Case BriefsHigh Courts

Jharkhand High Court: Dr S.N. Pathak, J. dismissed the instant writ petition being devoid of merit.

The brief facts of the case are that the petitioner was appointed as an Assistant Teacher by the State Government in 1994 on qualifying BPSC exam for the same post. After a long service, he was given the charge of Headmaster in Upgraded Middle School, Khudgadda in Bokaro where he was performing his duties honestly and diligently. However, on 07.06.2010 an inspection was held in the petitioner’s school by the Block Development Officer, Gomiya on the basis of complain made by Gomiya Block President of Jharkhand Vikas Morcha on grounds of irregularity in civil work, irregularity in Mid-Day-Meal Scheme, and non-providing of the equipments of sports and instruments of music to the students under ‘Sarv Shiksha Abhiyan’, consequent to which DSE, Bokaro passed an order of suspension. However, the DSE, Bokaro, revoked suspension order and passed punishment order. Aggrieved by the same, the petitioner filed a Service Appeal before the Divisional Commissioner, North Chhotanagpur Division, Hazaribag , but the same was dismissed. Hence, the instant writ petition.

The counsel for the petitioner, Bhawesh Kumar placed reliance on Supreme Court’s decision in, M.V. Bijlani v. Union of India, (2006) 5 SCC 88 and submitted that the act of the respondents was beyond their jurisdiction and politically motivated as no opportunity of hearing was given to the petitioner, neither any explanation nor any show cause notice was issued to him, which amounts to violation of principles of natural justice. He further submitted that construction of building is under taken by the school committee constituted for this purpose under supervision of an engineer and there is no misappropriation by the petitioner.

The counsel for the respondents, Brij Bihari Sinha opposed and submitted that in response to charges, petitioner filed a show cause, which was not found satisfactory and a detailed enquiry was held and the petitioner was found guilty of the charges. Considering the enquiry report and other relevant facts, the DEO passed the order of minor punishment and as such, there is no illegality in the impugned order.

The Court relying on the judgment State of Bihar v. Phulpari Kumari held that the petitioner has been found guilty due to lack of evidence proving otherwise as there was no procedural laches in the proceedings rather a full-fledged enquiry was conducted following the provisions of natural justice and an ample opportunity was given to the petitioner. It was further observed that interference with orders passed pursuant to departmental enquiry can only be in case of ‘no evidence’; sufficiency of evidence not being within realm of judicial review.[Vinod Kumar Prasad v. State of Jharkhand,  2020 SCC OnLine Jhar 278, decided on 06-03-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of L. Narayana Swamy, CJ and Jyotsna Rewal Dua, J., dismissed an application which was filed by the petitioners challenging an order dated 10-05-2016 given by the H.P. Administrative Tribunal, Shimla (Tribunal) whereby the T.A. was allowed and the termination against the respondent was quashed and set aside.

The respondent had been working as daily waged Chowkidar with the petitioners- Corporation and was posted at Sehral Depot of Forest Working Unit Kunihar under Forest Working Division, where theft of 229 of resin filled tins took place on the intervening night of 17th and 18th February, 1997 after which an enquiry was initiated against the respondent. The petitioners-Corporation had issued a show-cause notice to the respondent alleging that he had been willfully absent from duty on the intervening night of 17th and 18th February, 1997 following which the services of the respondent were dispensed. Being aggrieved by the order of termination the respondent had approached the Tribunal who had decided in favor of the respondent and thus the instant writ petition was filed by the petitioner.

The Court while dismissing the petition held that a person, who was working as a daily wager or on contract basis and if his services have been discontinued or terminated on the basis of any allegation of misconduct etc., the provisions of the Central Civil Services (Conduct) Rules, 1964 are not applicable to his case, however, even then the principles of natural justice are required to be followed and if an order was passed against a person without affording him an opportunity of hearing, it is in violation of natural justice. In addition, the petition needs to be dismissed on the ground of delay and laches because the writ was filed after three years of the order. [H.P. State Forest Development Corporation Ltd. v. Ishwar Dutt, 2019 SCC OnLine HP 2199, decided on 18-12-2019]

Case BriefsHigh Courts

Uttaranchal High Court: Sudhanshu Dhulia, J., contemplated a petition presented before him by the petitioner who was a member of Waqf Board and was subsequently disqualified, aggrieved by which he filed the instant petition.

The petitioner was disqualified in terms of Section 20 read with Section 16 of the Waqf Act, 1995. Section 16 talked about disqualification for being appointed or for continuing as a member of the Board if certain conditions are not followed also Section 20 talked about “removal of chairperson and member” when a person was subjected to disqualification under Section 16.

The case of the petitioner was that on the earlier occasion when he was a member of the Waqf Board for the term of five years (i.e. 22-06-2010 to 22-06-2015), but he was removed in 2012. The petitioner challenged the order before the Waqf Tribunal where his petition was allowed and the order by which he was removed as a member of the Waqf Board was set aside by the Waqf Tribunal.

The reason cited by the respondent was that on a previous occasion he was removed from his office as a member or as a Mutawalli. However, the order by which the petitioner was earlier removed as a member of the Waqf Board was set aside by the judicial order, and therefore, that order does not survive. It was contended that the order passed by the respondents was unreasonable and the petitioner was not given an opportunity of being heard.

Learned State counsel D.S. Patni and M.S. Rawat argued that the petitioner had an equally efficacious remedy to file an appeal before the Tribunal under Section 83 of the Waqf Act, 1995.

High Court observed that though the petitioner had a remedy under sub-section (2) of Section 83 of the Waqf Act, 1995 however, in this particular case the existence of an alternative remedy before the Tribunal not operated as a bar inasmuch as the present order had been passed without affording opportunity of hearing to the petitioner.

It was held that, “This is for the reason that in case the law provides a remedy at two stages i.e. one before the concerned authority and later before the appellate authority, both opportunities have to be fair and must comply with the norms of natural justice and fair play. It does not mean that the authority can pass an order in violation of principle of natural justice and fair play and the same shall stand cured if the appellate authority gives an opportunity of hearing to the petitioner. At both the stages, the petitioner was required to be given an opportunity of hearing in terms of principle of natural justice and fair play, which has not been given in the present case.”

Hence, the petition was allowed.[Haji Rao Sharafat Ali v. State of Uttarakhand, 2019 SCC OnLine Utt 893, decided on 23-08-2019]

Case BriefsHigh Courts

Uttaranchal High Court: Sudhanshu Dhulia, J. entertained a writ petition related to the enhancement of fee, where the petitioner who was a private institute initially took lesser fee from the student which was half of the enhanced fee, because the fee towards sports, internet, technology and personal effective and employability enhancement fee was waived. 

It was contended by the petitioner that the students took admission in the first year, completed studies and were promoted to the second year, but the same fee structure was continued for the second year as well. But the petitioner maintained that though a certain amount of fee was waived the fee structure was always same i.e. the enhanced fee. Learned counsel for the petitioners had fairly stated that they were not pressing the fee structure as that was futile and the only academic question was left before this Court.

On the contrary, the students-respondents contended that when the same reduced fee structure was charged in the second year as well they had a genuine expectation, in fact, a legitimate expectation that for the next year onwards the same fee would be charged. But the institute-petitioner insisted on payment of the fee, which was just double of what they were paying in the third year. 

Hence they moved an objection before the Ombudsman, who gave its decision in their favor and held that the demand for raised fee made by the institute was not justified. Aggrieved, the institute has filed the present petitions before this Court. By the time the petitioner forwarded his claim all the alleged respondents had completed their studies. 

The Court observed that the Ombudsman had been appointed by the Government notification to look into the disputes between the students and the management, which included the fee structure. There was no question on the jurisdiction of the Ombudsman in the instant petition.Hence the “writ petitions were disposed of with the direction that in future the Ombudsman though would always be at liberty to look into the matter including the matter regarding the fee structure, but while doing so he shall take into consideration whether the fee demanded by the institute was as per the approved fee structure i.e. what had been approved by the Fee Regulatory Committee of the students, whether the students were well apprised of the fee structure at the time when they took admission, any catalogue of such fee had been given and there was no change of fee during midstream. Suffice it to say that principles of natural justice would be followed in its letter and spirit”.[SelaQui Academy of Higher Education v. Lokpal, Uttarakhand Technical University, 2019 SCC OnLine Utt 586, decided on 05-07-2019]

Case BriefsHigh Courts

Jharkhand High Court: Ananda Sen, J. set aside the order of termination and the decision of the Screening Committee CISF, with a direction to reconsider the case of the petitioner.

The petitioner was appointed as constable in CISF. Later Assistant Commandant to CISF informed that the petitioner was involved in a criminal case earlier and this information was sought for by the screening committee. The petitioner submitted the relevant document stating that he had been involved in a land dispute between his family and others and a case had been instituted against him. He also submitted that he was never taken into custody and was finally acquitted. The services of the petitioner were terminated without any hearing. As the letter of termination did not follow the principle of natural justice, the termination order was set aside. Later the petitioner got a show cause notice as to why his services should not be terminated as in the attestation form it was asked that whether the petitioner was involved in any prosecution and he mentioned “no”. Thus on the ground of suppression of factual information and on the ground of furnishing false information, the petitioner was dismissed from service. This order was under challenge before Court.

The respondents filed a counter affidavit stating the petitioner had suppressed the fact that he was prosecuted. They brought on record the guidelines and submitted that a candidate was required to declare as to whether he had been arrested, prosecuted or convicted. If the candidate did not disclose the correct facts, his candidature and appointment could be cancelled.

Reliance was placed on judgment Avtar Singh v. Union of India, (2016) 8 SCC 471 where it was directed that if incumbent was of young age and had done some petty offence, which if disclosed, would not have rendered an incumbent unfit for the post in question, the employer may, in his discretion, ignore such suppression of fact or false information by condoning the lapses. Thus, discretion had been granted to the employer to decide whether in a case of suppression, the offence is trivial in nature or not.

The Court set aside the order of termination and the matter was sent before the screening committee again to decide whether suppression of the fact is fatal on the facts of the criminal case, which was instituted against the petitioner.[Sandeep Kumar v. Union of India, 2019 SCC OnLine Jhar 498, decided on 14-05-2019]

Case BriefsHigh Courts

Jharkhand High Court: Sujit Narayan Prasad, J. entertained a writ petition against the rejection of application for issuance of Caste certificate to the aggrieved petitioner.

Petitioner had categorically averred that a Caste certificate was issued to him, which proved ‘Ghatwar’ as his particular caste. Since he belonged to the area pertaining to the Santhal Pargana province, wherein, the competent authority while issuing the said Caste certificate had considered the survey settlement of the district of Mango, whereby ‘Ghatwar’ caste was treated to be the sub-caste of the ‘Bhumij’, but the said caste certificate had been rejected under impugned order, no reason was assigned to him for the said rejection.

Petitioner questioned the decision, mainly on the ground that the same was in violation of the principles of natural justice and the decision was without any reason and based upon the Notification of the State of Jharkhand which cannot override the Presidential Order by virtue of it the ‘Bhumij’ caste has been brought under the purview of the VIth Schedule and since ‘Ghatwar’ is sub-caste of ‘Bhumij’, hence the petitioner being ‘Ghatwar’ was of Scheduled Tribe category.

Rajendra Krishna, learned counsel for the petitioner had assailed the aforesaid order on the grounds, firstly that the caste certificate was cancelled without conferring show cause notice to the petitioner, therefore, the rejection order was in violation of the principles of natural justice and secondly, before rejecting, the competent authority had referred the matter to Caste Scrutiny Committee, as was previously decided by the Supreme Court in Kumari Madhuri Patil v. Addl. Commr., (1994) 6 SCC 241.

Respondent-State submitted that the State of Jharkhand had come out with a notification, as contained under Annexure-D, by which the ‘Ghatwar’ caste has been treated to be under the BC category and therefore, the competent authority by taking the aid of the said notification, had cancelled the caste certificate without any reasons.

The Court held, “It is settled position of law that a decision without any reason will be said to be not sustainable in the eyes of law, because the order in absence of any reason, also amounts to the violation of the principles of natural justice.” It further observed that no reason for rejection was assigned or reflected on the face of order; State had a duty to assign reason when it made such an adverse decision. Court, didn’t grant any relief as the Caste Scrutiny Committee had been constituted with the State of Jharkhand as informed, therefore, it was appropriate, just and proper to accord liberty to the petitioner to approach before the Caste Scrutiny Committee for redressal of his grievance.[Jit Lal Ray v. State of Jharkhand, 2019 SCC OnLine Jhar 660, decided on 26-04-2019]

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S.K. Mishra and Dr A.K. Mishra, JJ., dismissed the writ petition against the judgment declining interference in the disciplinary proceeding and order imposing the punishment of compulsory retirement.

The facts of the case were that appellant-petitioner was appointed as an officer of the Indian Bank as Inspecting Manager at Kolkata. He was entrusted with the inspection of banks at different places for which the bank had to pay the bill for lodging. The Deputy Manager General, on finding the irregularity asked for the explanation which was duly submitted but was not appreciated and appellant-petitioner alleged to be dishonest under the Indian Bank Officer Employees’ (Conduct) Regulations, 1976. A disciplinary authority thus imposed a major penalty of compulsory retirement. The appeal and review petition filed before the reviewing authority was dismissed and hence, this writ.

The Judgment of the Single Judge Court after submission held that the court had the jurisdiction to entertain the writ petition. The court further held that the court could not interfere with the enquiry, appellate and reviewing authority in absence of the procedural irregularities. The Court further held that “The power of judicial review to scan the evidence, which had reached finality on the basis of concurrent finding, was found uncalled for in the facts placed and law analyzed.”

The matter was then called for Division Bench which observed the Judgment of Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423 in which the court made it clear that the writ of certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. where lower courts either without jurisdiction, or in excess of jurisdiction or acting in flagrant disregard of law or rules of procedure or acting in violation of the principles of natural justice, pass an order thereby occasioning failure of justice. Thus, the impugned judgment of the learned single judge was found to have the support of law and facts. Thus, writ dismissed. [Abhiram Samal v. Indian Bank, 2019 SCC OnLine Ori 198, decided on 01-05-2019]

Case BriefsHigh Courts

Calcutta High Court: Debangsu Basak, J., dismissed a petition filed by State Fisheries Development Corporation relating to a land dispute with the State.

The petitioner was a Government of W.B. undertaking engaged in the business of pisciculture. It obtained land from the District Administration. According to the petitioner, the State was now wrongfully seeking to resume possession of land. It was stated that the State was not entitled to do so in view of Section 8 of the W.B. Inland Fisheries Act, 1984. However, the District Magistrate initiated proceedings for eviction of the petitioner. The petitioner filed a writ petition that resulted in requiring the DM to give fresh hearing to the petitioners. Accordingly, the DM heard the parties afresh. The petitioner was represented before the DM. A prayer for adjournment was made which was rejected. Thereafter, the DM ordered the eviction of the petitioner.

 Shanti Das, Advocate for the petitioner submitted that the said rejection resulted in the violation of principles of natural justice and therefore the order of the DM was not sustainable. Per contra, Sakya Sen, Advocate appearing for the respondent supported the eviction order passed by the DM.

Having regard to the rival submissions, the Court found that the State required the subject land for the purpose of eco-tourism project. It was noted that the petitioner was afforded a reasonable opportunity of hearing. Holding that there was no infirmity in rejection of the prayer, the Court observed, “An adjudicating authority is entitled to reject adjudicating authority did not allow the petitioners’ prayer for adjournment. There is no infirmity in the rejection of such prayer. Merely, because the adjudicating authority rejected a prayer for adjournment ipso facto does not mean that, the proceeding stands vitiated by breach of principles of natural justice. The petitioner was afforded a reasonable opportunity of hearing. The petitioner did not avail of the same. That does not tantamount to the adjudicating authority acting in breach of the principles of natural justice warranting intervention by the Writ Court.” Finding no reason to interfere in the decision of the DM, the Court dismissed the present petition. [State Fisheries Development Corpn. Ltd. v. DM, Purba Medinipur, 2019 SCC OnLine Cal 295, dated 01-03-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Madhuresh Prasad, J., allowed the writ petition which was filed against the act of arbitrary stoppage of the salary of the panchayat teachers.

The facts of the case are that petitioners were appointed as panchayat teachers in the year 2010 and they continued till April 2017. From the month of May, 2017 their salary had been arbitrarily stopped without issuing any order in respect thereof.

The respondents asserted that the petitioners’ degrees of integrated course from Central Board of Higher Education, New Delhi were not recognized in view of the letter issued by the Principal Secretary and as such the very appointment of the petitioners as panchayat teacher was bad.

The Court held that there was nothing in the counter affidavit to show that prior to withholding of such salary/stoppage of salary with effect from May, 2017 the petitioners were ever afforded any opportunity of being heard in the matter. It is trite law that when an order is violative of the principles of natural justice, the plea of alternative remedy would not be a bar to exercise of jurisdiction under Article 226 of the Constitution of India in such matter.

The Court observed that whether the petitioner’s degree obtained in 2010 on basis of which petitioners were appointed as panchayat teacher was recognized or not was an issue which was required to be looked into by the authority before inflicting such harsh penal consequence.[Kanchan Kumari v. State of Bihar, 2018 SCC OnLine Pat 2293, Decided on 06-12-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): A Two-Member Bench comprising of S.J. Mukhopadhaya(Chairperson) and Bansi Lal Bhatt (Member-Judicial), JJ. set aside an order passed by the National Company Law Tribunal (New Delhi) for being violative of principles of natural justice.

NCLAT had admitted the application filed by the respondent (operational creditor) under Section 9 of the Insolvency and Bankruptcy Code, 2016. The appellant submitted that the said application was admitted without any notice to the corporate debtor. It was contended that the order impugned was passed in contravention of rules of natural justice.

The Appellate Tribunal, after perusing the record, noted that admittedly the order impugned was passed by NCLT without notice to the corporate debtor which was indeed in violation of principles of natural justice. Furthermore, the parties had already settled the matter between themselves. in such view of the matter, the Appellate Tribunal was the view that in effect, the order impugned passed by NCLT and allotter orders passed pursuant thereof were illegal and therefore were set aside. The application preferred by the respondent under Section 9 was dismissed and NCLT was directed to close the proceedings. The appeal was, thus, allowed. [Rajesh Arora v. Sanjay Kumar Jaiswal, 2018 SCC OnLine NCLAT 837, dated 05-11-2018]

Case BriefsHigh Courts

“Water necessary for farmers’ survival”

Kerala High Court: A Single judge bench comprising of Shaji P. Chaly, J. while hearing a civil writ petition against order of forest authorities ruled that while drawing of water from a river in a reserved forest area might require permission of authorities, the same was not illegal inasmuch as it was a protected activity under the State’s ‘vested forest’ rules.

Petitioners – residents of a village located in hilly areas – drew water from Kottapuzha river by installing pipes as it was the only source of drinking water in the area. Since agriculture was their only source of livelihood, water for irrigational purpose was also drawn during specific months. Respondents, residing near lower stream of the river, filed a writ petition complaining that petitioner’s act was causing a shortage of water in their wells. The court, in that petition, directed the forest officials to pass appropriate orders after hearing all the interested parties. However, the officials passed an order directing removal of pipes installed in the river without hearing all the parties. The present petition was filed against this order.

Respondents submitted before the court the land in question was notified as ‘vested forest’ in a notification. It was further stated that despite the forest officials’ order, petitioners had again started laying pipes, which was again removed with a strict warning against persons illegally encroaching into the vested forest. The primary contention on behalf of petitioners was that the impugned order violated principles of natural justice.

The High Court observed that even though as per government notification the area in question was a ‘reserved forest’, but agricultural operations in reserved forest were protected under Rule 7(3) of the Kerala Vested Forests (Management of Reserved Areas) Rules, 1980. However, it remarked that agriculturists might need permission from forest authorities to draw water in a reserved forest area. Further, the court noted that forest officials had erred in passing the impugned order without hearing all the interested parties and as such the said order was arbitrary and illegal.

In view of the above, the impugned order was quashed with a direction to the forest officials to consider the matter afresh after hearing all the parties. The petition was disposed of directing the authorities to bear in mind the fact that petitioners were seeking use of water for drinking and agricultural purposes which are necessary for the survival of the farmers, and accordingly, consider the matter. [Rejilal T.S. v Principal Chief Conservator, Forest Land & Resources,2018 SCC OnLine Ker 4005, decided on 08-10-2018]

Case BriefsHigh Courts

Jharkhand High Court: A Single judge bench comprising of Anubha Rawat Choudhury, J. while dealing with a civil writ petition directed the State to follow principles of natural justice in proceedings for issuance of distress warrant against the petitioner.

Brief factual matrix of the matter was that in pursuance of a certificate case filed against the petitioner for recovery of a certain amount of money, the Certificate Officer issued a distress warrant against him without deciding the objection petition filed by the petitioner under Section 9 of the Bihar and Orissa Public Demands Recovery Act, 1914 and also without considering the explanation submitted by the petitioner. Aggrieved by the aforesaid, instant writ petition was filed by the petitioner praying for quashing of the entire proceeding in certificate case filed against him. The primary contention of the petitioner was that the said action of Certificate Officer was in total disregard to the provisions of Bihar and Orissa Public Demands Recovery Act, 1914 and was also a gross violation of principles of natural justice and fair play.

The court noted that as per the provisions of Bihar and Orissa Public Demands Recovery Act, upon issuance of notice in the certificate proceedings, the certificate-debtor has a right to file an objection under Section 9 of the said Act and the same is required to be disposed of by the Certificate Officer. It was observed that failure to follow the procedure prescribed in the statute was an arbitrary action and gross violation of the principles of natural justice. Therefore, the said action also impinged upon the petitioner’s fundamental right under Article 14 of the Constitution of India.

On the strength of aforesaid reasoning, the impugned order vide which distress warrant was issued against the petitioner was set aside with a direction to the Certificate Officer to hear the petitioner, consider his objection and pass a reasoned order within a period of one month thereafter. [Bhupender Singh v State of Jharkhand,2018 SCC OnLine Jhar 1233, decided on 27-09-2018]

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of SriLanka: A Single Judge Bench comprising of M.M.A. Gafoor, J. dismissed an appeal against the order of the district court filed under Section 754 of the Civil Procedure Code.

Appellant filed a petition to set aside the ex-parte judgment entered against him followed with evidence regarding his absence from the court which were not only inconsistent but he also failed to prove the same consequently questioning their credibility.

The High Court was of the view that a party who relies on Section 86 (2) of the Civil Procedure Code to vacate an ex-parte decree should establish a reasonable ground for default. Considering the decision in Sanicoch Group of Company v. Kala Traders (P) Ltd., 2015 SCC OnLine SL SC 52, which held that inquiry on application to set aside an ex-parte decree is not regulated by any specific provision of the CPC but such inquiries must be conducted consistent with rules of natural justice and the requirement of fairness, the court stated that the appellant cannot be relied upon as he failed to satisfy the court on the reasons for his default. [Howpe Liyanage Edmund Edirisinghe v. Ahangama Vithanage Sumanadasa, C.A. No. 1394/99(F), order dated 01-08-2018]

Case BriefsHigh Courts

Jharkhand High Court: A Single Judge Bench of Dr S.N. Pathak, J., partly allowed a writ petition filed against the order of the respondent authorities, whereby the authorities recovered the Academic Grade Pay (AGP) granted to the petitioner behind his back on the ground that only promoted employees are entitled for AGP.

The main issue for consideration, in this case, was whether the respondent authorities can recover the AGP granted to the petitioner without following the principles of natural justice.

The Court observed that if excess money is given to a government employee, then it can be duly recovered since such money does not belong to the payer or the payee, it belongs to the public at large. However, in the instant case the petitioner had superannuated on 31-03-2016 and without adhering to the provisions of law, the amount has been ordered to be recovered.

The Court held that it is a settled proposition of law that no recovery can be done from the retiral benefits without conforming to the principles of natural justice and without following the due process of law and hence the respondent authorities cannot recover the AGP granted to the petitioner in the present case. However, the pension of the petitioner was directed to be fixed as per the pay-scale which the petitioner was actually entitled to receive. Accordingly, the petition was allowed in part by the Court.[Ram Pyare Mishra v. State of Jharkhand,2018 SCC OnLine Jhar 781, order dated 03-07-2018]

Case BriefsHigh Courts

Calcutta High Court: A  Division Bench comprising of Joymalya Bagchi and Ravi Krishan Kapur, JJ.  disposed of the criminal appeal filed by the appellant by ordering his further examination under Section 313 CrPC.

In the case at hand, most of the prosecution witnesses turned hostile. However, the trial judge relied on the dying declaration of the victim, who, according to PW 15- the doctor who treated the victim, had suffered burn injuries due to the pouring of hot mustard oil. Learned counsel for the appellant was before the High Court assailing the said dying declaration on various grounds including that such circumstance was not placed before the appellant during his examination under Section 313 CrPC.

The High Court perused the record and found that in fact such circumstance was not put to the appellant during his examination. The Court held it to be settled law that any circumstance which may be used against an accused must be placed to him during his examination under Section 313. Such an exercise is not an empty formality but a facet of natural justice. While deciding the appeal, the Court was not unmindful of the fact that every infraction of the aforesaid requirement would not vitiate the trial. However, if such infraction is of a grave nature, and prejudices the accused or occasions failure of justice, it shall result in a mistrial. In the instant case, the Court noted, most of the PWs turned hostile, and as such, the dying declaration if believed by the court, would be the most vital circumstance pointing towards guilt of the appellant. In such circumstances, the Court ordered the further examination of the appellant under Section 313 by putting questions before him in relation to the dying declaration. The Sessions Judge was directed to complete the exercise within four weeks. [Sk. Anowar v. Moinak Bakshi, 2018 SCC OnLine Cal 3896, dated 22-6-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: The Court entertained a writ petition under Article 226 despite the availability of alternate remedies. The case before the Court was that license of the Petitioners, a kerosene dealership, was suspended without granting an opportunity to them. The petitioners claimed violation of natural justice as they had not been afforded the opportunity to put forward their side.

The Court accepted this petition despite the availability of alternate remedies on the ground that principles of natural justice had been violated, which fact had been admitted by both parties. The impugned order was set aside as ‘due process’ had not been followed while passing it. However, the respondents were given the liberty to proceed against the petitioner in accordance with law and the principles of natural justice. [M/s R.K. Dwivedi v. The State of Madhya Pradesh, 2017 SCC OnLine MP 1189, decided on 11.09.2017]


Case BriefsHigh Courts

Kerala High Court: Deciding the question regarding the compliance of principles of natural justice in the context of inquiry conducted by the Internal Complaints Committee (ICC) constituted under the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 the Court held that when prejudicial statements are made, the same shall not be used against any person without giving him an opportunity to correct and contradict.

The issue involved a complaint against the appellant to ICC of Air India, Southern Region of misconduct based on sexual harassment by 17 women employees of Air India-SATS. Based on the complaint, the ICC conducted an enquiry and submitted its report. The appellant was aggrieved on the ground of non-compliance with the principles of natural justice as the inquiry concluded without giving him an opportunity to cross-examine the complainant and to controvert the factual finding in the inquiy report, hence vitiating the same. The stand of the Airport Authority was that the report was a priliminary report to find the apellant’s involvement and when a prima facie case was made out, further disciplinary proceedings would be initiated as per the rules and regulations of Air India.

Setting aside the impugned report, the Bench of Muhamed Mustaque, J. held that every Internal Complaints Committee constituted under the Act necessarily has to follow the principles of natural justice in conducting their enquiry. The Rules framed under the Act also indicate that the Committee shall follow the principles of natural justice [See Rule 7(4)].  The Court observed that the inquiry conducted by ICC as to the fact finding is final unless it is varied in appeal. It cannot be varied by the employer in a follow-up action to be taken in terms of Section 13.

The Court held that “The fundamental principles relating to the principles of natural justice is that when prejudicial statements are made, the same shall not be used against any person without giving him an opportunity to correct and contradict.

The Court noted that verbal cross-examination is not the sole criteria to controvert/contradict any statement of the aggrieved before any authority. Primarily in a sexual harassment complaint, the Committee has to verify and analyse the capability of the aggrieved to depose before them fearlessly without any intimidation. Fair opportunity has to be understood in the context of an atmosphere of free expression of grievance. If the Committee is of the view that the witness or complainant can freely depose without any fear, certainly the delinquent can be permitted to have verbal cross-examination of such witnesses. In cases, where the Committee is of the view that the complainant is not in a position to express freely,  it can adopt such other method permitting the delinquent to contradict and correct either by providing statement to the delinquent and soliciting his objections to such statement. The Court observed that a fair opportunity should be given to the delinquent in such manner as the committee thinks fit to consider. The ICC was directed to reconsider the matter after giving fullest opportunity to the petitioner. [L.S. Sibu v. Air India Limited, Writ Petition (C) No. 4001 of 2016 (A), decided on April 8, 2016]