Case BriefsSupreme Court

Supreme Court: The Bench of Abhay Manohar Sapre and Indu Malhotra, JJ has held that pendency of any writ petition by itself does not affect the constitutionality of a Statute. It said:

“It is only when the Court declares a Statute as being ultra vires the provisions of the Constitution then the question may arise to consider its effect on the rights of the parties and that would always depend upon the declaration rendered by the Court and the directions given in that case.”

Background of the case:

“Keeping in view the amendment made in the definition of Section 2(e), which as stated above was not brought to the notice of the Bench, this issue was not considered though had relevance for   deciding the question involved in the appeal. It is for this reason, we prima facie find error in the judgment and, therefore, are inclined to stay the operation of our judgment.”

What Court said in Ahmadabad Pvt. Primary Teachers Association verdict:

“The legislature was alive to various kinds of definitions of the word “employee” contained in various previous labour enactments when the Act was passed in 1972. If it intended to cover in the definition of “employee” all kinds of employees, it could have as well used such wide language as is contained in Section 2(f) of the Employees’ Provident Funds Act, 1952 which defines “employee” to mean “any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment …”. Non-use of such wide language in the definition of “employee” in Section 2(e) of the Act of 1972 reinforces our conclusion that teachers are clearly not covered in the definition.”

Ruling:

Hence, after noticing that though the definition was amended in 2009 by Act No.47 of 2009, yet the same was given retrospective effect from 03.04.1997 so as to bring the amended definition on Statute Book, from 03.04.1997, the Court held that the effect of the amendment made in the Payment of Gratuity Act vide Amending Act No. 47 of 2009 on 31.12.2009 was two­fold.

  • the law laid down by this Court in the case of Ahmadabad Pvt. Primary Teachers Association was no longer applicable against the teachers, as if not rendered, and
  • the teachers were held entitled to claim the amount of gratuity under the Payment of Gratuity Act from their employer with effect from 03.04.1997.

When the counsel for the Institution argued that the constitutional validity of Amending Act No. 47 of 2009 was under challenge in this Court in a writ petition, which is pending, the Court rejected the argument and said that pendency of any writ petition by itself does not affect the constitutionality of a Statute.

[Birla Institute of Technology v. State of Jharkhand, 2019 SCC OnLine SC 340, decided on 07.03..2019]

Case BriefsHigh Courts

Rajasthan High Court: A Single Judge Bench of Ashok Kumar Gaur, J., disposed of the current petition seeking an early date for a divorce proceeding.

Brief facts of the case are that the petitioner-husband seeking a direction to give early date in divorce petition pending in Family Court Jaipur filed this instant petition. He had also prayed for early disposal of the application of divorce petition filed under Section 13 of the Hindu Marriage Act, 1955. The office had registered the divorce application on 25-09-2018 and issued notices to respondent-wife by fixing the next date i.e. 12-02-2019.

The counsels for the petitioner, Mr Prashant Sharma and Mr Prateek Khandelwal, submitted that the petitioner was facing not only mental trauma but he was also being harassed by his in-laws every day and as such disposal of the application for divorce petition was the need of the hour. They also argued that Section 21-B of the Hindu Marriage Act, 1955 provides that trial should be continued from day to day and further as per sub-section (2) the divorce petition should be tried expeditiously and endeavour should be made to conclude the trial within six months.

The High Court while discussing Section 21-B of the Hindu Marriage Act, 1955 stated that endeavor is required to be made to decide the divorce petition expeditiously and the endeavor should be there to conclude the trial within a period of six months from the date of service of notice of the petition upon the respondent. The Court found that date of service of notice in the instant petition was already fixed on 12-02-2019. The instant petition was thus disposed of observing that no unnecessary adjournment should be taken by parties during the pendency of divorce petition. [Vipul Khandelwal v. Nikita Khandelwal, 2018 SCC OnLine Raj 2322, order dated 11-12-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): A Two-Member Bench comprising of S.J. Mukhopadhaya (Chairperson) and Bansi Lal Bhat (Member-Judicial), JJ. dismissed an appeal filed against the order of National Company Law Tribunal (New Delhi).

NCLT had admitted the application filed by the respondent (operational creditor) under Section 9 of the Insolvency and Bankruptcy Code, 2016 and passed order of moratorium. The appellant (promoter of the corporate debtor) submitted that there were cases under Section 138 and 141 of the Negotiable Instruments Act, 1881 pending before the competent court of jurisdiction. The appellant relied on R. Vijayan v. Baby, (2012) 1 SCC 260 for the proposition that proceedings under Section 138 arena of recovery of money. Therefore, according to the appellant, there existed a dispute between the parties and hence the said application could not be admitted.

The Appellate Tribunal was not inclined to accept the submissions of the appellant. It referred to Innoventive Industries Ltd. v. ICICI Bank, (2018) 1 SCC 407 and was of the opinion that “pendency of the case under Sections 138 and 141, even if accepted as recovery proceeding, cannot be held to be a dispute pending before a court of law.” Therefore, the Appellate Tribunal held that the pendency of the case as aforementioned actually amounted to admission of debt endnote existence of dispute. The appeal was, thus, dismissed. [Sudhi Sachdev v. APPL Industries Ltd., 2018 SCC OnLine NCLAT 775, dated 13-11-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of R.M. Savant and Nitin W. Sambre, JJ. allowed a petition filed by a suspended worker seeking payment of suspension allowance during the pendency of disciplinary enquiry against him.

The petitioner was registered with the respondent Board. In June 2018, he was served a show cause notice for initiating departmental proceedings against him. Subsequently, he was suspended from service. The petitioner requested the respondent for payment of suspension allowance which was not granted. Aggrieved thereby, the petitioner filed the instant petition.

The High Court perused the entire scheme of the service conditions and the statute under which the petitioner’s service was governed. It was observed that the object behind payment of suspension allowance is that the suspended employee is able to keep his body and soul together during his suspension period and is able to sustain himself. It was held that once there is a power to suspend vested in an employer, then the necessary concomitant is that the employer has to pay the suspension allowance to the employee. Furthermore, it was observed as well settled that suspension allowance is a part of “wages” defined under Section 2(vi) of the Payment of Wages Act, 1936. In light of the aforesaid, the petition was allowed and the respondent was directed to pay suspension allowance to the petitioner at a rate to be fixed by the Board. [Tanaji Genba Pawge v. Mumbai Vegetable Market Unprotected Workers Board,2018 SCC OnLine Bom 4140, dated 30-10-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Valmiki Mehta, J. allowed an appeal filed against the order of the trial court whereby the appellant’s plaint was rejected under Order VII Rule 11 CPC.

The appellant had brought a suit against the respondent for recovery of a certain amount. The trial court rejected his plaint mainly on the ground that the respondent was making payments during pendency of the suit, therefore, the amount as claimed by the appellant had vanished. In such circumstance, trial court held that the cause of action did not survive. Aggrieved thereby, the appellant preferred the instant appeal.

The High Court, on perusal of the record, was of the view that the trial court completely erred in rejecting the appellant’s plaint. It was observed that during pendency of a suit, a defendant may always keep on making payments towards the amount claimed in the suit; however, that does not mean that the cause of action in the suit will vanish. In such circumstances, it was furtehr observed, the Court under Order VII Rule 11 will take notice of the subsequent event of repayments and will amend the suit amount and will decree the suit for lesser amount after making necessary adjustments. In view of the aforementioned, the High Court set aside the order impugned and directed the trial court to hear and decide the suit in accordance with law. [ICICI Bank Ltd. v. Vikas Kumar Thakur, RFA No. 901 of 2018, decided on 01-11-2018]

Hot Off The PressNews

National Green Tribunal (NGT): Due to lack of experts and judicial members, the NGT is planning to conduct hearings through video-conferencing to deal with the pendency of cases in its regional benches.

NGT is currently functioning with less than one-third of its sanctioned strength of 20 officials besides the chairperson. It has been reported that due to the non-availability of the judicial members and experts the cases are being transferred to the principal bench in Delhi, which eventually is creating a hassle for the petitioners in terms of financial as well as the physical burden.

Therefore, in order to deal with present issue NGT is planning to devise an interim mechanism to get rid of the pendency by holding hearings through video-conferencing.

[Source: PTI]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of Budihal R.B., J., decided a criminal petition filed under Section 439 of CrPC, wherein bail was denied to the petitioner-accused in light of the fact that evidence of complainant witnesses was yet to be recorded.

The petitioner was co-accused in a criminal case registered under Sections 143, 144, 147, 148, 120(B) and 302 read with Section 149 of IPC. The petitioner had approached the Court for bail on an earlier occasion, however, his prayer was not granted. Subsequently, other co-accused were released on bail. The petitioner, in the changed circumstances, filed the instant petition praying to be enlarged on bail on grounds of parity. Learned High Court Government Pleader submitted that the weapon used in the alleged crime was recovered at the instance of the petitioner and hence, his case was not to be considered in parity of the other accused.

The High Court perused the record as well as submissions made on behalf of the parties, and found that the Court, in its earlier order referred to above, considered the entire merit of the case and rejected the bail petition. However, liberty was given to the petitioner to file fresh bail petition after recording of evidence of complainant witnesses. It was an undisputed fact that the evidence of the said witnesses was yet to be recorded. Therefore, the Court was of the opinion that it was not a fit case to exercise judicial discretion in favor of the petitioner-accused. Accordingly, bail was denied and petition was dismissed. [Philips alias Puli v. State, Crl. Petition No. 8243 of 2017, order dated 25.01.2018]

Case BriefsSupreme Court

Supreme Court: In the matter where the Court was deciding the question as to whether disciplinary proceedings can be initiated before the closure of recording of prosecution evidence in the criminal case, based on the same facts, the bench of T.S. Thakur, CJ and A.M. Khanwilkar, JJ held that the pendency of the criminal case cannot be the sole basis to suspend the disciplinary proceedings initiated against the respondent for an indefinite period.

In the present case, the criminal trial against the respondent was pending for around 10 years and the Chhattisgarh High Court had stayed the disciplinary proceedings initiated by the appellant bank until the completion of the same based on the reasoning that the respondent may suffer disadvantage and prejudice if she was compelled to disclose her defence in the departmental proceedings, which is likely to be used in the criminal case pending against her. Disagreeing with the aforementioned view of the High Court, the Court said that It is well-settled that there is no legal bar to the conduct of the disciplinary proceedings and criminal trial simultaneously. However, no straightjacket formula can be spelt out and the Court has to keep in mind the broad approach to be adopted in such matters on case to case basis.

In one of the clauses of the Memorandum of Settlement it was mentioned that “if within the pendency of the proceedings thus instituted is put on trial such proceedings shall be stayed pending the completion of the trial.” The Court said that the term “completion of the trial” thereat, must be construed as completion of the trial within a reasonable time frame. This clause cannot come to the aid of the delinquent employee – who has been named as an accused in a criminal case and more so is party to prolongation of the trial.

Pendency of criminal trial for around 10 years, by no means, can be said to be a reasonable time frame to withhold the disciplinary proceedings. The Court took this view on the principle underlying the former part of the same clause, which envisages that if the Authority which has to start the prosecution refuses/fails to do so within one year from the commission of the offence, the departmental action can proceed. The Court, hence, held that the remedy of writ being an equitable jurisdiction and keeping in mind the larger public interests especially in cases of involvement of the employees of the Public Sector Banks in offence of breach of trust and embezzlement, the principle laid down in Stanzen Toyotetsu India Private Limited vs. Girish V., (2014) 3 SCC 636, where it was held that the departmental proceedings cannot be suspended indefinitely or delayed unduly, should be applied. [State Bank of India v. Neelam Nag, 2016 SCC OnLine SC 946, decided on 16.09.2016]

Case BriefsSupreme Court

Supreme Court: While dealing with the question of the sentencing of a juvenile in light of the enactment of the Juvenile Justice Act 2000 during the pendency of the case, the Bench comprising of V. Gopala Gowda and Uday Umesh Lalit JJ., set aside the sentence of life-imprisonment of the Appellant and remitted the matter to the Jurisdictional Juvenile Board. The Court also recommended that fine should be levied and compensation should be paid by the Appellant to the victim’s family.

In the present case, the Appellants were convicted on the basis of the dying declaration of a man they had allegedly set on fire. The Court dismissed the first criminal appeal no. 2084/2009, as provocation or unreliability of dying declaration were insufficiently proved. The next Appeal turned upon the fact that Appellant Dilshad was of age 16 years, 5 months and 5 days on the date of the occurrence i.e. 27.12.1990, when the Juvenile Justice Act, 1986 was operative, whereby a 16-year old was not juvenile. During the pendency of the appeal to the High Court, the Juvenile Justice (Care and Protection of Children) Act, 2000 came into force, effectively replacing the earlier Act. As reiterated in Pratap Singh v. State of Jharkhand (2005) 3 SCC 551, and Bijender Singh v. State of Haryana (2005) 3 SCC 685, Section 20 of the new Act considers pending cases, and provides via a non obstante clause an exemption for proceedings pending before the Courts. In such cases, a finding shall be recorded, but in lieu of sentencing, the Court was to hand over the juvenile to the custody of the Juvenile Justice Board which was to pass relevant orders. The Court also relied on Dharambir v. State (NCT of Delhi) (2010) 5 SCC 344 in terms of determining juvenility of juvenile in which it was said that the determination even during revision or appeal proceedings, has to be in accordance with clause (l) of Section 2 even if the juvenile ceases to be a juvenile on or before 1-4-2001.
.
The Court while holding appellant Dilshad to be juvenile in terms of the 2000 Act as on the day of occurrence and guilty of the offence with which he was tried, set aside the sentence of life imprisonment passed against him and remit the matter to the Jurisdictional Juvenile Justice Board for determining the appropriate quantum of fine that should be levied on the appellant Dilshad and the compensation that should be awarded to the family of the deceased keeping in mind the directions issued in Jitendra Singh v. State of U.P., (2013) 11 SCC 193. Further, the bail bonds furnished by Appellant Mumtaz were cancelled and taken in custody forthwith to undergo the sentence awarded to him.  [Mumtaz v. State of Uttar Pradesh 2016 SCC OnLine SC 653, decided on 01-07-2016]