Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., while addressing the grievance of UPSC aspirants in regard to cancellation of interviews to be held by the Selection Committee observed that,

Selection to the civil services, especially the IAS – a coveted service, cannot be a whimsical process. It has to follow certain norms, procedures and discipline.

Background

20 Non-State Civil Service Officers of the State of Rajasthan aspirants for the appointment of Indian Administrative Service of Rajasthan Cadre filed the present petition in the Non-SCS Category.

Purpose of filing the present petition was to challenge the letter issued by the Union Public Service Commission (UPSC)/ Respondent 1, in accordance to which interviews scheduled by the Selection Committee was cancelled.

Analysis and Findings

Bench stated that it is only considering the question of maintainability of the present petition and three aspects of maintainability i.e.

  • Territorial Jurisdiction of this Court to hear the writ petition
  • Forum non-conveniens
  • Availability of an alternate remedy in the form of CAT under Section 14 of the Central Administrative Tribunals Act, 1985

Territorial jurisdiction:

The primary grievance of the petitioner is against the Central Government and the UPSC and not the State of Rajasthan. Interviews that were to be taken place in Delhi.

This Court clearly had territorial jurisdiction, since the cause of action arose within the territory of Delhi and further because of the fact that both the UPSC and Central Government are within the jurisdiction of this court.

Forum non-conveniens:

Insofar as forum non-conveniens is concerned, the said principle is merely applied in order to determine the most convenient forum, with respect to the dispute.

Bench stated that due to hearings and transmission of records being virtual in any case, because of the pandemic, this Court does not feel compelled to reject this writ petition on the ground of forum non-conveniens.

Availability of alternate remedy:

Whether the Petitioners ought to be relegated to CAT, Jaipur Bench, to avail of their remedies under Section 14 of the Act?

In Savitur Prasad v. Union of India, 2017 SCC OnLine 12297, Division Bench observed as under:

“It is also trite to state that the scope of interference by a High Court in service matters and disciplinary proceedings under Article 226 of the Constitution of India, is permissible only in cases of demonstrable lack of jurisdiction and perversity.”
Bench in the instant matter observed that High Courts have power to exercise jurisdiction, even if there is an alternative remedy inter alia on several grounds:
  1. If there is a violation of the Principles of Natural Justice;
  2.  If there are unprecedented or extraordinary circumstances that warrant exercise of jurisdiction under Art.226;
  3. The need to render substantial justice;
  4. If the act complained against is patently erroneous or perverse;
  5. If there is demonstrable lack of jurisdiction or perversity;
  6. If relegating the parties to CAT would not render substantial justice.
  7. The exercise of power under Article 226 is discretionary and depends on the question whether circumstances warrant;

While applying the above principles, the decisions of different courts are disparate and depend on the facts and circumstances of each case.

Court held that in the present case certain unusual and extraordinary circumstances are present.

Further, the Court added that, petitioners were left to suffer as the interviews were cancelled less than 24 hours before the scheduled time. Thus there appears to be some merit in the allegation of breach of Principles of Natural Justice as the Petitioners were never given an opportunity to deal with the allegations.

“…it is the settled position that the alternate remedy has to also be an efficacious remedy.”

Relegating the Petitioners to approach CAT would lead to further delays in their candidature being considered for selection to the IAS.

Supreme Court has in its recent decision on 7-10-2020, in Commissioner of Police v. Umesh Kumar, 2020 SCC OnLine SC 810 observed that irregularities in public recruitment have become a bane, leading to litigation in both Courts and Tribunals across the country.

Court in view of the above analysis made an observation that,

The cancellation of interviews as in the present case is not to be viewed solitarily as a one-off incident. It represents a deeper malaise in the selection, which ought to be conducted fairly and in a transparent manner.

When the Court finds that the selection mechanism is being impeded, successively, it cannot turn a blind eye.

Present case would require interference by the exercise of writ jurisdiction in order to examine as to whether the prescribed norms for selection were adhered to, and if not, then, to consider the remedial measures. The circumstances in the present case accordingly warrant interference under Article 226 of the Constitution. [Akul Bhargava v. UPSC, WP (C) No. 3509 of 2020, decided on 09-10-2020]

Case BriefsHigh Courts

Bombay High Court: A Division bench of Nitin Jamdar and Milind Jadhav, JJ., observed that there is no duty on the SEBI Board while considering an exemption application under Regulation 29 of the Securities and Exchange Board of India (Share Based Employee Benefits) Regulations, 2014, to give a personal hearing.

Petitioner requested respondent– SEBI for a personal hearing regarding exemption application filed by it under a regulation governing employee stock options. Though SEBI Board refused the rest fro personal hearing.

Question in the present petition is:

Whether the Board is obliged to grant a personal hearing to the petitioner while considering an exemption application under the Securities and Exchange Board of India (Share Based Employee Benefits) Regulations, 2014?

Answer for the above-stated question is — NO.

Facts and reasons in regard to the above-stated have been laid down.

An employee welfare trust named JK Paper Welfare Trust was formed by the petitioner.

On an earlier date in the year 2018, petitioner sought clarification regarding the Securities and Exchange Board of India (Share Based Employee Benefits) Regulations, 2014. SEBI informed that the Regulations 2014 apply to the petitioner.

Petitioner sought relaxation from the applicability of Regulations under Regulation 29 of the Regulations of 2014, the SEBI empowered to grant relaxation for the strict compliance of the Regulations.

Securities Appellate Tribunal held that the SEBI had to give reasons in the order rejecting exemption application and hence tribunal directed the SEBI to pass a reasoned order within the set time limit.

Since the request for a personal hearing was refused, the Petitioner has approached this Court with a prayer that SEBI be directed to give an opportunity of hearing to the Petitioner in respect to its exemption application.

Counsel for the petitioner, Senior Advocate, Janak Dwarkadas and Rafique Dada, Senior Advocate for respondents — SEBI.

High Court’s decision

Relying upon Regulation 29, petitioner sought exemption from the strict compliance of Regulations 1(3), 1(4), 3(1), 26(2) and 31(2)(b)(i) and (ii).

Regulation 3 specifies the manner of implementation of the schemes.

Regulation 26 mandates certain conditions regarding the position of shares of the company.

Regulation 31 specifies certain compliances.

Regulation 29: Power to relax strict enforcement of the regulations

(1) The Board may suo motu or on an application made by a company, for reasons recorded in writing, grant relaxation from strict compliance with any of these regulations subject to such conditions as the Board deems fit to impose in the interests of investors in securities and the securities market.

(2) A company making an application under sub-regulation (1), shall pay a non-refundable fee of rupees one lakh by way of direct credit in the bank account through NEFT/RTGS/IMPS or any other mode allowed by RBI or by way of a banker’s cheque or demand draft payable at Mumbai in favour of the Board.”

The Petitioner’s first contention is that the Appellate Tribunal in its order dated 11 August 2020 held that the power under Regulation 29 is a quasi-judicial power and since it is a finding rendered in the litigation between the parties the same is binding on SEBI.

High Court rejected the above contention of the petitioner.

The second contention of the petitioner was that irrespective of the finding of the Tribunal, this Court should hold that the power under Regulation 29 is quasi-judicial power and therefore, a personal hearing is mandated.

Bench stated that the power to grant relaxation under Regulation 29 is a discretion to be exercised by the SEBI, and the conditions to be imposed are in the interest of the investors.

Refusal to grant an exception under Regulation 29 is not the origin of liability. Grant of exemption is a matter of exception from the general rule contained under the Regulations. In view of the said, the second contention was also rejected.

Next limb argument of the Petitioner was that, on looking at the consequences that would follow, whatever may be the nature of Regulation 29, in requirement of fairness, transparency and principles of natural justice, personal hearing be read into these provisions.

In Supreme Court’s decision of Sahara India (Firm), Lucknow v. Commissioner of Income Tax, Central-I, (2008) 14 SCC 151, it was observed that the requirement of giving reasonable opportunity of being heard is generally read into the provisions of a statute, particularly when the order has adverse civil consequences and this principle will hold good irrespective of whether the power conferred on the statutory body or the tribunal is administrative or quasi-judicial.

In the above-cited case, the Supreme Court observed that reading of requirement of personal hearing in a statute when there are consequences cannot be applied as a rule. It was also stated that no general rule of universal application can be laid down to the applicability of principle audi alteram partem in addition to the provision.

Regulations of 2014 are a code in itself. They regulate eployee stock option schemes in the larger interest of the onvestors.

Court stated that,

If SEBI finds that exemption need not be granted, it will give reasons for the same which can be tested in appeal. If the conditions are arbitrarily imposed or that the exercise is perverse, the validity can be challenged.

Petitioner’s argument which proceeds on the footing that the principles of natural justice in all circumstances include personal hearing which is not a correct position of law.

Power in question is a discretionary power and the use of this discretion can be challenged in appeal within the well-settled parameters. Full transparency is maintained by permitting written submissions providing reasons and the right to appeal.

The apprehension expressed by the SEBI that by reading duty to give personal hearing in this Regulation would have adverse ramifications on its working cannot be said to be unwarranted.

Functioning of SEBI will be hampered if the exercise of its every power is preceded by mandatory personal hearing, whether the regulation provider for it or not.

[JK Paper Ltd. v. SEBI,  2020 SCC OnLine Bom 1378, decided on 06-10-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of R.K. Deshpande and N.B. Suryawanshi, JJ., while addressing an issue with regard to the deduction of pension by the Bank without any confirmation from the employer, observed that,

“The pension payable to the employees upon superannuation is a ‘property’ under Article 300-A of the Constitution of India and it constitutes a fundamental right to livelihood under Article 21 of the Constitution of India.”

“Pension cannot be deducted without authority of law.”

Petitioner a retired assistant foreman had a basic pension of Rs 1,334 as on 01-10-1994, consequent upon an increase in the pension and dearness allowance, the basic pension of Rs 25, 634 was fixed, for which the petitioner was entitled to and accordingly he was paid.

Right to Information Act, 2005

In the month of August, 2019 petitioner’s pension was reduced without consent or knowledge of the petitioner and thus he filed an application under the Right to Information Act, 2005 to know the reason for deduction and details as to the revision of the pension during the period 2015-16 and 2016-17.

Excess Payment of Pension

Respondent stated that there was an excess payment of pension to the petitioner.

Petitioner in view of the above approached the Court challenging the action of the respondent and sought a further direction to the respondents to restore the position in respect of payment of pension, prevailing prior to the deduction which commenced from 01-08-2019.

Excess Payment by SBI

State Bank of India-respondent stated that an amount of Rs 872 per month was erroneously paid in excess to the petitioner due to technical error in the system.

Reserve Bank of India

According to Circular No.RBI/2015-16/340-DGBA.GAD.No.2960/45.01.001/2015-16 dated 17-3-2016, clause (c), the bank claims to have an authority to recover the excess payment to the petitioner.

“c) In case the pensioner expresses his inability to pay the amount, the same may be adjusted from the future pension payments to be made to the pensioners. For recovering the over-payment made to pensioner from his future pension payment in installments 1/3rd of net (pension + relief) payable each month may be recovered unless the pensioner concerned gives consent in writing to pay a higher installment amount.”

Employer’s stand is very clear in the present case that the fixation of the petitioner’s pension was correct and proper.

Further, the employer has supported the claim of the petitioner and has no role to play in the matter of reduction of pension or its recovery.

Bench states that it is not the authority of the Bank to fix the entitlement of the pension amount of the employees other than the employees of the respondent-Bank.

Hence the action of the Bank to reduce the pension of the petitioner is unauthorised and illegal.

Furthermore, the Bank has failed to demonstrate any technical error in the calculations.

With regard to the RBI clause as stated above, Court stated that “once we hold that in fact there was no excess payment made to the petitioner, the question of applicability of the instructions issued by the RBI or undertaking given by the petitioner does not arise.” 

Principles of Natural Justice

Without following the principles of natural justice in the manner of either carrying out correspondence with regard to the correctness of the pension or an explanation in respect of the deduction, the said action on the part of the Bank is arbitrary, unreasonable, unauthorised and in flagrant violation of the principles of natural justice.

Breach of Trust

Bank is the trustee of the pensioner’s account and has no authority in the eyes of the law to dispute the entitlement of the pension payable to the employees other than those who are employed in the bank.

To tamper with the account is nothing but a breach of trust.

Court directed Bank to refund the amount of Rs 3,26,045 to the petitioner by crediting it in his pension account with interest at the rate of 18% p.a. from the date of deduction.

Further, the bank is required to be directed to pay the costs of Rs 50,000 to the petitioner towards the expenses of this petition.

Unfortunately, the time has come to tell the Bank that the aging is natural process, which leads to weakening of the body and mind.

Adding to its conclusion, Court stated that the Bank officials must realize that tomorrow it may be their turn, upon superannuation, to fight for the pension or post-retiral benefits. The thought process, therefore, to be adopted should be of a person in a situation like the petitioner.

Respect, dignity, care, sensitivity, assistance, and security would automatically follow.

Senior Citizens

It is a high time for the Banks to create a separate cell and to device a method to provide personal service through the men of confidence, at the door-step to the old aged, disabled and sick persons who are the senior citizens.

Bench directed registry to forward the copies of the Judgment to the Centralized Processing Pension Centres of all the Nationalized Banks and also to the Reserve Bank of India and the Chief Secretary, Government of Maharashtra, to consider the question of the constitution of separate cell and release of appropriate guidelines so as to attain the constitutional goal of providing respect, dignity, care, sensitivity, assistance and security to all the pension account holders in the Banks.[Naini Gopal v. Union of India, LD-VC-CW-665 of 2020, decided on 20-08-2020]

Case BriefsHigh Courts

Jharkhand High Court: Sanjay Kumar Dwivedi, J. dismissed the petition and no relief given to the petitioners.

The facts of the case are that the petitioners herein were appointed by Jharkhand Staff Selection Commission on the post of constable after clearing the preliminary exam, mains exam, interview and medical examination pursuant to which all were declared successful. The appointment letters were issued and the training was given and completed. However, they were dismissed from service vide order dated 03.07.2018, 27.07.2018 and 01.08.2018. Pursuant to the order of the High Court dated 11.08.2017 medical board was reconstituted and the petitioners appeared for the examination and were declared to be unfit. Hence the instant writ petitions were filed seeking quashing of the dismissal orders as aforementioned.

Counsel Anil Kumar Sinha, Abhishek Sinha, Ranjan Pd. Ram, A.K. Sahani and Piyush Chitresh represented the petitioners. It was submitted that the petitioners have been dismissed from service without any departmental proceeding or any show-cause notice in spite of the petitioners having completed their training post-appointment order. Hence in absence of show cause and without following the principles of natural justice the impugned orders are not tenable and are fit to be quashed by this Court.

Counsel for the respondent, Sanjoy Piprawal, Manoj Kumar, P.A.S. Pati, and Rohan Kashyap submitted that if the petitioners in the present case were aggrieved by the decision to hold a fresh process, they did not espouse their remedy. Instead, they participated in the fresh process of selection and it was only upon being unsuccessful that they challenged the result in the writ petition. This was clearly not open to the appellants. The principle of estoppel would operate.

Court relied on a judgment titled Ashok Kumar v. State of Bihar, (2017) 4 SCC 357 and held that it is a well-settled proposition of law that once a person participated in the proceeding, they are not allowed to challenge the same.  He further observed that if the petitioners were aggrieved by the decision to hold a fresh medical examination they were bound to explore the remedy in the law instead they participated in the fresh process of selection and upon being unsuccessful and dismissal they challenged in these writ petitions. This was clearly not open to the petitioners.  The principles of estoppel would operate.

In view of the above, the petition stands dismissed and disposed of.[Santosh Kumar v. State of Jharkhand, 2020 SCC OnLine Jhar 737, decided on 05-08-2020]


*Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Allahabad High Court: Dr Y.K. Srivastava, J. while dismissing the petition observed that the assertion made by the petitioner that the proceedings were without notice or opportunity to him is contrary to the material on record.

In the instant petition, it was sought to challenge an order of the Additional Collector (Land Revenue) in proceedings under Section 28 of the U.P. Land Revenue Act, 1901 and challenge the order of the Additional Commissioner (1st) whereby the revision was also rejected for the same.

Counsel for the petitioner, Rajesh Kushwaha submitted that powers under Section 28 of the 1901 Act are to be exercised by the Collector and that the impugned order was passed in violation of the principles of natural justice.

Counsel for the fourth respondent, R.N. Yadav and Standing Counsel, Prakash Singh pointed out that in terms of the provisions under the above-mentioned Act, the expression “Collector” would include “Additional Collector” also. It was further submitted that there was no violation of principles of natural justice as an enquiry report was sought from the Naib Tehsildar and thereafter notice was issued to the petitioner whereupon the petitioner duly filed his objections but did not appear later on.

In view of the above and to analyse the primary submission made by the petitioner, the Court observed that the provision with regard to appointment of Additional Collector was brought in by insertion of Section 14-A whereunder the State Government is empowered to appoint an Additional Collector in a district or in two or more districts combined who shall exercise such powers and discharge such duties of a Collector in such case or classes of cases as the Collector concerned may direct.

The Court also cited the Full Bench decision of this Court in the case of Brahm Singh v. Board of Revenue, 2008 SCC OnLine All 490, where it was held that the Additional Collector when he acts and discharges the duties and functions or exercises such powers of a Collector either under the 1901 Act or under any other Act for the time being in force, the powers would be deemed to have been exercised by him as Collector of the district under that Act. [Seetla v. State of U.P., 2019 SCC OnLine All 4784, decided on 05-12-2019]

Case BriefsHigh Courts

“Occupation of hotel room by an unmarried couple, will not attract a criminal offence”

Unmarried couples sharing hotel room doesn’t attract criminal offence

Madras High Court: M.S. Ramesh, J., while allowing the present petition calling out the action of the respondent with respect to the sealing of petitioner’s hotel to be illegal as it did not follow the principles of natural justice.

Petitioner has stated that a search was conducted from the office of Tahsildar and during the search certain liquor bottles were found inside one of the rooms occupied by the guests and in one room two adults, male and female who were not married with each other were staying. Further, it was stated that the team without any order sealed the petitioner’s premises.

Petitioner’s counsel K. Chandrasekaran stated that no justification on the part of the respondents was put forward with respect to no opportunity being given to the petitioner in regard to putting forth their objections and sealing of the premises without any order being served to the petitioner, which is in violation of the principles of natural justice.

Additional Public Prosecutor, C.Iyyapparaj, informed the Inspector of Police that the petitioner’s premises had not obtained Form ‘D’ and without details of the guests in the booking registers, permitted illegal activities by the guests.

It has also been stated that various print media and social media reports were produced before the Court to ascertain the fact that the petitioner permitted unmarried couples to stay in the hotel rooms, which has been termed to be immoral.

A specific question was put to the respondents as to what could be the illegality in permitting the unmarried couples to stay in the hotel rooms?

High Court stated that,

“there are no laws or regulations forbearing unmarried persons of opposite sex to occupy hotel rooms, as guests. While live-in-relationship of two adults is not deemed to be an offence, terming the occupation of hotel room by an unmarried couple, will not attract a criminal offence.”

Court added to its conclusion that, the extreme step of sealing the premises on the ground that an unmarried couple were occupying the premises, is totally illegal in the absence of any law prohibiting the same.

In response to the contention of the respondents that certain liquor bottles were found in the room occupied by the guests and since the premises does not possess the license to serve or sell liquor inside, the action of sealing was initiated;

Court stated that Tamil Nadu Liquor (Possession for Personal Consumption) Rules, 1996, permits any individual person to possess various types of liquor in specified quantities. Any person can possess 4.5 Litres of IMFS; 4.5 Litres for Foreign liquor; 7.8 Litres of Beer; 9 Litres of Wine, at a given point of time, within the State. Thus, the consumption of liquor by the guests cannot be termed as illegal.

High Court noting the above held that sealing of the premises was in total violation of the principles of natural justice. Hence the Court would be justified in invoking its extraordinary powers under Article 226 of the Constitution of India.

In view of the above, the respondent has been directed to de-seal the petitioner’s premises. [Mypreferred Transformation and Hospitality (P) Ltd. v. District Collector, Coimbatore; 2019 SCC OnLine Mad 9835; decided on 26-11-2019]

Case BriefsHigh Courts

Patna High Court: Madhuresh Prasad, J. disposed of the writ petition on the ground that the petitioner was not incarcerated when joining was offered.

The petitioner was a Peon in the respondent bank. An FIR was lodged against the petitioner, his son and other family members alleging offences under Sections 304-B read with Section 34 of the Penal Code, 1860. The allegations led to the conviction of the petitioner. Later, the petitioner was granted bail and released from custody. He then submitted for his joining in the bank but was subsequently served with a notice of proposed punishment of dismissal by the respondent bank. The petitioner thus filed the instant proceedings.

During the pendency of the instant writ proceeding, the petitioner was dismissed on account of his conviction in the criminal case by the bank in view of the provisions contained in the Regulations 39 and 40. The petitioner had preferred a criminal appeal against the conviction order and the impugned order was set aside but he had already crossed the age of retirement by then.

The petitioner in view of the developments during pendency had sought for quashing of the order dismissing him from service and also prayed that he may be granted benefits of payment of salary from the date on which he offered joining. The counsel    Shashi Bhushan Kumar-Manglam representing the petitioner relied on the Judgment of the Apex Court in the case of Ranchhodji Chaturji Thakore v. Superintending Engineer, Gujarat Electricity Body, Himmat Narayan, (1996) 11 SCC 603, according to which the petitioner was entitled to grant of salary from the date on which he offered to join in the bank after his release on bail as thereafter he had been prevented from working by the authorities on account of their non acceptance of petitioner’s joining.

Advocates Prabhakar Jha and Mukund Mohan Jha, representing the bank submitted that the scheme of the Regulations which governed terms and conditions of the petitioner’s services make it abundantly clear that conviction by itself was a disqualification to continue in service. The mere fact of conviction was sufficient to dismiss an employee dispensing with the requirement of compliance with the principles of natural justice. He even referred to the same judgment relied on by petitioner’s Counsel to submit that it was only upon his acquittal in the criminal charges that the disqualification was removed.

The Court held that such an offer of joining, post acquittal which if not acceded to by the respondent authority, may ensue to the petitioner to claim salary. The petitioner’s status was of a convict at the time of submitting for joining and as such his claim for payment of salary for the period subsequent to such joining was not sustainable in the eyes of law.

It was further held that there was no disqualification against the grant of post-retirement benefits as was available under the service regulation.

In view of the above-noted facts, the instant petition was disposed of accordingly with the observation that the respondent Bank was to consider and dispose of the claim and pay the admissible dues within three months with regard to the retrial benefits of the petitioner. [Tarkeshwa Pandey v. Uttar Bihar Gramin Bank, 2019 SCC OnLine Pat 1924, decided on 16-10-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Bench comprising of Justice R.K. Agrawal (President) and M. Shreesha (Member) while addressing a complaint with respect to “deficiency of services” by the developer granted compensation keeping in view of the “Principles of Natural Justice”.

In the present case, aggrieved preferred the first appeal against the order passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai under Section 19 of the Consumer Protection Act, 1986.

Complainant stated that there was a deficiency of service against the Developer since an amount of Rs 37, 00,000 was paid towards sale consideration for Flat No. 601 situated at Vijaya and on account of non-providing of certain amenities the Complainant cancelled the booking and sought for a refund of the amount paid. Despite the complainant having requested for interest several times as the Developer had retained her amount from 14-05-2010 till 31-01-2011, there was no response.

State Commission allowed the complainant in part with the aforenoted directions.

According to the respondent’s, though the ‘developer’ had offered the payment of the amount, the complainant refused the same as her stand was that since the ‘developer’ had taken the money, the ‘developer’ alone should come to her doorstep and handover the money. Though, the Complainant stated that the amount was never offered to her.

Appellant submitted that some amount of compensation was to be awarded to meet the ends of justice as the compensation amount awarded by the State Commission was paid subsequently after 5 years.

Reliance was placed on Ghaziabad Development Authority v. Balbir Singh, (2004) 5 SCC 65, wherein the Court discussed the grounds on which the compensation be awarded in matters of delayed possession.

In the present matter, interest @18% has been awarded by the State Commission. The fact that the respondents did not challenge the impugned order, but also complied with the order only after 4 years, the order dated 12-05-2012 and as per the submission of the appellant/complainant the cheque was handed over on 3-05-2016.

Thus, keeping in view the “Principles of Natural Justice”, Commission awarded Rs 75,000 towards compensation within 4 weeks. The appeal is allowed in part with aforenoted directions. [Leela Narasimhan v. Vijay Grihanirman (P) Ltd., 2019 SCC OnLine NCDRC 328, decided on 16-10-2019]

Case BriefsHigh Courts

Patna High Court: Rajeev Ranjan Prasad, J. dismissed the writ application on the grounds that the settled proposition of law was that the writ of certiorari should not be issued only for making out a legal point.

The petitioner, aggrieved by the order dated passed by the Additional Chief Secretary, Department of Industries, Government of Bihar whereby the appeal preferred by the petitioner against the order of canceling the allotment of his industrial plot was been dismissed has challenged the same in the instant writ application.

N.K. Agrawal, senior counsel on behalf of the petitioner submitted that it was a case of violation of principles of natural justice wherein the cancellation order was not served upon the petitioner and further the appellate authority failed to decipher that the inquiries conducted by the Department during the pendency of the appeal could not be taken as a conclusive proof of the fact that the unit in question was not functioning.

The counsel on behalf of the Bihar Industrial Area Development Authority (‘BIADA’) argued that the matters related to allotment of industrial plots and were to be considered from a larger public interest purview. He further submitted that the petitioner’s allegation that the order of cancellation passed in the year 2007 was not served upon the petitioner is not correct inasmuch as ‘BIADA’ had produced the proof of service by placing on record that the said decision canceling the allotment in favor of the petitioner was sent through courier and it was not returned un-served. It was also submitted that the industrial plot was given to the petitioner for carrying industrial activity but instead the petitioner was utilizing it for some kind of residential purpose which was confirmed by the inquiry report submitted after the spot verification by the appellate authority.

Upon perusal of the records, the court found that the industrial plot was allotted to the petitioner in the year 1996, and the purpose behind the same was setting up of industry but the materials available on record showed that no industrial activities were going on for the last several years. Since no prima-facie material was brought on record to controvert the findings and no material was made available to show that the findings were perverse and required any interference.

The case being one for issuance of a writ of certiorari, the principle was well-settled that while exercising its power to issue a writ in the nature of certiorari the Court under Article 226 would not sit in appeal and could not exercise an appellate power. Such a writ of certiorari could be issued only when the Court found that the impugned order suffered from perversity. [Santosh Kumar Jalan v. State of Bihar, 2019 SCC OnLine Pat 1772, decided on 30-09-2019]

Case BriefsHigh Courts

Rajasthan High Court: Ashok Kumar Gaur, J. dismissed the writ petition filed against the order passed by the Registrar, Cooperative Societies-cum Registrar Institution exercising the powers inferred upon him under Section 24 of the Rajasthan Sports (Registration, Recognition and Regulation of Association) Act, 2005.

The respondent had issued a notice against the petitioners under Section 24 of the said Act with respect to the powers inferred upon him. The petitioners herein subsequently filed a civil writ petition challenging the notice issued by the respondent. The Court refused to interfere in the writ petition and dismissed the same. Further, when the petitioner approached the respondent, he then issued an order against the petitioner regarding disqualification. The petitioner then filed the current writ petition questioning the jurisdiction of the respondent Registrar under the Act of 2005.

The counsel for the petitioner, S.S. Hora, contended that the respondent does not have the jurisdiction for disqualification; instead, he can conduct fresh elections. It was contended that under Article 226 of the Constitution of India, High Court has the discretion to entertain a writ petition where there has been a violation of fundamental rights or principles of natural justice.

The learned counsels for the respondent, M.S. Singhvi, Darsh Pareek, Rajendra Prasad, Karan Tiberwal and S.S. Raghav, contended that the respondent Registrar was competent to issue such notice and order with respect to powers conferred upon him. It was further contended that the writ petition should be dismissed as the petitioner had other alternative remedies.

The Court noted that the first writ petition filed by the petitioner had been dismissed on the ground that the power invoked by the Registrar, could not be faulted for conducting enquiry. It was observed that when the respondent had passed the impugned order exercising his power under Section 24 of the Act, the proper course open to the petitioner was to file an appeal under Section 35 of the Act.

It was opined that the remedy provided to any aggrieved person against the order passed by the Registrar, is a statutory remedy and writ jurisdiction in such cases straightaway cannot be exercised.

Relying on the Judgment in Agarwal Tracom Pvt. Ltd v. Punjab National Bank, (2018) 1 SCC 626 it was held that a High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person. Consequently, the writ petition was dismissed. [District Cricket Association v. Deputy Registrar, Cooperative Societies, 2019 SCC OnLine Raj 3121, decided on 24-09-2019]

Case BriefsHigh Courts

Karnataka High Court: B.A. Patil, J. while allowing the appeal set aside the Judgment of the trial court with a direction to recall the witnesses who have not been cross-examined.

Asif Hussain, the appellant/accused in the instant case preferred this appeal against the judgment and order of his conviction and sentence for the offence punishable under Section 397 of Penal Code, 1860 passed by the Additional City Civil and Sessions Judge, Bengaluru City.

Sirajuddin Ahmed, Counsel for the appellant submitted that the trial court did not give full opportunity to the accused to cross-examine all the witnesses and passed the impugned order erroneously. 

In consonance to the Counsel for the appellant, M. Divakar Maddur, High Court Government Pleader submitted that the evidence of PW7 was not fully chief examined and for this no reason was assigned. 

The Court after analyzing the evidences given in the trial court observed that witnesses were examined. But, after the Public Prosecutor was done with the examination-in-chief, counsel for the accused took time for preparation. However, the court below rejected the prayer without any justifiable reasons and took that there is no cross examination. Moreover, PW7 was examined-in-chief in part. The cross examination of PWs 9 and 10 was not even recorded. The material witnesses who were examined before the Court were also not cross-examined. Thus, it was clear that principles of natural justice were not followed. 

The Court remitted back the matter and directed the trial court to expeditiously dispose of the case.[Asif Hussain v. State, 2019 SCC OnLine Kar 1600, decided on 04-09-2019]

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of S.R. Brahmbhatt and Dr A.P. Thaker, JJ. did not interfere with the order passed by a Single Judge in a letters patent appeal.

The relevant authority in the case had declined to accede to the original petitioner’s request for conversion of her full time M.Tech course into part-time, since this conversion was not requested in 4th semester as prescribed and it was requested slightly before 3rd semester because the petitioner got an employment offer wherein she was required to join immediately when 3rd semester was on the verge of getting completed and her dissertation preliminaries (examination) was permitted to be preponed and she was not in any manner falling sort of either any academic requirement or attendance requirement. The petitioner had relied upon the case of Vejabhai, which was sought to be distinguished by respondent – present appellant, as Shri Vejabhai did not ask for any advancement of dissertation preliminaries (examination) though his request for conversion was made in the vacation of 3rd semester. The Single Judge directed the original respondents to consider the case of the petitioner on the same lines as Shri Vejabhai was permitted to convert his course before the completion of the third semester.

The appellant for the present appeal filed a petition to contend that permission for conversion from full time M.Tech course to part time M.Tech course cannot be denied on the ground of taking a job by the student during the vacation after appearing for dissertation preliminaries after the last day of teaching of the 3rd semester (autumn semester). They requested the Court to quash the earlier order of the Court on the grounds that it was arbitrary, issued in violation of the principles of natural justice, goes beyond the resolution no. 13 passed by the Senate at its meeting held on 16-02-2013, discriminatory, and therefore illegal. They prayed to the court to grant them the same parity in treatment as meted out to Shri Vejabhai, who was allowed to pursue part-time M. Tech course in accordance with resolution 13 of Senate.

The appellant contended that this order would set a precedent in which the very sanctity of the post-graduation course and its tenure will be affected. Advancing of the dissertation preliminaries in itself would not be treated to have been sufficient for treating the 3rd semester complete, as the academic calendar of the institute clearly indicated that 3rd semester would end at least on 7th December and not prior to that.

The respondent contended that the preponement of the preliminary examination for 4th semester is not a unique case and that the student keeps requesting for pre-poning their examination on a regular basis and that this is a case of hostile discrimination as the institute was jeopardising the chances of employment.

The Court held that the apprehension raised on behalf of appellant qua the same being treated as precedent was not sustainable, as such interim order cannot be treated as precedent at all. Every case involving such prayers is required to be dealt with in accordance with the facts of the case. The Court refused to interfere, as there was no likelihood of infringement of any academic requirement, attendance requirement or any violation of statutory provisions but apart from a technicality in the filing of the request. Since the petitioner had already completed her dissertation preliminaries (examination), it cannot be said to be a so grave impediment in the way of the petitioner in seeking conversion. The Appeal was rejected.[Sardar Vallabhbhai National Institution of Technology v. Union of India, 2019 SCC OnLine Guj 1461, decided on 23-07-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities Appellate Tribunal (SAT): Coram of Justice Tarun Agarwala (Presiding Officer), Dr C.K.G. Nair (Member), and Justice M.T. Joshi (Judicial Member) set aside the impugned order in this case. The appellant challenged an ex-parte order passed against him alleging that he was not served properly and therefore the impugned order was against the principles of natural justice as under Article 14 of the Constitution. The appellant, being the Managing Director of Sigrun Holdings Ltd. (SHL) sold 45,000 shares of the company on 24-05-2010, while having knowledge/possession of the adverse quarterly result of SHL based on sensitive information which had not yet been made public, without the authorization of the board.  The adjudicating officer imposed heavy penalties on the appellant in an order citing the various SEBI regulations which had been violated.

The appellant, being aggrieved by the said order, filed an appeal on the ground that the impugned order is an ex-parte order and that he had no knowledge of the proceedings initiated by the Adjudicating Officer. The Appellant has alleged that he did not receive the show cause notice for the proceedings by the Adjudicating Officer and the proper procedure for service of the same has not been followed as under Rule 7 of the Securities and Exchange Board of India (Procedure for Holding Inquiry and Imposing Penalties by Adjudicating Officer) Rules, 1995.

The Court held that the respondent was in violation of Rule 7 as stated above as they had not tried to personally serve the appellant at the place where he carried on business or had worked for gain and had instead directly moved on to affixation which does not comply with the procedure laid down in Rule 7. The Court further said that “mode of service prescribed under Rule 7 is not exhaustive and other modes of service was always available in addition to the modes of service prescribed under Rule 7 i.e. for example publication of the notice in an appropriate newspaper or service through email.”

Thus, the Court set aside the impugned order in the interest of natural justice and in violation of the principles of natural justice as embodied under Article 14 of the Constitution of India and ordered the Adjudicating Officer to comply with the proper procedure.[C.R. Rajesh Nair v. Securities & Exchange Board of India, 2019 SCC OnLine SAT 71, decided on 18-07-2019]

Case BriefsHigh Courts

Karnataka High Court: S. Sujatha, J. while preserving the right of the petitioner disposed of this petition.

In the instant case, the petitioner-institution is an Engineering College and was established by permission granted by AICTE and the State Government. It is affiliated by Visvesvaraya Technological University (Respondent 4). In the academic year 2019-2020, a team from the University visited the petitioner’s premises and found some deficiencies in the working of the college thereby, issuing a show-cause notice and finally a communication was issued to the Department of Higher Education, State of Karnataka (Respondent 1) to remove the name of the petitioner from the seat matrix and to show that no courses would be offered during the counseling process. The petitioner assailed the aforesaid communication.

Counsel for the petitioner, Abhishek Malipatil submitted that the impugned communication is ex-facie illegal and in violation of principles of Natural Justice as the order was passed before hearing the petitioner. It was further submitted that the petitioner is permitted by the AICTE to run the college, therefore, the University cannot deny affiliation on insubstantial grounds. The Institution imparts education in the rural areas which mainly depends on the Government quota seats. This communication since issued in the mid of the counseling process has adversely affected the petitioner-Institution.

Counsel for Respondent 4, Santhosh S. Nagarale submitted that since the petitioner did not cooperate with the Visiting Team from the University, the Communication had to be issued. It was further submitted that the Team shall visit and inspect the Institution if the petitioner-Institution agrees to bear the expenses and compliance of the deficiencies pointed out before.

The Court after observing the submissions directed Respondent 4 to carry out the inspection on the expense borne by the petitioner-Institution. After submission of the compliance report by the petitioner, a decision shall be taken on the extension of the affiliation within ten days of this order.[Eklavaya Institute of Technology v. State of Karnataka, 2019 SCC OnLine Kar 879, decided on 02-07-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJ and Manoj K. Tiwari, J. set aside in review an order passed by another Division Bench.

The Applicant contended that she was working as Principal of constituent College, which was later conferred “Deemed University” status and hence, Memorandum of Association was to be accorded with UGC Regulations, 2010. The applicant was part of the committee to deliberate on the proposed amendments. Further, she alleged that Division Bench held that she had acquiesced to the amendment; and could not, thereafter, contend that she should be continued contrary to the said amendment. The petitioner was denied relief on the ground of acquiescence.

Learned counsel for the applicant Tapan Singh, submitted that, applicant had merely participated in the meeting; she had not specifically agreed to the said amendment; even otherwise, her participation in the deliberations of the Committee meeting, was in her official capacity as a Principal of the College, who was a member of the Committee ex-officio; that cannot result in her vested right, to continue as a Principal, being deprived even without complying with the principles of natural justice; and the order under review necessitates being set aside.

Arvind Vashishta, learned Senior Counsel for respondent-University, submitted that the Division Bench was justified in its conclusion that petitioner had acquiesced to the amendment to the Memorandum of Association; and her appointment as a Coordinator, consequent on her designation as a Principal being withdrawn, was merely a consequence thereof.

The Court observed that, mere participation in a meeting convened to consider amendments doesn’t mean that the petitioner acquiesced and had waived her right to continue as a Principal. Hence, the order under review was set aside, and the writ petition was restored to file.[Dr Sangeeta Singh v. Gurukul Kangri University, Haridwar, 2019 SCC OnLine Utt 378, decided on 24-05-2019]

Case BriefsHigh Courts

Jammu & Kashmir High Court: Sanjeev Kumar, J. dismissed a petition challenging an order suspending petitioner and ordering an enquiry into his conduct, holding that principles of natural justice are not applicable to matters of suspension from service.

The petitioner challenged his suspension order on the grounds that he was deprived of his right to be heard, and on the ground that suspension order was served on the basis of allegations levelled by the Respondent 8, being his first wife, without any verification of the same.

The Court noted that the impugned order was based on the allegations of petitioner’s first wife that he had contracted the second Nikah without seeking prior permission from her. Respondent 2 (employer) suspended the petitioner in terms of Rule 22 of the Jammu and Kashmir Government Employees (Conduct) Rules, 1971, which states that no government employee who has a wife living, is entitled to contract another marriage without first obtaining the permission of the government, notwithstanding that the subsequent marriage is permissible under the personal law for the time being in force. Before passing the suspension order, Respondent 2 had considered the explanatory note submitted by the petitioner in relation to the said issue. It was noted that the relevant authority/employer found that neither the petitioner obtained any prior permission of the government nor had he sought the consent of his first wife.

It was opined that mere suspension does not tantamount to punishment; hence in the present case, it was not necessary to provide an opportunity of being heard or complying with the principles of natural justice.

In view of the above, the writ petition was held to be not maintainable.[Adil Rashid Butt v. State of J&K, 2019 SCC OnLine J&K 375, decided on 24-04-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: A Bench of Vandana Kasrekar, J. allowed a writ petition and set aside an order passed by Director, Employment and Training, MP Civil Centre, in the appeal against the impugned order, removing the petitioner from his services by the Joint Director of the aforementioned Training Centre.

The petitioner was appointed as Class-III employee in the aforementioned Centre on a compassionate basis. The petitioner contended that, Joint Director issued a show cause notice which stated the non fulfillment of the conditions of employment i.e. passing of Hindi typing examination by the petitioner, further as per the terms and conditions of the appointment order he has availed 466 days of leave without pay and was continuously absent for a period of 3 months, for which he was terminated from his services as a way of punishment, allegations were found to be true in internal enquiry. The petitioner was aggrieved by such report and was not given an opportunity of being heard by the Joint Director.  He was equally aggrieved by the order of Director, terminating his services and agreeing with the order of Joint Director, therefore, dismissing his appeal.

Learned Counsel for petitioner, M.I. Khan, argued that order impugned is arbitrary and illegal, it is also violative of the principles of natural justice i.e. ‘Audi Alteram Partem’. According to his submissions, the order of the Director was contrary to the provision of Civil Services Rule, 1966. No proper procedure was followed while adjudicating the matter of the petitioner. The enquiring officer has filed the report on the basis of the fact that the petitioner has admitted the charges and no statements of witness were recorded by the enquiring officer. He further submitted that the order of removal is not passed by the competent authority. Joint Director was in no position to terminate the petitioner as he was appointed by the Director and no person subordinate to him had such powers.

Learned Counsel for the respondent, Vikas Yadav, replied that the petitioner has not cleared the essential requirement of qualification for the respective post i.e. Hindi typing exam. The non-performance of the petitioner was also highlighted by his continuous unauthorized absence from work for a period of almost 3 months and his non-attendance for a total of 466 days.  Respondent contended that though, the petitioner replied to the show cause notice, the same was not satisfactory. After issuance of the charge sheet, the petitioner himself admitted the charges levelled against him before the enquiring officer. Therefore, the impugned order of removal was passed. Thus, no illegality was caused in removing the petitioner from his services.

The Court observed that, before the show cause notice was issued no enquiry was initiated against the petitioner by the respondents and the said show cause notice was issued for termination of services of the petitioner. “It shows that the authorities have make up their mind for terminating the services of the petitioner before initiating any departmental enquiry.” Court was of the view that petitioner stated the medical reasons in reply to the show cause notice, but he also admitted not clearing the exam and taking unauthorized leaves for such a long tenure.

Court held, that no alleged enquiry was conducted by the respective respondents, which was arbitrary and they served a copy of the report without filing any charge sheet. The Court stated the provisions of CCA Rules, which provide for the opportunity of hearing to the accused even if the charges in written statements are admitted. The enquiring officer must always ask the accused whether he pleads guilty or not in a proper recorded manner. It was found by the Court that there was a breach in proper proceedings in recording the statements of the petitioner and the proceedings were not in conformity with the law. The Court directed the respondents to reinstate the petitioner in service without any back wages.[Ajay Kadam v. State of M.P., 2019 SCC OnLine MP 769, Order dated 07-05-2019]

Case BriefsHigh Courts

Gujarat High Court: A Bench of A.Y Kogje, J. partly allowed a petition whereby the case was remanded back to the Sub-Divisional Magistrate to reconsider the earlier order by giving an opportunity of hearing to the petitioner.

In the pertinent case, the petitioner submitted that while the period for which the license was to operate an FIR came to be registered with an allegation that in the area where the Anand Mela was being conducted, some people had indulged in gambling activity and therefore the area where the Anand Mela was being held was sealed. Since the livelihood of many families was dependant on the functioning of the Anand Mela, the petitioner thus approached the Court for an amendment to such order.  Further, it was contended that the license holder was not even present when the alleged incident had taken place and therefore if any of the visitors would have indulged in such activity then the petitioner cannot be held responsible.

The respondents, in turn, made allegations that the persons involved in the gambling activities and that the person conducting such activity had escaped from the premises. He also submitted that the petitioner is not entitled to any opportunity of hearing more particularly when he is in breach of the condition of license condition No. 16 of the license.

The Court after considering the material facts and the registered FIR opined that “the contention itself discloses that the license holder himself was not found on the spot when the petitioner strongly disputes about the nature of game being played at the Anand Mela and also disputes his presence at the time when the offence came to be registered. It would be a question of fact which will have to be gone into while the offence is being tried”. Also “The Provisions of Bombay Police Act under which the license is granted does not provide for any appeal as the provisions for appeal is restricted to certain sections but does not include Section 33(1) of the Bombay Police Act”. Further since conducting the Anand Mela was the primary source of livelihood for the petitioner and others, therefore before canceling the license where the petitioner is strongly opposing activity of gambling in the premises, the principles of natural justice should be followed.[Manharbhai Kachrabhai Rathod v. State of Gujarat, 2019 SCC OnLine Guj 604, Order dated 04-04-2019]

Case BriefsHigh Courts

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

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

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

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

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