial Dispute Act which was decided in favour of the workman Being aggrieved by the same, the Management has preferred instant writ petition.

 Counsel for the petitioners submitted that the concerned workman has not been able to bring on record the appointment letter nor did he possess the requisite qualification and has never appeared in any selection process held by the Management and did not fulfil the conditions and criteria as laid down in FCI Staff Regulation of 1971. Hence, the direction to regularize the workman in service is totally contrary to law making the award unsustainable and the same is fit to be set aside.

 Counsel for the respondents submitted that the writ petition is not maintainable and is fit to be dismissed. He further submitted that the respondent-workman was appointed on 04-12-1982 and since then he is in continuous service without any break and that there is no difference between the work of a casual Hindi Typist or the permanent Hindi Typist and the workman is performing the same, similar and identical duties to that of a regular Hindi Typist and the long continuous service of more than 25 years itself is sufficient to prove eligibility of the workman. It was further argued that in spite of having sanctioned vacant post, the concerned workman has not been regularized arbitrarily in order to deny him regular pay scale as also to deny the benefits of regular services and accordingly, the Award has rightly been passed holding the workman entitled to be regularized as a Hindi Typist with full wages.

The Court relied on judgment titled Bharat Bank Ltd. v. Employees, AIR 1950 SC 188 and observed that,

“61. In settling the disputes between the employers and the workmen, the function of the tribunal is not confined to administration of justice in accordance with law. it can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace.”

 The Court further observed that the law is well settled that there has to be equality before the law. the workman is entitled to equal pay for equal work. Equal pay for equal work is not expressly declared by the Constitution as a fundamental right but in view of Directive Principles of State Policy, as contained in Article 39(d) of the Constitution of India, “Equal pay for equal work” has assumed the status of the fundamental right in service jurisprudence having regard to the Constitutional mandate of equality in Articles 14 and 16 of the Constitution of India. It ensures a welfare socialistic pattern of a State.

The Court held that even though the workman was reinstated but instead of regular Typist, he was allowed to join as a casual typist in the year 1991. From the evidences brought on record, it appears that there were regular appointments of regular typist by the Management but the concerned workman was neither informed nor any opportunity was given to confirm his as a regular typist. Even after his reinstatement, the Management made regular appointments in the years 1994, 1995 and 1996 but nothing has been brought on record to show that the concerned workman was ever informed or given any opportunity to participate for appointment as a regular typist. The nature of work of casual typist and the regular typist are the same and similar. The workman concerned has been discriminated as he was getting salary of Rs 1,400 though, on salary hike, he was getting a sum of Rs 1,890 per month but the regular typist who was appointed in the year 1984, was getting a monthly salary of Rs 8,000, besides the other benefits of Earned Leave, Commuted Leave, etc.

In view of the above, the award is upheld and petition dismissed.[FCI v. Anil Kumar, 2020 SCC OnLine Jhar 878, decided on 21-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Jharkhand High Court
Appointments & TransfersNews

President appoints S/Shri Justices (1) Sanjay Kumar Dwivedi and (2) Deepak Roshan, Additional Judges of the Jharkhand High Court, to be Judges of the Jharkhand High Court with effect from the date they assume charge of their respective offices.

Read the notification here: NOTIFICATION


Ministry of Law and Justice

[Notification dt. 11-09-2020]

Jharkhand High Court
Appointments & TransfersNews

Collegium Statement

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

1. Justice Sanjay Kumar Dwivedi, and

2. Justice Deepak Roshan

STATEMENT


Supreme Court Collegium

[Collegium Statement dt. 21-07-2020]

Jharkhand High Court
COVID 19Hot Off The PressNews

Jharkhand High Court notifies the cancellation of Summer Vacation from 18-05-2020 to 06-06-2020.


Jharkhand High Court

[Notification dt. 07-05-2020]

Jharkhand High Court
Hot Off The PressNews

Resignation of Justice Anant Bijay Singh 

Justice Anant Bijay Singh has tendered his resignation from the office of Judge, Jharkhand High Court, with effect from 20-01-2020.


Ministry of Law and Justice

[Notification dt. 24-01-2020]

Jharkhand High Court
Appointments & TransfersNews

President is pleased to appoint Shri Justice Prashant Kumar, Judge of the Jharkhand High Court, to perform the duties of the office of Chief Justice of that High Court with effect from the date Shri Justice Dhirubhai Naranbhai Patel relinquishes the charge as Acting Chief Justice of the Jharkhand High Court consequent upon his appointment as Chief Justice of the Delhi High Court.


[Notification dt. 03-06-2019]

Ministry of Law and Justice