Tripura High Court
Case BriefsHigh Courts

Tripura High Court: In a batch of writ petitions filed for directing the State Government to provide similar Pension benefit as granted to the other similarly situated Tripura Government Undertakings, Arindam Lodh, J. has held that the writ court while exercising the power of judicial review under Article 226 of the Constitution of India will not as a court of appeal sit over the well-reasoned report of the expert body, thereby observed that providing grants or other benefits to any of the organizations is a matter of policy decision of the government and the court cannot direct the State or its instrumentalities to formulate such policy

The issues in the present matter were, whether the court can direct the State government to provide necessary funds to the corporation, and whether the court can determine the amount of pension an employee may be entitled to.

The Court took note of the report of the expert committee constituted by the State government, wherein it is found that provision of providing pension benefit to these organizations has been made either by adopting the Civil Services (Pension) Rules, 1972 or introducing separate pension scheme. Further, these autonomous bodies had created a separate scheme and had been able to generate their own funds from their own contribution and opened subscriber accounts with specified schemes of the organization like Life Insurance Corporation of India (LICI), banks etc. Moreover, the petitioners have already retired from service, and are drawing pension under Employees Provident Fund scheme.

The Court further noted that the service conditions including pension scheme of the employees of these corporations are governed by their respective statutes, as the corporations are government undertakings. Further, all the corporations are utilizing the funds provided by the State government even to the extent of 100%, and have been running in loss, though, these organizations are supposed to be profit making as observed by the expert committee. Thus, the court held that “the employees of these statutory organizations cannot claim, as a matter of right, the pensionary benefits, as provided to few of the corporations who have been able to generate their own funds with one-time support from the state government”

Furthermore, the Court viewed that the petitioners cannot be treated equally to the employees of those organizations whose pension schemes have been introduced under different schemes with the assistance of some other organizations like LICI, banks, etc., as the pension of the members of the petitioner’s organization is based on the pension scheme subscribed by them during his/her service tenure in the respective organization and are primarily controlled and regulated by the Employees Provident Fund Organisation. Thus, the petitioners cannot complain of discrimination having regard to the equity clause enshrined under Article 14 of the Constitution of India.

Moreover, the Court observed that providing grants or other benefits to any of the organizations is a matter of policy decision of the government, the court cannot direct the State or its instrumentalities to formulate certain policy because it would have a scaring effect having huge financial implication, thus, it should be left to the expert committee.

The Court also observed that the grant of pensionary benefit is not a one-time payment and extension of such benefit is a recurring expenditure with continuous liability involving huge government funds. The State Government and the corporation should ultimately take a policy decision as to whether such benefits should be provided to its employees or not, as it is outside the court’s jurisdiction to make an enquiry regarding the fund status of the respective corporation or to choose a scheme suitable to the employees of such corporation without the aid and advice of the expert body.

Moreover, the Court viewed that it is a settled proposition of law that the interference of the judiciary to such a policy matter having serious financial implication and/or having a cascading effect is not at all warranted and justified. Further, it held that “the writ court while exercising the power of judicial review under Article 226 of the Constitution of India will not as a court of appeal sit over the well-reasoned report of the expert body following the well-neigh principle of self-restraint in the matter of policy decisions of the government”. Thus, the Court dismissed the writ petitions.

[All Tripura EPS Pensioners’ and Employees’ Association v. State of Tripura, 2022 SCC OnLine Tri 619, decided on 06.09.2022]


Advocates who appeared in this case:

For Appellant(s): Advocate S. Saha

Advocate S. Datta

For Respondent(s): Advocate KC Bhattacharjee

Advocate B.S. Bhowmik

Advocate S. Bhattacharjee

Advocate AK Pal

Advocate D. Sarkar

Advocate A. Chakraborty

Advocate HC Chakraborty

Case BriefsSupreme Court

Supreme Court: The bench of MR Shah* and BV Nagarathna, JJ has held that the financial crunch/financial constraint due to additional financial burden is a valid ground to fix a cut-off date for the purpose of granting the actual benefit of revision of pension/pay.

The Court was deciding the case relating to the validity of Rule 3(3) of the Tripura State Civil Services (Revised Pension) Rules, 2009 (Pension Rules, 2009), wherein the Tripura High Court had struck down the Rule and had directed to pay the original writ petitioner the arrears of pension for the period from 01.03.2007 to 31.12.2008.

On Government of India’s request to consider adoption and implementation of Revised Pay Structure in UGC System for Teachers in Colleges w.e.f. 01.01.2006 following revision of pay scales of Central Government employees as per 6th Central Pay Commission’s recommendations, the State of Tripura introduced revised pay structure with Band Pay Rs. 15600-39100 and 37400-67000 respectively with appropriate academic Grade Pay and it was specified that arrears would be payable subject to receipt of financial assistance of 80% from Central Government and that all other allowances to be admissible from 01.01.2009. The State’s notification also provided that the pension would be admissible as per Pension Rules for State as amended from time-to-time and the upper ceiling of pension was raised from Rs. 25200 to 38500. The State amended Rule 3(2) of the Pension Rules, 2009 in the year 2010 and the maximum limit of pension was fixed at Rs. 38500.

Rule 3(3) of the Pension Rules, 2009 which has been struck down by the High Court by the impugned judgment and order, is as under:

“3(3) The revised rate of pension within the above limits of minimum and maximum pension shall be computed notionally from 1st January 2006 or, as the case may be, from the date of superannuation/retirement whichever is later. But financial benefit according to this computation will be admissible from 1st January 2009 or from the date of superannuation/retirement whichever is later”

The same was challenged on the ground that there is no reasonable excuse to deny the actual benefit of pension for the period from 01.01.2006 to 31.12.2008 inasmuch as 80% of the financial requirement for implementation was to be borne by the Central Government whereas the State Government was to bear merely 20% of the entire requirement for making payment of the arrears of pension for the said   period.

State, on the other hand, submitted that because of heavy financial burden and there being financial constraints, the State is not in a position to bear the heavy burden of additional revised pension and therefore, the State formulated a policy decision to the effect that the revised pension shall be paid   from 9 01.01.2006 to 31.12.2008 notionally and actual revision of pension shall be disbursed from   01.01.2009 only.

The High Court refused to accept State’s plea of financial crunch struck down Rule 3(3) of the Pension Rules, 2009 being arbitrary and violative of Article 14 of the Constitution of India.

The Supreme Court, however, was not impressed with the approach of the High Court as it had, without giving any cogent reasons, observed that the foundation i.e., the financial crunch has not satisfied the Court at all.

The Supreme Court noted that when specific statistics were provided by the State before the High Court justifying its policy decision and the financial crunch/financial constraint was pleaded, there was no reason for the High Court to doubt the same.

The Court went on to hold that it was satisfied that a conscious policy decision was taken by the State Government to grant the benefit of revision of pension notionally from 01.01.2006 or from the date of superannuation till 31.12.2008 and to pay/grant the benefit of revision of pension actually from 01.01.2009, which was based on their financial crunch/financial constraint. To come to this conclusion, the Court relied on the decision in State of Punjab v. Amar Nath Goyal, (2005) 6 SCC 754 that financial constraint can be a valid ground for fixation of cut-off date for grant of benefit of increased quantum of death-cum-retirement gratuity.

Holding that the cut-off date has been fixed as 01.01.2009 on a very valid ground i.e., financial constraint, it was held that the High Court manifestly erred in striking down the Rule 3(3) of the Pension Rules, 2009 being arbitrary and violative of Article 14 of the Constitution and the decision was liable to be set aside.

However, noticing that the original writ petitioner has already been paid the arrears from the date of her retirement pursuant to the interim order passed by the Supreme Court, it has been directed that the same shall not be recovered from her.

[State of Tripura v. Anjana Bhattacharjee, 2022 SCC OnLine SC 1071, decided on 24.08.2022]


*Judgment by: Justice MR Shah


For State: Advocate Shuvodeep Roy

Madras High Court
Case BriefsHigh Courts

Madras High Court: B Pugalendhi J. allowed the family pension to be given to the daughter ‘petitioner’ arising out of the employment of her deceased mother. The family pension was rejected by The Senior Accounts Officer, Officer of the Principal Accountant General as she was already in receipt of Freedom Fighters’ Pension, thus making the total income above the eligible ceiling for granting family pension. The Court however held that freedom fighter pension is not considered as an income and hence not to be calculated for total income to deny family pension.

The petitioner is the unmarried daughter of a freedom fighter, namely, S. T. Sivasamy who was getting a freedom fighter’s pension. Her mother was a government servant and a pensioner too. After the death of the petitioner’s mother, father, was drawing the family pension arising out of the deceased mother’s employment. The petitioner started getting freedom fighter’s pension, after the death of the petitioner’s father and at present she is getting a sum of Rs.13,390/- as pension. She has also been sanctioned with family pension arising out of her mother’s employment and it was subsequently cancelled for the following three reasons:

i. The Government Letter No.43105/Pen/2013 dated 02-12-2013, clarifies that all incomes are to be considered as income for fixation of the ceiling limit of Rs.7,850/-.

ii. The petitioner is drawing pension, which is exceeding the income limit fixed vide the G.O.Ms.No.327 Finance Department dated 30-08-2001 and G.O.Ms.No.337 Finance Department dated 14-11-2017.

iii. G.O.Ms.No.290 Public (Ex-Servicemen) Department dated 05-04-2017 does not permit granting of dual pension.

The Court in light of the first two grounds of cancellation relied on judgments K Arumugam v. The Secretary to Government in 2006 SCC OnLine Mad 297 and Vellithyammal v. The Secretary to Government in WP (MD) No. 1457 of 2008, decided on 27-04-2009 to observe that the main objective of Freedom Fighters Pension Scheme (Swatantrata Sainik Samman Yojana) is to honour the services and the sacrifices rendered by the freedom fighters for the nation in the freedom struggle and also in recognition of the services and sacrifices and it is not a charity.

Therefore, the Court noted that the pension received by the petitioner in respect of the freedom fighters’ pension cannot be brought under the meaning of income, as it has been held to be in honour for and in recognition of the services and the sacrifices of the freedom fighters. As such the pension received by the petitioner arising out of the Freedom Fighters Pension, cannot be taken as an income for grant of family pension.

Thus, the first and second reason for denying the family pension to the petitioner cannot be sustained in the eyes of law.

In regard to the third reason regarding not permitting the grant of dual pension as per G.O.Ms.No.290 Public (Ex-Servicemen) Department dated 05-04-2017 is concerned, there is no such denial of grant of dual pension to the pensioner on perusal of the said government order. The Court however noted that, vide this government order, the government ordered for sanction of dual family pension to those families of Ex-Servicemen, who have been re-employed in civil (i.e.) State Government Service and earned a pension out of the re-employment prior to 01-04-2003 (i.e) before the introduction of Contributory Pension Scheme, in addition to Military Family Pension already drawn by them.

Thus, the Court is of the view that citing this government order can have no relevance to deny the family pension arising out the employment of the petitioner’s mother.

The Court directed the respondents to grant family pension to the petitioner arising out of the state government civil service of the petitioner’s deceased mother in addition to the freedom fighters’ pension within a period of eight weeks from the date of receipt of the order.

[S. Jeevalakshmi v. The Principal Accountant General, 2022 SCC OnLine Mad 3810, decided on 14-07-2022]


Advocates who appeared in this case :

Mr. Mohmmed Imran, for M/s. Ajmal Associates, Advocate,for the Petitioner;

Mr. P Gunasekaran, Advocate, for the Respondents 1 and 2;

Mr. S. Saji Bino, Advocate, for the Respondent 3.


*Arunima Bose, Editorial Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: A Division Bench of Suresh Kumar Kait and Saurabh Banerjee, JJ. granted compassionate allowance to widow of Late Naik Krishanpal Singh ‘the petitioner who worked as a Guard at CISF and was dismissed from service on certain grounds. The allowance was granted as the case of the petitioner falls under the category of “special consideration” in view of Rule 41 Central Civil Services (Pension) Rules, 1972 ‘CCS (Pension) Rules, 1972′.

The Late Naik Krishanpal Singh joined CISF as Guard and he was charged with assault on a Head Constable using the rifle butt during plant checking in the year 1994 and consequently, was dismissed from service. The appeal was preferred by him against his dismissal order which was further dismissed by the competent authority, against which he filed a writ before the instant Court, which was again dismissed for non-appearance. This present petition was filed by his wife upon rejection of her mercy petition seeking compassionate allowance on the ground that her husband had served the State ‘respondent’ from the year 1972 till 1994, thereby rendered 24 years of service and that she is living under poor economic condition and therefore, her case falls under the category of “deserving special consideration” and, so, she is entitled to the get the benefit of provisions of Rule 41, CCS (Pension) Rules, 1972.

Counsel for petitioner submitted that as per Rule 41, CCS (Pension) Rules, 1972, the competent authority may sanction compassionate allowance in special and deserving cases.

Reliance was placed on Mahinder Dutt Sharma v. Union of India, (2014) 11 SCC 684 wherein it was held “when an employee is dismissed for reasons other than those involving moral turpitude dishonesty towards employer and loss to a third party, then such a punished employee’s case may be considered for grant of compensatory allowance under Rule 41, CCS Pension Rules, 1972 by the competent authority. Hence, it is prayed that respondents be directed to pay compensatory allowance to petitioner to enable her to meet her livelihood. “

In light of the relied judgment, it was noted that, Supreme Court held that it is not possible to define the term “deserving special consideration” and the circumstances deserving special consideration would ordinarily be unlimited, keeping in mind the unlimited variability of human environment. The Supreme Court while allowing the claim of petitioner held that the claim of petitioner was misdirected as all the authorities on the administrative side, Tribunal or even the High Court merely examined the legitimacy of the dismissal order, whereas the basis for determination of the compassionate allowance should have been whether the petitioner deserved “special consideration” under the provisions of Rule 41 CCS (Pension) Rule, 1972.

Reliance was further placed on Ex. L/NK Mahabir Prasad v. Union of India, (2010) SCC OnLine Del 2909, wherein the official, who was dismissed from service on account of unauthorized absence from duty after 23 years of service, had sought compassionate allowance on the ground that he belonged to a poor and backward family, had no land and source of income for his livelihood and the Division Bench had allowed the appeal under the provisions of Rule 41 CCS (Pension) Rules, 1972.

The Court noted while deliberating upon the mercy petition filed by the petitioner, the respondents seem to have ignored Rule 41, CCS (Pension) Rule, 1972.

The most important consideration before the Court is whether the present case falls under the category of “special consideration” or not.

The Court opined that time and again the petitioner, the widow of late Naik Krishanpal Singh, has been running pillar to post to get relief for her survival and that of her family. The present petition was filed in the year 2019. As on the filing of the present petition, petitioner, widow of late Naik Krishanpal Singh is aged 60 years old and is said to be living in distress economic condition.

The Court thus held the case of petitioner deserved “special considerationunder the provisions of Rule 41 of CCS (Pension) Rules, 1972.

The Court further directed respondents to “grant compassionate allowance to the petitioner from the date of filing of the present petition with consequential benefits thereof, as well as clear the arrears thereto, within four weeks.”

[Shiksha v. Union of India, 2022 SCC OnLine Del 1863, decided on 04-07-2022]


Advocates who appeared in this case :

Ajit Kakkar, Advocate, for the petitioner;

Manish Mohan and Devendra Kumar, Advocates, for the Union.


*Arunima Bose, Editorial Assistant has reported this brief.

Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Ravi Malimath, CJ. and Vishal Mishra, J. allowed a writ petition and issued several directions setting aside the compulsory retirement of the petitioner from judicial services.

Petitioner had joined Madhya Pradesh Judicial Services as a Civil Judge Class-II on 25-10-1985. He was promoted to the Higher Judicial Services on 09-06-1997 and was designated as permanent on 03-01-2002. He was appointed to the Junior Administrative Grade on 09-06-2002. On 13-02-2003, a memorandum of charges was served on the petitioner while he was posted as an Additional District and Sessions Judge, Begumganj, District Raisen. High Court of Madhya Pradesh (Respondent 2) proposed to hold a departmental enquiry against him under Rule 14 (IV) of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966. The charges against the petitioner were related to certain judicial orders passed by him between 21-06-2001 to 12-08-2002 when he was posted as an Additional District and Sessions Judge at Guna.

The Enquiring Officer submitted his detailed report to the Disciplinary Authority exonerating the petitioner from all the charges. On 18-11-2005, a show cause notice was issued to the petitioner by the High Court indicating that the High Court disagrees with the findings of the Enquiring Officer. Later, an impugned order was issued to the petitioner compulsorily retiring him from service. Thus, instant writ petition was filed.

Counsel for the petitioner contended that the act of the respondents was erroneous and liable to be interfered with. That even though, the Enquiring Officer held that the charges have not been proved, the Disciplinary Authority reversed the same. It was also contended that even after making a request there was no grant of opportunity of a personal hearing to the writ petitioner.

The Court failed to appreciate the findings of the Disciplinary Authority. The Court opined that even according to the Disciplinary Authority, the grant of bail is in violation of the mandatory provisions, the same may reflect upon the competency of the Judge in understanding the law. It cannot lead to a conclusion that he is either corrupt or the order has been passed for extraneous consideration.

There may be a possibility that the concerned Judge has either misread the evidence or has applied it wrongly. At the most it only reflects upon his judicial competency and not that he is either corrupt or the order has been passed for extraneous consideration.

The Court further noted that the Enquiring Officer came to the conclusion that the writ petitioner may have been lenient in the grant of adjournments. The Court failed to understand as to how the Disciplinary Authority comes to a conclusion that the leniency shown by the Judges to the Bar requires to be ascertained in a microscopic examination.

One really does not know as to what happens when an adjournment is sought for. It is not proper to come to a conclusion that only because an adjournment has been granted, the integrity of a Judge has to be doubted.

The Court was unable to find any noting by any authority regarding his integrity, consequently the Court held that there wasn’t any valid reason for the Disciplinary Authority to reverse the findings of the Enquiring Officer and that the Disciplinary Authority committed a gross error in reversing the findings of the Enquiry Officer. The Court issued the following directions while allowing the petition:

(i) The order passed by the Disciplinary Authority dated 18.11.2005 (Annexure P/4) and the impugned order dated 12.05.2006 (Annexure P/10) compulsorily retiring the petitioner from services are hereby set aside;

(ii) The petitioner shall be entitled to 25% of the arrears of pay from the date of dismissal namely compulsory retirement w.e.f. 12.05.2006 upto the age of superannuation;

(iii) The respondents to rework his salary, his entitlements and all his retiral benefits accordingly;

(iv) He is entitled for re-fixation of his pay, pension and all related issues as a consequence of this order;

(v) The same shall be paid to the petitioner within a period of four months from the date of receipt of a copy of this order.

[K.C. Rajwani v. State of Madhya Pradesh Law & Legislative Affairs, 2022 SCC OnLine MP 1550, decided on 23-06-2022]


Advocates who appeared in this case :

Mr Brian Da’Silva assisted by Mr Abhishek Dilraj, Advocates, for the Petitioner;

Mr Suyash Thakur, Advocate, for the Respondent 1;

Mr Ashish Shroti, Advocate, for the Respondent 2.


*Suchita Shukla, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: While adjudicating a petition filed by a breast cancer patient seeking to afford life-saving medicines which otherwise cost more than twice her monthly income, V. G. Arun, J. directed Central Government to consider compulsory licensing of the breast cancer drug “Ribociclib”.

The petitioner, a retired Bank employee receiving a monthly pension of Rs. 28000, was diagnosed with HER2- Negative Metastatic Breast Cancer.

The petitioner submitted that she is undergoing ‘targeted therapy’ treatment and the monthly cost of the medicines for treatment works out to Rs. 63,480 of which the costliest medicine is Ribociclib, which alone costs Rs. 58,140 per month.

Ribociclib is not manufactured in India and according to the petitioner, if the medicine is manufactured in India, the cost will come down substantially and will be affordable to persons like the petitioner. Although, Ribociclib presently enjoys a patent monopoly, and its manufacturers are hence prevented from producing the medicine without the consent of the patent holder.

Referring to Section 92 of the Patents Act, 1970 which provides for a compulsory licence, and Section 100 which empowers the Government to requisition life-saving medicines in cases of extreme necessity, the petitioner had approached various authorities with a representation to make the life-saving drug available at affordable price.

Though the petitioner had received an acknowledgement from the Union Ministry of Women and Child Development, her representation is still pending before the Department for Promotion of Industry and Internal Trade, New Delhi (Respondent-3). Therefore, as an interim measure, the petitioner had approached the Court seeking directions to the Industry and Internal Trade Department to consider her representation and take a reasoned decision without further delay.

The Court noted that as per the available statistics, an alarming number of women succumb to breast cancer by reason of their inability to afford expensive treatment and medication. Referring to the Constitutional mandate, the Court stated that the right to life guaranteed under the Constitution, coupled with the State’s duty to improve public health, calls for emergent and effective action in the matter.

Considering the seriousness of the matter, the Court directed Department for Promotion of Industry and Internal Trade (‘R-3′) to consider the petitioner’s representation and pass a reasoned order within four weeks after consultation with the other authorities.

The matter is posted on 18-07-2022 for further hearing.

[X v. Union of India, 2022 SCC OnLine Ker 3361, decided on 14-06-2022]


Advocates who appeared in this case :

Maitreyi Sachidananda Hegde, Advocate, for the Petitioner.


*Kamini Sharma, Editorial Assistant has reported this brief.

Armed Forces Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (Lucknow Bench): The Division Bench of Justice Umesh Chandra Srivastava, Member (J) and Vice Admiral Abhay Raghunath Karve, Member (A) held that a defence person cannot be permitted to change the name of his wife twice in service records.

“Name of wife of the applicant has already been changed from Malhouthi Devi to Samalti Singh on the basis of affidavit given by the applicant in the year 1973. If there was any clerical mistake, the applicant should have reported the matter to concerned officer within few days.”

The applicant was enrolled in the Army on 13-11-1963. On being discharged from service on 21-11-1980, he had been granted service pension from vide PPO dated 02-03-1981. Later on, he joined the Directorate General of Quality Assurance (DGQA) and got retired on 31-01-2005. Therefore, he was getting a 2nd pension vide PPO dated 18-02-2005.

The grievance of the applicant was that he had represented his case for change of name and date of birth of his wife in his army service documents which was denied by the respondents-Union of India. The Government noted that there was a mismatch in the date of birth and name of the applicant’s wife mentioned in the service records and appendix containing change and suggested the applicant to forward a few documents for change of name and date of birth.

Ultimately, the Government rejected the request to introduce afore-mentioned change on the following grounds:

  • “Policy allows only change in surname/maidan name.

  • Applicant had already changed the name from Malhouthi Devi to Samalti Singh.

  • No provision to change of name of wife except surname or maiden name and date of birth except typographical/clerical errors and in applicant’s case no such error is found.”

The Government contended that the applicant had already changed his wife’s name from Malhouthi Devi to Samalti Singh during the year 1973 and policy does not allow change of name second time. Similarly, owing to the difference of more than four (4) years in the date of birth as recorded in service and the proposed date of birth the government denied accepting any changes in the date of birth as well.

The Tribunal noted that earlier the applicant had applied for change of name of his wife in the year 1973, which was changed but at that time he had chosen to remain silent regarding the change of date of birth. Similarly, in the year 2001, he again gave another affidavit requesting to change the name of his wife but nothing was mentioned regarding change of date of birth. It was in the year 2019 after about 56 years from the date of entry in army service documents, the applicant applied for change of date of birth. Thus, the Tribunal held that the applicant’s attempt to change the date of birth of his wife at a belated stage was not justified. The Tribunal stated,

“If the date of birth of the wife of applicant was recorded wrong, then applicant should have consulted the competent authority within few months for correction of date of birth of his wife.”

With regard to change in name of the applicant’s wife, the Tribunal observed the following:

  • First affidavit was given while applicant was serving in the army in the year 1973 for change of name of his wife from Malhouthi Devi to Samalti Singh in army service documents.

  • Second affidavit was given by the applicant in the year 2001 while he was serving in DGQA Kanpur for change of name of his wife from Samanti Singh to Shyam Lata Singh in DGQA service documents.

  • Third affidavit was given by the applicant in the year 2019 for change of name and date of birth of his wife in PPO of army service.

Therefore, the Tribunal opined that it is doubtful for someone to give affidavit three times for change of name of spouse. Further, as per policy on the subject, name of spouse can be changed only one time. Hence, observing that the name of the applicant’s wife had already been changed from Malhouthi Devi to Samalti Singh in the year 1973 the Tribunal held that if there was any clerical mistake, as alleged by the applicant, he should have reported the matter to the officer concerned within few days.

In view of the above, the instant application was dismissed.

[Ram Naresh Singh v. Union of India, 2022 SCC OnLine AFT 835, decided on 27-01-2022]


Advocates who appeared in this case :

Shailendra Kumar Singh and Ravi Kumar Yadav, Advocates, for the Applicant;

Namit Sharma, Central Government Counsel, for the Union of India.


*Kamini Sharma, Editorial Assistant has reported the brief.

Case BriefsHigh Courts

Calcutta High Court: Amrita Sinha, J. disposed of a petition which was filed by an Assistant Teacher who retired from service on 31-10-2020 regarding delayed payment of the gratuity and arrear pension amount.

The grievance of the petitioner was that the Pension Payment Order was issued on 28-02-2022 and the gratuity and arrear pension amount was disbursed on 11-03-2022. The petitioner claims interest on delayed payment of the gratuity and arrear pension amount.

The Court stated that it is settled law that the right of a retired employee to get his retiral dues on the date of attaining superannuation is a valuable right which accrues in his favour on the date of his attaining superannuation. Further, gratuity and pension are no more considered to be a bounty to be handed out by the State at its whim. If payment of such gratuity and pension is delayed the retired employee is surely entitled to get some interest for such delayed payment.

The Court opined that in the present case it was the bounden duty of the State to disburse the gratuity and pension amount on the due date. If it has failed to do so and has released such amount after unexplained delay, it is obliged to pay interest to the retired employee.

The Court directed the concerned Treasury Officer to pay interest to the writ petitioner at the rate of 5% per annum on the gratuity and arrear pension calculated on and from the due date till the date of actual payment, provided the delay caused was not attributable to the petitioner.[Pranesh Kumar Kar v. State of West Bengal, 2022 SCC OnLine Cal 1371, decided on 19-05-2022]


Mr Sudipa Biswas : for the Petitioner

Mr Debasish Basu : for the State


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court:  The Division Bench comprising Ajay Rastogi and Bela M. Trivedi, JJ., reversed the impugned judgment of the Madras High Court and held that when the delay in appointment is attributable to the State, it would not deprive the employees of their right to become the member of the Pension Scheme, 1978 merely on the ground that the Scheme was not applicable to their year of appointment, particularly when other candidates who participated in the common process of selection were availing the same.

The Court remarked,

“The premise on which the High Court has proceeded is not sustainable for the reason that the appellants along with other applicants had participated in the self-same selection process pursuant to advertisement dated 9th September 2001”

Background

The undisputed facts of the instant case were that 53 vacancies for Assistant   Public   Prosecutor   Grade-II were advertised by the Tamil Nadu Public Service Commission in the year 2001.   After undertaking the process for selection, 51 persons, including those who were lower in order of merit to the appellants, were appointed by the Government by order dated 24-09-2002.

Pertinently, the names of the appellants were withheld for want of further verification.   The   Commission on verification granted clearance to both the appellants and intimated the same to the State Government on 03-09-2002 (much before the appointments were made on 24-09-2002).   Despite all the formalities being completed, without any reasonable cause or justification, the State Government had withheld the appointments of the appellants, and finally, both the appellants were appointed on 23-08-2005 and 23-04-2004 respectively.

Meanwhile, vide notification dated 06-08-2003, an amendment was made under the Tamil Nadu Pension Rules, 1978. Pursuant to which the State Government introduced a new Contributory Pension Scheme applicable to the Government employees who were recruited on or after 01-04-2003.

Issue Involved

The grievance of the appellants was that their names were cleared by the Commission much earlier than the date of appointment of the other 51 candidates by the order dated 24-10-2002, but the State Government failed to include their names while appointments of other selected candidates, including those who were lower in order of merit.

Therefore, the appellants contended that their names were withheld for two-three years by the State without any reasonable cause/justification, and the delay in appointments could not be attributable to them in any manner. The appellants argued that because of their later appointments, the Government had denied them the benefits of the Scheme, 1978 which was applicable to the employees appointed on or before 01-04-2003.

Analysis and Findings

The Court observed that when those who are lower in order of merit to the appellants were appointed and no justification had been tendered by the State as to why the names of the appellants were withheld for two-three years, the delay in making appointments could not be held to be attributable to the appellants in any manner.

Hence, the Court found that in the given circumstances, when all other candidates who had participated along with the appellants were appointed on 24-09-2002 including those who were lower in the order of merit, there was no reason for withholding the names of the appellants. The Court held,

“Merely because they were appointed at a later point of time, would not deprive them of claiming to become a member of Tamil Nadu Pension Rules, 1978, which is applicable to the employees who were appointed on or before 1st April, 2003.”

In light of the above, the Court set aside the finding recorded by the High Court. The State was directed to treat the appellants to be a member of the Tamil Nadu Pension Rules, 1978 for all practical purposes and benefits as members of the Rules, 1978 to which the appellants were entitled, including retiral benefits.  [P. Ranjitharaj  v. State of Tamil Nadu,  2022 SCC OnLine SC 508, decided on 25-04-2022]


Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: Reversing the concurrent findings of the Single Judge and Division Bench of Kerala High Court, the Bench of S. Abdul Nazeer* and Vikram Nath, JJ., held that the State cannot recover excess amount paid to the ex-employee after the delay of 10 years.

The Court held that if the amount was not paid on account of any misrepresentation or fraud of the employee but it was the employer who applied wrong principle for calculating allowance or misinterpreted a, such excess payment of emoluments or allowances are not recoverable. The Court clarified,

“This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered.”

Question of Law

The issue before the Court was whether increments granted to the appellant, while he was in service, can be recovered from him almost 10 years after his retirement on the ground that the said increments were granted on account of an error?

Backdrop of Events

The brief facts of the case were such that the appellant was a High School Assistant/Teacher in an aided school. During his tenure, he availed leave without allowance first from 20-10-1972 to 31-03-1973 and again from 02-07-1973 to 28-03-1974, for pursuing post-graduation i.e., M.Sc. (Chemistry) Course.

Later on, the appellant was promoted as Headmaster of the school and was granted senior grade promotion and his pay scale was revised accordingly. Consequently, a notice was served to the appellant by District Educational Officer with an objection that the period of leave obtained for undergoing higher education should not be included while determining total qualifying service. Therefore, the Educational Officer recommended that pay and subsequent increments granted to the appellant should be recovered from him.

The proposal to initiate recovery proceedings was challenged by the appellant before the Public Redressal Complaint Cell which rejected the said complaint stating that post-graduation degree M. Sc. (Chemistry) was not useful as per the Rule 91A Part I of the Kerala Service Rules in any manner to the public service, therefore, leave without allowance could not be counted for service benefits.

Impugned Findings of the High Court

Meanwhile, the appellant retired from service. Pursuant to the order of Educational Officer the Deputy Director Education sanctioned the release of 90% of the death-cum-retirement gratuity (D.C.R.G.) amount after withholding 10% of the said amount. Aggrieved, the appellant approached the High Court which upheld the reasoning given by the State and dismissed the writ petition holding that the mistake committed by the department while granting the service benefits can be rectified subsequently by way of proposed recovery to be effected from appellant’s D.C.R.G. amount.

The appellant contended that the excess payment made to the appellant was not on account of any misrepresentation or fraud on his part; rather the excess payment was made due to a mistake in interpreting the Kerala Service Rules.

Analysis and Findings

The Court opined that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable.

However, the Court clarified that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess.

Conclusion

Hence, considering that the access amount was not paid on account of misrepresentation or fraud played by the appellant, the Court held that an attempt to recover the said increments after passage of ten years of retirement was unjustified. Consequently, the impugned judgment and order was set aside and quashed.

[Thomas Daniel v. State of Kerala, 2022 SCC OnLine SC 536, decided on 02-05-2022]


*Judgment by: Justice S. Abdul Nazeer


Kamini Sharma, Editorial Assistant has put this report together 

Cases ReportedSupreme Court Cases

In Part 4 of 2022 SCC Volume 3, read some very pertinent Supreme Court decisions, involving aspects regarding reservation, accountability of social media platforms, service law and more.


Constitution of India — Arts. 14, 15, 16 and 226 — Writ of mandamus in matters of reservation — Scope and limit: Order of High Court directing State Government to increase the percentage of reservation for a particular category, that is, to provide for 3% reservation/quota for sportspersons, instead of 1% provided by State Government, held, beyond its jurisdiction and a grave error. Court cannot issue a mandamus: (i) to provide for reservation or reservation for any particular community even on basis of any quantifiable data brought to its notice, or (ii) to collect quantifiable data to justify their action of not providing reservation. [State of Punjab v. Anshika Goyal, (2022) 3 SCC 633]

Constitution of India — Arts. 19(1)(a) & (2) and Arts. 194 & 105 — Accountability of Social media platforms, for posts made on such platforms by third parties: Extent of accountability of Social media platforms for posts made by third parties to House Committee of State Legislature, determined. [Facebook v. Delhi Legislative Assembly, (2022) 3 SCC 529]

Criminal Law — Public Accountability, Vigilance and Prevention of Corruption — Constitutional Authorities/Functionaries/High Public Offices — Security of Prime Minister of India: Directions issued for  judicial inquiry into breach and lapses as the convoy of PM was stuck on a flyover for around 20 minutes. Records relating to PM’s visit seized and secured. Directions also issued for constitution of Enquiry Committee, terms of reference and stay of ongoing proceedings by Central and State Governments. [Lawyers Voice v. State of Punjab, (2022) 3 SCC 521]

Criminal Procedure Code, 1973 — S. 389: Suspension of sentence by Supreme Court on ground of plea of juvenility taken before Supreme Court for the first time, when warranted, explained. [Sagar Behara v. State of W.B., (2022) 3 SCC 526]

Criminal Procedure Code, 1973 — S. 439 — Bail: Grant of bail without considering relevant aspects and recording reasons is not justified. Law summarised regarding principles for grant of bail and considerations to be balanced therefore. [Manoj Kumar Khokhar v. State of Rajasthan, (2022) 3 SCC 501]

Criminal Procedure Code, 1973 — S. 482 — Failure to exercise quashment power — When not proper: In this case of alleged misappropriation of monies of complainant and others, main allegations are against other co-accused, in the facts and circumstances of the case, it was held that to continue criminal proceedings against both appellant-accused herein would be abuse of process of law and court and unnecessary harassment to appellants. Hence, High Court ought to have exercised its powers and discretion under S. 482 CrPC and ought to have quashed criminal proceedings against appellants. Hence, criminal proceedings under Ss. 406, 420, 467, 468, 471 and 120-B IPC including charge-sheet, quashed and set aside insofar as appellants herein are concerned. [Rekha Jain v. State of U.P., (2022) 3 SCC 497]

Service Law — Pension — Computation/Calculation of pension: In this case, respondent retired after one month of rejoining from leave for about two years without allowances. Cl. 2(2) as modified vide Circular GO (P) No. 230/2012/Fin. dt. 19-4-2012 envisaged that for computing 10 months’ emoluments for purpose of average emoluments in respect of employee who retired from service on or after 1-1-2006 and who during part 10 months drew pay in pre-revised scale, their pay in pre-revised scale was to be enhanced notionally to initial pay drawn in revised scale. For calculating average emoluments as per Kerala Services Rules, if during period of ten months, employee was absent from duty, on leave with or without allowances which qualified for pension, or having been suspended was reinstated in service without forfeiture of service, his emoluments for ascertaining average were to be taken, at what they would have been, had he not been absent from duty or suspended provided that benefit of pay in any officiating post would be admissible only if it was certified that he would have continued to hold that officiating post but for leave or suspension. Thus, part of 10 months not equivalent to past 10 months. Hence, impugned judgment finding fixation of pension @ Rs 19,334 in revised scale justified considering last drawn pay of Rs 46,400 by respondent, calls for no interference. [State of Kerala v. Anie Lukose, (2022) 3 SCC 629]

High Court Round UpLegal RoundUp

110 Reports from 20 High Courts


Allahabad High Court


  • Money Laundering

For money launderers “jail is the rule and bail is an exception”

While addressing a matter with regard to anticipatory bail, Krishan Pahal, J., observed that, Money Laundering being an offence is economic threat to national interest and is committed by the white-collar offenders who are deeply rooted in society and cannot be traced out easily.

Read full report here…

  • Right to Approach the Court

Person whose case is based on falsehood has no right to approach the Court

Expressing that Courts of law are meant for imparting justice, Sanjay Kumar Singh, J., observed that more often the process of Court is being abused by unscrupulous litigants to achieve their nefarious design.

Read full report here…

  • Bail

Cogent and clinching evidence found regarding conversion of deaf and dumb students to Islam; Bail denied

The Division Bench of Brij Raj Singh and Ramesh Sinha, JJ. dismissed a criminal appeal which was filed under Section 21 (4) of the National Investigation Agency Act, 2008 of refusal of bail to the appellant.

Read full report here…

Unity of India is not made of bamboo reeds which will bend to the passing winds of empty slogans; foundations of our nation are more enduring: All HC while granting bail to Kashmiri Students

Expressing that Students travelling freely to different parts of the country in the quest for knowledge is the true celebration of India diversity and a vivid manifestation of India’s unity, Ajay Bhanot, J., stated that it is the duty of the people of the hosting State to create enabling conditions for visiting scholars to learn and to live the constitutional values of our nation.

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Andhra Pradesh High Court


  • Arms Act

Will carrying of toy gun in public attract S. 25 of Arms Act? Bail granted to a man giving stills as a hero with an air gun in a cinema theatre

“…the offences punishable under Sections 290, 506(2) IPC are bailable in nature. As regards the offence punishable under Section 25 of the Arms Act, 1959, is concerned, the pistol which was seized from the possession of A-1 is an air gun. It is a toy gun.”

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  • Wilful Negligence

No offence made out under POA Act against bank officials who misplaced the house documents and title deeds of a claimant as FIR does not show wilful Negligence by a public servant

The Court after perusing Section 3(1) (v) and 3(2) (vii) and Section 4 of POA, Act, which deals with punishment for neglect of duties it is clear that these cannot be made applicable to the facts in issue. Section 3(2)(vii) postulates a situation where a person being a public servant commits any offence under this section i.e., Section 3(2) shall be punishable with imprisonment for a term which shall be less than one year but which may extend to the punishment provided for that offence. 

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  • Vakalat and Written

Signatures on the Vakalat and the Written Statement cannot be considered as signatures of comparable and assured standard for want of expert opinion under S. 45 Evidence Act

Ninala Surya, J., decided to not interfere with the impugned order and dismissed the civil writ petition.

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Bombay High Court


  • Child Marriages

Child marriages will have to be stopped and no person can be allowed to take advantage of any such situation

Vibha Kankanwadi, J., expressed that Child marriages are hazardous to the social fabric of this Country.

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  • Decorum of Court

Advocate to maintain dignity & decorum of Court, no room for arrogance and no license to intimidate Court

Anuja Prabhudessai, J., expressed that an advocate as an Officer of the Court is under an obligation to maintain the dignity and decorum of the Court. There is no room for arrogance and there is no license to intimidate the Court, make reckless accusations and allegations against a Judge and pollute the very fountain of justice.

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  • Compassionate Appointment

Can legal heir of deceased employee be granted compassionate appointment, who took voluntary retirement due to being medically unfit?

Ravindra V. Ghuge, J., decides a matter as to whether the benefit of compassionate appointment can be granted to the legal heir of the employee, who took voluntary retirement and was never certified as being medically unfit to perform any work, though the reason for opting for retirement was a serious medical condition.

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  • Religious Verses

Declaration of reciting religious verses at someone’s residence: Act of breaching personal liberty of another person?

Stating that, “Great power comes with greater responsibility”, the Division Bench of Prasanna B. Varale and S.M. Modak, JJ., expressed that, the expectation of responsible behaviour or responsible conduct from those persons who are active in public life cannot be an extra expectation but would be a basic expectation.

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  • Eviction

Son not expected to brand his aged father a ‘swindler’ or allege that aged parents have lost mental balance

In a matter wherein, the parents sought eviction of their sonRohit B. Deo, J., expressed that,

“In the conservative Indian society, a son is not expected to brand his aged father a ‘swindler’ or then allege that the aged parents have lost mental balance.”

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  • Arbitration and Conciliation Act

Can mere filing of proceedings under S. 7 IBC be treated as an embargo on Court exercising jurisdiction under S. 11 of Arbitration & Conciliation Act?

A very interesting question was considered by G.S. Kulkarni, J., the question being, whether mere filing of a proceeding under Section 7 of the Insolvency and Bankruptcy Code, 2016 would amount to an embargo on the Court considering an application under Section 11 of the Arbitration and Conciliation Act, 1996, to appoint an arbitral tribunal?

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  • Land Acquisition

For determining land acquisition compensation, market value, if any, specified in Stamp Act for registration of Sale Deed and/or Agreement of Sale has to be considered

The Division Bench of S.V. Gangapurwala and Vinay Joshi, JJ., expressed that only because 83% of the property for the project is acquired, it would be egregious not to apply the provision of the statute for determination of compensation.

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  • Pension

If service of an employee at his superannuation is less than ten years, then previous temporary or officiating service needed to be counted for qualifying service for pension

The Division Bench of R.D. Dhanuka and S.G. Mehare, JJ., expressed that, for condoning the interruption in service, the total service pensionary benefit in respect of which will lost should not be less than five years duration, excluding one or two interruptions.

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  • Partition

In a suit for partition, the heads of all the branches are necessary parties

Mangesh S. Patil, J., decided on the following questions for consideration:

  • Whether in a suit for partition and possession of the field all the sharers and co-partners are necessary parties?
  • Whether suit for partition and possession is bad for non-joinder of necessary parties and therefore ought to have been dismissed?
  • Whether in the circumstances of the case, the observation regarding non-joinder of necessary parties, made by the appellate court, are proper?

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  • Maintenance

Can filing of a maintenance proceeding, a criminal case for harassment be said to be sufficient to jump to a conclusion that wife intended to harass husband and his relations?

In a matter of matrimonial discord, Mangesh S. Patil, J., expressed that, when admittedly, for whatever reason, there was a marital discord and the wife had started residing with the infant child at her parental house barely within three years of her marriage, it cannot be expected of her not to prosecute whatever rights and remedies she has under the law.

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  • “No Confidence”

If directly elected Sarpanch acts in a manner rendering functioning of Panchayat at a standstill, would member of panchayat get right to move motion of ‘no confidence’?

Stating that in the democratic setup, the will of the majority is the rule, the Division Bench of S.V. Gangapurwala and Shrikant D. Kulkarni, JJ., held that if the directly elected Sarpanch fails to call the meetings of the Panchayat or acts in a manner rendering the functioning of the Panchayat at a standstill, the member of the Panchayat would certainly get a right to move a motion of no confidence.

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  • Motor Accident Case

Determination of a just compensation cannot be equated to be a bonanza

Addressing a dispute with regard to the percentage of permanent disability and determination of compensation, Shrikant D. Kulkarni, J., remarked that determination of a just compensation cannot be equated to be a bonanza.

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  • Society

Can minority members of a Society act against will of majority members and foist delay in commencement of redevelopment work of Society?

Observing that, a developer who has been appointed by the Society and who is eager to proceed with the redevelopment, was in some manner left baffled and dragged into litigationG.S. Kulkarni, J., held that, non-cooperating members cannot foist a delay on the builder and the society in the commencement of the redevelopment work resulting in the project costs being increased every passing day.

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  • Abortion

Past pregnancy can be determined on account of permanent changes in the body of a woman

While addressing a matter, wherein the accused who was a doctor charged for raping a minor stated that there was not any proof that the girl ever conceived or had undergone any abortion, M.G. Sewlikar, J., expressed that, Medical science is so advanced that now a days past pregnancy also can be determined on the basis of changes in the body of a woman on account of pregnancy.

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  • Custody of Child

Non-custodial parent cannot be deprived of his right to spend quality time and enjoy company of children

Anuja Prabhudessai, J., expressed that the children also have the right to love and affection from both parents as well as grandparents as it is essential for the personal development and overall well-being of the children.

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  • Partnership Act

Every partner is liable, jointly with all other partners and also severally for all acts of firm done while he is a partner: Is it true?

Expressing that, a firm is not a legal entity, N.J. Jamadar, J., held that a partnership firm is only a collective or compendious name for all the partners.

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  • Constitutional Validity of S. 29A of Consumer Protection Act

Whether absence of President of State Commission or District Forum for reasons beyond control is sufficient for striking down S. 29A as unconstitutional?

Stating that, the Courts cannot examine the constitutional validity if a situation created by impugned legislation is irremediable, the Division Bench of V.M. Deshpande and Amit B. Borkar, JJ., addressed a matter wherein the constitutional validity of Section 29A of the Consumer Protection Act, 1986 has been challenged.

Read full report here…

  • Lawyer-Client Relationship

Lawyer-client relationship is a fiduciary one; any act which is detrimental to legal rights of clients’ needs to be punished

Stating that it is the duty of every Advocate to uphold professional integrity so that citizens can legally secure justicethe Division Bench of V.M. Deshpande and Amit B. Borkar, JJ., expressed that, professional misconduct refers to its disgraceful conduct not befitting the profession concerning the legal profession, which is not a business or trade and therefore, it must remain decontaminated.

Read full report here…

  • Sale Deed

Whether a natural guardian having executed sale-deed of property of a minor in favour of a third party and thereafter repurchased part of it, can be prosecuted for offences under Ss. 420, 467, 468, 471 of IPC that too, after more than 35 years from date of attaining majority by minor?

The Division Bench of V.M. Deshpande and Amit Borkar, JJ., expressed that a transaction by a natural guardian of a minor with respect to his immovable properties is valid till a Court strikes it down.

Read full report here…

  • Muslim Personal Law

Under Muslim Personal law, can Family Court dissolve the marriage of a couple?

The Division Bench of V.K. Jadhav and Sandipkumar C. More, JJ., addressed whether Family Court under Muslim Personal Law (Shariat) Application Act, 1937 read with Section 7(1)(b) Explanation (b) of the Family Courts Act, 1984 declare the matrimonial status of a wife and husband.

Read full report here…

  • Competition Commission of India

Competition Commission of India not to take any coercive actions against Asianet, Disney and Star India until 8th June

The Division Bench of G.S. Patel and Madhav J. Jamdar, JJ., directed the Competition Commission of India not to take any coercive actions against Asianet Star Communications Private Limited, Disney Broadcasting and Star India.

Read full report here…

  • Alimony

Whether the husband is entitled to claim alimony under Section 25 of the Hindu Marriage Act, 1955?

Bharati Dangre, J., held that provision of maintenance/permanent alimony being a beneficial provision for the indigent spouse, Section 25 can be invoked by either of the spouse, where a decree of any kind governed by Sections 9 to 13 has been passed and marriage tie is broken, disrupted or adversely affected by such decree of the court.

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  • Properties

Daughters and widow of a deceased would inherit properties of deceased as tenants in common or joint tenants?

Mangesh S. Patil, J., expressed that, by virtue of Section 19 of the Hindu Succession Act, it has been explicitly made clear that if two and more heirs succeed together to the property and in the estate, they take the property as tenants in common and not as joint tenants.

Read full report here…


Calcutta High Court


  • Departmental Proceedings

DGP directed to initiate departmental proceedings against Police Officers; CID to take over investigation

Rajasekhar Mantha, J. while adjudicating a case involving serious offences under Section 365, 354B and other provisions of IPC directed the Director General of Police, West Bengal to initiate appropriate departmental proceeding against the ASI, Arnab Chakraborty and any other person that he may feel was responsible for misleading the Court further handing over the investigation to CID, West Bengal.

Read full report here…

  • Policy Decisions

Policy decisions of State not to be disturbed unless found to be grossly arbitrary or irrational; prayer for extension of lease rejected

Shampa Sarkar, J. decided on a petition which was filed for a direction upon the respondents 7 and 8 to cancel and/or quash the notice dated April 6, 2022, with regard to handing over the possession of the ferry ghat to the Pradhan of the Mahanandatola Gram Panchayat, upon expiry of the lease of the petitioner.

Read full report here…

  • Currency Notes

There are many known heroes and unsung heroes, if everybody starts making such a claim there will not be an end; Petition for printing Netaji’s picture on currency notes dismissed

The Division Bench of Prakash Shrivastava, CJ. and Rajarshi Bharadwaj, J. dismissed a petition which was filed by the petitioner with the plea that having regard to the contribution of Netaji Subhas Chandra Bose in the freedom struggle, his picture should be printed on the Indian currency.

Read full report here…

  • Arbitration and Conciliation Act

Scope of S. 9 of A&C Act cannot be extended to enforcement of award or granting fruits of award to award holder as an interim measure; application dismissed

Ravi Krishan Kapur, J. dismissed an application which was filed under Section 9 of the Arbitration and Conciliation Act, 1996 (‘the Act’) wherein liberty to withdraw a sum of Rs 4,11,89,759/- deposited by the award debtor, State of West Bengal, with the Registrar, Original Side of this Court upon furnishing of appropriate security was sought.

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  • Rape

Lady IPS Officer directed to investigate in the recent matter of 4 rape cases in the villages

The Division Bench of Prakash Shrivastava, CJ. and Rajarshi Bharadwaj, J. took up a petition and directed Damayanti Sen, IPS presently working as Special Commissioner of Police to Kolkata Police to investigate in the matter of rape cases at village Nehalpur, Nandipara, incident on Dol Purnima and English Bazar.

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  • Indian Forest Act

Court orders release of vehicles confiscated under the Indian Forest Act with unprecedented observations

Rabindranath Samanta, J. allowed a criminal revision petition which was filed aggrieved by the order of Magistrate wherein he had rejected the prayers made by the petitioners for return of two vehicles which were seized by the Deputy Ranger (Beat Officer), Bamonpokhari Range Office of the Forest Range, Kurseong Forest Range, Darjeeling

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  • GST Act

The interest of revenue has been safeguarded; Order of detention against the State upheld in matter of GST Act

The Division Bench of T. S. Sivagnanam and Hiranmay Bhattacharyya, JJ., dismissed an appeal and connected application which was filed by the State against  the order of detention passed by the authority detaining two trucks containing consignment of steel and other products in WPA 17611 of 2021 dated: 07-12-2021 wherein petitioner was the wife of late Mohit Madhogoria, who was a registered dealer under the provisions of the W.B.V.A.T. Act presently under the GST Act.

Read full report here…


Chhattisgarh High Court


  • Legislation

Whenever substantive obligation/rights/ interests are impaired/adversely affected through any piece of subordinate legislation, then its source must be traced within express provisions in four corners of parent enactment

“…the very object and reason behind framing of the Pharmacy Act, 1948 was to ensure that only persons with a minimum standard of professional education should be permitted to practice the profession of pharmacy.”

Read full report here…

  • Unlawful Detention

Writ of habeas corpus is a writ of right, it is not a writ of course; a prima facie case of unlawful detention must be made

The writ of habeas corpus is an effective means of immediate release from the unlawful detention, whether in prison or in private custody. Physical confinement is not necessary to constitute detention. Control and custody are sufficient. For issuance of a writ of habeas corpus, the applicant must show a prima facie case of unlawful detention of the subject.

Read full report here…

  • Section 304 B of Penal Code, 1860

An order of acquittal is not to be set aside lightly; Chh HC observes in a case where daughter in law committed suicide in unnatural circumstances

The Court after perusing evidence and facts observed that the finding of the Trial Court that the prosecution has failed to prove that soon before the death of the deceased she was subjected to cruelty on account of demand of dowry is totally based on the evidence available on record.

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  • Will

Daughters also entitled for getting equal share in the property inherited by their parents; Court reiterates and allows appeal deciding validity of will

Narendra Kumar Vyas, J. allowed an appeal filed by the defendants setting aside the judgment and decree by the Trial Court whereby trial Court had decreed the suit filed by plaintiff/respondent 1, dismissed the counter claim filed by appellants/defendants 1 to 3.

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  • Criminal Trial

Criminal trial and confiscation proceedings may run simultaneously; Once the information of confiscation proceeding under S. 52 (e) Indian Forest Act is given to DM, Trial Magistrate has no power over it

“…a bare reading of Section 52, Indian Forest Act, 1927 makes it clear that Forest Officer has power to confiscate the vehicle and the Competent Authority after giving show cause notice to the petitioner.”

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  • Abduction

If a girl runs away voluntarily without any persuasion, can boy with whom she eloped be held responsible for abducting the girl?

Deepak Kumar Tiwari, J., held that, when the accused has not played any active role or persuaded the victim and the victim voluntarily left the protection of her parents and having capacity to know her action, no offence of abduction is made out.

Read full report here…


Delhi High Court


  • Maintenance

Husband with sufficient means, is obligated to maintain wife and children?

In a maintenance matter, Subramonium Prasad, J., expressed that, if a husband has sufficient means, he is obligated to maintain his wife and children and not shirk away from his moral and familial responsibilities

Read full report here…

  • Rule of Law

Whether absence of rule of law or utter disregard for the same propels a country towards inevitable ruin?

Expressing that, attempts to circumvent or undermine judicial decisions need to be viewed seriously in order to ensure that the functioning of our country is unhindered, especially during turbulent times, Subramonium Prasad, J., held that,

“It is only the rule of law which not only cements the civilised functioning of a country, but also drives a country towards progress and development.”

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  • Framing of Charge

Does framing of charge means that accused is guilty or does it imply that accused may be guilty?

“The beauty of procedural law lies in the stages and remedies available during the course of a criminal proceeding.”

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  • Levy of Liquidated Damages

 If a contract comprises, several components awarded to different contractors, would it be inapposite to blame contractor that was last in completing work for loss suffered on account of delay in completing Project?

While reiterating the law on award of liquidated damages, Vibhu Bakhru, J., expressed that, where a contract comprises, several components awarded to different contractors, it is inapposite to blame the contractor that is last in completing the work for loss suffered on account of delay in completing the Project.

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  • Arbitration Agreement

Rule of priority in favour of arbitrators is counterbalanced by Courts’ power to review existence and validity of arbitration agreement

“Once a valid arbitration agreement exists between the parties, the issue whether the petitioner is entitled to any relief in the absence of a third party to the agreement or that third party is required to be impleaded in the proceedings, is covered by the Doctrine of Competence-Competence and it will be for the Arbitrator to decide the said issue.”

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  • PC & PNDT Act

Can Court take cognizance of complaint filed by single-member Appropriate Authority for offences under PC&PNDT Act, 1994?

Mukta Gupta, J., held that, the Metropolitan Magistrate/ Judicial Magistrate of the first class is competent to take cognizance and try the offence punishable under the PC&PNDT Act on the complaint of an Appropriate Authority or any officer authorised on this behalf by the Central Government or the State Government or the Appropriate Authority under sub-Section (1) of Section 28 of the Pre-Conception and Pre Natal-Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.

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  • Jurisdiction

Can power under S. 482 CrPC be exercised where allegations are required to be proved in Court of law?

Rajnish Bhatnagar, J., expressed that the Court in the exercise of its jurisdiction under Section 482 CrPC cannot go into the truth or otherwise of the allegations made in the complaint or delve into the disputed question of facts.

Read full report here…

  • Recusal of Judge

When a Judge recuses without reasons, can a litigant or third party intervene, comment or enquire?

Asha Menon, J., held that, when a Judge recuses, no litigant or third party has any right to intervene, comment or enquire. The recusal has to be respected, whether a reason has been spelt out in detail or not.

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  • Adultery

Only continuous and repeated acts of adultery and/or cohabitation in adultery would attract rigours of provision under S. 125(4) CrPC

While addressing a matter with regard to a wife’s right to maintenance Chandra Dhari Singh, J., expressed that, only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125(4) CrPC.

Read full report here…

  • Civil Contempt

Disobedience of an order of Court, if permitted, will result in striking at root of rule of law

Whether the third party can be absolved from contempt if they are informed that their conduct would violate the Court order, Subramonium Prasad, J., reiterated the well-settled position that though broadly a person who is not a party to the proceedings cannot be proceeded against for violation of the order, but a third party cannot seek to absolve themselves if they are informed about the fact that their conduct amounts to a violation of the Court and that despite the information, they choose to willfully flout the mandate of the Court.

Read full report here…

  • Denial of Sex

Whether denial of sex can qualify as “exceptional depravity” under S. 14 of the Hindu Marriage Act and allow waiver of one-year mandatory period?

Noting that, Section 14 of the Hindu Marriage Act intends to discourage the couples from breaking the sacred bond of marriage in haste, the Division Bench of Vipin Sanghi, ACJ and Jasmeet Singh, J., held that, a mandatory one year period granted under Section 14 of the Act, encourages couples to cool down, and give a rethink to preserve their marriage.

Read full report here…

  • Bail

Person accused of defrauding Government: Will Del HC grant bail to the accused?

Prateek Jalan, J., grants bail to a person who was alleged to cause fraudulent transactions and loss to the government.

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Cocoon of protection, afforded by a bail order insulates suspect and he could thwart interrogation reducing it to futile rituals

Asha Menon, J., expressed that, personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.

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  • Arbitration and Conciliation Act

Scope of examination under S. 11 of A&C Act is confined to existence of arbitration agreement or does it extend to adjudicating nature of contract as well?

Vibhu Bakhru, J., held that whether claims are barred by limitation is a mixed question of fact and law and is required to be examined by the Arbitral Tribunal.

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Whether an award passed under S. 34(4) of the A&C Act is a fresh award for the purpose of S. 34 of the Act?

Vibhu Bakhru, J., allowed an amendment application seeking amendment of a petition filed under Section 34 of the Arbitration and Conciliation Act.

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  • Infringement

Red Bull v. Sting | Injunction application against Pepsico’s tagline “STIMULATES MIND ENERGIZES BODY”: Whether Pepsi has committed infringement?

Amit Bansal, J., observed that the taglines of ‘Red Bull’ and ‘Sting’ are descriptive and laudatory in nature.

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  • Scholarship Advertisement

If an advertisement regarding scholarship was published in Urdu language, can it be presumed that it was targeted at students belonging to a particular community only?

The Division Bench of Manmohan and Dinesh Kumar Sharma, JJ., expressed that just because the scholarship advertisement was published in the Urdu language, does not mean that it was targeted at students belonging to a particular community only.

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  • COVID-19

Can Delhi High Court direct State for payment of ex gratia compensation of Rs 1 Crore to families whose members died due to COVID-19?

The Division Bench of Vipin Sanghi, ACJ and Navin Chawla, J., held that this Court cannot direct payment of ex gratia compensation of Rs 1 Crore to families whose members died due to COVID-19.

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  • Physical relations on Promise to Marry

 Long term relationship with intent of marriage ended on hostile terms, would it be covered under S. 376(2)(n) IPC?

Noting that the Trial Court failed to perform its duty and rendered a mechanical order, Subramonium Prasad, J., set aside the trial Court’s order in a matter wherein, a woman had alleged that she was subjected to physical relationship with a boy on a false promise of marriage.

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  • Political Clearance

Judges required to seek political clearance qua private visits abroad: Did Del HC strike down Ministry of External Affairs’ Office Memorandum requiring the same?

The Division Bench of Rajiv Shakdher and Jasmeet Singh, JJ., strikes down the OM dated 13-7-2021, to the extent it requires Judges of the Supreme Court and the High Court to seek political clearance qua private visits abroad.

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  • Natural Justice

Refusal of a trade mark without even affording a hearing would be contrary to fundamental tenets of natural justice

Prathiba M. Singh, J., expressed that, refusing trade mark without even affording a hearing would be contrary to the fundamental tenets of natural justice.

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  • LOC issued against Rana Ayyub

Infringement of Human Rights and restraint of her freedom of speech and expression?

While expressing that a LOC is a coercive measure to make a person surrenderChandra Dhari Singh, J., noting that the petitioner had appeared on each and every date before the Investigating Agency when summoned, quashed the LOC issued against Rana Ayyub.

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  • Arbitration and Conciliation Act

Vibhu Bakhru, J., forms an arbitration tribunal to adjudicate the matter with regard to use the brand name/trademark “Hero”.

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  • Custodial Interrogation

Father of deceased accuses brother-in-law for her suicide: If chargesheet has already been filed, is there any need of custodial interrogation?

Chandra Dhari Singh, J., decides a bail matter wherein a woman was alleged to have committed suicide due to harassment and dowry demands by in-laws.

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Gujarat High Court


  • Reinstatement of Employee

Court directs reinstatement of employee alleged of corruption charges; termination order quashed

Biren Vaishnav, J. allowed a petition which was filed challenging the order of termination passed by the respondent – authority, by which, the services as Assistant Motor Vehicle Inspector, Class-III of the petitioner has been terminated on the ground of lodging of an FIR under Sections 7, 8, 12, 13(1)(D) and 13(2) of the Prevention of Corruption Act.

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  • Bail

First step of turning him into a hardcore criminal will be sending him behind bars; Court allows bail

A.S. Supehia, J. allowed a bail application in connection with FIR filed for the offences under Sections 363, 366, 376(2)(n), 376(3) of the Penal Code, 1860 as well as Sections 4, 6, and 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

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  • Custody of Children

Mother alleged to have extra-marital affair, will father be granted custody of children?

Ashok Kumar C. Joshi, J., denied granting child custody to father, wherein the mother was alleged to have extra-marital affairs.

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Himachal Pradesh High Court


  • COVID-19

PIL filed by an advocate for grant of stipend to her as well other Advocates, who have not completed 3 years of practice on account of Covid-19; HP HC directs to approach State Bar

A Division Bench of Mohammad Rafiq CJ. and Jyotsna Rewal Dua JJ. disposed of the petition and directed to approach State Bar Council.

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Jharkhand High Court


  • Natural Justice

Principles of natural justice required to be followed and cannot be waived out depending upon quantum of punishment; Reiterated mandate of natural justice in blacklisting cases

The Court remarked that the cardinal principle of natural justice is mandatory to be followed in a case where any adverse decision/action is being taken against one or the other. The issuance of notice means that the person against whom any adverse action proposed to be taken, is required to be provided with the opportunity of hearing.

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Jammu and Kashmir and Ladakh High Court


Advocates are officers of Court and deserve same respect and dignity as is being given to Judicial and Presiding Officers of Courts

Sanjay Dhar, J., expressed that, there may be stray incidents where the advocates have resorted to levelling allegations against the Judicial Officers in order to seek transfer of their cases from one Court to another to suit their convenience, but then this cannot be generalized.

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  • Maintenance

Minor seeks maintenance but issue of her paternity is in question: Will J&K and Ladakh HC grant maintenance amidst the dispute?

“…grant of maintenance to a minor child should be the paramount consideration for a Magistrate dealing with a petition under Section 125 CrPC, but when the paternity of a child is seriously disputed and there is no prima facie material to suggest that the respondent happens to be the father of the child, it would not be prudent for a Magistrate to fasten the respondent with the liability of maintaining the child.”

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Kerala High Court


  • Sexual Assault

In the guise of applying makeup, a bridal make up artist alleged sexually assaulted several women: Can he be granted anticipatory bail?

Gopinath P., J., granted bail to the bridal make up artist who was alleged to have sexually assaulted several women in the guise of applying make up.

Read full report here…

  • Media Trial

Can media be given right to speculate on outcome of one going investigations or Court proceedings or criminal trials?

While addressing the matter with regard to the media trial, Mohammed Nias C.P., J., expressed that, half-truths and misinformation cannot be the basis of publications or telecast.

Read full report here…

  • Alimony

Can children claim any amount under the head of permanent alimony under S. 25 of the Hindu Marriage Act?

Observing that trauma in a marital discord is common to both parties, the Division Bench of A. Muhamed Mustaque and Sophy Thomas, JJ., expressed that as per Section 25 of the Hindu Marriage Act, while awarding permanent alimony and maintenance, the husband’s income and other property, if any, and the income and property of the wife, conduct of the parties and other circumstances are to be taken into account.

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  • Consensual Sex

Can promise to marry a married woman be legally enforceable wherein she voluntarily formed sexual relations with a man?

Dr Kauser Edappagath, J., addressed a matter wherein a married woman voluntarily had sex with her former lover.

Read full report here…

  • Maintenance Tribunal

Whether power of Maintenance Tribunal under Senior Citizen Act is circumscribed to ordering of monthly allowance?

In a matter, wherein a senior citizen has approached the Court with her grievance with respect to her son, Murali Purushothaman, J., expressed that,

“When the Senior Citizen or parent who has earnings makes an application to the Maintenance Tribunal contending that her right to earning is obstructed by the son who has statutory obligation to maintain the parent, the Maintenance Tribunal has to ensure that the Senior Citizen or parent is able to maintain herself from her earnings.”

“To care for those who once cared for us is one of the biggest honours.”

Read full report here…

  • Family Court

Do Family Courts have to remain as a neutral umpire of the real dispute between the parties?

Expressing that, Family Court has been functioning in like manner of an ordinary Civil Court, the Division Bench of A. Muhamed Mustaque and Sophy Thomas, JJ., remarked that, family courts have to be impartial or neutral.

Dissatisfaction with the administration of justice in the Family Courts is writ large on the face of many orders challenged before this Court.

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Karnataka High Court


Mere suspicion is not enough to prosecute the petitioner for offence punishable under S. 370 of the IPC for human trafficking; Kar HC observes in a case where AIO caught 3 Indian nationals on suspicion

The Court after perusing complaint, charge sheet and Section 370 of the IPC observed that the petitioner had indulged himself in human trafficking and thus the soul of the provision is exploitation.

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  • Election

Kar HC quotes “The Vajpayee led NDA–Government was toppled for want of one vote” and Benjamin Franklin while deciding a case of a returning candidate whose election was set aside

“…A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election.”

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  • Solid Waste Management

PIL filed seeking to shift the location identified for setting up solid waste management; directions issued

A Division Bench of Ritu Raj Awasthi CJ. and S. R Krishna Kumar JJ. issued directions regarding setting up of solid waste management units after expert opinion from concerned authorities.

Read full report here…

  • A&C Act

Kar HC deals whether an international commercial arbitral award rendered outside India between the parties who have no connection to India can be enforced in India

“…a foreign award under a New York Convention has been given a special status. India being a signatory to the said New York Convention it is required that all countries which are signatories to the New York Convention enable execution of a foreign arbitral award rendered in a reciprocating country in the event of a property against which the arbitral award is sought to be enforced is situated within the jurisdiction of that particular country.”

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  • Dishonour of Cheque

Kar HC decides contours of law in a classic case where cash of Rs 2 crore was borrowed as hand loan and a cheque obtained for the repayment of the same got dishonoured

The Court observed that the Act was amended by the Amendment Act of 2018 and Section 143A came to be inserted. The purport of the amendment is that the Court may in certain circumstances award interim compensation which shall not exceed 20% of the amount of the cheque and such interim compensation can be permitted to be withdrawn in terms of the said amendment.

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Madras High Court


  • Tax Liability

If an assessee under stress of investigation, signs a statement admitting tax liability and makes a few payments, can it lead to self-ascertainment?

Merely because an assessee has, under stress of investigation, signed a statement admitting tax liability and has also made a few payments as per the statement, cannot lead to self-assessment or self-ascertainment.

Read full report here…

  • Two-Finger Test

Ban the practice of two-finger test on victims of sexual offences by medical professionals

Stating that two-finger test cannot be permitted to be continued, the Division Bench of R. Subramanian and N. Sathish Kumar, JJ., directed the State Government to ban the practice of two-finger test on victims of sexual offences by the medical professionals.

Read full report here…

  • Co-parcenary Right

Are Coparcenary rights taken away by Hindu Succession Act?

Anand Venkatesh, J., addressed a matter with regard to coparcenary rights of sons and daughters

Read full report here…

  • Legal Profession

Law Officers perform their duties without profit motive and with a service mentality for a nominal fee as compared to their lucrative private practice

Expressing that, Legal profession is a noble profession, and it is the lawyer, who plays a predominant role in securing every citizen life and personal liberty fundamental and statutory rights ensured by the ConstitutionM. Govindaraj, J., observed that, Law Officers perform their duties without profit motive and with a service mentality for a nominal fee as compared to their lucrative private practice.

Read full report here…

  • Law of Limitation

Exercise of power of discretion if made excessively, it would defeat the purpose and object of law of limitation; Courts not to travel beyond permissible extent

Expressing that, Power of discretion is to be exercised to mitigate the injustice if any occurred to the litigantsS.M. Subramaniam, J., remarked that,

“Litigations/appeals are expected to be filed within the period of limitation as contemplated under the Statutes. Rule is to follow limitation. Condonation of delay is an exception. Exceptions are to be exercised discreetly, if the reasons furnished are genuine and acceptable.”

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Madhya Pradesh High Court


  • Live-in Relationships

Live-in relationships are engulfing ethos of Indian society, and promoting promiscuity and lascivious behavior, giving further rise to sexual offences

Subodh Abhyankar, J., expressed that, the bane of live-in-relationship is a by-product of the Constitutional guarantee as provided under Article 21 of the Constitution of India.

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  • Divorce

Woman is considered half of her husband and thus completes him. While a man is also considered incomplete without a woman; Appeal for divorce dismissed

“Based on Hindu law, marriage is a sacred tie and the last of ten sacraments that can never be broken. Also, it is a relationship that is established by birth to birth. Also, it is not only considered as sacred but it is also a holy union. The main objective of marriage is to enable a woman and a man to perform their religious duties. Along with this, they also have to beget progeny. Based on ancient writings, a woman is considered half of her husband and thus completes him. While a man is also considered incomplete without a woman.”

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  • Criminal Proceeding

Criminal proceeding maliciously instituted with an ulterior motive for wrecking vengeance deserves to be quashed; Court allows petition by husband

Rajeev Kumar Shrivastava, J. allowed a petition which was filed to quash FIR for offence under Sections 498-A, 506, 34 of IPC and other subsequent proceedings initiated therefrom.

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  • Bail

Warning issued to Additional Session Judge for granting bail on caste and bias

Vivek Agarwal, J. allowed a bail application issuing a warning to First Additional Session Judge, Maihar, District Satna to be more cautious and judicious in his approach in future so that image of the judiciary can be saved and allegations of casteism and bias are not allowed to be levied so to tarnish collective image of judiciary.

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  • Mental Cruelty

Mental cruelty inflicted by the wife over her husband through her conduct a valid ground for divorce; Court allows appeal

The Division Bench of Sheel Nagu and Anand Pathak, JJ., allowed an appeal which was preferred under Section 19 of the Family Court Act, 1984 against the judgment and decree dated 27-03- 2019 passed by the Link Family Court whereby the application preferred by the appellant/applicant/husband under Section 13(1)(iA) of Hindu Marriage Act, 1955 had been rejected.

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  • Dishonour of Cheque

Whether dishonour of cheques could have only given a cause of action to register an FIR for an offence under S. 420 IPC?

The Court stated it is a well-settled principle of law that the general law will not prevail over the Special Law as enshrined in the maxim generalia specialibus non derogant.

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Orissa High Court


  • Dishonour of Cheque

Ori HC considers whether any difference exists between a case where default is committed and prosecution immediately launched and where prosecution is deferred till cheque presented again gets dishonored for second or successive time?

R K Pattnaik, J. dismissed the petition and held that the ground on which the petition is raised is misconceived and therefore, cannot be sustained.

Read full report here…


Rajasthan High Court


  • Sexual Assault

Ex–fiancée levelled charges of sexual assault to harass and destroy present married life of the boy; Raj HC issues notice and directs police to neither harass nor arrest him

Dinesh Mehta, J., issues notice and directs police to neither harass nor arrest the petitioner boy.

Read full report here…

  • Bail

Raj HC granted temporary bail for a period of 15 days to enable the appellant to perform Kanyadaan on daughter’s marriage

A Division bench of Manindra Mohan Srivastava, CJ. and Madan Gopal Vyas J. allowed the application and granted bail for a period of 15 days.

Read full report here…

  • Mining Operations

PIL filed seeking permit for gypsum mining in the districts Shriganganagar and Haumangarh; Raj HC observes citizen does not have any vested right to carry on mining operations, absolute right lies with State

A Division Bench of Farjand Ali J and Sandeep Mehta JJ.  directed that as and when the gypsum mining operations are opened in Sriganganagar and Hanumangarh districts, the petitioners shall not be entitled to apply for mining licenses for this purpose in either of these two districts.

Read full report here…

  • Maintenance of Senior Citizens

Ill-treatment meted out to respondent-mother, expelled from her own house, allegations of mental, physical and social abuse; Raj HC directs petitioner-son to vacate the house with his family

The Court observed that Maintenance and Welfare of Parents and Senior Citizens Act, 2007 was enacted by the Legislature in the background that the traditional norms and values of the Indian Society are lost due to withering of the joint family system as a large number of elderly are not being looked after by their family, particularly the widowed women, who are forced to spend their twilight years all alone and are exposed to emotional neglect, lack of financial support and are rather treated as a waste.

Read full report here…

  • Right to Procreation

Raj HC reiterated “Right to Procreation survives during incarceration” and “is traceable and squarely falls within the ambit of Article 21 of our Constitution; Parole granted

The Division Bench of Farjand Ali and Sandeep Mehta, JJ. allowed the petition and granted parole after considering the religious philosophies, cultural, sociological and humanitarian aspects, coupled with the fundamental right guaranteed by the Constitution of India.

Read full report here…


Punjab and Haryana High Court


  • Duration of Marriage

Short duration of marriage cannot be the only ground to disallow organ transplant by spouse; writ petition allowed

 Raj Mohan Singh, J., contemplated the present petition and ruled that a short duration of marriage is absolutely no ground to deny an organ transplant.

Read full report here…

  • Mental Cruelty

Unworkable Marriage | Wife makes unfounded, indecent and defamatory allegations against husband to his senior officers, destroying his career & reputation: Mental Cruelty or not?

Expressing that, Matrimonial cases are matters of delicate human and emotional relationshipthe Division Bench of Ritu Bhari and Ashok Kumar Verma, JJ., expressed that, the Court no doubt should seriously make an endeavour to reconcile the parties, yet, if it is found that the breakdown is irreparable, then divorce should not be withheld.

Read full report here…

  • Voice Sample

S. 65-B (4) of the Evidence Act does not mention the stage of furnishing the certificate for admissibility; Court directs to give voice sample

Avneesh Jhingan, J., entertained a petition under Section 482 CrPC where the petitioner was aggrieved by the directions of the Chief Judicial Magistrate for giving voice samples.

Read full report here…


Telangana High Court


  • Employees State Insurance Act

Exhausting the remedy available for appeal is the rule and entertaining a writ petition is an exception

G Radha Rani, J., disposed of the petition and directed the petitioner to approach the EI Court under Section 75 of the ESI Act by filing an appropriate application.

Read full report here…


Tripura High Court


  • POCSO

Offence under S. 8 of the POCSO Act not been established beyond reasonable doubt; Court acquits man of POCSO charges

Arindam Lodh, J. partly allowed an appeal which was filed against the judgment and order of conviction whereby and whereunder the appellant has been found guilty for committing an offence punishable under Section 8 of the POCSO Act and sentenced him to suffer Rigorous Imprisonment for 3 years for the said offence and also found guilty under Section 448 of IPC and sentenced to suffer Rigorous Imprisonment for 1 year for the said offence.

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Statement of the victim show exaggerations and improved versions; Court reduces sentence in POCSO matter

Arindam Lodh, J. partly allowed an appeal which was filed challenging the judgment of conviction and order of sentence passed by Special POCSO judge wherein the appellant had been convicted under Section 10 of the POCSO Act, 2012 and sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs 20,000/- with default stipulation and further convicted under Section 451 IPC and sentenced him to suffer simple imprisonment for 6 months and to pay fine of Rs. 5000 with default stipulation.

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Sikkim High Court

State directed to ensure immediate escalation of progress of work of repairing of NH-10; meeting called to chalk out the immediate course of action before monsoon arrival

The Division Bench of Biswanath Somadder and Meenakshi Madan Rai, JJ. took up the PIL in order the peruse the status report concerned with the damaged roads and highways in the State.

Read full report here…

  • Missing Children

Directions issued for tracing out the missing children in the State; CCTV’s installed in police stations

The Division Bench of Biswanath Somadder, CJ. and Meenakshi Madan Rai, J. issued certain directions in the matter of a PIL concerning missing children in the State.

Read full report here…

Case BriefsHigh Courts

Bombay High Court: The Division Bench of R.D. Dhanuka and S.G. Mehare, JJ., expressed that, for condoning the interruption in service, the total service pensionary benefit in respect of which will lost should not be less than five years duration, excluding one or two interruptions.

Question for Determination


Whether the employee can seek condonation of interruption in service to enhance the pension where the employee has qualifying service for pension?

Factual Background


The petitioners were permanent in service as teachers in Municipal Corporation. However, before permanency, there were interruptions in their service from the date of their first temporary appointments.

The Maharashtra Civil Services (Pension) Rules, 1982 were made applicable to the employees of Aurangabad Municipal Corporation.

Qualifying service is sine qua non for pension.

‘Qualifying service’ means a service that may be considered in determining whether an employee is eligible by the length of service for a pension. 

It was noted that as per Rule 30 of the Pension Rules, ten years of qualifying service is a condition precedent for the entitlement of pension. Where the employee retires on superannuation or is declared permanently incapacitated for further service, or voluntarily retires after twenty years of service, the employees’ service is to be counted for qualifying service for pension. The servant, at the time of retirement, shall hold substantively a permanent post.

Condonation of breaks in service for enhancement of pension and other retiral benefits

The appointing authority has a discretionary power to condone the interruption in service provided, the interruptions should have been caused by reasons beyond the control of the Government servant.

In view of the pension scheme, where the employee in substantive service has rendered the service less than ten years, then his previous temporary or officiating service is counted for completing the minimum ten years of service subject to the other rules and his personal service record.

Conjoint Reading Rules 30, 33, 48 and 110 of Pension Rules elucidate that the pension scheme is for the benefit of the employee, and the amount of pension is determined by the length of qualifying service.

High Court opined that, if the service of an employee at his superannuation is less than ten years, then the previous temporary or officiating service needed to be counted for the qualifying service for pension.

Bench also added that, the purpose of condoning the interruptions in service is to make an employee entitled to the pension by adding the days of his service and not to enhance the pension for the reason that the pension is to be calculated and paid on the basis of last salary drawn on the substantive permanent post.

Hence, the petitioners were eligible for pension as per the Pension Rules and not entitled to claim the condonation of the interruption in their services to enhance their pension.

In view of the above, petitions were dismissed. [Muktabai v. State of Maharashtra, 2022 SCC OnLine Bom 887, decided on 22-4-2022]


Advocates before the Court:

Mr. D.R. Irale Patil, Advocate for the Petitioners.

Ms. R.P. Gaur, AGP for respondent/State.

Mr. A.P. Bhandari, Advocate for Respondent Nos.2 &

Case BriefsHigh Courts

Rajasthan High Court: Sameer Jain J. dismissed the petition and refused to interfere with the impugned order.

Factual Background

The facts of the case are such that the respondent is mother of petitioner 1 and mother-in-law of petitioner 2, whose husband passed away bequeathing all movable and immovable properties in favour of the respondent by way of will prior to his death. The respondent has 3 sons and 1 daughter. She bought a house which is disputed in the instant case wherein she was living with the son second in number as the elder son had died and younger son is not well to do. Petitioner 1 filed suit before the Civil Court for declaration of the disputed property (85% under his name) as he invested around 8 lakhs out of his own funds. The Civil Court rejected the plaint upon Order 7 Rule 11 application by order dated 06-08-2021 against which an appeal was preferred which is sub judice before this Court. The present writ petition was filed under Article 226 & 227 Constitution of India against the order dated 08-03-2019 passed by the Maintenance and Welfare of Parents and Senior Citizen Tribunal (S.D.O.) Jaipur City, Jaipur whereby, petitioners were directed to vacate the premises and the rights of respondent mother were restored.

Arguments

Counsel for respondent mother submitted that it is only because of pension of her husband that she is able to financially support herself otherwise, she is ousted out of her house by the petitioners and is being harassed by them on day to day basis and she is under pathetic condition suffering mental and social torture as she has to live in her married daughter’s house, which is against the customs of Hindu joint family.

Counsel for petitioner submitted that the allegations of ill-treatment qua abusive language, neglect, mental and physical torture against him and his wife are only cooked story. The fact of not providing food, not taking appropriate care of relatives or visitors of the respondent and not providing medical facilities to the respondent are also part of the sham story. The petitioners further submit that it is on her own sweet will that the respondent went to Bhiwani, her native town, to her sister-in-law in the year 2010 and thereafter since March, 2018 until today she is residing at her daughter’s house and the petitioners had no role to play in forcing her out of the disputed property for the said period.

Observation

The Court observed that Maintenance and Welfare of Parents and Senior Citizens Act, 2007 was enacted by the Legislature in the background that the traditional norms and values of the Indian Society are lost due to withering of the joint family system as a large number of elderly are not being looked after by their family, particularly the widowed women, who are forced to spend their twilight years all alone and are exposed to emotional neglect, lack of financial support and are rather treated as a waste.

The Court relied on judgment S. Vanitha v. Deputy Commissioner, 2020 SCC Online SC 1023 and observed that when there are family laws and personal laws and there is domestic conflict between in-laws and daughter-in-law, both are protected by respective legislation. However, in the event of conflict between them, the dominant purpose of both the statutes has to be seen in a harmonious way as it is important to strike a balance between family law and personal law and read them in a way so as to glue the family and society.

The Court after perusing the facts and grounds of impugned order has come to a conclusion that ill-treatment is meted out to the respondent-mother, she is expelled from her own house, allegations of mental, physical and social abuse have been leveled against the petitioners and during the proceedings before this court respondent-mother categorically submitted that living with the petitioners would pose a threat to her life and mental wellbeing, the prayer of the petition to set aside the eviction order of tribunal passed on 08-03-2019 does not have a leg to stand on.

Decision

The Court held “the petitioners along with their family are directed to honor the impugned order dated 08.03.2019 and vacate the premises within a period of 30 days from the date of pronouncement of the judgment on their own cost and restore the house in vacant manner and in appropriate condition to the respondent-mother with due respect.” [Suresh Sharma v. Dhanwanti Sharma, 2022 SCC OnLine Raj 672, decided on 07-04-2022]


Appearances-

For Petitioner(s): Mr. Deepak Sharma

For Respondent(s): Mr. Ashok Mehta and Mr. Mudit Singhvi


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In an interesting case where the Division Bench of Sanjay Kishan Kaul* and M.M. Sundresh, JJ., was to answer whether pending criminal appeal, and with the sentence being suspended, could the DCRG be directed to be released on the construction of the applicable rules, the Bench resolved the issue against the employees and held there was not statutory mandate that DCRG should be released to the respondents pending consideration of the criminal appeal.

The moot question before the full Bench of the Kerala High Court was whether on conviction in a criminal case for violation of integrity norms in performance of official duties and an appeal pending before the High Court, is the employee still entitled to the release of his Death-cum-Retirement Gratuity (DCRG). The High Court, by the impugned judgment had ruled in favour of the employees and had held that the recovery under Rule 3 of Kerala Services Rules could only be against pension and not DCRG, and Rule 3A insofar as it permitted DCRG to be withheld was struck down.

The Rules in Question

The Rule 3 of Kerala Services Rules reads as:

“withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to government if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement…”

Whereas, Rule 3A provides that:

“3-A. (a) Where any departmental or judicial proceedings is instituted under Rule 3 or where a departmental proceeding is continued under clause (a) of the proviso thereto, against an employee who has retired on attaining the age of compulsory retirement or otherwise he shall be paid during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceeding final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service up to the date of retirement, or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension, but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceeding and the issue of final orders thereon.”

Noticeably, Rule 3 in the KSR deems continuation of service in the case of a delinquent servant even after superannuation if any departmental or judicial proceedings are initiated, for the limited purpose of their finalisation. In the event of an order of dismissal being passed, even after retirement, the Government servant would have to forfeit his pension and DCRG.

Impugned Judgment

The High Court read the Rule 3 of the KSR as empowering the Government to punish the delinquent employee by withholding, withdrawing or reducing, for a specified period or permanently, the pension payable or to order recovery for any  pecuniary loss, but again only from the pension. The Court opined that the same could not be done from the DCRG. While, Rule 3A of the KSR was opined to be only tailored towards the effective implementation of Rule 3 and could not have any separate or distinct consequences.

Noting that the Rule 3A has two parts, the Court observed that the first part dealt with certain conditions on the disbursal of pension in the cases of a continuing proceeding while the second part allowed DCRG or gratuity to be withheld until the conclusion of the proceedings. By the impugned judgment, the second part was held to have an unnecessary penalising effect on an employee while proceedings are pending and would have onerous consequences if the proceedings ended in exoneration since the provision did not contemplate any modality for re-compensation if the DCRG is paid after a long period of time.

Further, observing that Note 2 to Rule 3 provided that the word ‘pension’ did not include DCRG and, that that liabilities could be recovered from DCRG only after giving the employee a reasonable opportunity to explain, the Court held that the recovery under Rule 3 could only be against pension and not DCRG, and Rule 3A insofar as it permitted DCRG to be withheld was struck down.

Analysis and Interpretation by the Court

Noticeably, the State in its wisdom had preferred to await the outcome of criminal proceedings in the instant case and had not initiated any separate departmental proceedings. Rule 3 of the KSR provides that Government reserves to themselves the right to withhold or withdraw a pension or any part of it, whether permanently or for a specified period, and all its ramifications. Further, the word pension is clarified by Note 2, as it would not include DCRG. Thus, DCRG and pension have been dealt with as separate aspects.

However, on the further reading of Note 2, which provides that the liabilities fixed against an employee or a pensioner can be recovered from DCRG without the departmental/judicial proceedings but after giving an employee or pensioner concerned a reasonable opportunity to explain, the Bench opined,

“If any part of DCRG was not supposed to be available for recovery of amounts, there would be no reason of inclusion of this aspect of DCRG in Note 2 and a view to the contrary would make the latter part of Note 2 otiose.”

The Bench observed that Note 2 is further clarified by Ruling 3, which stipulates that Note 2 does not mean that the employee’s or pensioner’s consent should be obtained for recovering the liabilities from DCRG. What has been contemplated is only a communication of such liabilities to him so as to enable him to submit his explanation. Thus, this Ruling No.3 also deals with the DCRG. Therefore, the important aspect before the Bench was whether Rule 3A is to be construed in the context of Rule 3 or should be read independently of itself. The High Court had sought to take a view that Rule 3A is in a sense assisting Rule 3 and does not have any independent existence. The Bench stated,

“The High Court, in our view, has introduced a new legislation by undertaking the exercise of reading down. We do believe that there is absolutely no need to do so when the language of the rule is so clear conveying its intended meaning without any ambiguity.”

Holding that it was a very restrictive view to disburse DCRG on account of the proceedings against a pensioner coming to an end, even where a conviction had arisen, specially where the convicted person has availed of the remedy of appeal, the Bench reiterated that an appeal is a continuation of the proceedings in trial and would be, thus, a continuation of judicial proceedings.  Therefore, pendency of the appeal cannot disentitle the State from withholding the DCRG, considering that it is a hiatus period within which certain arrangements have to be made which would be dependent on the outcome of the appeal.

Conclusion

In the light of the above, the Bench concluded that Rule 3A could not be read in isolation nor the latter part of it struck down as done by the High Court. Rule 3, Note 2, Ruling 3, and Rule 3A have to be read in conjunction as they provide for the treatment of the DCRG in case of disciplinary or judicial proceedings pending at the stage of retirement.

Accordingly, the impugned judgment was set aside holding that it could not be opined that the DCRG would have to be released to the respondents pending consideration of the criminal appeal.

[Local Self Government Department v. K. Chandran, 2022 SCC OnLine SC 318, decided on 15-03-2022]

*Judgment by: Justice Sanjay Kishan Kaul


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Meghalaya High Court: H. S. Thangkhiew J. dismissed the petition and affirmed that the petitioner was not eligible to avail family pension.

Petitioner’s father was an employee under the State and retired on 31-08-1997. Her younger brother and her husband expired in the year 2002. She became solely dependent upon her father who also expired in 2015, followed by her mother in 2016. Petitioner in these circumstances, made representation to the competent authorities for the grant of family pension to her, being a widowed daughter of the deceased pensioner under the scheme extended vide O.M. dated 23-02-2010, issued by the Finance Department, Government of Meghalaya which was however rejected.

Memorandum stated that the revised provisions shall apply to the State Govt. employees who retired/died in harness after 01-01-2007 and contains provisions for calculation of pension.

Rule 48, provides that an unmarried/widowed/divorced daughter, would be entitled to family pension and that a person would be entitled for family pension, only after other eligible family members in the first category have ceased to be eligible to receive it.

It was submitted that if a person retires in 2007 at the age of 58 years, he would attain the age of 80 only in the year 2029, effectively ignore the case of existing petitioners who have attained the age of 80 years or above, on or after 01-01-2007.

Formal amendments to the Meghalaya Civil Services (Pension) Rules 1983, were made and the Meghalaya Civil Services (Pension) Fifth Amendment Rules 2010, came into being on 04-11-2010. By the said amendment rules, Rule 1(2) has also provided that the rules shall be deemed to have come in force on 01-01-2007.

Fixation of cut-off date, though in this case, may seem unjust as the petitioner has been deprived of the benefit allowed by the amended rules, but the law as it prevails, has held it to be, not violative of Article 14 of the Constitution.

Court opined that affidavit of the State had clearly outlined the manner in which cut-off date arrived, and the process was undertaken by the Executive in this regard. The said decision is a reasoned policy decision, cannot be said to be arbitrary or violative of Article 14 of the Constitution. Petitioner thus was not eligible to avail family pension; she would be governed by the original Rule 48 of the Meghalaya Civil Services (Pension) Rules of 1983. The writ petition was dismissed.[Anindita Bhowmik v. State of Meghalaya, 2022 SCC OnLine Megh 27, decided on 25-02-2022]


Mr S. Sen, Adv. with Ms S. Shallam, Advocate for Petitioner

Mr N.D. Chullai, AAG with Ms I. Lyngwa, Advocate for the Respondent


Suchita Shukla, Editorial Assistant has reported this brief.

Armed Forces Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (Chandigarh Bench): The Bench of Justice Dharam Chand Chaudhary (Member J) and Vice Admiral HCS Bisht (Member A), granted war injury pension to the ex-serviceman who had sustained injuries resulting in disability during Operation Hifazat.

Brief facts of the case were that the applicant was enrolled in the Indian Army on 29-01-1981 in a fit medical category. During service, the applicant was deployed in Triupra under Operation Hifazat and suffered grievous injuries while moving for search operation against insurgents. The said accident resulted in a disability namely Compression Fracture which was duly declared a “Battle casualty” and was held to be “attributable” to service.

Owing to his permanent low medical category, the applicant opted for voluntary discharge from service and he was accordingly released from service on 31-10-2000. The grievance of the applicant was that the respondents had wrongly rejected him claim for War Injury pension on the ground that he was discharged at his own request; therefore, he was not entitled to any disability benefits.

Noticeably, the Government of India, Ministry of Defence had issued a Policy dated 19-05-2017 declaring to grant the benefit of disability and war injury pension to those who have sought voluntarily retirement.

Hence, considering the government policy along with the written statement filed by the respondents that the applicant was proceeding to participate in specific search operation against insurgents during (CI) Counter Insurgency Operation and that it was a battle casualty in operation HIFAZAT-II which was corroborated by the Release Medical Board proceedings, the Bench held that the applicant was entitled to war injury pension.

Resultantly, the respondents were directed to process the claim of war injury pension of the applicant in terms of the Policy of the Government and subject to verification the arrears were directed to be released within a period of three months. [Ram Pal v. Union of India, O.A. No. 634 of 2021, decided on 01-11-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Applicant: Navdeep Singh, Advocate

For Union of India: Sutikshan Sharma, CGC

Case BriefsSupreme Court

Supreme Court: Finding the Bombay High Court’s judgment directing the State to extend the pensionary benefits to the employees of Water and Land Management Institute (WALMI) unsustainable, both in law and on facts, the bench of MR Shah* and BV Nagarathna, JJ held that the employees of WALMI, which is an independent autonomous body registered under the Societies Act are not entitled to the pensionary benefits and that,

“… the employees of the autonomous bodies cannot claim, as a matter of right, the same service benefits on par with the Government employees.”

Holding that the State Government and the Autonomous Board/Body cannot be put on par, the Court explained that,

“Merely because such autonomous bodies might have adopted the Government Service Rules and/or in the Governing Council there may be a representative of the Government and/or merely because such institution is funded by the State/Central Government, employees of such autonomous bodies cannot, as a matter of right, claim parity with the State/Central Government employees. This is more particularly, when the employees of such autonomous bodies are governed by their own Service Rules and service conditions.”

Cautioning the Courts to refrain from interfering with the policy decision, which might have a cascading effect and having financial implications, the Court observed that whether to grant certain benefits to the employees or not should be left to the expert body and undertakings and the Court cannot interfere lightly. Granting of certain benefits may result in a cascading effect having adverse financial consequences.

In the case at hand, WALMI being an autonomous body, registered under the Societies Registration Act, the employees of WALMI are governed by their own Service Rules and conditions, which specifically do not provide for any pensionary benefits; the Governing Council of WALMI has adopted the Maharashtra Civil Services Rules except the Pension Rules.

The State Government has taken such a policy decision in the year 2005 not to extend the pensionary benefits applicable to the State Government employees to the employees of the aided institutes, boards, corporations etc.; and the proposal of the then Director of WALMI to extend the pensionary benefits to the employees of WALMI has been specifically turned down by the State Government.

In such facts and circumstances, the Supreme Court held that the High Court was not justified in directing the State to extend the pensionary benefits to the employees of WALMI, which is an independent autonomous entity.

The Court was also not pleased with High Court’s observation that as the salary and allowances payable to the employees of WALMI are being paid out of the Consolidated Fund of the State and/or that the WALMI is getting grant from the Government are all irrelevant considerations, so far as extending the pensionary benefits to its employees is concerned. It noticed that WALMI has to run its administration from its own financial resources. WALMI has no financial powers of imposing any tax like a State and/or the Central Government and WALMI has to depend upon the grants to be made by the State Government.

Observing that the grant of pensionary benefits is not a one-time payment but a recurring monthly expenditure and there is a continuous liability in future towards the pensionary benefits. The Court said that merely because at one point of time, WALMI might have certain funds does not mean that for all times to come, it can bear such burden of paying pension to all its employees. In any case, it is ultimately for the State Government and the Society (WALMI) to take their own policy decision whether to extend the pensionary benefits to its employees or not. Hence, the interference by the Judiciary in such a policy decision having financial implications and/or having a cascading effect is not at all warranted and justified.

[State of Maharashtra v. Bhagwan, 2022 SCC OnLine SC 25, decided on 10.01.2022]


*Judgment by: Justice MR Shah


Counsels

For Appellants: SG Tushar Mehta and AOR Sachin Patil

For respondents: Advocate J.N. Singh

Case BriefsSupreme Court

Supreme Court: In a case where a soldier, after serving in the Regular Army for 25 years, was re-enrolled in the Infantry Battalion (Territorial Army), Ecological Task Force (ETF) and was denied disability pension in view of the letter of the Government of India, Ministry of Defence, dated 31st March 2008 which provides that the members of ETF would not be entitled for disability pension, the bench of L. Nageswara Rao and BR Gavai*, JJ has held that it was wrong to deny the claim as the ETF is established as an additional company for 130 Infantry Battalion of Territorial Army and the other officers or enrolled persons working in the Territorial Army are entitled to disability pension.

Factual Background

  • After serving for about 25 years in Infantry of the Regular Army, the appellant got re-enrolled in the Territorial Army as a full-time soldier on 1st August 2007.
  • After availing the annual leave, when the appellant was coming back on his scooter to rejoin his duty, on 24th April 2009, he met with a serious accident.
  • The Medical Board assessed the appellant’s disability to be  80%. However, it could not give any opinion about the attributability aspect of the injury.
  • The Court of Inquiry (CoI) found that the injury sustained by the appellant was attributable to military service and it was not due to his own negligence.
  • Subsequently, on the basis of the opinion of the Invaliding Medical Board, on 1st January 2012, the appellant was invalided out of service with 80% disability which was attributable to military service.
  • The AFT though held, that the injury sustained by the appellant which resulted into 80% disability was found by the competent authority to be aggravated and attributable to the military service, it rejected the claim of the appellant on the ground that a separate scheme and service conditions have been created for the Members of ETF, which was accepted by the appellant and hence, he was not entitled to disability pension.

What does the law state?

  • as per Government of India, Ministry of Defence’s letter, dated 31st March 2008, the members of ETF would not be entitled for disability pension. Vide the said communication, the Government of India has   communicated   to   the   Chief   of   Army   Staff,   the sanction of the President of India for raising two additional companies   for   130   Infantry   Battalion   (Territorial   Army) Ecological under Rule 33 of Territorial Army Act, Rules 1948.
  • every such officer or enrolled person in Territorial Army when holds the rank, shall be subject to the provisions of Army Act, 1950 and the rules or regulations made thereunder, equivalent to the same rank in the Regular Army.
  • as per the Regulation No. 292 of the Pension Regulations for the Army, 1961, the grant of pensionary awards to the members of the Territorial Army shall be governed by the same rules and regulations as are applicable to the corresponding persons of the Army except where they are inconsistent with the provisions of regulations in the said chapter.
  • as per Regulation No. 173 of the Pension Regulations for the Army, 1961, an individual who is invalided out of service on account of disability, which is attributable or aggravated by Military Service in non-battle casualty and is assessed 20% or more, would be entitled to disability pension.

Analysis

Disability pension to member of ETF

The ETF is established as an additional company for 130 Infantry Battalion of Territorial Army. Since other officers or enrolled persons working in the Territorial Army are entitled to disability pension under Regulation No. 173 read with Regulation No. 292 of Pension Regulations for the Army, 1961, the appellant, who is enrolled as a member of ETF which is a company for 130 Infantry Battalion (Territorial Army), cannot be denied the disability pension. Specifically so, when the Medical Board and COI have found that the injury sustained by the appellant was attributable to the Military Service and it was not due to his own negligence.

Signing on a “Certificate” agreeing to not getting any enhanced pension  

The appellants had signed a document dated 30th August 2007, titled “Certificate”, wherein he had agreed to the condition that he will not be getting any enhanced pension for having been enrolled in   ETF. However, the same cannot be used to deny disability pension to the appellant for the following reasons:

  • the said document deals with enhanced pension and not disability pension. A conjoint reading of Section 9 of the Territorial Army Act, 1948 and Regulation Nos. 292 and 173 of the Pension Regulations for the Army, 1961, would show that a member of the Territorial Army would be entitled to disability pension.
  • even accepting that the appellant has signed such a document, it needs to be noted that a Right to Equality guaranteed under Article 14 of the Constitution of India would also apply to a man who has no choice or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be.

“Can it be said that the mighty Union of India and an ordinary soldier, who having fought for the country and retired from Regular Army, seeking reemployment in the Territorial Army, have an equal bargaining power.”

Conclusion

The Union of India was, hence, directed to grant disability pension to the appellant in accordance with the rules and regulations applicable to the Members of the Territorial Army with effect from 1st January 2012 and to also clear arrears from 1st January 2012 within a period of three months from the date of this judgment with interest at the rate of 9% per annum.

[Pani Ram v. Union of India, 2021 SCC OnLine SC 1277, decided on 17.12.2021]


Counsels

For appellant: Advocate Siddhartha Iyer

For UOI:  Additional Solicitor General Vikramjit Banerjee


*Judgment by: Justice BR Gavai

Case BriefsSupreme Court

Supreme Court: The Division Bench of M.R. Shah and B.V. Nagarathna*, JJ., held that the action of the selectively applying the proviso to Rule 25(a) in relation  to one person, while not applying the said proviso in relation to similarly situated persons, is arbitrary and therefore illegal. The Bench stated,

“We accept the settled position of law that the rule applicable in matters of determination of pension is that which exists at the time of retirement, we are unable to find any legal basis in the action of the respondent University of selectively allowing the benefit of Rule 25 (a).”

Factual Matrix

The appellant joined as a Lecturer in the School of Legal Studies in Cochin University of Science and Technology on 07-09-1984. Prior to such appointment, the appellant was a lawyer practising in the District Court and Subordinate Courts and High Court of Kerala. The appellant made a representation before the Registrar of the University, requesting to reckon his practice of eight years at the Bar for the purpose of determining his pensionary benefits payable to him on his superannuation as provided under Rule 25 (a), Part III of Kerala Service Rules.

The respondent rejected the request of the appellant on the ground that the proviso to Rule 25 (a), Part III, KSR provides that the benefit under Rule 25 (a) would be available only to such employees who are recruited when practising at the Bar, to those posts requiring a qualification in law and experience at the Bar. Therefore, the respondent opined that since experience at the Bar was not essential for appointment to teaching posts at the University, the question of reckoning previous experience at the Bar would not arise in relation to the appellant.

The appellant stated in his appeal petition before the Chancellor that the proviso to Rule 25 (a), Part III, KSR was inserted in said Rule with effect from 12th February 1985. The appellant contended that the proviso could not be made applicable to him as the same was not in force as on the date on which he joined service at the respondent University. On the other hand, the respondent maintained that the Government or any other statutory body has the right to modify the service conditions, even retrospectively. The respondent further stated that since the proviso was introduced in Rule 25 (a) while the appellant was still in service, the proviso would apply to him.

Findings of the Court

Noticeably, in the case of one Dr. P. Leela Krishnan, a Professor of Law who was similarly situated as the appellant, the respondent University had duly considered the period of practice at the Bar as a part of qualifying service for the purpose of determining pension payable on superannuation, as perusal of extracts from the pension book of Dr. P. Leela Krishnan, revealed that his experience of practice at the Bar of 7 years, 2 months and 26 days was added to the period of his service at the  University, being 26 years, 9 months and 2 days. Accordingly, the respondent University had in determining his superannuation pension, considered 33 years, 7 months and 4 days as the qualifying period of service.

“Considering that no argument had been advanced on behalf of the respondents as to the manner in which the case of the appellant is different from that of Dr. P. Leela Krishnan and on what basis the benefit of Rule 25 (a) was granted to Dr. P. Leela Krishnan but was withheld in relation to the appellant.”

Pointing out the similarities between the two, the Bench stated, both these individuals were appointed as teaching faculty at the respondent University after practicing as advocates in various Courts of Kerala. They were both appointed before the proviso to Rule 25 (a) came into effect, i.e. before 12-02-1985 and retired after the said proviso came into force.

“In the circumstances, we find no valid ground to sustain the application of the proviso in relation to the appellant, thereby denying the benefit of Rule 21 25(a), when the same was not applied in the case of Dr. P. Leela Krishnan, thereby allowing the benefit of Rule 25(a).”

The law, as recognized in Deoki Nandan Prasad v. State of Bihar, (1971) 2 SCC 330, and Government of Andhra Pradesh v. Syed Yousuddin Ahmed, (1997) 7 SCC 24, states that the pension payable to an employee on retirement shall be determined on the rules existing at the time of retirement. However, the Bench stated, law does not allow the employer to apply the rules differently in relation to persons who are similarly situated. Therefore, the Bench opined that if the respondent University sought to deny the benefit of Rule 25 (a), in light of the proviso which was subsequently inserted thereby limiting the benefit of the Rule, it ought to have done so uniformly; as the proviso could have been made applicable in relation to all employees who retired from service of the respondent University following the introduction of the proviso, i.e. after 12-02-1985.

Conclusion

In the light of above, the Bench held that the denial of the benefit under Rule 25 (a), KSR, to the appellant was arbitrary and not in accordance with law. Consequently, the appellant was held entitled to receive pension having regard to his total qualifying service, inclusive of the period of his service at the respondent University and the period of his practice as an Advocate in various Courts of Kerala.

Accordingly, the impugned judgment of the High Court, whereby it was approved the action of respondent university was set aside. The respondent University was directed to calculate the amount of pension short paid to the appellant from the date of his superannuation and disburse such amount together with interest at the rate 5% p.a. till date of payment in favour of the appellant.

[G. Sadasivan Nair v. Cochin University of Science and Technology, 2021 SCC OnLine SC 1155, decided on 01-12-2021]


Kamini Sharma, Editorial Assistance has put this report together 


Appearance by:

For the Appellant: K.P. Kylasanatha Pillay, Senior Counsel along with Sajith P. Warrier, Counsel

For the Respondents: Malini Poduval, Counsel

For the State: G. Prakash Counsel


*Judgment by: Justice B.V. Nagarathna

 

Tags: Service Law, Government Servant, University, Teacher, Bar Council, Experience, Retirement, Superannuation, Pension