Case BriefsSupreme Court

Supreme Court: Opining that the advancement of medical field over a period of time has been enormous, the Division Bench comprising of Sanjay Kishan Kaul and M.M. Sundresh, JJ., directed the Railways to constitute a committee to revisit its decision disqualifying persons with history of lasik surgery for the post of constables (RPF).

The appellants had appeared in a competitive examination of the Railways and had sought recruitment as constables in the Railway Protection Force (RPF), however, in view of a policy decision taken by the respondents, dated 11-11-2013 qua medical suitability, the appellants were held unfit for service in categories A and B of the Railway Medical Manual, 2000 for having gone through lasik surgery to the eye. The appellants contended that the decision had been brought into force almost 3 years after the date of advertisement; hence it could not be applied to the recruitment process of the appellants. The contention of the appellants had been rejected by the High Court on the reasoning that once the technical committee goes into an aspect, it may not be proper for the court to step into that domain.

Considering the report of the respondents on the requirement of prohibiting the candidates who have gone through lasik surgery, the Bench observed that the order was passed on 17-08-2011 constituting a committee of Ophthalmologists, all from the Railways, to make an in-depth study and formulate guidelines for medical fitness/unfitness qua candidates and employees of various medical categories who have undergone lasik surgery in the past or during the service period. The Bench noted that that at the time of publication of the report, the lasik procedure had been available in India only for a period of 10 years. Pointing the limitation of the report the Bench expressed,

“We may note that now we have the benefit of an extra decade of medical study and observation with respect to the effects of this procedure. In view of the same, it may be time to revisit the issue.”

Emphasizing on the principle of ‘reasonable accommodation’ which underlines the Rights of Persons with Disabilities Act, 2016 with an objective of recognizing the worth of every person as an equal member of the society, the Bench referred to Pranay Kumar Podder v. State of Tripura, (2017) 13 SCC 351, where a candidate suffering from partial colour blindness was declared ineligible to take admission to the MBBS course and by the intervention of the Court a committee of experts was constituted to review the situation which, ultimately opined in favour of the candidate.

Opining that employment is a very important aspect in the Country which deserves a broader conspectus, the Bench directed to constitute a fresh medical committee of three or more members, out of which not more than one Doctor should be from the Railways and an independent Ophthalmologist from a Government hospital and private field should also be included.

The Bench directed that the committee be constituted within a period of two weeks’ to revisit the aspects about the fitness of candidates who have undergone lasik surgery qua different aspects of Railway employment. Further, the committee was directed to opine on the issue and carry out the exercise on or before 30-04-2022. The Bench remarked,

“This is a larger issue. Appellants here are concerned only with a particular aspect of railway employment which does not require fine technical work or the operation of heavy machinery. A parallel with the position in the armed forces may also not be appropriate as constables in the RPF are not deployed at the frontlines.”

The matter was directed to be listed for directions pursuant to the report on 10-05-2022.

[Dalbir v. Union of India, Special Leave to Appeal (C) No(s). 28003-28004 of 2017, decided on 04-02-2022]


Appearance by:

For Appellants: Advocate Raj Kumar, AOR Karunakar Mahalik, Advocate Abhishek Sonkar, Advocate Sangeeta Chauhan, Advocate Sashi Gupta

For Respondent(s): ASG Madhvi Divan, Advocate Vanshaja Shukla, Advocate Piyush Beriwal, Advocate Vaishali Verma, Advocate Preeti Rani, AOR Amrish Kumar, Advocate Brajesh Pandey, AOR Sunil Prakash Sharma


Kamini Sharma, Editorial Assistant has put this report together

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Anoop Kumar Dhand and Pankaj Bharadwaj, JJ., disposed of the petition and directed the Department to appoint the respondent.

The facts of the case are that the North Western Railway Recruitment Cell issued an advertisement for recruitment on several posts of Group ‘D’ i.e. Track Man, Traffic Khallasi, Helper, Cleaner, Cook etc.  Pursuant to the said advertisement, the respondent submitted an application under the category of Other Backward Class (OBC). After participation in the process for selection, he qualified in the written examination, physical eligibility test and medical test but, subsequently his candidature was rejected as the Postal Order submitted by him was not within limitation. The respondent being aggrieved filed Original Application before the Tribunal pleading therein that the Postal Order submitted by him was well within the parameters and the amount of said Postal Order was received by the Railway Department and the same was also credited in its account but inadvertently, in the application form, the wrong year of Postal Order was mentioned. The Tribunal allowed the Original Application and directed the petitioners-Department to give appointment to him on the post of Group-D with all consequential benefits. Aggrieved by the same, instant petition was filed by the petitioner- Department.

Counsel for the petitioners submitted that the respondent is not entitled to get appointment in view of the provisions contained in Para No.8.11 of the Advertisement dated 16-12-2010. The respondent has mentioned the details of the Postal Order in his application form and as per Sub-para (XV) of Para 8.11 of the Advertisement, the application form of the respondent was liable to be rejected on the ground of furnishing incorrect information by him. Counsel argued that in para No.7.4 of the Advertisement, it is clearly mentioned that the Postal Order/Bank Drafts/Pay Order for payment of requisite fee issued prior to the date of advertisement or beyond the validity of six months, will not be accepted. Thus, in view of the conditions mentioned in Para Nos.7.4 and 8.11 of the Advertisement, the candidature of the respondent was rightly rejected and the Tribunal has committed an error in allowing the Original Application filed by the respondent.

Counsel for the respondent submitted that the mistake is an inadvertent human error and that the mistake committed by the respondent has not caused any prejudice to any third party. Thus, the Tribunal has not committed any illegality in allowing the application filed by the respondent.

The court relied on judgment Kavita Chaudhary v. Registrar (Examination), D.B. Civil Special Appeal (Writ) No.1700/2017 on 01-11-2017 in the case of “To err is human, to forgive is divine”, the mistake can be of two kinds. First kind of mistake would not be where nobody is affected by a mistake and the second mistake where a third party is affected by a mistake. The difference in two mistakes would be that whereas the rectification of the first mistake would cause no prejudice, rectification of the second would cause a prejudice.

The Court observed that this is not a case where fraud has been committed by the respondent. But the error/mistake was there on the part of the respondent in mentioning the incorrect date of the Postal Order in the application. Once the application was accepted by the petitioner-Department after getting the requisite fee amount of Postal Order, which was credited in its account and subsequently the respondent was allowed to participate in the recruitment process, the petitioner-Department cannot be permitted to reject the candidature of the respondent merely on hyper-technical ground. It is expected from the welfare state to act fairly. But in this case, the action of the petitioner-Department was totally unfair in rejecting the candidature of the respondent only on the ground that he mentioned the incorrect date of the postal order as 10-01-2010 in place of 10-01-2011. When once the requisite amount of fee was credited in the account of the petitioner department and after that the respondent was allowed to participate in the entire recruitment process, then the petitionerDepartment is stucked to change its stand.

The Court observed that it is the settled position of law that whenever there is a conflict between the substantial justice and hyper-technicality then the substantial justice should be preferred to avoid the defeat for the ends of justice. If the hypertechnical stand of the petitioner is allowed to stand as it is then it would amount to failure of justice. The judgments cited by the counsel for the petitioners are not applicable to the facts of the present case.

The Court held “The order passed by the Tribunal does not require any disturbance in the hands of this Court. Thus, the order dated 12.10.2021 passed by the Central Administrative Tribunal, Jaipur Bench, Jaipur in OA No. 291/683/2013 is confirmed.”

The Court directed the petitioner Department “to give appointment to the respondent on the post of Group-D with all consequential benefits, if he is otherwise found suitable for the said post, except monetary benefits. The said exercise shall be carried out by the petitioner within a period of three months from the date of receipt of a certified copy of this order.”[Union of India v. Harendra Gawaria, 2022 SCC OnLine Raj 463, decided on 04-02-2022]


For Petitioner(s): Mr. P.C. Sharma, Adv

For Respondent(s): Mr. Devendra Sharma, Adv and Mr. Balram Vashistha, Adv.


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: On finding no ground for interference in the arbitral award, Anup Jairam Bhambhani, J., upheld the decision of Single Judge Bench.

Instant appeal was filed under Section 13 of the Commercial Courts Act 2015 read with Section 10 of the Delhi High Court Act 1966 and Section 37 of the Arbitration and Conciliation Act 1996 impugning the decision of Single Judge of this Court. In the said decision arbitral award made by the sole arbitrator was upheld.

Background

Railways had filed a petition under Section 32 of the Arbitration and Conciliation Act challenging the arbitral award in which Railways was directed to refund to Annavaram the sum of Rs 1,22,38,125 which had been deducted/withheld by the Railways as ‘liquidated damages’ imposed upon Annavaram for alleged breach of the terms and conditions of a tender, pursuant to which a Letter of Acceptance was issued by the Railways to Annavaram for supply of 10000 Pre-Stressed Concrete Sleepers.

Non-Performance & Non-Compliance

The reason for the dispute was the non-performance and non-compliance with the terms of Letter of Acceptance. As Annavaram did not supply even a single sleeper within the stipulated time, nor did they obtain any extension of time for making such supply.

In view of the above background, penalty was imposed and then the contract was terminated.

Mr R.K. Sanghi, Senior counsel appearing for Annavaram contended that by inserting clause 1.2, a new condition came into effect whereby the parties agreed that the quantity of sleepers ordered under the original tender stood “… reduced to the number of sleepers manufactured till the date of issue of LoA for the new contract …”; and it was contended, that as a result there was no obligation on Annavaram to supply 10000 sleepers by 14-07-2009.

Consequently, it was argued that, the Railways were not justified in imposing any liquidated damages upon Annavaram.

Analysis, Law and Decision

Firstly, the High Court stated that there is limited scope and ambit of a challenge under Sections 34 and 37 of the A&C Act, which are pithily set out inter alia in the Supreme Court decision of PSA SICAL Terminals (P) Ltd. v. Board of Trustees of V.O. Chidambranar Port Trust Tuticorin, 2021 SCC OnLine SC 508, in which the Supreme Court reiterated its view on MMTC Limited v. Vendanta Limited, (2019) 4 SCC 163 wherein it was observed that:

“As far as Section 34 is concerned, the position is well-settled by now that the Court does not sit in appeal over the arbitral award and may interfere on merits on the limited ground provided under Section 34(2)(b)(ii) …”

“It is only if one of these conditions is met that the Court may interfere with an arbitral award in terms of Section 34(2)(b)(ii), but such interference does not entail a review of the merits of the dispute, and is limited to situations where the findings of the arbitrator are arbitrary, capricious or perverse, or when the conscience of the Court is shocked, or when the illegality is not trivial but goes to the root of the matter. An arbitral award may not be interfered with if the view taken by the arbitrator is a possible view based on facts.”

“…the court cannot undertake an independent assessment of the merits of the award, and must only ascertain that the exercise of power by the court under Section 34 has not exceeded the scope of the provision.”

Therefore, Bench held that so long as the view taken by an arbitrator, is a possible view based on facts, it is irrelevant whether this Court would or would not have taken the same view on the merits of the matter, hence arbitral award was required to be upheld.

Hence, impugned judgment was upheld.

Conclusion

Annavaram entitled to receive from the Railways the amount directed to be refunded in the arbitral award along with simple interest at 6% per annum till the date of payment as per the impugned judgment. [Union of India v. Annavaram Concrete Pvt. Ltd., 2021 SCC OnLine Del 4211, decided on 31-8-2021]


Advocates before the Court:

Ms Geetanjali Mohan, Advocate.

Mr R.K. Sanghi, Senior Advocate with Mr Satjendar Kumar, Advocate and Mr Ishan Sanghi, Advocate.


Additional Reading:

“There is a disturbing tendency of courts setting aside arbitral awards …”: SC upholds arbitration award of Rs 2728 crore plus interest in favour of Delhi Airport Metro Express (P) Ltd.

Foreign arbitral award enforceable against non-signatories to agreement; ‘perversity’ no longer a ground to challenge foreign award; tort claims arising in connection with agreement are arbitrable: SC expounds law on foreign awards

Arbitrator cannot rewrite contract for parties; Arbitral award based on no evidence or in ignorance of vital evidence comes in realm of patent illegality: SC   

Can Courts modify Arbitral Awards under S. 34 of Arbitration Act or is power limited? SC decides

Del HC | Ambiguity in contractually stipulated obligations favours whom? Court discusses while refusing interference in arbitral award

Del HC adverts to scope of judicial review of an arbitral award; Wades through bunch of pleas including violation of Part 1, CPC and insurance against breakage during transit, etc.

 

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: Rumi Kumari Phukan, J., held that if the amount of compensation has already been agreed in a compensation claim, no appeal would lie against the same.

The present appeal was directed against the judgment and order passed by the Railway Claims Tribunal, whereby the Railway authority was directed to pay Rs.57,375 as compensation.

According to the applicant, a clubbed consignment (300 packets of dried peas and 400 packets of Arhar Dal) was booked from DKZ to NGC. At destination, as per Delivery Certificate, 45 packets of Arhar Dal were found short. As per the applicant at Rs.25.50 per kg., the compensation was amounted to Rs.57,375 for which the applicant had filed the claim petition and stated that the respondent railway was fully liable.

The respondent-Railway submitted that the question of negligence and misconduct did not arise, as the consignment was loaded by the sender at the forwarding station and unloaded by the consignee at the destination station. It was also argued by the respondent-Railway that the nature of relief as sought for in the application was not admitted since there was no contract between the parties in this case to pay cost and interest and the applicant was not entitled for the same. The Railway Claims Tribunal decided all the issues in favour of the applicant and passed the impugned judgment.

According to Section 93 of the Railway Act, the Railway Authority is responsible for the loss, destruction, damage of the articles loaded for transportation.

The applicant made specific claim about the damage at the time of delivery of consignment with the further claim that wagon seals and card labels were absent, with damage to the body of the wagon with leakage etc. Further, the unloading report revealed that S/Side W/D without original seal and card label, protection seal were badly broken thereby the applicant disputed that the respondent had not taken due care of consignment after such entrustment.

Noticing that at the stage of argument both the parties agreed for the compensation at the rate of Rs.25.50 per kg. [2250 Kg. X Rs.25.50 = Rs.57,375/-] and the Tribunal order was passed on the basis of such agreement, the Bench stated that such agreement tantamount to consent decree, hence, appeal was not maintainable as the amount of compensation was already decided on being agreed.

As per Section 23(2) of the Railway Claims Tribunal Act, no appeal will lie against consent decree, hence the appeal was held to be not maintainable. Therefore, the appeal was dismissed. [Union of India v. M/S Ramesh And Co,  2021 SCC OnLine Gau 1839, decided on 27-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Advocate for the appellant: Mr. G. Goswami, Standing Counsel, Railway.

Advocate for the respondent: Ms. M. Sharma.

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Kailash Prasad Deo J. allowed the appeal and directed respondent-Railway to pay a sum of Rs 8 Lacs in view of a recent notification dated 22-12-2016 issued by the Ministry of Railways.

The factual matrix of the case is such that the deceased, who has a ticket bearing no. 88302375, was travelling from Asansol to Madhupur by boarding train no. 12369/12327 UP on 11-09-2015 and fell down at Chittaranjan Railway Station due to intense jostling and sustained serious injuries and died on the spot. A case was registered. The appellants have preferred the instant appeal against the Award/Judgment dated 31-01-2017 passed by Member (Judicial), Railway Claims Tribunal, Ranchi Bench, whereby the claim application of the appellants/parents of the deceased have been dismissed on the ground that the deceased Pulis Marandi died because of his reckless, imprudent violating all safety norms demanded during train travel with imminent possibility of endangering both life and limbs of a passenger by stating that the case of the deceased comes under clause (b) of proviso to Section 124-A of Railways Act and as such, exempted the railway to pay compensation.

Counsel for the appellant Mrs Chaitali Chatterjee Sinha submitted that Railway Claims Tribunal has committed error on two counts; firstly that the deceased Pulis Marandi was possessing a passenger ticket, but boarded on an express train, secondly that the deceased has purchased ticket upto Chittaranjan and boarded train going to Madhupur and sustained injury while trying to get down at Chittranjan Station, as such, died in an accident because of his own fault. It was further submitted that no contrary evidence has been brought on record to strengthen the argument of the Railway, that it was a passenger ticket and deceased has boarded in an express train or super fast train. It was also brought to notice that the case of the deceased comes under Section 123 (c) of the Railways Act and not under exception Clause (b) of proviso to Section 124-A of the Railways Act. No evidence has been brought on record to substantiate that the case of the deceased comes under exception clause (b) of proviso to Section 124-A of the Railways Act, as such, the impugned award may be set aside.

Counsel for the respondent Mr Vijay Kumar Sinha has submitted that the deceased has boarded express train, having passenger ticket upto Chittaranjan Railway Station and wrongly pleaded in the claim application that deceased was travellling from Asansol to Madhupur and thus the Tribunal has rightly dismissed the claim application as it is a case which comes under exception clause (b) of proviso to Section 124-A of the Railways Act.

 The Court observed that under the aforesaid circumstances, once the ticket number has been brought on record which indicates that it was from Asansol to Madhupur, the railway ought to have brought on record any material to show that this ticket was never sold by the railway or this ticket was never issued for the express train and only on the argument, that deceased was holding ticket for passenger train will not suffice the purpose to declare the deceased not a bonafide passenger under Section 2 (29) of the Act in a benevolent legislation like Railways Act, 1989.

The Court thus held that the deceased was having ticket, to be a bonafide passenger as defined under Section 2 (29) of the Act and the deceased was victim of an Untoward Incident as defined under Section 123 (c) of the Act. “Accordingly, the impugned order dated 31.01.2017 passed by Member (Judicial), Railway Claim Tribunal, Ranchi in OA (IIU) / RNC / 2015 / 01014 is hereby set aside.”

[Gunadhar Marandi v. Union of India, M.A. No. 448 of 2017, decided on 01-06-2020]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: While addressing the matter wherein a passenger suffered loss and agony due to delay in the arrival of train, M.R Shah and Aniruddha Bose, JJ., observed that,

These are the days of competition and accountability. If public transportation has to survive and compete with private players, they have to improve the system and their working culture.

Background

Aggrieved by the National Consumer Disputes Redressal Commission, State Commission and District Forum, wherein the    Northern Western Railway and another were directed to pay to the complainant – respondent Rs 15,000 for taxi expenses, Rs 10,000 towards booking expenses along with Rs 5,000 towards mental agony and litigation expenses. Aggrieved by the same, present special leave petition was preferred.

Respondent had booked 4 tickets from Northern Western Railway along with the return reserved tickets.

Respondent’s case was that, he had to take flight at 12:00 noon from Jammu to Srinagar in SpiceJet. But the said train did not reach in time and it was delayed by 4 hours and reached Jammu at 12:00 noon.

Since the Jammu Airport was at a far distance from Jammu Railway Station and they had to reach the airport at least two hours prior to the departure of the flight, they could not reach in time and missed the flight.

Further, the respondent had to book private taxi to reach Srinagar.

In view of the above background, respondent claimed a loss of Rs 9,000as airfare, Rs 15,000 towards taxi hire charges for going from Jammu to Srinagar, Rs 10,000 on account of booking of boat in Dal Lake.

Analysis, Law and Decision

Supreme Court opined that in view of the facts and circumstances of the case, impugned orders awarding compensation to the complainant do not warrant any interference.

No evidence was led by the railways explaining the delay and/or late arrival of train at Jammu. The railways were required to lead the evidence and explain the late arrival of train to establish and prove that delay occurred because of reasons beyond their control. 

At least the railways were required to explain the delay which the railways failed.

Bench held that unless and until the evidence was laid explaining the delay and it was established and proved that delay occurred which was beyond their control and/or even there was some justification for delay, the railway is liable to pay the compensation for delay and late arrival of trains.

Hence, in the present matter, the decision of the Commission’s observing that there was a deficiency in service leading to the railways being liable to pay the compensation to the passenger – complainant was rightly observed.

While concluding the matter and stating that no interference of this Court is called for, Bench emphasized that,

Citizen/passenger cannot be at the mercy of the authorities/administration. Somebody has to accept the responsibility.

 [Northern Western Railway v. Sanjay Shukla, Special Leave Petition (C) No. 13288 of 2021, decided on 6-09-2021]

Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ and G.S. Kulkarni, J., directs railways to allow Advocates to travel by local trains for physical hearings on an “experimental basis”.

Possibility as to whether lawyers who are appearing in the High Court before the Benches which are taking physical hearing, permission to travel by local trains to be discussed.

Advocate General, as well as Additional Solicitor General, had fairly consented to consider the said request on an experimental basis.

Advocate General after taking instructions has placed on record a brief note which would set out the arrangements that can be made for lawyers who are attending the physical hearing before the High Court.

Further, Additional Solicitor General has also taken instructions from the railways and would state that in principle, the railways are also agreeable for this arrangement to be set into motion as suggested on behalf of the State.

Bench stated that in view of the present situation Court can only consider the request in regard to the advocates and no one else.

Accordingly, the Court accepts the arrangement as suggested on behalf of the State and as agreed on behalf of the railways which would be in effect from 18-09-2020.

In view of the above, Court passed the following order:

  • Advocate concerned intends to physically appear before the Benches of this Court at its principal seat at Mumbai shall apply to the designated Registrar of the High Court seeking a day’s pass relating to the particular date only on which his/her matter is listed for hearing before one of the four Benches of this High Court.
  • The designated Registrar only after confirming the correctness of the claim so made in the application in terms of the present arrangement via email will issue a certification of the requirement for a particular day to the advocate concerned.
  • Upon receipt of such certification from the designated Registrar, the advocate concerned will approach the railway authorities to obtain appropriate pass/document for travel or ticket permitting him/her to avail the local train services, for the particular day for which travel permission is required.
  • Railway authorities after verifying the pass so issued will issue appropriate travel documents/tickets etc., as the case may be, permitting travel by local train services to the advocate for the particular day.

The above-stated arrangement will be available to the advocate only who satisfies all the above conditions.

Bench states that in case the certification issued by the Registrar is misused, it would be open for the Bar Council of Maharashtra and Goa to take appropriate actions.

All the proceedings adjourned to 06-08-2020. [Chirag Chanani v. Union of India, 2020 SCC OnLine Bom 929, decided on 15-09-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Administrative Tribunal, Ernakulam: The Coram of P. Madhavan (Judicial Member) and K.V. Eapen (Administrative Member) disposed the application denying relief to the applicant finding no valid reason to interfere in Government’s order.

The applicant is an employee of the Indian Railways currently working as Chief Engineer Construction at Ernakulam. The applicant has claimed an out of the ordinary situation whereby he’s been subjected to frequent transfers without valid grounds. The applicant was deputed for 3 years to KRDC in 2017 and then he joined as Deputy Chief Engineer, Chennai on 09-05-2019. Later, he was promoted and posted as Chief Engineer Mangalore on 19-08-2019. Thereafter he was transferred to Ernakulam vide order dated 04-11-2019. The applicant has undergone 3 transfers within a period of one year which allegedly, is against Railway norms. The latest development is where he’s been transferred and posted as ADRM, Trivandrum (Annexure A1) in response to which he filed a representation but before deciding the same a transfer and posting order (Annexure A2) has been served to him. The applicant has claimed that the frequent transfers are arbitrary and against Railway transfer guidelines and has hence prayed for quashing of Annexure 1 & 2 and order for retention as Chief Engineer Ernakulam.

The applicant has contended that transfer to Trivandrum is a mutual one and that a minimum tenure of 2 years and maximum of 5 years at a posting is the usual practice in Railways.

Counsel for the respondent, Girija K. Kopal has stated in her reply that the applicant holds a transferable post and is obligated to be transferred to any place in the country. There’s no transgression of any statute or rule. It’s submitted that the applicant had no objections to his other transfers. All the transfers mentioned by the applicant are of routine nature resulting out of exigencies. No illegality or arbitrariness has been committed by the respondents.

The tribunal on careful perusal of the facts and arguments advances observed, that the transfer orders of early postings were a result of administrative exigencies prevailing at that point. The contention of the applicant that the transfers are against norms and guidelines has been dismissed by the tribunal stating that it’s evident from the guidelines that there’s nothing preventing the transfers in case of administrative emergencies as the applicant is an ex-cadre employee.

The tribunal relied on the case of S.R. Venkataraman v. Union of India, (1979) 2 SCC 491 holding that courts can interfere in transfers only if its the result of a malafide exercise of authority or violation of statutory or policy provisions or if it’s done as a punitive measure or if there’s a contravention of natural justice. It has been remarked that, an employee has no vested right to hold on to a particular post when he is transferred to another post.

In view of the above, the tribunal found no reason to interfere in the transfer order basis the lack of merit in contentions raised by the applicant’s counsel alleging the transfer to be arbitrary and malafide.

Resultantly the application was disposed of, permitting the applicant to file a fresh representation to the competent authority for transfer to a convenient place, if exercised. [P.T. Benny v. Union of India, 2020 SCC OnLine CAT 305, decided on 13-08-2020]

COVID 19Hot Off The PressNews

In continuation of the revised consolidated guidelines on lockdown measures dt. 17.05.2020, Ministry of Home Affairs (MHA) has issued revised Standard Operating Protocol (SOP) on movement of stranded workers by trains.

The SOPs allow movement of stranded workers by trains as under:

  • Ministry of Railways (MoR) would permit Movement of Shramik Special trains in consultation with MHA.
  • All States/ UTs should designate nodal authorities and make necessary arrangements for receiving and sending such stranded persons.
  • Based on the requirements of States/UTs, the train schedule, including stoppages and destination would be finalized by MoR. The same would be communicated by MoR to the States/UTs for making suitable arrangements for sending and receiving such stranded workers.
  • Publicity of train schedule, protocols for entry and movement of passengers, services to be provided in coaches, and arrangements with States/UTs for booking of tickets would be done by MoR.
  • Sending States/ UTs and MoR would ensure that all passengers are compulsorily screened and only asymptomatic passengers are allowed to board the train.
  • Social distancing to be observed by all passengers during boarding and travel.
  • On arrival at their destination, the travelling passengers will have to adhere to such health protocols as are prescribed by the destination State/ UT.

Click here to see the Official Communication to the States/UTs


Ministry of Home Affairs

[Press Release dt. 19-05-2020]

[Source: PIB]

COVID 19Hot Off The PressNews

In a communication to the States, Union Ministry of Home Affairs (MHA) has noted that fear of COVID-19 infection and apprehension of loss of livelihood are the main driving factors for the movement of stranded workers towards their homes.

In order to mitigate the distress of migrant workers, the communication stresses on a number of measures that may be taken by the State governments, pro-actively in coordination with the Centre. These are:

  • Operation of more special trains by pro-active coordination between States and with Ministry of Railways;
  • Increase in number of buses for transporting migrants; allowing entry of buses carrying migrants at inter-state border;
  • More clarity may be given about departure of trains/ buses, as lack of clarity coupled with rumours caused unrest amongst the workers;
  • Arrangement of designated rest places, with adequate facilities for sanitation, food and healthcare, could be made by the States on routes where migrants are known to be already travelling on foot;
  • District Authorities may guide workers moving on foot to designated rest places, nearby bus terminals or railway stations by arranging transportation;
  • Special attention may be given to the specific requirements of women, children and elderly amongst the migrant workers;
  • District Authorities may involve NGO representatives at rest places etc, to alleviate the notion of long quarantine at rest places. Workers may also be encouraged to remain at places where they are;
  • Enlisting the migrants with their addresses and contact numbers. This may be helpful in contact tracing in due course.

The communication reiterates that District Authorities must ensure that no migrant worker has to resort to walking on roads or railway tracks to reach his/her destination. They may request Ministry of Railways for running trains, as per requirement.

Click here to see Official Communication to States


Ministry of Home Affairs

[Press Release dt. 19-05-2020]

[Source: PIB]

COVID 19Hot Off The PressNews

In continuation of the measures taken in the wake of COVID-19 Lockdown, it has been decided that all passenger train services on Indian Railways including Premium trains, Mail/Express trains, Passenger trains, Suburban Trains, Kolkata Metro Rail, Konkan Railway etc shall continue to remain cancelled till 3rd May, 2020.

To ensure the essential supplies in various parts of the country, movement of goods and Parcel trains will continue.

No booking of any type of tickets, including E tickets shall be done till further advice. However, facility of online cancellation will remain functional for ticket bookings.

All counters for ticket booking for UTS & PRS will remain closed till further orders.

Full refund will be given for tickets for the bookings made for the trains cancelled.

Full refund will also be there for those cancelling the advance bookings of tickets for trains not yet cancelled.

As far as trains cancelled upto 3rd May 2020 is concerned, the refunds would be automatically remitted by the Railways online to the customers while those who have booked across the counters, refund can be taken upto 31st July, 2020.


Ministry of Railways

[Press Release dt. 14-04-2020]

[Source: PIB]

Cabinet DecisionsLegislation Updates

Union Cabinet was apprised of the Joint Declaration of Intent (JDI) between India and Germany regarding cooperation on strategic projects in the field of Railways.  The Joint Declaration of Intent was signed last month.

Benefits:

Joint Declaration of Intent (JDI) with the Federal Ministry for Economic Affairs and Energy of the Federal Republic of Germany will provide a platform to Indian Railways to interact and share the latest developments and knowledge in the field of Railways. The Joint Declaration of Intent (JDI) will facilitate the exchange of information expert meetings, seminars, technical visits and implementation of jointly agreed cooperation projects.

Background:

Ministry of Railways have signed Memorandums of Understanding/ Memorandums of Cooperation/ Administrative Arrangements/ Joint Declarations of Intent for technical cooperation in the rail sector with various foreign Governments and National Railways in respect of identified areas of cooperation, which inter alia, include high speed rail, speed raising of existing routes, development of world-class stations, heavy haul operations and modernization of rail infrastructure etc.

The MoUs/ MoCs/ AAs/ JDIs facilitate exchange of technical experts, reports and technical documents, training and seminars/ workshops focusing on specific technology areas and other interactions for knowledge sharing.


Cabinet

[Press Release dt. 04-12-2019]

[Source: PIB]

NewsTreaties/Conventions/International Agreements

The Union Cabinet has been apprised of the Memorandum of Understanding (MoU) between the Indian Railways and SNCF Mobilites (a company owned by the French State) on Technical Cooperation in the field of Railways.

The MoUs provide a platform for Indian Railways to interact and share the latest developments and knowledge in the railway sector. The MoUs facilitate exchange of technical experts, reports and technical documents, training and seminars/workshops focusing on specific technology areas and other interactions for knowledge sharing.

The MoU will provide a framework of cooperation for  focused approach in following key areas :-

1. High speed and semi-high speed rail;

2. Station renovation and operations;

3. Modernisation of current operations and infrastructure;

4. Suburban trains.

Background:

Ministry of Railways have signed MoUs for technical cooperation in the Rail sector with various foreign Governments and National Railways. The identified areas of cooperation among others, include high speed corridors, speed raising of existing routes, development of world class stations, heavy haul operations and modernization of rail infrastructure, etc. The cooperation is achieved through exchange of information on developments in areas of railways technology & operations, knowledge sharing, technical visits, training & seminars and workshops in areas of mutual interest.

Cabinet

NewsTreaties/Conventions/International Agreements

A Memorandum of Understanding (MoU) has been signed with the Federal Transport Authority – Land & Maritime of the United Arab Emirates on Technical Cooperation in Rail Sector. The  MoU will  enable technical cooperation in the following areas :-

  1. Regulation, safety and technical investigation of accidents;
  2. Station redevelopment;
  3. Locomotives, coaches and wagons; and
  4. Any other area jointly identified by the Participants.

Benefits:

The MoU will provide a platform to  Indian Railways to interact and share the latest developments and knowledge in the railway sector. The MoU will facilitate exchange of information, expert meetings, seminars technical visits and implementation of jointly agreed cooperation projects.

Background:

Ministry of Railways has signed MoUs for technical cooperation in the Rail sector with various foreign Governments and National Railways. The identified areas of cooperation inter alia include high speed corridors, speed raising of existing routes, development of world class stations, heavy haul operations and modernization of rail infrastructure, etc. The cooperation is achieved through exchange of information on developments in areas of railways technology & operations, knowledge sharing, technical visits, training & seminars and workshops in areas of mutual interest.

[Press Release no. 1527717]

Ministry of Railways

Case BriefsSupreme Court

Supreme Court: In the controversy relating to bids invited by the Nagpur Metro Rail Corporation Limited for the design and construction of Metro Rail in the city of Nagpur, the Court held that M/s. Guangdong Yuantian Engineering Company (GYT) of China and M/s. TATA Projects Limited (TPL) as a Joint Venture (GYT-TPL JV) were not eligible to bid for the contract under consideration.

The issue arose in the light of one of the eligibility criteria specified by NMRCL where it was necessary that the bidder has satisfactorily completed a minimum number of similar contracts as a prime contractor, joint venture member during last 10 (ten) years i.e. up till 31.05.2016. According to GYT-TPL JV, it had executed the Pearl River Delta intercity high speed railway project in China, however, as per NMRCL, an inter-city high speed railway project did not meet the requirements of a metro civil construction work.

NMRCL has contended that there is a difference between an inter-city rail and a metro rail.  An inter-city rail is between two cities and the trains are usually high speed trains. A metro rail is intra-city, it has a dedicated right-of-way, normally it does not have high speed trains and the frequency of trains is much greater that of inter-city trains. A metro rail may extend, in some cases, to a suburb of a metropolitan city but it essentially remains an intra-city project. There is, therefore, a qualitative difference between an inter-city rail and a metro rail. By itself, this indicates a qualitative difference in a railway project that is inter-city and a railway project that is intra-city and the construction of a viaduct for a railway project that is inter-city and a railway project that is intra-city.

Considering the said difference highlighted by the he Court, hence, held that the fact that GYT-TPL JV made constructions in a metropolitan city or in a metropolitan area during the execution of the Pearl River Delta inter-city high speed railway project, does not make that project an intra-city metro rail project. It continues to be an inter-city railway project.

Regarding the interference with the decision of the owner or the employer in accepting or rejecting the bid of the tendered, the bench of Madan B. Lokur and R.K. Agrawal, JJ said that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given. [Afcons Infrastructure Ltd v. Nagpur Metro Rail Corporation Ltd, 2016 SCC OnLine SC 940, decided on 15.09.2016]

Case BriefsSupreme Court

Supreme Court: Showing distress over the incident that occurred in 2011 where At least 14 young men were crushed and 20 others seriously injured having been hit by the Over Bridge and fallen from roof top of Himgiri Express which was running on a high speed, the Court held that though the people who travelled on roof top also contributed to the mishap, the Railway Administration was not free from blame as it must be expected of the persons concerned to be aware of the inherent danger in allowing the train to run with such speed having large number of persons travelling on roof top.
It was contended by the Railway Authorities that the roof riders refused to come down, in view of the volatile situation which occurred due to disturbance caused as a result of over 2 lakh candidates coming to Bareilly for recruitment in the Indo Tibetan Border Police, a decision was taken to move the train out of Bareilly with an idea to disperse the crowd. The Court rejected the said contention and said that even though it can be accepted that this was a reasonable and proper exercise as the crowd had to be dispersed which had congregated in Bareilly, it does not justify the further movement of train at a speed of 75 km per hour. It was further noticed that the Administration can certainly be taken to be aware of the fact that the Foot-Over Bridges or any structures on the way could possibly be a hindrance and could have caused such incident with people in large number on roof top and reasonable care would naturally be expected of those in charge of the Administration.
The bench of T.S. Thakur, CJ and UU Lalit, J, hence, directed that a Committee headed by a senior officer and assisted by at least three persons from the administration having technical knowledge and expertise be constituted within a period of four weeks from the date of this order to have an assessment of all road over bridges or infringements and to chalk out an action plan to remove such infringements. The Court further directed the Committee to complete the work as early as possible so that all infringements could be removed in shortest possible time and, in any case, not later than two years and to file periodic status Reports every six months in this Court. [Anil Kumar Gupta v. Union of India, 2016 SCC OnLine SC 657, decided on 05.07.2016]

Case BriefsSupreme Court

Supreme Court: Answering an appeal preferred against the judgement of the division bench of the High Court of Karnataka, a bench of Vikramjit Sen and Shiva Kirti Singh J.J. upheld the decision of division bench directing the Respondent-Railways to fix the outer or upper limit of rates chargeable by the contractors for transporting goods in different trains.

Regarding the question as to interference with the right of the executive to formulate policy, the Court held that power to make subsidiary legislation may be entrusted by the legislature to another body of its choice but the legislature should, before delegating, enunciate either expressly or by implication, the policy and the principles for the guidance of the delegates”. In applying this dicta, it was further said that if a shift from the Railways being a social vehicle to it being essentially a milch cow towards was intended, that mutation was only within the province of Parliament.

In the present case, where the validity of the notification holding the awarding of the contract of lease of the Front Second Class Luggage Rake (FSLR) and Ventilated Parcel Van (VP) of Karnataka Express for a period of two years by the railways was in question, the Court dismissing the appeal stated that Railway tarrif no doubt has to be realistic and keep pace with time and if the state so perceives, need not be a losing financial position. While it may be both pragmatic and sagacious to auction FSLR & VP it can be done with an objective of gathering the optimum revenue. Additionally the court directed the respondents to ensure that the successful tenderer does not charge carriage prices in excess of those prescribed in the Coaching Tarrif No. 24 Part III and permitted a period of three months to the respondents to comply with the impugned judgement of the Division Bench. [S.K.L. Co. v. Chief Commercial Officer 2015 SCC OnLine SC 1382decided on 29-12-2015]