Know thy Judge

Born to Advocate Shreeniwas W. Oka on May 25, 1960, Justice Abhay S. Oka completed his Bsc and LLM from Mumbai University and enrolled as an advocate on June 28, 1983, and started practicing in Thane District Court in the chambers of his father

♦Did You Know? In 1985-86, Justice Oka joined the chamber of V. P. Tipnis, a former judge of the Bombay High Court and former Lok Ayukta.

He practiced for 19 years in the High Court, Appellate Side, Bombay in Civil, Constitutional and Service matters and specialised in all the matters.  In 2003, he was appointed as an Additional Judge of the Bombay High Court. In 2005, he was appointed as a permanent Judge in Bombay High Court. He was appointed as the Chief Justice of the Karnataka High Court in 2019, before being elevated as a Supreme Court judge in 2021.

During his tenure as a High Court judge, he passed many orders on environmental protection and for better living conditions in Bangalore and Bombay. He is known for his orders on civil liberties. During the Covid-19 pandemic, he passed several orders protecting the rights of migrant workers and questioned the handling of the government.

♦Did You Know? Justice AS Oka at one point decided to become an engineer but gave up the idea midway and decided to join the legal fraternity instead.[1]


Justice Oka and PIL


♦Did You Know? During the tenure of Justice A.S. Oka as the Chief Justice of the Karnataka High Court, the Karnataka High Court suddenly become a constitutional shield for the protection of the rights of many marginalised communities including slum dwellers, sweepers, prisoners and transgender persons.

Justice Oka took the Public Interest Litigation`s version of locus standi seriously and used it in facilitative role as opposed to a “command-and-control” position, ascertained real dedication from diverse reassets along with affidavits from public servants of the State, and exercised restraint while the pains of a tribulation had been required in ascertaining statistics and while technical knowledge changed into required.

Justice Oka`s tenure as the Chief Justice has been a living proof for exercising a delicate balance in the PIL jurisdiction, even as concurrently making sure protection from fundamental right violations of the maximum vulnerable.

Justice Oka frequently exercised restraint however at the same time, is unafraid to fulfil the mandate of the Constitution, even supposing it intended displeasing the executive. Such judicial orders additionally got here at instances the people of Karnataka wanted them the maximum.

His conviction to uphold justice, harbingering social change and preserving administrative accountability can be reflected through his judgments like – right to protest and requirements of Section 144 of CrPC, Rights of the urban poor: illegal evictions, Right to shelter: upholding the state’s obligation to provide shelter to the homeless under Article 21 of the Constitution and ordering the setting up requisite night shelters for the homeless across urban areas in the State, right of prisoners, Secularism,  inviolable right to legal representation, combating atrocities against Scheduled Castes & Tribes, implementation of prohibition on manual scavenging and judicial intervention in the COVID-19 crisis.


Notable Judgements at Supreme Court


Maniben Maganbhai Bhariya v. District Development Officer Dahod, 2022 SCC OnLine SC 507

In a detailed judgment stressing on the importance of the work done by the Anganwadi workers/helpers at the grassroot level, the bench of Ajay Rastogi* and Abhay S. Oka*, JJ has held that Anganwadi workers/helpers are entitled to gratuity under the Payment of Gratuity Act, 1972.

Writing separate but concurrent opinions, both the judges agreed that the Anganwadi Workers/Helpers have been entrusted with the important tasks of providing food security to children in the age group of 6 months to 6 years, pregnant women as well as lactating mothers, apart from rendering pre-school education. And for all this, they are being paid very meagre remuneration and paltry benefits.

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K. Shanthamma v. State of Telangana, 2022 SCC OnLine SC 213

In an interesting case relating to corruption, the Division Bench of Ajay Rastogi and Abhay S. Oka*, JJ., acquitted a Commercial Tax Officer in spite of proved recovery of tainted currency notes from her. The Bench observed that though the recovery was proved in the absence of demand being conclusively proved conviction cannot be made under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act.

Read more…


Ajmer Vidyut Vitran Nigam Ltd. v. Hindustan Zinc Ltd., 2022 SCC OnLine SC 208

The Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., held that a modification changing tariff for inadvertent drawal from temporary supply rate to the regular supply rate cannot be considered to be a mere clarification and is rather a substantial alteration which cannot be made applicable retrospectively.

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UCO Bank v. Krishna Kumar Bhardwaj, 2022 SCC OnLine SC 201

The Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., held that non-supply of demanded documents is not sufficient to challenge a disciplinary inquiry unless it is showed what prejudice has been caused due to non-supply.

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Bihar Industrial Area Development Authority v. Rama Kant Singh, 2022 SCC OnLine SC 32

In a case where the bench of Ajay Rastogi and Abhay S. Oka*, JJ was deciding an issue relating to Bihar Public Works Contracts Disputes, the bench has held that if any of the provisions of the Bihar Public Works Contracts Disputes Arbitration Tribunal Act, 2008 are in conflict with the Arbitration and Conciliation Act, 1996, the 2008 Act shall prevail to the extent of the conflict.

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Deepak v. State of Maharashtra, 2022 SCC OnLine SC 99

While deciding the instant appeal wherein the appellant challenged the externment order issued against him under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951, the Division Bench of Ajay Rastogi and Abhay S. Oka*, JJ., quashed the impugned externment order observing that that an order of externment is not an ordinary measure and it must be resorted to sparingly and in extraordinary circumstances. The Bench held that,

“If the order of externment for the maximum permissible period of two years is passed without recording subjective satisfaction regarding the necessity of extending the order of externment to the maximum permissible period, it will amount to imposing unreasonable restrictions on the fundamental right guaranteed under Article 19(1) (d) of the Constitution”.

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Horticulture Experiment Station Gonikoppal, Coorg v. Regional Provident Fund Organization, 2022 SCC OnLine SC 223

The bench of Ajay Rastogi* and Abhay S. Oka, JJ has held that any default or delay in the payment of EPF contribution by the employer under the Employees Provident Fund & Miscellaneous Provisions Act, 1952 is a sine qua non for imposition of levy of damages under Section 14B and mens rea or actus reus is not an essential element for imposing penalty/damages for breach of civil obligations/liabilities.

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Debananda Tamuli v. Kakumoni Kataky, 2022 SCC OnLine SC 187

In a case where it was argued that merely because husband and wife are staying separately since a long time, an inference regarding desertion cannot be drawn, the bench of Ajay Rastogi and Abhay S. Oka*, JJ has held that whether a case of desertion is established or not will depend on the peculiar facts of each case. It is a matter of drawing an inference based on the facts brought on record by way of evidence.

“The reasons for a dispute between husband and wife are always very complex. Every matrimonial dispute is different from another. Whether a case of desertion is established or not will depend on the peculiar facts of each case. It is a matter of drawing an inference based on the facts brought on record by way of evidence.”

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S.K. Supiyan v. CBI, 2022 SCC OnLine SC 164

In a breather to SK Supiyan, West Bengal Chief Minister Mamta Banerjee’s Election Agent in the Vidhan Sabha Elections held in 2021, the bench of L Nageswara Rao and Abhay S. Oka*, JJ has granted him anticipatory bail in the Nandigram murder case but has directed him to fully cooperate with CBI for investigation and to remain present for investigation as and when called upon by the investigating officer. The Court made clear that the pre-arrest bail is liable to be cancelled if it is found that the appellant is not cooperating for the investigation.

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Jagathy Raj V.P. v. Rajitha Kumar S., 2022 SCC OnLine SC 152

While addressing the question of law with regard to lifespan of relinquishment of claim for consideration for promotion in educational institutions, the Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., expressed,

“…the paramount consideration not to disrupt the academic and research work of a senior Professor when his turn arises and if he has shown unwillingness, his seniority has to be given its predominance and opportunity be available to him to serve when the next rotation becomes due…”

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Vasudha Sethi v. Kiran V. Bhaskar, 2022 SCC OnLine SC 43

In a habeas corpus case the Division Bench Ajay Rastogi and Abhay S. Oka*, JJ., held that in a case for custody of the child the rights of the parties to a custody dispute (parents) are irrelevant. However, adding an exception, the Bench stated,

 “We may note here that a writ Court while dealing with the issue of habeas corpus cannot direct a parent to leave India and to go abroad with the child. If such orders are passed against the wishes of a parent, it will offend her/his right to privacy.”

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Punjab State Cooperative Agricultural Development Bank Ltd v. Registrar, Cooperative Societies, 2022 SCC OnLine SC 28

The bench of Ajay Rastogi* and Abhay S. Oka, JJ has held that an amendment having retrospective operation which has the effect of taking away the benefit already available to the employee under the existing rule indeed would divest the employee from his vested or accrued rights and that being so, it would be held to be violative of the rights guaranteed under Articles 14 and 16 of the Constitution.

“If a person while entering into service, has a legitimate expectation that as per the then existing scheme of rules, he may be considered for promotion after certain years of qualifying service or with the age of retirement which is being prescribed under the scheme of rules but at a later stage, if there is any amendment made either in the scheme of promotion or the age of superannuation, it may alter other conditions of service such scheme of rules operates in futuro.  But at the same time, if the employee who had already been promoted or fixed in a particular pay scale, if that is being taken away by the impugned scheme of rules retrospectively, that certainly will take away the vested/accrued right of the incumbent which may not be permissible and may be violative of Article 14 and 16 of the Constitution.”

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Ashim v. National Investigation Agency, 2021 SCC OnLine SC 1156

In a case where a 74-year-old has been behind the bars since 2012 as an undertrial prisoner, after being arrested under the Unlawful Activities (Prevention) Act, 1967 (UAPA), the bench of Ajay Rastogi* and Abhay S. Oka, JJ has directed that the accused be released on post-­arrest bail by the trial Court.

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Vinod Kumar v. Amritpal, 2021 SCC OnLine SC 1150

The bench of Ajay Rastogi and Abhay S. Oka*, JJ has held that once the prosecution establishes the existence of the three ingredients forming a part of “thirdly” in Section 300, it is irrelevant whether there was an intention on the part of the accused to cause death. Further, it does not matter that there was no intention even to cause the injury of a kind that is sufficient to cause death in ordinary course of nature. Even the knowledge that an act of that kind is likely to cause death is not necessary to attract “thirdly”.

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Ashim v. National Investigation Agency, 2021 SCC OnLine SC 1156

After granting bail to a 74-year-old arrested under the Unlawful Activities (Prevention) Act, 1967, as after the charge-sheets came to be filed way back in 2012, the charges were framed after 7 years and hearing was taking place only one day in a month, the bench of Ajay Rastogi* and Abhay S. Oka, JJ said that if this procedure is being followed in conducting the trial under the National Investigation Agency Act, 2008, it frustrates the very purpose with which the special Courts are designated.

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Thwaha Fasal v. Union of India, 2021 SCC OnLine SC 1000

The bench of Ajay Rastogi and Abhay S. Oka*, JJ has granted bail to Thwaha Fasal and Allan Shuaib, booked under punishable under Sections 20, 38 and 39 of Unlawful Activities (Prevention) Act, 1967 for alleged links with Communist Party of India (Maoist).

It was argued before the Court that though the investigation of the case was later on, transferred to National Investigation Agency (NIA), the NIA did not seek sanction for prosecuting any of the accused for the offence punishable under Section 20. Sanction was sought to prosecute Fasal and Shuaib for the offences punishable under Sections 38 and 39. In addition, a sanction was sought to prosecute Shuaib under Section 13.

Hence, in view of the absence of sanction and the fact that NIA did not even seek sanction for the offence punishable under Section 20, it was noticed that a prima facie case of the accused being involved in the said offence is not made out at this stage.

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State of M.P. v. Somdutt Sharma, 2021 SCC OnLine SC 829

“Overall activities and functions of the Irrigation Department would have to be considered while deciding the question whether it is carrying on manufacturing activities.”

The Division Bench comprising of Ajay Rastogi and Abhay S. Oka*, JJ., held that Irrigation Department was not a factory within the meaning of Factories Act, 1948 as there was no indulgence in manufacturing process in the Department. The Bench expressed,

“Even assuming that some of the employees may be doing the work of pumping of water, that is not sufficient to hold that Irrigation Department of the first appellant is carrying on manufacturing process.”

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Nagendra Sah v. State of Bihar, 2021 SCC OnLine SC 717

The bench of Ajay Rastogi and Abhay S. Oka*, JJ has held that when the chain of circumstantial evidence is not complete, falsity of the defence is no ground to convict the accused.

“…falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused.”

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SY Azhar SY. Kalandar v. State of Maharashtra, 2021 SCC OnLine SC 701

While noting the mitigating factors and circumstances in which a crime had been committed and considering that the parties are residing in the same village and are peacefully residing after the uncalled for incident had taken place, the Division Bench of Ajay Rastogi* and Abhay S. Oka, JJ., reduced the quantum of sentence for a conviction under Section 307  Penal Code, 1860.

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Notable Judgements at High Court


♦Did You Know? Justice Oka’s bench, when he was sitting with Justice Riyaz Chagla, was accused by Advocate General Ashutosh Kumbhakoni of bias. This was when the bench was hearing PILs regarding noise pollution. Following the allegations, the then Chief Justice Manjula Chellur took away the matter from Justice Oka but after public outcry and support from the bar associations, the petitions were returned to the bench. Three days after levelling charges against the judge, the state government withdrew the allegations, tendered an apology, and claimed that it held the judge “in the highest esteem”.[2]

Girish Bharadwaj v. State of Karnataka, 2020 SCC OnLine Kar 445

A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J. while addressing a petition with regard to release of information of people who contracted COVID-19 at Nizamuddin, Delhi,  stated that, it is a policy decision and Court cannot interfere in the same.

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Sandhya U. Prabhu v. State of Karnataka, 2020 SCC OnLine Kar 441

A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J., while addressing a petition held that,

“…decision to keep open super markets 24×7 relates to purely a policy decision and nothing arbitrary in the said policy decision is found.”

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Mohammed Arif Jameel  v. Union of India, 2020 SCC OnLine Kar 391

A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J. asked the State Government of Karnataka to take cognizance on various significant issues that have been raised in wake of the outbreak of Corona Virus.

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Mohammed Arif Jameel v. UOI, 2020 SCC OnLine Kar 539

While addressing a petition dealing with issue of migrant workers who had applied to be accommodated to the Shramik Special Trains to their origin State, a Division Bench of Abhay Shreeniwas Oka, CJ and B.V. Nagarathna, J. held that,

“though several orders have been passed by this Court from time-to-time, the State has not placed on record any transparent and fair policy for selecting persons out of those who registered on Seva Sindhu website.”

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Vijayakumar Rai v. State of Karnataka, 2019 SCC OnLine Kar 2186

A Division Bench of Abhay S. Oka, CJ. and Mohammad Nawaz, J. directed the state government to refund the amount already deducted from the salaries of judicial officers by the end of February 2020.

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MONKEYS DEATH – SUO MOTU; decided on 30-07-2021

A Division Bench of Abhay S. Oka CJ and N S Sanjay Gowda J. remarked that it is necessary to lay down the guidelines to ensure that inhuman and shocking incidents of animal cruelty are hereafter prevented.

The Court took up suo moto cognizance of large number of monkey deaths on the roadside in Belur Taluk of Hassan District on Wednesday night after 15 alive monkeys who were put in a large bag were found as per news reports published in the leading newspapers – Deccan Herald, Indian Express, Times of India, Prajavani, etc.

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Sanathana Kalakshetra v. Bruhat Bengaluru Mahanagara Palike, 2020 SCC OnLine Kar 871

A Division Bench of Abhay S. Oka, CJ and M. Nagaprasanna, J., while addressing a matter held that,

“…right to construct unauthorized temple and that also on a footpath cannot be said to be an essential part of any religion or religious practice which can be protected under Article 25 of the Constitution of India.”

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V. Mara Nayaka v. State of Karnataka, 2019 SCC OnLine Kar 681

The Division Bench of Abhay S. Oka, C.J. and H.T. Narendra Prasad, J. while not going into the legal issue involved, dismissed the petition and held that the act of the petitioner is not pro bono and should not be allowed to invoke the extraordinary jurisdiction of this Court by filing a Public Interest Litigation.

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High Court of Karnataka v. State of Karnataka, 2020 SCC OnLine Kar 762

A Division Bench of Abhay Shreeniwas Oka, CJ and Vishwajith Shetty, J., laid down the guidelines to be followed for payment of dues to the claimants in Motor Vehicle Accident Claim cases, Workmen’s Compensation Act, 1923 Matrimonial Cases and Land Acquisition Compensation cases etc.

Due to the partial functioning of the district and trial Courts in the State in view of the COVID-19 Pandemic, entry of litigants in the Courts premises has not been permitted.

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High Court of Karnataka v. State of Karnataka, 2020 SCC OnLine Kar 543

A Division Bench of Abhay Shreeniwas Oka, CJ and S Vishwajith Shetty, J., while dealing with many issues held that no legal basis for Family Courts insisting on personal presence of petitioners at the time of filing cases and presence of complainant while filing S. 138 NI Act case not necessary.

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Mohammed Arif Jameel v. Union of India, 2020 SCC OnLine Kar 442

A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J., asked for the State Government’s response with regard to breach of social distancing norms at a political leaders house, incident of assault on doctors, nurses and ASHA workers and action being taken on the complaints filed with respect to domestic violence.

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Mohammed Arif Jameel v. Union of India, 2020 SCC OnLine Kar 448

A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathnna, J. held that , owners of seized vehicles due to breach of COVID-19 Guidelines may approach jurisdictional Police Officers for the same.

“…in case of such seizure of vehicles for the offences relating to breach of the directions concerning COVID-19, it will be open for the jurisdictional Police Officers to exercise the powers under sub- section (3) of Section 102 of Cr.P.C and to give custody of the vehicles in terms of sub-section (3) of Section 102 to the owners.”

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KC Kondaiah v. State of Karnataka, WP No. 7987 of 2020

A Division Bench of Abhay S. Oka CJ. and Ashok S. Kinagi J., while partly allowing the present petition, discussed the powers and obligations of the State Election Commission and the limited intervention of the State Government in exercise of such powers.

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SEBI v. Franklin Templeton, 2020 SCC OnLine Kar 1650

A Division Bench of Abhay S. Oka CJ. and Ashok S.Kinagi J., while allowing the present writ petition held, “the decision of the Trustees (the Franklin Templeton Trustee Services private Limited) to wind up six Schemes mentioned in paragraph-1 of the Judgment by taking recourse to sub-clause (a) of clause (2) of Regulation 39 of the Mutual Funds Regulations cannot be implemented unless the consent of the unit-holders is obtained in accordance with sub-clause (c) of clause (15) of Regulation 18.”

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High Court of Karnataka v. State of Karnataka, WP No. 7338 of 2020

A Division Bench of Abhay S. Oka, CJ and S. Vishwajith Shetty, J., in view of the present situation of COVID-19 outbreak held that,

“…course adopted by the Courts while recording the plea of the accused and recording the statement of the accused under Section 313 of CrPC through video conferencing hearing will be a step taken to reduce the physical presence of the stakeholders in the Courts precincts to meet the exceptional situation and to secure the functioning of the Courts by following the best possible health practice.”

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Mohammed Arif Jameel v. Union of India, W.P. No. 6435 of 2020

A Division Bench of Abhay S Oka, CJ and Aravind Kumar, J. gave a slew of directions regarding vaccine allocation. The Court took stock of the various aspect related to COVID vaccination in the State.

Read More…


† Ritu Singh, Editorial Assistant, EBC Publishing Pvt. Ltd. has put this report together

* Judge who has penned the judgment.

[1] https://www.indiatoday.in/law/story/karnataka-hc-justice-abhay-shreeniwas-oka-elevation-supreme-court-collegium-1842605-2021-08-19

[2] https://www.indiatoday.in/law/story/karnataka-hc-justice-abhay-shreeniwas-oka-elevation-supreme-court-collegium-1842605-2021-08-19

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Ajay Rastogi and Abhay S. Oka*, JJ., held that Irrigation Department was not a factory within the meaning of Factories Act, 1948 as there was no indulgence in manufacturing process in the Department. The Bench expressed,

“Even assuming that some of the employees may be doing the work of pumping of water, that is not sufficient to hold that Irrigation Department of the first appellant is carrying on manufacturing process.”

Factual Contours

Originally, the State had challenged the award made by the Labour Court by which the State was directed to reinstate the respondent in Rajghat Canal Project of the Irrigation Department. The respondent was initially appointed as a daily wage employee on the post of Helper in the Irrigation Department of the first appellant. However, his employment was terminated again after reinstating him in the year 2004.

Findings of Courts Below

The Labour Court held that Chapter VB of the Industrial Disputes Act, 1947 was applicable to the Irrigation Department and as compliance with section 25N of the ID Act was not made, the respondent was entitled to reinstatement.

Observing that Irrigation Department is responsible for creation and maintenance of irrigation potential through construction of Water Resources Department, it also looks after the calamity management work and is involve in pumping water and sewage, the High Court held that the Department was governed by section 2(k)(ii) of the Factories Act as the  Irrigation Department was also involved in the activity of pumping of water and sewage, i.e. manufacturing process as defined under the said section.

Irrigation Department whether Industrial Establishment or not?

The State contended that Irrigation Department was not an Industrial Establishment within the meaning of Section 25L of the ID Act and Chapter VB would have no application. The State argued, though the Irrigation Department might have more than hundred workers, it was not a factory within the meaning Section 2(m) of the Factories Act, 1948 as it was not carrying on manufacturing process.

Analysis and Findings

Though there was no dispute that the Irrigation Department satisfied the test of having not less than hundred workmen employed on an average; however, the question before the Court was whether the Irrigation Department was an Industrial Establishment as defined in Section 25L of ID Act.

Section 25L of the ID Act reads as:

“(a) “industrial establishment” means—

 (i) a factory as defined in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948);”

It was the case of the respondent that the Irrigation Department of the first appellant was an Industrial Establishment as it was a Factory as defined in Section 2(m) (ii) of the Factories Act, which states, a Factory is:

“ (ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on…”

However, as the definition suggested, an establishment cannot be termed as a factory unless it is carrying on manufacturing process. The manufacturing process is defined under Section 2(k)(ii) of the Factories Act, which reads thus:

“‘Manufacturing process’ means any process for— (ii) pumping oil, water, sewage or any other substance;”

In the above backdrop, the Bench was of the view that even assuming that some of the employees may be doing the work of pumping of water, that was not sufficient to hold that Irrigation Department of the first appellant was carrying on manufacturing process. The Bench emphasised,

“Overall activities and functions of the Irrigation Department would have to be considered while deciding the question whether it is carrying on manufacturing activities.”

The Bench added,

 “Few employees of the Irrigation Department out of several may be incidentally operating pumps. But the test is what are the predominant functions and activities of the said Department.

Verdict

The Bench held that even if the activity of operation of pumps was carried on by few employees, the Irrigation department did not carry on manufacturing process, hence, it was not a factory within the meaning of clause (m) of section 2 of the Factories Act. Accordingly, the Bench rejected the reasoning of the High Court that the Irrigation Department was an Industrial Establishment within the meaning of Section 25L and Chapter VB would have application in the case.

Hence, the appeal was allowed. The impugned judgments and orders were set aside and the termination of employment of the respondent was held to be legal and valid.

[State of M.P. v. Somdutt Sharma, 2021 SCC OnLine SC 829, decided on 29-09-2021]

_________________________________________________________________________________

Report by: Kamini Sharma, Editorial Assistant, EBC Publishing Pvt. Ltd. 

_________________________________________________________________________________

Appearance by:

For the State of M.P.: Mukul Singh, Deputy Advocate General

For the Respondent: Prashant Shukla, Advocate


*Judgment by: Justice Abhay S. Oka

 

Case BriefsSupreme Court

Supreme Court: The bench of Ajay Rastogi* and Abhay S. Oka, JJ has held that the decision of the Labour Court should not be based on mere hypothesis and it cannot overturn the decision of the management on ipse dixit. Stating that Labour Court’s jurisdiction under Section 11-A of the Industrial Dispute Act, 1947 although is a wide one but it must be judiciously exercised, the Court said,

“Judicial discretion, it is trite, cannot be exercised either whimsically or capriciously. It may scrutinize or analyse the evidence but what is important is how it does so.”

Factual Background

  • The respondent-­workman was dismissed from his services by the Standard Chartered Bank for drunkenness within the premises of the appellant-Bank and for manhandling and assaulting the senior officers and also hurling abuses at the management. The alleged delinquency had been committed on 12th January,1988.
  • The enquiry officer after holding enquiry in terms of the Bipartite Settlement and after due compliance of the principles of natural justice held the charges proved against the delinquent respondent and the disciplinary authority after due compliance, confirmed the finding recorded by the enquiry officer and punished him with the penalty of dismissal from service by an order dated 22nd August, 1991.
  • The Industrial Tribunal, However, revisited the record of enquiry and apprised the statement of the management witnesses and recorded a finding that the Bank management has “miserably failed” to establish the charges levelled against the respondent-workman and hence, set aside the order of dismissal from service and directed the appellant to reinstate the respondent-workman in service with full back wages, seniority and all the consequential   benefits attached to the post by its Award dated 14th September, 2006.
  • The High Court also upheld the said order.
  • The respondent-workman had attained the age of superannuation on 31st January, 2012 and during the period of litigation, he has throughout been paid his last wages drawn in terms of Section 17¬B of the Act 1947. The respondent-workman had been paid around Rs. 57 Lakhs.
  • The Supreme Court had, on 27th February, 2015, stayed the payment of back wages.

Analysis

It was argued that after the domestic enquiry was held to be fair and proper, the Tribunal has a limited scope to interfere with the findings recorded in the domestic enquiry and unless the finding is perverse and not supported by a piece of evidence, it was not open for the tribunal to interfere within the scope of Section 11¬A of the Industrial Disputes Act, 1947,

The Court noticed that once domestic enquiry was held it to be fair and proper, the Tribunal had a very limited scope to interfere in the domestic enquiry to the extent as to whether there is any apparent perversity in the finding of fact which has been recorded by the enquiry officer in his report of enquiry obviously, based on the evidence recorded during the course of enquiry and as to whether the compliance of the Bipartite Settlement which provides the procedure of holding enquiry is violated or the punishment levelled against the workman commensurate with the nature of allegation proved against him. However, if the punishment is grossly disproportionate, the tribunal will always be justified to interfere by invoking its statutory power under Section 11-A of the Act 1947.

“The scope of judicial review in the matter of domestic enquiry is to examine whether the procedure in holding domestic enquiry has been violated or the principles of natural justice has been complied with, or any perversity in the finding of guilt recorded during the course of domestic enquiry has been committed.”

The Court noticed that the Tribunal has converted itself into a Court of Appeal as an appellate authority and has exceeded its jurisdiction while appreciating the finding recorded in the course of domestic enquiry and tested on the broad principles of charge to be proved beyond reasonable doubt which is a test in the criminal justice system and has completely forgotten the fact that the domestic enquiry is to be tested on the principles of preponderance of probabilities and if a piece of evidence is on record which could support the charge which has been levelled against the delinquent unless it is per se   unsustainable or perverse, ordinarily is not to be interfered by the Tribunal, more so when the domestic enquiry has been held to be fair and proper.

The Court, hence, held that the Tribunal has completely overlooked and exceeded its jurisdiction while interfering with the finding recorded during the course of enquiry in furtherance of which, the respondent was dismissed from service and the High Court has also committed a manifest error while passing the judgment impugned.

However, looking to the peculiar facts of this case where the respondent-workman had been paid Rs.57,16,517.72 and had attained the age of superannuation on 31st January, 2012, stay was granted by this Court in reference to back wages by order 27th February, 2015, while upholding the order of penalty of dismissal from service dated 22nd  August, 1991 passed by the authority in the domestic enquiry, the Court directed that no recovery shall be made in reference to the payment which has been made over to the workman in the interregnum period.

[Standard Chartered Bank v. RC Srivastava, 2021 SCC OnLine SC 830, decided on 29.09.2021]


*Judgment by: Justice Ajay Rastogi

Know Thy Judge | Justice Ajay Rastogi

Case BriefsSupreme Court

Supreme Court: In a case where a compromise was reached between parties, 28 years after an incident left the victim crippled for life, the bench of Ajay Rastogi* and Abhay S. Oka, JJ held that compromise cannot be taken to be a solitary basis for mitigating the sentence until the other aggravating and mitigating factors also support and are favourable to the accused for molding the sentence which always has to be examined in the facts and circumstances of the case on hand.

What was the case about?

On 13th December 1993, the injured victim was brutally attacked with stones, sword, Satur, etc., by the appellant, leaving him severely injured so much so that when he was taken to the hospital, his dying declaration was recorded as according to the treating Doctor, in the absence of immediate medical treatment, his death was certain. The incident led to the amputation of the leg and the arm of the victim and left him crippled for life.

The appellant was convicted under Section 326 IPC and was sentenced to rigorous imprisonment for 5 years and to pay under Section 357 CrPC of Rs. 2 lakhs as a monetary compensation to the victim.

A compromise was entered between the appellant and the injured victim on 13th July, 2021 and it was argued that,

“the relations of the families are very cordial and they are now closely related having matrimonial relations with each other’s family and the incident has occurred due to misunderstanding and on the spur of the moment and submitted that the parties have jointly prayed, in the interest of peace and harmony between both the families and as requested by the complainant to compound the offence and in the interest of justice, he may be released on the sentence undergone.”

What did the Supreme Court say?

Explaining the law on compromise, the Court said that the compromise if entered at the later stage of the incident or even after conviction can indeed be one of the factor in interfering the sentence awarded to commensurate with the nature of offence being committed to avoid bitterness in the families of the accused and the victim and it will always be better to restore their relation, if possible, but

“… the compromise cannot be taken to be a solitary basis until the other aggravating and mitigating factors also support and are favourable to the accused for molding the sentence which always has to be examined in the facts and circumstances of the case on hand.”

Further, giving punishment to the wrongdoer is the heart of the criminal delivery system, but there are no legislative or judicially laid down guidelines to assess the trial Court in meeting out the just punishment to the accused facing trial before it after he is held guilty of the charges. However, the Court takes into account a combination of different factors while exercising discretion in sentencing, that is proportionality, deterrence, rehabilitation, etc.

The Court, in the present case, was not able to record its satisfaction in reference to the kind of compromise which was obtained and placed on record after 28 years of the incident. It said that,

“… this Court cannot be oblivious of the sufferings which the victim has suffered for such a long time and being crippled for life and the leg and arm of the victim are amputated in the alleged incident dated 13th December, 1993 and since then he has been fighting for life and is pursuing his daily chores with a prosthetic arm and leg and has lost his vital organs of his body and became permanently disabled and such act of the appellant is unpardonable.”

The Court, hence, refused to give any benefit of the alleged compromise and held,

“… such a brutality cannot be ignored which is not against the individual but the crime is against the society which has to be dealt with sternly.”

[Bhagwan Narayan Gaikwad v. State of Maharashtra, 2021 SCC OnLine SC 748, decided on 20.09.2021]

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Counsels:

For appellant: Senior Advocate Mahesh Jethmalani

For State: Advocate Sachin Patil


*Judgment by: Justice Ajay Rastogi

Know Thy Judge | Justice Ajay Rastogi