Case BriefsHigh Courts

Karnataka High Court: Krishna S Dixit, J., allowed the petition and set aside the impugned order highlighting the importance of perjury applications to be considered at the earliest.

The facts of the case are such that the Petitioner and respondent are an estranged couple and both are medical practitioners apparently of some standing in the profession. The petitioner-husband has instituted suit seeking a decree for annulment of marriage which stands pending and respondent also filed an application u/s. 24 of the Hindu Marriage Act, 1955, seeking Rs.1, 00,000/- as monthly maintenance and for a lump sum of Rs 75,000/- as litigation expenses; the same having been rejected. The petitioner then filed an application u/s. 151 of CPC, 1908 r/w Section 301 CrPC seeking Court to initiate proceedings for the offence of perjury contending that the respondent had falsely stated as to her unemployment & lack of income. The Court thereby rejected the application and hence agrreived by this, present writ petition was filed.

Counsel for the petitioner Mr. Praveen R submitted that the respondent-wife in her affidavit supporting the application for maintenance had falsely stated as to her unemployment & lack of income.

Counsel for the respondent Mr. C H Jadhav and Ms. Rashmi Jadhav submitted that that in a complaint filed by the respondent-wife in relation to petitioner allegedly producing come Tax Returns & other documents of the respondent, the police are still investigating the matter and therefore the question of perjury is premature; that whether in a case of alleging perjury, action needs to be taken or not, is a matter left to the discretion of the Court concerned before whom the substantive proceedings are pending and therefore, discretionary orders of the kind cannot be subjected to a deeper scrutiny in writ jurisdiction.

The Court relied on judgment Mahila Vinod Kumari v. State of Madhya Pradesh, (2008) 8 SCC 34 wherein it was observed as under:

“… The evil of perjury has assumed alarming proportions in cases depending on oral evidence and in order to deal with the menace effectively, it is desirable for the Courts to use the provision more effectively and frequently, than it is presently done…”

 The Court observed that police investigation has nothing to do with perjury allegedly committed by the respondent; act of perjury is treated as a heinous offence in all civilized societies; consideration of complaints with regard to the same cannot be deferred or delayed; otherwise there is all possibility of the fountain of justice being polluted.

Lord Macaulay as the first Chairman of Law Commission of India in his report has stated:

Giving of false evidence must always be a grave offence. But few points in penal legislation seems to us clearer than that the law ought to make a distinction between that kind of false evidence which produces great evils and that kind of false evidence which produces comparatively slight evils…. As the ordinary punishment for false evidence, we propose imprisonment for a term of not more than seven years, nor less than one year…”

The Court further observed that the Trial Judge ought to have considered petitioner’s subject application with due seriousness and at the earliest point of time, there being no justification for deferring its consideration since it touched purity of judicial proceedings. It was also observed that the view of the learned trial Judge that petitioner can move similar application subsequently offends sense of justice; applications of the kind need to be considered on merits at the earliest point of time so that a loud message goes to the unscrupulous section of the litigant public as to what would befall the perjuring parties.

The Court thus held this writ petition succeeds; impugned order is set at naught; matter is remitted for consideration afresh; till such consideration takes place, the main matter shall be parked at a bay.”

[Praveen R v. Arpitha, Writ Petition No.19448 of 2015, decided on 31-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Appointments & TransfersNews

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

  1. Shri Justice Maralur Indrakumar Arun,
  2. Shri Justice Engalaguppe Seetharamaiah Indiresh,
  3. Shri Justice Ravi Venkappa Hosmani,
  4. Shri Justice Savanur Vishwajith Shetty
  5. Shri Justice Shivashankar Amarannavar,
  6. Smt. Justice M. Ganeshaiah Uma,
  7. Shri Justice Vedavyasachar Srishananda,
  8. Shri Justice Hanchate Sanjeevkumar,
  9. Shri Justice Padmaraj Nemachandra Desai, and
  10.  Shri Justice P. Krishna Bhat.

Supreme Court of India

[Collegium Resolution Statement dt. 

Case BriefsHigh Courts

Karnataka High Court: M. Nagaprasanna J. allowed the criminal petition and quashed the impugned order dated 30-07-2016 passed by Additional Civil Judge, Udupi.

The facts of the case are such the wife of respondent 2/complainant borrowed finance from the Karnataka State Finance Corporation (‘the Corporation’) for establishing Sri Durga Printers and Sri Durga Printers Conventional Hall but failed to pay the loan amount on time pursuant to which the property of respondent 2 was brought to sale by way of public auction. The petitioner became the highest bidder of the property and the property was directed to be handed over to him when the complainant made objections to the auction on the ground that the property was worth more than Rs 55/- lakhs had been sold at Rs 29/- lakhs by the Corporation. Thereafter, the complainant registered an FIR against the petitioner alleging that the petitioner had threatened him with life to not interfere with the auction proceedings. Based on the complaint for the alleging offence punishable under Section 506 of the Penal Code, 1860 i.e. IPC, investigation was conducted and ‘B’ report was filed. The petitioner filed a protest petition against acceptance of ‘B’ report under Section 200 of Criminal Procedure Code i.e. Cr. PC. The Magistrate recorded the sworn statement of the complainant and on perusal of the report, directed registration of criminal case against the petitioner for offence punishable under Section 506 of the IPC and summons issued. It is at this stage, the petitioner approached this Court in the subject criminal petition.

Counsel for petitioner Mr K. N. Nitish submitted that the entire allegation against the petitioner would not make out an offence punishable under Section 506 IPC, the petitioner is innocent of the property that was put to auction and because the petitioner purchased the property belonging to the complainant, the complainant to harm the petitioner has registered the criminal case. It was also submitted that the Magistrate while rejecting ‘B’ report and directing registration of the criminal case, did not apply his mind with regard to the offence alleged or the ‘B’ report and has mechanically ordered registration of the criminal case.

Counsel for respondent Ms B.G. Namitha Mahesh submitted that since the Police have conducted investigation and the Court has not accepted the ‘B’ report, it is a matter for trial and the Magistrate at this stage need not apply his mind as everything would be at large in the trial. The petitioner can as well prove his innocence in the trial Court and this Court at this stage should not interfere or interject the criminal trial.

The Court observed that Section 503 IPC, which defines ‘criminal intimidation’ would direct that whoever threatens another person with any injury to his person, reputation or property by an act, he is not legally bound to do and executes certain threats, commits criminal intimidation. Therefore, the intention of the petitioner ought to have been to do any injury to the complainant, his reputation or property. If the complaint is seen qua Section 506 of the IPC, it does not link any action of the petitioner to Section 503 of the IPC, for an offence punishable under Section 506 of the IPC.

The Court further observed that as narrated in the complaint, the property of the complainant was sold by the Corporation for a very less price and the loan was adjusted to the auction money. It is only because the petitioner was the auction purchaser of the property, though, through legal means, the complaint is registered by the complainant. Therefore, there cannot be a better case of giving a criminal colour to a legal act of the Corporation.

The Court relied on judgment Chandrapal Singh v. Maharaj Singh, (1982) 1 SCC 466 wherein it was observed

……a tendency to perjure is very much on the increase and unless by firm action courts do not put their foot down heavily upon such persons the whole judicial process would come to ridicule. We see some force in the submission but it is equally true that chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal court. Complainant herein is an Advocate. He lost in both courts in the rent control proceedings and has now rushed to the criminal court. This itself speaks volumes. Add to this the fact that another suit between the parties was pending from 1975. The conclusion is inescapable that invoking the jurisdiction of the criminal court in this background is an abuse of the process of law and the High Court rather glossed over this important fact while declining to exercise its power under Section 482, Cr.P.C.”

The Court further observed that merely because a complainant files a protest petition and gives a statement with regard to his protest petition, the Magistrate ought not be swayed away by such protest petition. It is incumbent upon the learned Magistrate to consider ‘B’ report, protest petition and the evidence on record and record his finding as to why he rejects the ‘B’ report and accepts the protest petition. Application of judicious mind by the learned Magistrate while setting the criminal trial in motion, in cases particularly where protest petition is filed against the ‘B’ report by the complainant, becomes sine qua non, failing which, the order taking cognizance notwithstanding the ‘B’ report, becomes a routine exercise. Reasons to be recorded in such circumstances need not be elaborate but must bear application of mind.

The Court thus held The registration of FIR could not have been done by the Police without at the outset referring the matter to the learned Magistrate. This is yet another infirmity in the entire proceedings. Therefore, on the aforesaid reasons with regard to the application of mind on the part of the learned Magistrate and registration of FIR being violative of Section 155 of the Cr.P.C. the entire proceedings stand vitiated.”

[Nagaraj Rao v. State, Criminal Petition No. 8922 of 2017, decided on 17-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Appointments & TransfersNews

Appointment of Additional Judges as Permanent Judges 


President appoints S/Shri Justices:

(l) Neranahalli Srinivasan Sanjay Gowda

(2) Miss Jyoti Mulimani

(3) Rangaswamy Nataraj

(4) Hemant Chandangoudar

(5) Pradeep Singh Yerur and

(6) Maheshan Nagaprasanna,

Additional Judges of the Karnataka High Court, to be Judges of the Karnataka High Court with effect from the date they assume charge of their respective offices.


Ministry of Law and Justice

[Notification dt. 6-09-2021]

Case BriefsHigh Courts

Karnataka High Court: Nataraj Rangaswamy, J., allowed the petition and granted maternity leave by setting aside the impugned order.

The facts of the case are such that the petitioner was employed as a Senior Resident in the Department of Medicine, ESIC College and Hospital, Kalaburgi on contract basis. The petitioner joined services on 24-07-2018 and after 125 days of service she submitted a leave application on 20-11-2018 seeking for grant of maternity leave from 26-11-2018 to 19-05-2019. The petitioner thereafter delivered on 24-12-2018 and respondent 5 rejected the application. Aggrieved by the refusal to grant maternity leave, present writ petition was filed.

The Court observed that the Office Memorandum dated 11-01-2018 discloses that in respect of Teaching and Non-Teaching Staff they are entitled to 26 weeks of Maternity Leave, subject to the condition that such person must have rendered at least 80days of service in the past 12 months preceding the date of expected delivery, as envisaged in the Maternal Benefit (Amendment) Act, 2017.

The Court further observed that in the present case the application was submitted on 20-11-2018 seeking for maternity leave for 26 weeks which terminated on 19-05-2019 and the petitioner delivered on 24-12-2018. Therefore the petitioner was entitled to the benefit of Maternity Leave even as per Office Memorandum dated 11-01-2018 as by the time she had sought for Maternity Leave, she had put in 80 days of service.

The Court thus held, “this writ petition is allowed and the impugned order passed by respondent no. 5 is quashed. The leave sought for by the petitioner for by the petitioner for the period 26-11-2018 to 19-05-2019 is granted and the same shall be considered as “on duty”.

[Swetha v. Union of India, WP No. 202702 of 2019, decided on 02-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Appearances:

For petitioners: Mr Ameet Kumar Deshpande

For respondents: Mr Sudhirsingh R Vijapur and Sanjeev Kumar C. Patil

Appointments & TransfersNews

Appointment of Acting Chief Justice of Karnataka High Court


President appoints Justice Satish Chandra Sharma, senior-most Judge of Karnataka High Court, to perform the duties of the office of the Chief Justice of that High Court with effect from the date Justice Abhay Shreeniwas Oka relinquishes the charge as Chief Justice of the Karnataka High Court consequent upon his appointment as Judge of the Supreme Court of India.


Ministry of Law and Justice

[Notification dt. 27-8-2021]

Case BriefsHigh Courts

Karnataka High Court: Rajendra Badamikar, J., dismissed the petition being devoid of merits.

The factual matrix of the instant case is that the petitioner being accused 1 was prosecuted for the offences punishable under Sections 380, 457, 458, 382, 201 of Penal Code 1860 i.e. IPC and Section 25(IA) of the Arms Act, 1959. The petitioner was arrested on 06-02-2021 and the supplementary charge sheet was filed on 17-05-2021 under Section 173(8) of Criminal Procedure Code i.e. CrPC. A petition for statutory bail Section 167(2) CrPC was sought on ground that the charge sheet was not submitted within 90 days from the date of his arrest which was thereby rejected and then revision petition was filed which was also rejected. Hence instant petition was filed under Section 439 of CrPC, for setting aside the impugned order.

Counsel for the petitioner Anand R. Kolli submitted that arrest took place on 06-02-2021 and supplementary charge sheet was submitted on 17-05-2021 and as the supplementary charge sheet was not filed within 90 days, as per the statute, he is entitled for statutory bail.

Counsel for respondents Ramesh B. Chigari contended that the charge sheet was submitted against the present petitioner prior to his arrest only. Hence, the provisions of Section 167(2) of CrPC cannot be applicable to him.

The Court observed that the petition is not maintainable as the charge sheet was submitted on 04-01-2021 and the present petitioner was arrayed as accused 1 in the charge sheet. The charge sheet was submitted for the offences punishable under Sections 380, 457, 458, 382, 201 of IPC and Section 25(I-A) of the Arms Act, 1959 against the present petitioner. However, as some of the accused were absconding, the investigation officer in his charge sheet itself sought leave of the Court to submit supplementary charge sheet in due course. The supplementary charge sheet was submitted on 17-05-2021 by collecting some additional material.

The Court observed that as per Section 167(2) Cr.PC the Magistrate can order for detention of the accused for maximum 90 days or 60 days as the case may be if the charge sheet is not filed and investigation is not concluded from the date of arrest. Section 167(2) of Cr.P.C., is applicable only when charge sheet is not laid down and it starts operative when accused is arrested during the course of investigation, but if charge sheet is filed against particular accused and supplementary charge sheet is submitted against other accused or for additional evidence, the provisions of Section 167(2) of Cr.P.C., cannot be applicable.

The Court thus held “the petition is devoid of any merits and is misconceived and hence, it needs to be rejected both on maintainability and as well as on merits.”

[Santosh v. State of Karnataka, Criminal Petition No. 101403 of 2021, decided on 03-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Appointments & TransfersNews

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

1. Justice Neranahalli Srinivasan Sanjay Gowda,

2. Justice Jyoti Mulimani,

3. Justice Nataraj Rangaswamy,

4. Justice Hemant Chandangoudar,

5. Justice Pradeep Singh Yerur, and

6. Justice Maheshan Nagaprasanna


Supreme Court of India

[Statement dt. 17-08-2021]

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Abhay S. Oka, CJ and M. Nagaprasanna, J. dealt with issue of powers which can be conferred on the Court-appointed Administrator for recovery proceedings.

The instant Writ Petition was filed under Articles 226 and 227 of the Constitution of India praying to issue a writ in the nature of mandamus by constituting a team of Auditors to conduct Forensic Audit of accounts and all transactions of Respondent 7 from the year 2010 till 31-12-2020 at the earliest and to constitute a Special Investigation Team headed by High Ranking Officer to investigate the role of every person involved or connected to Respondent 8 Society both by Respondent 2 and by Respondent 5, 6 and 9 being monitored by this Court and submit report thereby.

The present matter deals with the issue of powers which can be conferred on the Court-appointed Administrator of Sri Guru Sarvabouma Souharda Credit Co-operative Limited (for short “the Credit Co-operative”) The said Credit Co-operative is registered under Section 4 of the Karnataka Souhardha Sahakari Act, 1997 (for short “Act of 1997”). Various allegations have been made about several financial irregularities, acts of misappropriation, acts of embezzlement of funds and creation of fictitious accounts to the extent of 500.00 Crores in relation to the Credit Co-operative. It also deals with the cause of the investors of Sri Guru Raghavendra Sahakara Bank Niyamitha (for short “the said Co-operative Bank”) in which the said Credit Co-operative has invested an amount of about Rs 235.00 Crores which it seeks to recover.

In the order of appointment of an administrator for the said credit cooperative, Court observed

“The State Government has appointed a Competent Authority in accordance with sub-section (1) of Section 5 of the said Act of 2004. However, the powers, duties and functions of the Competent Authority under the said Act of 2004 are well defined. The Competent Authority has not been empowered to look after the day-to-day functioning of the Credit Co-operative.

There is no one who can effectively deal with the investors. Therefore, the question is whether a retired Senior Bank Official can be appointed as an Administrator who will ensure that the day-to-day activities of the Credit Co-operative will continue.”

The order also proposed two names out of which Shri K.S. Shyam Prasad, Retired Deputy General Manager, Canara Bank was appointed as an Administrator and it was observed that what powers can be exercised by the retired Bank Officer who is appointed as the Administrator. The Court observed “To enable the Court to decide the said question, we propose to direct the Administrator to take charge of the Credit Co-operative and to examine the records of the said Credit Co-operative. After examining the records and after making a study of the situation at the grass root level, the Administrator will submit a report to this Court stating what according to him are the immediate steps required to be taken for restoring the functioning of the said Credit Co-operative”

The Court observed that apart from the fact that the Court appointed Administrator, it cannot create new liabilities, the act of renewal of the Fixed Deposits may give a false hope to the investors. Therefore, it was proposed to permit the Administrator to renew the Fixed Deposits of the investors on the requisition in writing submitted by each investor stating that he or she is fully aware that even if the Fixed Deposit is renewed, and that there is no guarantee that the principal amount and interest will be paid by the said Credit Co-operative to him/her. Moreover, the investor will have to give undertaking not to make any personal claim against the Administrator on the basis of the renewed Fixed Deposits.

Other powers granted to the Administrator of Sri Guru Sarvabouma Souharda Credit Co-operative Limited, Mr K.S. Shyam Prasad are:

  1. To continue day-to-day functioning of the said Credit Co-operative without creating any liability except the liabilities which are permitted under this order;
  2. The administrator shall be empowered to initiate recovery proceedings against the borrowers of the said Credit Co-operative by issuing notices and by filing appropriate proceedings in accordance with law on behalf of the said Credit Co-operative. For that purpose, the Administrator shall be entitled to engage services of Advocates;
  3. In the event, any borrower comes forward to repay the loan amount, after obtaining a specific leave of this Court, the Administrator shall be entitled to accept the amount due and payable from the borrower, execute necessary documents and issue provisional discharge certificate. The amount received from the borrowers shall be credited to the account of the said Credit Co-operative in the name of the Competent Authority under the said Act of 2004;
  4. We permit the Administrator to accept the upto date amount due and payable from Shri Sreepathi Herele P, to execute necessary registered document of cancellation of mortgage and to issue discharge certificate subject to compliance with the conditions as suggested by the Administrator in his report. The amount received from the said borrower shall be credited to the account of the Competent Authority under the said Act of 2004;
  5. On the request in writing made by any member of the Credit Co-operative holding Fixed Deposits for renewal of the Fixed Deposits, the Administrator is permitted to renew the Fixed Deposits provided the person holding the Fixed Deposit, gives a written undertaking stating that he or she is fully aware that even if the Fixed Deposit is renewed, there is no guarantee that the principal amount and interest will be paid by the said Credit Co-operative. The investor shall also give an undertaking that he will be entitled to receive the principal amount of Fixed Deposit and interest only to the extent permitted under the orders of the Special Court under the said Act of 2004. The investor of the Fixed Deposit will also give an undertaking not to make any personal claim against the Administrator on the basis of the renewal of the Fixed Deposit. Only after such undertakings in writing are given by the investor and after making due inquiry about the genuineness of the Fixed Deposit receipt, the Administrator shall renew the Fixed Deposits;
  6. The Administrator shall submit a report to the Competent Authority under the said Act of 2004 containing details of the amounts payable as on today towards arrears of the salary of the staff, arrears of rent in respect of office premises, arrears of electricity, water and maintenance charges in respect of the office premises, internet charges, sundry expenditures incurred on running of the office. He will also submit an estimate of the amount required per month for meeting the aforesaid expenditure for running the office of the said Credit Co-operative. The Administrator shall also submit an ad hoc estimate of the amount required towards Advocate’s fees. As soon as the details are received, the Competent Authority shall be immediately make an application to the Special Court for permitting the Competent Authority to release the aforesaid amounts to the Administrator. The Special Court shall pass an order on the applications/report submitted by the Competent Authority within maximum period of one month from the date of filing of the report/application by the Competent Authority;
  7. We direct the ED to apply to the Competent Court under the Prevention of Money Laundering Act, 2002, for permitting the said Credit Cooperative toe its office premises for running its office. If such an application is made, the said Court shall decide the same at the earliest;
  8. It will be open for the Administrator to make a requisition for conduct of statutory audit or re-audit of the accounts of Credit Co-operative;
  9. We direct that the Administrators of both the Co-operative Bank and the said Credit Co-operative shall hold regular meetings to sort out various issues arising between two entities;
  10. In the event the Administrator of the Credit Co-operative needs further directions, he will submit a report to the Court through the learned Additional Government Advocate, who will immediately move the Court on the basis of the said report for necessary directions.

The matter will be next heard on 18-08-2021.[K.R. Narsimha Murty v. Secretary Ministry of Co-operative Societies, Writ Petition No. 7350 OF 2020 (GM-RES-PIL), decided on 23-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

IN W.P. NO. 7350 OF 2020

Mr. Sushal Tiwari, Advocate for applicant on I.A.No.12/2020;

Mr. V. Sreenidhi, AGA for R-1 & R-3 to R-6;

Mr. Manmohan P.N. for R-12;

Mr. R.V.S. Naik and Mr. V. Vinay Giri Advocate for R-2 and R-10;

Mr.  Rajesh S.V., Advocate for intervenors;

Mr. A.M. Vijay, Advocate for intervenors;

Mr. Madhukar Deshpande, Advocate for R-11;

Mr. Abhinav R, Advocate for impleading applicant on I.A.No.7/2020;

Mr. S.P.Shankar and Mr. B.V. Malla Reddy, Advocate for impleading applicant on I.A.No.11/2020; R-7 and R-8 are served;

Mr. Halesha R.G., Advocate for impleading applicant on  I.A.No.13/2020;

Mr. Shyam Prasad, Administrator 

IN W.P. NO. 8674 OF 2020

Mr. Satyanand B.S. for petitioners

Mr. V. Sreenidhi, for R-1, R-2, R-4 to R-6 & R-10;

Mr. R.V.S. Naik, Mr. V. Vinay Giri, Advocate for R-3;

Mrs. Vani H, Advocate for R-7

Case BriefsHigh Courts

Karnataka High Court: P. S. Dinesh Kumar, J., dismissed the petitions and did not interfere with the impugned order.

The facts of the case are such that Delhi Vyapar Mahasangh (Respondent 2) is a Society comprising of Micro, Small and Medium Enterprises which filed information alleging contravention of Section 3(1) read with Section 3(4) and Section 4(1) and 4(2) of the Competition Act by Amazon and Flipkart directing an investigation under Section 26(1) of the Competition Act, 2002. It is alleged by the informant that petitioners entered into vertical agreements with ‘preferred sellers’ which led to foreclosure of ‘non-preferred sellers’ from the Online Market places and the complexity involving the parameters of ‘inter platform’, ‘intra-platform’ and ‘inter-channel distribution’. Commission has recorded the existence of preferred sellers, preferential listing etc., in the impugned order. The instant petitions are filed assailing the impugned order of investigation by the Competition Commission of India.

Both the petitioners and the Commission relied on judgment CCI v. SAIL, (2010)10 SCC 744 wherein it was observed

“38. In contradistinction, the direction under Section 26(1) after formation of a prima facie opinion is a direction simpliciter to cause an investigation into the matter. Issuance of such a direction, at the face of it, is an administrative direction to one of its own wings departmentally and is without entering upon any adjudicatory process. It does not effectively determine any right or obligation of the parties to the lis.”

  1. Section 26(1), as already noticed, requires the Commission to form an opinion whether or not there exists a prima facie case for issuance of direction to the Director General to conduct an investigation. This section does not mention about issuance of any notice to any party before or at the time of formation of an opinion by the Commission on the basis of a reference or information received by it.” Language of Sections 3(4) and 19 and for that matter, any other provision of the Act does not suggest that notice to the informant or any other person is required to be issued at this stage. In contradistinction to this, when the Commission receives the report from the Director General and if it has not already taken a decision to close the case under Section 26(2), the Commission is not only expected to forward the copy of the report, issue notice, invite objections or suggestions from the informant, the Central Government, the State Government, statutory authorities or the parties concerned, but also to provide an opportunity of hearing to the parties before arriving at any final conclusion under Sections 26(7) or 26(8) of the Act, as the case may be. This obviously means that wherever the legislature has intended that notice is to be served upon the other party, it has specifically so stated and we see no compelling reason to read into the provisions of Section 26(1) the requirement of notice, when it is conspicuous by its very absence.\\

 The Court also relied on CCI v, Bharathi Airtel, (2019)2 SCC 521 wherein it was observed:

 Even if it is a direction under any of the provisions and not a decision, conclusion or order passed on merits by the Commission, it is expected that the same would be supported by some reasoning. At the stage of forming a prima facie view, as required under Section 26(1) of the Act, the Commission may not really record detailed reasons, but must express its mind in no uncertain terms that it is of the view that prima facie case exists, requiring issuance of direction for investigation to the Director General.

In other words, the Commission is expected to express prima facie view in terms of Section 26(1) of the Act, without entering into any adjudicatory or determinative process and by recording minimum reasons substantiating the formation of such opinion, while all its other orders and decisions should be well reasoned.

The Court thus observed that an order under Section 26(1) of the Act passed by the Commission is an ‘administrative direction’ to one of its wings departmentally and without entering upon any adjudicatory process and Section 26(1) of the Act does not mention about issuance of any notice to any party before or at the time of formation of an opinion by the Commission on the basis of information received by it.

The Court observed that perusal of the impugned order shows that the Commission has analyzed the information under various heads such as exclusive launch of mobile phones, preferred sellers on the market places, deep discounting, and preferential listing of private labels. It has recorded that mobile manufacturing Companies like One plus, Oppo and Samsung have exclusively launched several of their models on Amazon and Vivo, Realme, Xiaomi etc., have exclusively launched several of their models on Flipkart. Commission has noticed that Flipkart has launched 67 mobile phones and Amazon has launched 45 mobile phones exclusively on their platforms. Commission has recorded that petitioners have their own set of preferred sellers and there are only few online sellers which sell the exclusively launched smart phones. Commission has prima facie inferred that there appears to be exclusive partnership between smart phone manufacturers and e-Commerce platforms for exclusive launch of smart phones. It was further recorded that certain smart phone brands/models are available at significantly discounted price on petitioners’ platforms and are sold largely through the sellers identified by informant as ‘preferred sellers’.

The Court further stated that the informant has filed information and appended material papers, which according to the informant support its allegations. It was submitted that the Commission has also called upon the informant to file a Certificate under Section 65B of the Indian Evidence Act and the penalty for incorrect information is upto Rs. One Crore under Section 44 of the Competition Act. 

The Court observed that it is expected that an order directing investigation be supported by ‘some reasoning’ which the Commission has fulfilled and thus held that it would be unwise to prejudge the issues raised by the petitioners in these writ petitions at this stage and scuttle the investigation.[Amazon Seller Services (P) Ltd. v. Competition Commission of India, Writ Petition No.3363 OF 2020, decided on 11-05-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Abhay Sreenivas 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.

The Court relied on judgment Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547 and observed

“Every species has a right to life and security, subject to the law of the land, which includes depriving its life, out of human necessity. Article 21 of the Constitution, while safeguarding the rights of humans, protects life and the word “life” has been given an expanded definition and any disturbance from the basic environment which includes all forms of life, including animal life, which are necessary for human life, fall within the meaning of Article 21 of the Constitution. So far as animals are concerned, “life” means something more than mere survival or existence or instrumental value for human beings, but to lead a life with some intrinsic worth, honour and dignity.”

It was also observed that the instant case is a gross violation of the provisions of the Prevention of Cruelty to Animals, 1960 particularly, Sections 3 and 11.

The Court directed the “Registrar General to file a writ petition seeking action against all those who are responsible for the said incident of monkeys.”

The case will next be taken up on 04-08-2021.[MONKEYS DEATH – SUO MOTU; decided on 30-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of B. Veerappa and V. Srishananda, JJ., allowed the appeal in part and confirmed impugned judgment of conviction and order of sentence.

Background

The instant case is about the accused throwing acid on a girl as she refused to marry him. It caused grievous corrosive injuries on her face, back, hands and caused and thus, disfigured her face and body. A case was registered under Sections 326A, 326B and 307 of Penal Code, 1860 i.e. IPC. The Sessions Judge considered the oral and documentary evidence on record held that the accused is guilty beyond a reasonable doubt, convicted the accused and sentenced him to undergo life imprisonment. Assailing this, the instant present appeal was filed.

Observations

The Court noting the increase in number of acid attack crimes and absence of suitable legislation in this regard in the  Penal Code, 1860 observed that the provisions of Section 326A of IPC came to be introduced by the Legislature by Act 13 of 2013, with effect from 03.02.2013. The object of the amendment is to provide stringent punishment for crimes against women and also to provide more victim-friendly procedure in the trial of such cases and the Committee recommended making a specific provisions to award adequate punishment for such offences which cause grievous hurt by acid attack and also attempt thereof.

The Court observed under the Constitution of India, which is called ‘Bhagavad Gita’, ‘right to life’ is the fundamental right guaranteed and it is the fundamental duty of the State to protect it. An ‘acid attack’ by the accused not only caused physical injuries, but left behind a permanent scar. It is a crime against basic human rights and also violates the most cherished fundamental rights guaranteed under Article-21 of the Constitution of India.

The Court quoted the great saint and scholar of our country – Swami Vivekananda stating “the best thermometer to the progress of a nation is its treatment of its women

The Court observed that the Court cannot shut its eyes to obnoxious growing tendency of young persons like accused resorting to use corrosive substances like acid for throwing on girls, causing not only severe physical damage, but also mental trauma to young girls. In most of the cases, the victim dies because of severe burns and septicemia or even if luckily survives, it will only be a grotesque disfigured person, who even if survives, lives with mangled flesh, “hideous zombie-like appearance and often blind if acid is splashed on face and suffer a fate worse than death”. The imposition of appropriate punishment is the manner in which the Court responds to society’s cry for justice against such criminals. Justice demands that the Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime.

The Court observed that In the case on hand, when the accused is tried for specific offence carved out under the Indian Penal Code for the offence of acid attack, trial Court resorted to Section 307 of IPC, having regard to gravity of offence especially after effects of the acid attack cases discussed supra. The Legislature in its wisdom carved out a separate and distinct offence punishable under Section 326A of IPC., for an action wherein the acid is used as a weapon for attacking the innocent, as is referred to supra and prescribed suitable punishment. Therefore, the action of the accused can be traced to and punished only under Section 326A of IPC and the said action of the accused cannot be tried and punished under Section 307 of IPC along with Section 326A of IPC.

The Court held “learned Sessions Judge is not justified in convicting the appellant/accused for the offence punishable under Section 307 of IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs.50, 000/- with default clause in the facts and circumstances of the case.”

The Court held “learned Sessions Judge under Section 326A of IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 10, 00,000/- with default clause in the facts and circumstances of the case.”

[Mahesha v. State, 2021 SCC OnLine Kar 12987, decided on 22-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For appellants – Mr S G RAJENDRA REDDY

For Respondent- Mr S.RACHAIAH

Case BriefsHigh Courts

Karnataka High Court: M Nagprasanna, J., allowed the petition and quashed the impugned second show cause notice holding The University is at liberty to initiate proceedings against the petitioner under the Service Rules by following the procedures stipulated therein.

The petitioner presently working in the cadre of Professor at the Department of Economics in the University in this writ petition calls in question second show-cause notice dated 5-11-2020 seeking the petitioner to show cause as to why penalty of dismissal from service should not be imposed upon him based upon the report of Internal Complaints Committee as a complaint was lodged by a project student before the Karnataka State Commission for Women alleging sexual harassment by the petitioner while he was functioning as Chairman of Department of Economics

Counsel for the petitioners submitted that the impugned second show cause notice decides to dismiss the petitioner from service and a separate order places him under suspension. The proposal to dismiss the petitioner from service is on the basis of a report of the Committee, without holding any inquiry as required under the Service Rules, as the penalty of dismissal can be imposed only after following the procedure.

POSITION IN LAW: Pre- Legislation

The SC in judgment Vishaka v. State of Rajasthan, (1997) 6 SCC 241 stipulated certain guidelines that were required to be strictly observed in all work places and these directions would be binding until suitable legislation is enacted to occupy the field.

Further in Medha Kotwal Lele v. Union of India (2013) 1 SCC 297 it was observed that the directions given in Vishaka v. State of Rajasthan, (1997) 6 SCC 241 should not remain symbolic and in that light further directions were given.

POSITION IN LAW: Post-Legislation

[Relevant provisions of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013]

“…13(1) (3) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be—

(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;

  1. Every employer shall –

(i) treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct.”

Observations

The Court observed that on a conjoint reading of the Sections 11, 13(3),13(4) and 19 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act along with Rule 7 and 9 of  Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 it emerges that where the Service Rules exist, the report of the Committee becomes a fact finding report or a preliminary report, with regard to the allegation of sexual harassment and the employer becomes duty bound to proceed under the Service Rules before imposing any major penalty.

The Court observed that there are no separate disciplinary Rules for these allegations, the Rules that are obtaining in the University which deal with imposition of penalty for any misconduct, are the Statutes Governing Classification, Control and Appeal Rules of Employees of Mangalore University

The Court observed that in terms of the Service Rules no penalty can be imposed against an employee except after following the procedure stipulated in terms of the Rules as aforeextracted. Dismissal from service is one of the major penalties depicted under Rule 7. Rule 11 deals with procedure for imposing penalties and begins with a non-obstante clause that no order imposing any of the major penalties specified in sub-rule 4(b) to 8 of which dismissal from service is a part, can be imposed, except after following the procedure stipulated under the aforesaid Rules. Rule 11-A deals with action on the Inquiry Report. These procedures have to be followed if an employee is to be imposed any of the penalties under the Rules. A reading of Section 9(i) of the Act in juxtaposition with the aforesaid Rules makes it unmistakably clear that the Act itself directs that the case of sexual harassment would be treated as misconduct under the Service Rules and action to be taken as such. If the Act directs it to be treated as misconduct under the Service Rules that will have to be dealt with under the Rules (supra) and procedure to be followed prior to imposition of such penalty as found in the Service Rules.

The Court relied on judgment Vijayakumaran C.P.V. v. Central University of Kerala, 2018 SCC OnLine Ker 22418 wherein it was held

  1. Upon receipt of complaints from aggrieved women (girl students of the University) about the sexual harassment at workplace (in this case, University campus), it was obligatory on the Administration to refer such complaints to the Internal Committee or the Local Committee, within the stipulated time period as predicated in Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (for short “the 2013 Act”). Upon receipt of such complaint, an inquiry is required to be undertaken by the Internal Committee or the Local Committee in conformity with the stipulations in Section 11 of the 2013 Act. The procedure for conducting such inquiry has also been amplified in the 2015 Regulations. Thus understood, it necessarily follows that the inquiry is a formal inquiry required to be undertaken in terms of the 2015 Regulations. The allegations to be inquired into by such Committee being of “sexual harassment” defined in Section 2(n) read with Section 3 of the 2013 Act and being a serious matter bordering on criminality, it would certainly not be advisable to confer the benefit on such employee by merely passing a simple order of termination. Such complaints ought to be taken to its logical end by not only initiating departmental or regular inquiry as per the service rules, but also followed by the other actions as per law. In such cases, a regular inquiry or departmental action as per service rules is also indispensable so as to enable the employee concerned to vindicate his position and establish his innocence. We say no more.
  2. A priori, we have no hesitation in concluding that the impugned termination order dated 30-11-2017 is illegal being ex facie stigmatic as it has been issued without subjecting the appellant to a regular inquiry as per the service rules. On this conclusion, the appellant would stand reinstated, but whether he should be granted back wages and other benefits including placing him under suspension and proceeding against him by way of departmental or regular inquiry as per the service rules, is, in our opinion, a matter to be taken forward by the authority concerned in accordance with law.

 The Court thus held “no penalty can be imposed against the petitioner on the basis of the report of the committee in terms of the Service Rules of the University without holding any inquiry as obtaining under the Service Rules.”

[Dr Arabi U. v. Mangalore University; 2021 SCC OnLine Kar 12858; decided on 20-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For petitioner: Mr. Sushil Kumar Jain and Mrs. Revathy Adinath Narde

For respondent: Mr. Madhusudhan R Nair, T. P. Rajendra Kumar Sungay, Mrs. Shrividya Zirali and Shivaprasad Shantanagoudar

Hot Off The PressNews

Karnataka Government on Wednesday decided in favour of 1% horizontal reservations to be given to the transgender community in government jobs, after it did not receive any objections to the draft notification in so far as the amendment to Rule 9 is concerned within the stipulated time.

The State of Karnataka issued a notification with Draft rules namely Karnataka Civil Services (General Recruitment) Rules, 1977 on May 13 proposing to amend Rule 9 by inserting Sub Rule 1 D providing 1 % vacancies to be filled in any post or service by the state government from among the transgender candidates in each category of general, Scheduled Castes, Scheduled Tribes and in each of the categories among the Other Backward Classes.

In the case of Sangama v. State, WP No. 8511 of 2020, Division bench of Abhay Shreeniwas Oka, CJ and Suraj Govindaraj, J. was informed by the State that Department of Personnel and Administrative Reforms State has taken steps to amend the Karnataka Civil Services (General Recruitment) Rules, 1977 and subsequently, on July 6 amended it by inserting sub-rule (1D) to the Rules which reads as follows:

 “Notwithstanding anything contained in the rules of recruitment specially made in respect of any service or post, in all direct recruitment one percentage of vacancies set apart for that method in each of the categories of General Merit, Scheduled Castes, Scheduled Tribes and in each of the categories among Other Backward Classes shall, subject to any general instructions that may be issued by the Government regarding the manner of appointment, be filled from among transgender candidates:

Provided that, every Appointing Authority shall provide a separate column of “Others” along with male gender and female gender in the application for recruitment to any category of Group-A, B, C or D posts for the convenience of transgender persons. The Recruitment Authority or the Appointing Authority shall not discriminate a transgender person while making selection of appointment to any category of post.

Provided further that, if sufficient number of eligible transgender persons are not available, to the extent of one per cent, the unfilled vacancies shall be filled by male or female candidates, as the case may be, belonging to the same category.

Explanation: For the purpose of this sub-rule a Transgender Person shall have the same meaning as defined in Clause (k) of Section 2 of the Transgender Persons (Protection of Rights) Act, 2019 (Central Act 40 of 2019)”.


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Karnataka High Court: M Nagaprasanna, J., allowed the petition and quashed the impugned endorsement.

The petitioners in the instant writ petition challenge the endorsement dated 23-12-2020 which declined to grant an appointment on compassionate grounds to the 1st petitioner and have sought for consequential direction by issuance of a writ in the nature of mandamus directing the respondents to consider the case of the 1st petitioner for an appointment on compassionate grounds qua his qualification.

Counsel for the petitioners Mr Ashwini O. submitted that the appointment on compassionate grounds was denied on the basis of a Rule that came about on 26-09-2017 which was long after the death of the breadwinner of the family and the application being given by the petitioners for appointment on compassionate grounds.

Counsel for the respondents Mrs M C Nagashree submitted that there is no right to the applicants to seek an appointment on compassionate grounds as it can be only in terms of the policy or the Rules as the case would be. Since there was no vacancy existing in the post of Second Division Assistant in any of the Aided Institutions, the appointment of the 1st petitioner was declined to be considered for the present.

The Court observed that consideration of applications for appointment on compassionate grounds in the State is regulated under the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996. In terms of the afore-extracted Rules appointment shall be confined to any post in Group-C or Group-D depending on the qualification specified for the post and appointment once made under these Rules shall be final.

The Court relied on judgment Canara Bank v. M .Mahesh Kumar, (2015) 7 SCC 412  wherein it was observed:

  1. ….it is apparent that the judgment specifically states that claim of compassionate appointment under a scheme of a particular year cannot be decided in the light of the subsequent scheme that came into force much after the claim. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve.

“….That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve.”

The Court further relied on Lalitha Laxman Kundargi v. Managing Director, 1999 SCC OnLine Kar 329  wherein it was observed:

“…..9. Therefore, the proper and equitable way in which Rule 9 of the new scheme dated 3.4.1997 can be interpreted is thus; If the application filed by the dependent family member under the old scheme is pending on the date when the new scheme came into force, on account of any negligence or want of compliance by such applicant, it should be disposed of under the new scheme. If the application was kept pending by the Corporation for no fault of the applicant, but due to delay in consideration by the Corporation and if the old scheme is more beneficial to the applicant, the applicant is entitled to require the employer to consider such application, in terms of the old scheme which was in force on the date of death and date of application.”

The Court observed that in the light of the law declared so far by Courts, the application given by the petitioners on 11-09-2015 had to be considered qua the Rules obtaining at that point in time and not the one that was subsequently notified and now made use of to deny appointment to the 1st petitioner. Therefore, on both the counts, one being the change in the Rules and non-existence of vacancies, on which the impugned endorsement is issued is untenable and is consequently rendered unsustainable. Compassionate Appointment Rules also depict grant of appointment to the applicant on compassionate grounds in Group-C or Group-D owing to the qualification possessed.

The Court further observed that the delay of 6 years is not attributable to the petitioners as the application for compassionate appointment was given within two months after the date of death of the father. Keeping the application pending for years or months will defeat the very object of framing the Rule for grant of appointment on compassionate grounds. Therefore, the need for immediate consideration of such representations/applications for appointment on compassionate grounds is paramount.

The Court observed that if giving of an application within one year is held to be mandatory and binding on the applicant in terms of Rule 5, so would be sub-Rule (2) of Rule 6 upon the State and its instrumentalities. Though the Rule employs the words ‘as far as possible’ it is preceded by the word “shall”. Looking at the mandatory duty cast upon the applicant to file an application within one year from the date of death of the bread winner, the same duty is required to be mandatorily followed by the State in terms of sub-rule (2) of Rule-6 in the wake of the object of framing the rule and the duty that enjoins such object. Any unreasoned or unjustifiable delay on the part of the Authority competent to consider would make such Authority personally responsible to pay damages to such applicant by way of wages that the applicant would be entitled to, if an appointment had been considered and granted.

The Court thus held “Mandamus is issued to the respondents to reconsider the case of the 1st petitioner for appointment on compassionate grounds in terms of sub-rule (4) of Rule 4 of the Rules”[Hruthik N. v. Deputy Director of Public Instructions, 2021 SCC OnLine Kar 12910, decided on 12-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Abhay S Oka, CJ and Aravind Kumar, J., extended the date for all interim directions issued on 16th April, 2021 and 22nd April, 2021.

 The interim directions are as under:

  1. Interim Directions dated 16-04-2021
  • All interim orders passed by the Karnataka High Court (principal seat and Benches at Dharwad and Kalaburagi), all the District Courts, Civil Courts, Family Courts, Labour Courts, Industrial Tribunals and all other Tribunals in the State over which this Court has the power of superintendence which are due to expire in the period between 17th April, 2021 and 29th May, 2021 will continue to operate till 29th May, 2021.
  •  Any orders of eviction, dispossession or demolition have been passed by the High Court, District Courts or Civil Courts, the same shall remain in abeyance till 29th May, 2021.
  • If any party desires to apply for vacating the interim orders, it will be open for the said party to apply to the concerned Courts/Tribunals praying for vacating the orders. If such applications are made, the Courts/Tribunals are free to consider the same in accordance with law without being influenced by continuation of interim reliefs by this Court.
  1. Interim Directions dated 22-04-2021
  • The Court directed that all the interim orders of bail and pre-arrest bail passed by various Criminal Courts in Karnataka which are likely to expire between 23rd April, 2021 and 29th May, 2021 shall stand extended to 29th May, 2021. However, if applications are made by the State or prosecuting agency or by any person for cancellation of the bail, the concerned Courts will hear such applications in accordance with law”.

The Court further directed that “the interim directions issued on 16th April, 2021 and 22nd April, 2021 which is quoted above shall continue to operate till 2nd August, 2021.”

[Mohammed Arif Jameel v. Union of India, WP NO. 6435 of 2020, decided on 02-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsCOVID 19High Courts

Karnataka High Court: A Division Bench of B. V. Nagaratha and Hanchate Sanjeev Kumar, JJ., dismissed the petition being devoid of merits.

 The instant writ petition was filed under Articles 226 and 227 of the Constitution of India seeking appropriate writ or order or direction in the nature of mandamus or any other appropriate writ, order or direction be issued to the respondents to ensure that NEET Exams should not be postponed for a further period of four months from the earlier stipulated date i.e. 18-4-2021.

It was submitted by the petitioners that on account of the postponement of NEET, one day prior to the date it was to be held (it was to be held on 18-4-2021) i.e., on 17-4-2021, the doctors, aspirants for post-graduate studies, are suffering from stress, anxiety and depression as their plans to study post-graduation has been unsettled on account of procrastination. It was also submitted that the said decision to postpone the holding of NEET, a day prior to the date of Test, was not in accordance with law and the said decision is an arbitrary one and hence, the same has been assailed.

Counsel for the respondents submitted that the said decision is a policy decision which is very sound and it may not be interfered with by this Court, as it is not an arbitrary decision but having regard to the serious nature of the resurgence of COVID-19 pandemic. It was also submitted that Courts do not intervene in academic schedules and matters, which are purely academic in nature.

Learned Assistant Solicitor General submitted that the dates would be notified for holding NEET after 31st August, 2021 after giving time for preparation by the aspirants.

The Court observed that that the postponement of NEET was on account of the circumstances as they emerged and based on the views of the experts. This is not a case where there is the cancellation of NEET this year but only of postponement of the Test from April-2021 to a period subsequent to 31st August, 2021 due to “second wave” of the COVID-19 pandemic.

The Court further observed that Supreme Court declined to approve postponement of the exam last year as the pandemic was not as severe last year, the doctors including NEET aspirants were not requested to perform duties during this “second wave” of the pandemic. But, if such doctors have offered their services during the period April-July, then they would require time to prepare for the Test. Hence, the postponement of NEET will be beyond 31st August 2021.

The Court heldwe find no merit in the writ petition. Hence, it is dismissed.”[Late G.B. Kulkarni Memorial Legal Trust v.  Principal Secretary to Prime Minister of India, 2021 SCC OnLine Kar 12692, decided on 10-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

Counsel for petitioner: Mr. Vinod G.Kulkarni (party-in-person)

Cousnel for respondents: Mr. M.B.Naragund and Mr. Madhukar Desphande

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Abhay Shreeniwas Oka, CJ and Aravind Kumar J. gave a slew of directions regarding vaccine allocation.

The following recommendations have been accepted by the Government of India

(a) The second dose of COVISHIELD can be administered after an interval of 12 to 16 weeks from the date of the first dose instead of the interval of 6 to 8 weeks; and

(b) The interval between the two doses of COVAXIN of 4 to 6 weeks remains unchanged.

The Court thus directed “it is imperative for all concerned to ensure that the recommendations of the body of experts which are accepted by the Government of India are followed in its true letter and spirit.”

Submissions made by State and Central Government

  • The Mission Director, National Health Mission has addressed letters to the Deputy Commissioners of all Districts and Special Commissioner of the Bruhat Bengaluru Mahanagara Palike (BBMP) to utilise 100% of the allocated vaccines for the second dose.
  • All Health Care Workers and Frontline Workers in the age group of 18 to 44 years can also avail the second dose of vaccine.
  • 70% of the allocated doses of COVISHIELD and 100% of the allocated doses of COVAXIN have been ordered to be kept reserved for the second dose
  • The administration of the first dose of COVAXIN has been stopped and first dose of COVISHIELD is being administered only to the Health Care Workers and the Frontline Workers
  • 9,17,310 free doses will be supplied by the Central Government to Karnataka and 7,04,050 doses can be directly procured by the State

COVISHIELD

The Court observed that “as far as COVISHIELD is concerned, looking at the larger picture, by taking the aforesaid figures as correct, there is going to be a huge shortage. The State Government will place on record what efforts it has made to procure 7, 04,050 doses.”

COVAXIN

The Court after taking stock of the situation observed “one-third of the beneficiaries who have completed six weeks will get the second dose and the remaining two-third will not get it. This is a very sorry state of affairs.”

The Court directed the State Government to place on record what steps it has taken to procure 2,44,170 doses of COVAXIN.

The Court further observed that “Both the Governments are under an obligation to see that everyone who has taken the first dose must get the second dose within the time interval fixed by the experts.”

Administration of the second dose

It was observed that the State Government cannot create a situation in which those who are above 60 years do not get the second dose, but those who are in the age group of 44 to 60 years get the second dose. The second aspect is about the administration of the first and second dose of vaccines by the private agencies.

The Court observed, “the Central Government will have to take a stand on this issue whether in the context of the situation prevailing in the State of Karnataka; the private agencies can be permitted to administer the first dose of vaccine.”

[Mohammed Arif Jameel v. Union of India,  2021 SCC OnLine Kar 12466, decided on 20-05-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Karnataka High Court: R Devdas, J., disposed of the petition leaving it on  National Law School of India University to approach UGC for attaining the Institutions of Eminence status.

The facts of the case are such that the petitioner National Law School of India University, Bengaluru, is before the Court, aggrieved by a public notice dated 19.07.2016 issued by respondent-UGC by which it has curtailed the physical jurisdiction of the Universities and higher educational institutions in the country in the matter of Open and Distance Learning and provided that in the matter of distance education, a University which is established or incorporated by or under a State Act shall operate only within the territorial jurisdiction allotted to it under the Act and in no case it shall operate beyond the territory of the State where it is located.

Counsel for the petitioner submitted that by placing a restriction on the territorial jurisdiction, the UGC has violated the right of the petitioner under Articles 14 and 19 (1)(g) and the Right to Education under Article 21-A of the Constitution of India. It was further submitted that UGC is established under an Act of the Parliament for maintenance of standard of education in the country, but the impugned public notice, communication and Regulations, 2017 travel beyond the powers of the UGC. It is contended that such restriction is inconsistent with the object and nature of distance education.

Counsel for the respondents relied on judgment Prof. Yashpal v. State of Chhattisgarh, (2005) 5 SCC 420 submitted that establishment of a University conferring the legal status, but lacking in all the basic requirements, is clearly contrary to the constitutional scheme and is not contemplated by Article 246 of the Constitution.  It was further submitted that on establishment of the UGC (Institutions of Eminence Deemed to be Universities) Regulations, 2017, the UGC has made provision to create a distinct category of Deemed to be Universities, called ‘Institutions of Eminence Deemed to be Universities’ which would be regulated differently from other Deemed to be Universities so as to evolve into institutions of world class in a reasonable time period.

The Court observed that Regulations framed by UGC to determine standards of education, become part of the UGC Act and the same are applicable to both Open Universities as well as conventional formal Universities and in that respect, the alternative system envisaged under IGNOU Act, was not in substitution of the formal system. The distinction lay rather in the mode and manner of imparting education and hence, any Degree awarded in violation of Regulation-II of the UGC Regulations of 1985 by a University under Open University system, was held to be void.

The Court thus held “Now that the UGC has come up with the UGC (Institutions of Eminence Deemed to be Universities) Regulations, 2017, making provision to create a distinct category of Institutions of Eminence Deemed to be Universities, which would have the benefit of establishing Off-campus centres and Offshore campus, the petitioner University is free to make an application seeking declaration as ‘Institutions of Eminence Deemed to be Universities’.”

[NLSIU v.UGC, Writ Petition No. 63550/2016, decided on 19-05-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

Counsel for petitioners: Mr. Adithya Sondhi and B V Nidhishree

Counsel for respondents: Mr. Showri HR and Ms. Madavi

Case BriefsCOVID 19Supreme Court

Supreme Court: The bench of Dr. DY Chandrachud and MR Shah, JJ has dismissed the petition filed by the Central Government challenging the Karnataka High Court decision directing it to increase the cap on the supply of oxygen to the State of Karnataka with immediate effect to 1200 MT per day.

The High Court had also observed that depending upon the decision taken by the Union Government on the representation, the Court would consider passing further orders during the course of the next week on the quota of oxygen for the State of Karnataka.

Solicitor General Tushar Mehta had urged before the Court that the issue of allocation is of pan-India concern and allocations would become unworkable if directions are issued under Article 226 of the Constitution. Moreover, the Union Government was willing to engage with the State government and convene a meeting for resolving the demand of the State of Karnataka for the supply of oxygen.

The allocation for the State of Karnataka stood at 802 MTs prior to 30 April 2021 and has been increased to 856 MTs from 1 May 2021 and 965 MTs from 5 May 2021. The minimum requirement of the State, as projected by the State Government on 5 May 2021, was 1162 MT.

The Supreme Court noticed that the High Court had furnished adequate reasons for issuing a calibrated ad-interim direction.

“The direction of the High Court is evidently an ad-interim direction, subject to such calibration as would be necessitated after the State of Karnataka and the Union Government have mutually attempted to resolve the issue. The order of the High Court does not preclude a mutual resolution by the two governments, since the proceedings are still pending.”

The Court said that the order of the High Court was based on the need to maintain at least a minimum requirement as projected by the State Government until a decision on the representation is taken and the High Court is apprised.

[Union of India v. Mohammed Areef Jameel, 2021 SCC OnLine SC 377, order dated 07.05.2021]


For Union of India: Tushar Mehta and Aishwarya Bhati, ASG, Advocates Rajat Nair, Kanu Agrawal, Amit Mahajan, Prashant Singh B, Raj Bahadur Yadav, AOR Mr. Gurmeet Singh Makkar, AOR Mr. B. V. Balaram Das, AOR

For Respondents: Senior Advocates Sajan Poovayya and Devdutt Kamat, AOR Vikram Hegde and Anantha Narayana M.G, Advocates Hima Lawrence, Shantanu Lakhotia, Pratibhanu Kharolla, V.C. Shukla, Aditya Bhat, Anantha Mohan Rao, Ankit Verma.