Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: A Division Bench of Ravi Ranjan, CJ and Sujit Narayan Prasad, J. allowed the appeal and quashed the impugned order as it suffers from material irregularities.

The facts of the case are such that the a notice inviting tender was issued by the respondent-BCCL on inviting applications from reputed and experienced contractors for repairing of drain in upgradation colonies under CV Area of BCCL. The writ petitioner-appellant participated in the process of bid along with other bidders and the writ petitioner-appellant was declared successful. The Letter of Acceptance for awarding the work was issued in favour of the writ petitioner which contained a condition wherein the writ petitioner-appellant was required to furnish performance security within the period of 28 days from the date of issuance of Letter of Acceptance. The writ petitioner-appellant did not furnish the performance security since the site plan was not furnished. The respondent-BCCL issued several reminders but to no avail. Thus, the respondent-BCCL cancelled the Letter of Acceptance and debarred/blacklisted the writ petitioner-appellant for participating in the future tender for a period of 12 months. A writ petition was filed challenging the same but the Court refused to interfere with the same on the ground of latches. Thus, the instant intra-court appeal was preferred under Clause 10 of the Letters Patent.

Counsel for the writ petitioner-appellant submitted that it was incumbent upon the respondent-management to provide an opportunity of hearing by issuing notice before passing an order of blacklisting for a period of 12 months but having not done so, the impugned order is not sustainable in the eye of law for utter violation of principles of natural justice

Counsel for the respondent submitted that several reminders have been given to the writ petitioner-appellant to complete the work within the period stipulated in the agreement, but having not done so, the order of blacklisting for 12 months has been passed. It was further submitted that a specific stipulation was made for furnishing the performance security, stating that apart from cancelling the Letter of Acceptance and forfeiting the earnest money, the decision will also be taken for debarment from participating in future tenders for a minimum period of 12 months Thus, such a stipulation made therein that action for debarment from participating in future tenders for a minimum period of 12 months is nothing but be treated as show cause.

The Court relied on Gorkha Security Services vs. Govt. (NCT of Delhi), (2014) 9 SCC 105 and reiterated that the principles of natural justice be followed in cases of blacklisting. The Court remarked that the cardinal principle of natural justice is mandatory to be followed in a case where any adverse decision/action is being taken against one or the other. The issuance of notice means that the person against whom any adverse action proposed to be taken, is required to be provided with the opportunity of hearing.

The Court thus held “on the basis of the facts discussed above, that the order passed by the learned Single Jude in refusing to interfere with the decision of the administrative authority, so far as it relates to debarring the writ petitioner-appellant from participating in future tenders for a period of 12 months, is not sustainable in the eye of law.” [Sanjay Kumar Sharma v. Bharat Coking Coal Ltd, L.P.A. No.304 of 2021, decided on 10-02-2022]


Appearances

For the Appellant: Mr. Amritansh Vats

For the Respondents: Mr. Anoop Kumar Mehta


Arunima Bose, Editorial Assistant has reported this brief.

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Ananda Sen, J.,  dismissed and held that the amount which has been awarded by the Tribunal with the interest thereupon is just and fair compensation.

The facts of the case are such that the deceased Shashi Kumar Mahato was dashed by an unnumbered maruti omni van which was driven rashly and negligently by Lakshman Nayak, thereafter on the way to taking him to the hospital, the deceased died. The case was registered for offences under Sections 279, 304A of the Penal Code, 1860. The deceased, as per the claim application, was aged about 13 years. According to the claimants they were entitled to a compensation amount of Rs.3, 50,000/- along with interest. Therefore, the claimant-appellant has preferred this appeal for enhancement of the awarded amount passed by the District Judge-III-cum-Presiding Officer, Motor Accident Claim Tribunal, Bermo at Tenughat, Bokaro in Motor Accident Claim Case No.51 of 2011.

Counsel for the claimants submitted that the deceased was 13 years and was having bright future, as such, the Tribunal could not have denied future prospect to the claimants. Counsel appearing for the claimants further submits that the Tribunal has erred in allowing only a meager sum of Rs.10, 000/- on account of funeral expenses and a sum of Rs.15, 000/- towards the loss of love and affection.

Counsel for the Insurance Company submitted that as the deceased was 13 years, his income cannot be assessed nor the claimants can get any amount towards future prospect.

The Court relied on New India Assurance Co. Ltd. v. Satender, (2006) 13 SCC 60 wherein it was observed,

“12. In cases of young children of tender age, in view of uncertainties abound, neither their income at the time of death for the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation.”

 The Court thus held “Considering the judgment of the Hon’ble Supreme Court, I feel that there is no need of any interference with the impugned award dated 26.03.2015 passed by the District Judge-III-cum-Presiding Officer, Motor Accident Claim Tribunal, Bermo at Tenughat, Bokaro in Motor Accident Claim Case No.51 of 2011.”

[Tukeshwari Devi v. Royal Sundaram Alliance Insurance Company Limited, 2021 SCC OnLine Jhar 705, decided on 25-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.


 Appearances

For the Appellants: Mr Arvind Kumar Lall

For the Respondents: Mr Ashutosh Anand and Mr Satish Kumar

Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit and Ajay Rastogi, JJ has held that such persons whose place of origin/domicile on or before the appointed day i.e. 15th November, 2000 was of the State of Bihar now falling within the districts/regions which form a successor State, i.e., State of Jharkhand under Section 3 of the Bihar Reorganisation Act, 2000 can claim the benefit of reservation for participation in public employment in either of the successor State of Bihar or State of Jharkhand. Reservation can, however, not be claimed in both the States simultaneously.

What was the case about?

  • The Court was dealing with the case wherein the appellant’s father originally belonged to District Patna in the State of Bihar but as alleged, the appellant was born on 27th November, 1974 in Hazaribagh where his father was residing which earlier was part of the unified State of Bihar but after the Bihar Reorganisation Act, 2000 came into force from the appointed day, i.e. 15th November 2000, District Hazaribagh became part of the successor State of Jharkhand.
  • It was his case that he was born & brought up and took his education within the territory which is now in the State of Jharkhand.
  • He belongs to Scheduled Caste category and a certificate was issued by the competent authority in the State of Jharkhand.
  • He was appointed on the post of Assistant Teacher on 21st December, 1999 and posted in a school in Ranchi, the capital of Jharkhand against the post reserved for SC category and pursuant to the cadre revision on bifurcation of the States, he opted the State of Jharkhand.
  • He then appeared as a member of SC category in the third Combined Civil Services examination, 2008 and cleared the preliminary, as well as main examination followed with an interview and the final result was published in the year 2010 and his name appeared at Sl. No. 5 against 17 vacancies reserved for Scheduled Caste category.
  • However, his appointment order was withheld on the ground that he is permanent resident of District Patna in the State of Bihar and hence, is to be treated as migrant to the State of Jharkhand.
  • In consequence, he was not eligible for appointment in Scheduled Caste category pursuant to his participation in the selection process held in the Combined Civil Services Examination, 2008.

It was argued by the State of Jharkhand that the existing service conditions including benefit of reservation in the promotional cadre post shall not be varied to his disadvantage but he shall be considered to be a migrant to the State of Jharkhand while participating in public employment to compete in open/general category and asked to seek the benefit of reservation in the neighbouring State of Bihar, to hold different status in his parent State of Jharkhand after he became a member of service of the State of Jharkhand, serving for sufficient long time on and after the appointed day, i.e. 15th November, 2000 in the State.

The Court found this argument unsustainable in law and in contravention to the scheme of the Act 2000. The Court said,

“The collective readings of the provisions of the Act, 2000 makes it apparent that such of the persons whose place of origin/domicile on or before the appointed day was of the State of Bihar now falling within the districts/regions which form a successor State, i.e., State of Jharkhand under Section 3 of the Act, 2000 became ordinary resident of the State of Jharkhand, at the 43 same time, so far as the employees who were in public employment in the State of Bihar on or before the appointed day, i.e. 15th November, 2000 under the Act 2000, apart from those who are domicile of either of the district which became part of the State of Jharkhand, such of the emploees who have submitted their option or employees who are junior in the cadre of their seniority as per the policy of the Government of India of which a reference has been made, either voluntarily or involuntarily call upon to serve the State of Jharkhand, their existing service conditions shall not be varied to their disadvantage and stands protected by virtue of Section 73 of the Act, 2000.”

Holding that the appellant would be entitled to claim the benefit of reservation including the privileges and benefits admissible to the members of Scheduled Caste category in the State of Jharkhand for all practical purposes including participation in open competition seeking public employment, the Court said,

“It will be highly unfair and pernicious to their interest if the benefits of reservation with privileges and benefits flowing thereof are not being protected in the State of Jharkhand after he is absorbed by virtue to Section 73 of the Act 2000 that clearly postulates not only to protect the existing service conditions but the benefit of reservation and privileges which he was enjoying on or before the appointed day, i.e. 15th November, 2000 in the State of Bihar not to be varied to his disadvantage after he became a member of service in the State of Jharkhand.”

Key takeaways

  • Such of the employees who are members of the SC/ST/OBC whose caste/tribe has been notified by an amendment to the Constitution(Scheduled Castes)/(Scheduled Tribes) Order 1950 under Vth and VIth Schedule to Sections 23 and 24 of the Act 2000 or by the separate notification for members of other backward class category, benefit of reservation including privileges and benefits flowing thereof, shall remain protected by virtue of Section 73 of the Act 2000 for all practical purposes which can be claimed (including by their wards) for participation in public employment.
  • A person is entitled to claim benefit of reservation in either of the successor State of Bihar or State of Jharkhand, but will not be entitled to claim benefit of reservation simultaneously in both the successor States and those who are members of the reserved category and are resident of the successor State of Bihar, while participating in open selection in State of Jharkhand shall be treated to be migrants and it will be open to participate in general category without claiming the benefit of reservation and vice-versa.

[Pankaj Kumar v. State of Jharkhand, 2021 SCC OnLine SC 616, decided on 19.08.2021]


*Judgment by: Justice Ajay Rastogi

Know Thy Judge | Justice Ajay Rastogi

Legislation UpdatesRules & Regulations

On July 14, 2021, the Jharkhand Government has issued the Draft Code on Wages (Jharkhand) Rules, 2021. The Rules provide 9 Chapters further divided into 56 sections.

Key features of the Rules

  1. Manner of calculating minimum rate of wages: Minimum rate of wages shall be fixed on the day basis keeping in few of following criteria:
  • The standard working class family which includes a spouse and two children apart from the earning worker an equivalent of three adult consumption units;
  • a net intake of 2700 calories per day consumption unit; 66 mtrs cloth per year per standard working class family;
  • housing rent expenditure to constitute 10 percent of food and clothing expenditure.
  • fuel, electricity and other miscellaneous items of expenditure to constitute 20 percent of minimum wage;
  • expenditure for children education, medical requirement, recreation, and expenditure on contingencies to constitute 25 percent of minimum wages;
  • When the rate of wages for a day is fixed, then, such amount shall be divided by eight for fixing the rate of wages for an hour and multiplied by twenty-six for fixing the rate of wages for a month and in such division and multiplication the factors of one-half and more than one-half shall be rounded as next figure and the factors less than one-half shall be ignored.

2. Number of hours of work which shall constitute a normal working day shall be 9 hours.

3. An employee shall be allowed a day of rest every week which shall ordinarily be Sunday, but the employer may fix any other day of the week as the rest day for any employee or class of employees.

  • Any such employee shall not be required or allowed to work on the rest day unless he has or will have a substituted rest day for a whole day on one of the five days immediately before or after the rest day.

4. Where an employee in an employment works on a shift which extends beyond midnight then:

  • a holiday for the whole day means a period of twenty four consecutive hours beginning from the time when his shift ends; and
  • the following day in such case shall be deemed to be the period of twenty-four hours beginning from the time when such shift ends, and the hours after midnight during which such employee was engaged in work shall be counted towards the previous day.

5. The longer wage period for the purpose of minimum rate of wage shall be by the month.

6. The State Government shall fix the minimum wage not below the Floor Wages so fixed by the Central Government.

Case Briefs

Supreme Court: While stating that the Jharkhand High Court has rightly ordered that Shravani Puja cannot be held holding big congregation fair not even the Kanwar yatra could be permitted due to COVID 19, the bench of Arun Mishra, BR Gavai and Krishna Murari, JJ noticed that total restrictions imposed by the High Court for entire months of Shravan and Bhado was not proper and that it should have been left at the discretion of the State Government, if Government can make an arrangement to permit restricted entry of general public in the temple maintaining social distancing.

“The High Court ought not to have directed that no entry should be permitted in the months of Shravan and Bhado. It is basically for the State Government to take a call on this.”

The High Court had, on July 3, 2020, passed an order that online darshan should be allowed during the entire course of Shravani Puja. Accordingly, directions have been issued for online darshan. At the same time, the High Court had also ordered that Puja of Jyotirlinga would continue during the month of Shravan and Bhado, but the same will be done by the temple trust without allowing any public participation.

The Court was also alarmed by the fact that thousands of pandas are gaining entry into the temple premises every day whereas entry of general public is not being allowed at all even in premises to have darshan from distance. On this, it said,

“we are not happy with the situation that thousands of pandas are being permitted entry in the temple every day. This cannot be said to be very conducive situation so as to prevent the spread of virus Covid 19. Entry of such large number of pandas, as alleged, should not be permitted.”

The Court said that the State and Trust should have made an arrangement for regulated entries of pandas while maintaining social distancing.

“… the State Government ought to have permitted systematically at least few hundred numbers of general public on the basis of online booking, giving them different timings of darshan, so that large congregation does not take place and maintaining social distancing for darshans at important festivals of the year but State has not done it so far and only two days are left from the final day of the Shravan month.”

It, hence, asked the State Government and the Temple Trust make an arrangement that no large congregation takes place even of pandas in the temple premises and Garbh Grih. It is The State Government must ensure that only limited number of persons, maintaining social distancing, be that they are pandas and priests of the temple, enter the premises at the same time in the temple premises.

The Court, however, refrained from issuing directions to the State Government to provide the entry. And requested it to find out a possibility for darshan, which ought to have been done for general public as is being done in Ujjain, an another Jyotirligam. In Ujjain, 300 persons are being allowed on the basis of prior online booking, giving them different timings. The Court requested the State Government to, if possible, permit darshan on the day of Purnima and in the month of Bhado also.

It, further, requested the State to find out a possibility of limited entry of general public in temples, churches and mosques in the State. If not outside State, at least the person from within the State as is being done at some other places.

“We direct consideration not only for the temple but in all such religious places whether it be Churches or Mosques, entry of limited number of persons/devotees should have been allowed as is being done throughout India. The State cannot shirk from its responsibility to enforce the social distancing norms, particularly when there is opening up of such places throughout the world.”

[Nishikant Dubey v. Union of India, 2020 SCC OnLine SC 616 , order dated 31.07.2020]