Gujarat High Court
Case BriefsHigh Courts

   

Gujarat High Court: Biren Vaishnav, J. allowed petitions which were filed challenging the awards of the Labour Court ordering reinstatement of the employees of Patan Nagarpalika who had raised the issue of early retirement age.

The respondent (now deceased) who was working with the Patan Nagarpalika had raised an industrial dispute before the Labour Court contending that the stand of the petitioner — Nagarpalika in retiring them at the age of 55 on and from 30-09-2007 is bad. It was his case that he was entitled to continue till the age of 60. The stand of the Municipality before the Labour Court was that the Municipality had power to retire a municipal servant at any time on or after he attains the age of 55 years on giving him three months’ notice according to Rule 5 of the Rules framed under Section 271 of the Gujarat Municipalities Act, 1963. The Labour Court had allowed the petitions and ordered reinstatement.

The Court held that it was within the powers of the municipality in exercise of powers under Section 271 of Gujarat Municipalities Act, 1963 to frame rules. Proviso to Rule 5 indicates that the action can be taken by a municipality against an employee where employee reaches the age of superannuation. This, of course, is subject to he being given three months notice and notice pay in lieu thereof.

Relying on the decision of a Division Bench of Gujarat High Court in context of the same municipality dated 03-03-2020 rendered in Special Civil Application Nos. 22332 of 2005, the Court affirmed that the section gives specific powers to make rules and the operation of Rule 5 and consequential retirement was held valid. The petitions were allowed finding that there was sufficient compliance of Rule 5, inasmuch as, notice of three months was given.

[Chief Officer v. Solanki Kanubhai Danabhai (deceased), R/Special Civil Application No. 1697 of 2020, decided on 27-06-2022]


Advocates who appeared in this case :

Ms Dhara Shah, Advocate, for the Petitioner 1;

Mr Prabhakar Upadyay, Advocate, for the Respondent 1.


*Suchita Shukla, Editorial Assistant has reported this brief.

Orissa High Court
Case BriefsHigh Courts

Orissa High Court: S. K Panigrahi, J. directed the State to pay simple interest computed at the rate of 6% per annum on account of deferred salaries within a period of 30 days from today.

The facts of the case are such that the petitioner joined service as the Headmaster in a government school and was rendering his services as a Government servant till his superannuation in year 2001. The Petitioner, being a 74-year-old man, was made to run from pillar to post to get his legitimate dues but owing to administrative latches, the same couldn’t materialize. The instant petition was filed as insofar as payment of arrears is concerned, has already been redressed but the interest component of the amount which has been held up for the last twenty-one years, is required to be paid.

Counsel for petitioner submitted that the redressal of grievance of the Petitioner will remain incomplete if he were to be denied of the interest component that is payable to him as a result of delay.

The Court observed that that salaries and pensions are due as a matter of right to employees, and, as the case maybe, to former employees who have served the State. Since, the petitioner rendered his services till superannuation as a government servant; his entitlement to the payment of salary is intrinsic to the right to life under Article 21 and to right to property which is recognized by Article 300A of the Constitution.

The Court further noted that the late decision taken by the opposite party is attributable to administrative latches across different levels and the same cannot be the reason to withhold the payment to the employees who admittedly worked at the relevant time. The employees, had the payment received within time and/or on due dates, could have utilized the same for various purposes.

The Court relied on judgment SK Dua v State of Haryana, (2008) 3 SCC 44 and observed that in the present case there is a delay of about 21 years in settling the salary arrears payable to the petitioner due to administrative latches is not acceptable. The present case is a clear example of inexcusable departmental delay. Even if it is assumed that the representations made by the petitioner were actively catered to, this cannot be an excuse for lethargy of the department because rules/instructions provide for initiation of process much before retirement. The exercise which was to be completed much before retirement was in fact started long after petitioner’s retirement.

The Court held the relief sought at the rate of 18% per annum be suitably scaled down”[Sovakur Guru v. State of Odisha, WPC (OA) No. 1553 of 2017, decided on 27-05-2022]


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

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

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

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

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

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


Mr Sudipa Biswas : for the Petitioner

Mr Debasish Basu : for the State


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Gujarat High Court: Biren Vaishnav, J., reiterated that, interest on delayed payment of gratuity is mandatory and not discretionary.

The petitioner had prayed for a declaration that the respondent’s action in not paying the entire amount of Rs 10 lakhs towards gratuity to the petitioner was arbitrary. Hence, a direction was sought that respondents be directed to pay the remaining amount of gratuity to the petitioner along with 18% interest from the date of his retirement.

Analysis and Decision


High Court expressed that, in the Supreme Court decision of H. Gangahanume Gowda v. Karnataka Agro Industries Corpn. Ltd., (2003) 3 SCC 40, it was decided that the interest on delayed payment of gratuity is mandatory and not discretionary. When it is not the case of the respondent that the delay in the payment of gratuity was due to the fault of the employee and that it had obtained permission in writing from the controlling authority for the delayed payment on that ground, the respondent had been directed to pay interest @ 10% on the amount of gratuity to which the appellant is entitled from the date it became payable till the date of payment of the gratuity amount. 

Hence, Bench stated that the present case was covered by the Supreme Court’s decision as stated above.

Therefore, Court directed the respondents to pay the petitioner the amount of gratuity of Rs 10 lakhs within a period of 10 weeks, and since the petitioner was superannuated in 2013 and the gratuity amount had been wrongfully withheld, the petitioner shall be entitled to interest at the rate of 9% from the date of his superannuation till the date of actual payment. [Ashvinkumar Ramniklal Jani v. State of Gujarat, 2022 SCC OnLine Guj 575, decided on 19-4-2022]


Advocates before the Court:

MR JAYRAJ CHAUHAN(2966) for the Petitioner(s) No. 1

MR MUKESH N VAIDYA(5197) for the Petitioner(s) No. 1

MR MUKUND M DESAI(286) for the Petitioner(s) No. 1

MS.SURBHI BHATI, AGP for the Respondent(s) No. 1,2,3

NOTICE SERVED BY DS for the Respondent(s) No. 4

Know thy Judge

“It is true that ‘justice hurried is justice buried’, but in the same breath it is also said that ‘justice delayed is justice denied’”.

Justice Vineet Saran in New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage (P) Ltd., (2020) 5 SCC 757


As hon’ble Justice Vineet Saran prepares to call it a day as Supreme Court Judge, we endevour to retrace his trajectory in the field of law


Travelling Back in Time…


Justice Vineet Saran was born in Bijnor (U.P) on 11th May, 1957. He pursued his graduation at Allahabad University in the year 1976 followed by his LL.B. degree which he received in the year 1979/80[1].

Career as a Counsel [1980-2002]

Justice Saran enrolled as an advocate with the U.P. Bar Council on 28-07-1980. Justice Saran displayed immense versatility during his practice in the Allahabad High Court from 28-07-1980 to 13-02-2002 as he dealt with myriad matters related to the original, constitution, civil and criminal sides. Justice Saran also conducted cases for various private and public sector companies and also as special counsel for the Central and State Governments[2].

Justice Saran also served as the Additional Advocate General for the State of U.P. in 1995.

High Court Judgeship [2002-2018]

After a thriving career as counsel for almost 22 years, Justice Saran was elevated as permanent Judge of Allahabad High Court on 14-02-2002 where he served 13 years.[3]

In 2015, he was transferred to Karnataka and took oath as Judge of Karnataka High Court on 16-02-2015. During his judgeship in the Karnataka HC, Justice Saran was also the President of Arbitration Centre – An Initiative of the High Court of Karnataka[4].

He was further promoted as the Chief Justice of Orissa High Court on February 26th 2016[5].


Notable High Court Decisions


Some of the prominent decisions rendered by Justice Saran during his time in the High Courts, are listed as follows-

Allahabad High Court

U.P. Power Corporation Ltd. v. Urmila Devi, 2011 SCC OnLine All 152

The 3- Judge Bench comprising of Ferdino Inacio Rebello, C.J. and Vineet Saran and Vikram Nath, JJ., deliberated upon the question that whether the definition of “family” under the U.P. State Electricity Board Dying in Harness Rules, 1975 would include a daughter-in-law. It was observed that a daughter-in-law on the death of her husband, does not cease to be a part of the family – “The concept that such daughter-in-law must go back and stay with her parents is abhorrent to our civilized society. Such daughter-in-law must, therefore, have also right to be considered for compassionate appointment as she is part of the family where she is? married and if staying with her husband’s family. In this context, in our opinion, arbitrariness, as presently existing, can be avoided by including the daughter-in-law in the definition of ‘family’. Otherwise, the definition to that extent, prima facie, would be irrational and arbitrary. The State, therefore, to consider this aspect and take appropriate steps so that a widowed daughter-in-law like a widowed daughter, is also entitled for consideration by way of compassionate appointment, if other criteria is satisfied”.

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Bhupendra Nath Tripathi v. State of U.P., 2009 SCC OnLine All 6

The 3-Judge Bench comprising of Ashok Bhushan, Vineet Saran and Sanjay Misra, JJ., dealt with some important questions related to the eligibility criteria for Special Basic Training Course 2007 as per the statutory requirements stated in National Council for Teacher Education Act, 1993.

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Veenu Gangwar v. State of U.P., 2013 SCC OnLine All 14259

The Division Bench of Vineet Saran and B. Amit Sthalekar, JJ., dealt with a matter related to irregularities in Kshetra Panchayat elections. While allowing the petition, the Judges observed that, “For any democracy to be successful, it has to be strengthened at the grass root level. An elected representative, whether it be at the lowest or highest level, should not be denuded of his powers, except for very valid and good reasons and in accordance with law”.

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Karnataka High Court

Sharadabai v. Deputy General Manager, Canara Bank, 2015 SCC OnLine Kar 8160

The Court in the instant matter, discussed the issue that whether employees who have been imposed punishment of compulsory retirement, are entitled the benefit of pension. It was held that, the Regulations of Canara Bank Service Regulations, 1975 merely provides that employee who is compulsorily retired ‘may be’ granted pension. It does not provide for an employee, who is compulsorily retired, to lay a claim, as of right, for grant of pension.

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Nagaraj v. State Bank of Hyderabad, 2015 SCC OnLine Kar 8225

The Court, while dealing with the issue of eligibility for promotion and suitability for grant of promotion, held that, for promotion to a post after a particular level, it is not the seniority but suitability for the post, which is to be taken into consideration.

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Solidus Hi Tech Products Pvt. Ltd. v. State of Karnataka, 2015 SCC OnLine Kar 8575

In the matter related to S. 39(1) of Karnataka Value Added Tax Act, 2003, the Division Bench of Vineet Saran and S. Sujatha, JJ., observed that from the provisions of Section 63A of the KVAT Act, it is clear that once the order of cancellation of the assessment order had been passed by the Revisional Authority, it could not proceed to pass a fresh assessment order but could only direct the Assessing Officer to pass a fresh assessment order.

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Orissa High Court

Mohapatra Binders v. State of Odisha, 2017 SCC OnLine Ori 32

The bench of  Vineet Saran, C.J. and A.K. Rath and B.R. Sarangi, JJ while answering the issue that whether the petitioners herein, who are small book binding units and cover/text printers of the State of Odisha, would be entitled to exclusive right of State Government work of book binding and printing, under the provisions of Industrial Policy Resolutions (issued by the State Government) as well as the Micro, Small and Medium Enterprises Development Act, 2006  and the Odisha MSMED Policy of 2009; or can such work be awarded by way of inviting national tender. It was decided that the petitioners would not be entitled to the protection of the IPRs issued by the State Government, as well as MSMED Act, 2006 and the OMSMED Policy framed there under in 2009.

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Kalipada Mishra v. State of Odisha, 2016 SCC OnLine Ori 224

The Division Bench of Vineet Saran, C.J. and B.R. Sarangi, J., while deliberating upon the PIL seeking issuance of a writ of mandamus against the opposite parties with regard to the action taken for abolition of the prevailing system of toll collection by demolishing the check gates; observed that the matters fall within the realm of policy decision to be taken by the State Government or authority vested with power under any statute, and the Court should not interfere unless the policy is unconstitutional or contrary to the statutory provisions or arbitrary or irrational or in abuse of power.

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Assaf Ali Khan v. State of Odisha, 2016 SCC OnLine Ori 829

The bench of Vineet Saran, C.J. and B.R. Sarangi, J., in this instant writ petition in the nature of public interest litigation to ensure transparency and fairness in the election of Gram Panchayats and Zilla Parishads made certain observations vis-a-vis the High Court’s jurisdiction to issue any direction to the state legislature to enact a particular law in a particular manner.


Supreme Court [2018-2022]


In 2018, the President of India appointed Justice Vineet Saran as Judge, Supreme Court of India.

Notable Judgments

Some of the notable decisions that were either rendered by Justice Saran or he was part of, are as follows-

B.L. Kashyap & Sons Ltd. v. JMS Steels & Power Corpn., (2022) 3 SCC 294

While clarifying the law on leave to defend, the Division Bench of Vineet Saran and Dinesh Maheshwari, JJ., held that even if there remains a reasonable doubt about the probability of defence, sterner or higher conditions could be imposed while granting leave to defend but, denying the leave would be ordinarily countenanced only in such cases where the defendant fails to show any genuine triable issue and the Court finds the defence to be frivolous or vexatious. Read more

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Nahar Singh v. State of U.P., 2022 SCC OnLine SC 332

The division bench of Vineet Saran and Aniruddha Bose JJ., deliberated on the issue that whether a Magistrate taking cognizance of an offence on the basis of a police report in terms of Section 190(1)(b) of The Criminal Procedure Code, 1973, can issue summons to any person not arraigned as an accused in the police report and whose name also does not feature in column (2) of such report. They held that for summoning persons upon taking cognizance of an offence, the Magistrate has to examine the materials available before him for coming to the conclusion that apart from those sent up by the police some other persons are involved in the offence. These materials need not remain confined to the police report, charge sheet or the F.I.R. A statement made under Section 164 of CrPC could also be considered for such purpose.

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Punjab National Bank v. Union of India, 2022 SCC OnLine SC 227

The Division Bench of L. Nageswara Rao and Vineet Saran, JJ., quashed the confiscation order of Customs and Central Excise Commission confiscating land, building, plant and machinery of Rathi Ispat Ltd. for lacking statutory backing. The Bench observed that the existing law only permit confiscation of goods and no land, building can be confiscated under the Central Excise Rules, 2017.
Read more

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City and Industrial Development Corporation of Maharashtra Ltd. v. Shishir Realty (P) Ltd., 2021 SCC OnLine SC 1141

In a case where process of cancellation of a tender was initiated without affording a chance to be heard to the lessees and the tender was cancelled “because of the possibility of larger profits”, the 3-judge bench of NV Ramana, CJ., and Vineet Saran and Surya Kant, JJ., held that when a contract is being evaluated, the mere possibility of more money in the public coffers, does not in itself serve public interest.
Read more

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Chebrolu Leela Prasad Rao v. State of A.P., (2021) 11 SCC 401

The 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ., held the Government Office Ms. No.3 dated 10.1.2000 issued by the erstwhile State of Andhra Pradesh providing 100% reservation to the Scheduled Tribe candidates (out of whom 33.1/3% shall be women) for the post of teachers in the schools in the scheduled areas in Andhra Pradesh, unconstitutional, as there was no rhyme or reason with the State Government to resort to 100% reservation.
Read more…

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T.N. Medical Officers Assn. v. Union of India, (2021) 6 SCC 568

The 5-judge Constitution bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ., held that the Medical Council of India has no power to make any reservation for in-service candidates in Post Graduate Medical Course in States and that only States are allowed to grant the benefit of reservation of seats to in-service doctors in the National Eligibility cum Entrance Test (NEET) postgraduate degree courses.
Read more…

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New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage (P) Ltd., (2020) 5 SCC 757

The 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, JJ., held that the District Forum has no power to extend the time for filing the response to the complaint beyond the period of 15 days in addition to 30 days as is envisaged under Section 13 of the Consumer Protection Act, 1986. The bench was answering the reference relating to the grant of time for filing response to a complaint under the provisions of the Consumer Protection Act, 1986.
Read more

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Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1

In a significant ruling, a 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and Ravindra Bhat, JJ has unanimously ruled that the protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time.
Read more

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Mukesh Singh v. State (NCT of Delhi), (2020) 10 SCC 120

The 5-judge Constitution bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, JJ., held that the accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is not entitled to an acquittal as a blanket rule merely because the complainant is the investigating officer.
Read more

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Pandurang Ganpati Chaugule v. Vishwasrao Patil Murgud Sahakari Bank Ltd., (2020) 9 SCC 215:

The 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ held that “’banking’ relating to co­operatives can be included within the purview of Entry 45 of List I, and it cannot be said to be over inclusion to cover provisions of recovery by co­operative banks in the SARFAESI Act.” Read more

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State of Punjab v. Davinder Singh, (2020) 8 SCC 1:

5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ upon noticing that SC decision of E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394, is required to be revisited, referred the matter to a larger bench. While doing so, the Court observed,

Reservation was not contemplated for all the time by the framers of the Constitution.  On the one hand, there is no exclusion of those who have come up, on the other hand, if sub- classification is denied, it would defeat right to equality by treating unequal as equal.”

Read more…

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West U.P. Sugar Mills Association v. State of Uttar Pradesh, (2020) 9 SCC 548:

The 5-judge bench of Arun Mishra, Indira Banerjee and Vineet Saran, M.R. Shah and Aniruddha Bose, JJ., held that once the Central Government having exercised the power under Entries 33 and 34 List III of seventh Schedule and fixed the “minimum price”, the State Government cannot fix the “minimum price” of sugarcane.
Read more…

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Bhima Razu Prasad v. State, 2021 SCC OnLine SC 210:

The bench of MM Shantanagoudar and Vineet Saran, JJ held that Section 195(1)(b)(i) CrPC will not bar prosecution by the investigating agency for offence punishable under Section 193 IPC, which is committed during the stage of investigation.

This is provided that the investigating agency has lodged complaint or registered the case under Section 193, IPC prior to commencement of proceedings and production of such evidence before the trial court. In such circumstance, the same would not be considered an offence committed in, or in relation to, any proceeding in any Court for the purpose of Section 195(1)(b)(i) CrPC

Read more..

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High Court of Madras v. M.C. Subramaniam, (2021) 3 SCC 560

The bench of MM Shantanagoudar and Vineet Saran, JJ has held that Section 89 of CPC and Section 69-A of Tamil Nadu Court Fees and Suit Valuation Act, 1955 contemplate the refund of court fees in all methods of out-of-court dispute settlement between parties that the Court subsequently finds to have been legally arrived at and not just to those cases where the Court itself refers the parties to any of the alternative dispute settlement mechanisms listed in Section 89 of the CPC.
Read more..

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Amitabha Dasgupta v. United Bank of India, 2021 SCC OnLine SC 124:

In a case where United Bank of India inadvertently broke the Appellant’s locker, without any just or reasonable cause, even though he had already cleared his pending dues, the bench of MM Shantanagoudar* and Vineet Sarana, JJ Imposed costs of Rs. 5,00,000/­ on the Bank to be paid to the Appellant as compensation. The said is to be deducted from the salary of the erring officers, if they are still in service and if they have already retired, the amount of costs should be paid by the Bank. Additionally, the Appellant shall be paid Rs. 1,00,000/- as litigation expense.
Read more…

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Rekha Sengar v. State of M.P., (2021) 3 SCC 729

In the case where the investigative team has seized the sonography machine and made out a strong prima-facie case against the petitioner, the 3-judge bench of MM Shantanagoudar, Vineet Saran and Ajay Rastogi, JJ held no leniency should be granted at this stage as the same may reinforce the notion that the PC&PNDT Act is only a paper tiger and that clinics and laboratories can carry out sex-determination and feticide with impunity.

“A strict approach has to be adopted if we are to eliminate the scourge of female feticide and iniquity towards girl children from our society.”

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Gajanan Babulal Bansode v. State of Maharashtra, (2021) 4 SCC 494

The 3-Judge Bench comprising of L. Nageswara Rao, Indu Malhotra and Vineet Saran, JJ heard the petition challenging the decision of Maharashtra government to appoint 636 additional candidates without consulting MPSC (Maharashtra Public Service Commission. The Bench stated,

“It is well-settled in service jurisprudence that the authority cannot fill up more than the notified number of vacancies advertised, as the recruitment of candidates in excess of the notified vacancies, would be violative of Articles 14 and 16 (1) of the Constitution of India.”

Read More…

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Compack Enterprises India (P) Ltd. v. Beant Singh, (2021) 3 SCC 702

The bench of MM Shantanagoudar and Vineet Saran, JJ has lucidly explained the law governing consent decree and has held that the well settled law that consent decrees are intended to create estoppels by judgment against the parties, thereby putting an end to further litigation between the parties, does not apply as a blanket rule in all cases.
Read more…

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CIT v. Reliance Energy Ltd., (2021) 4 SCC 237

Interpreting the true scope of Section 80-IA(5) of the Income Tax Act, 1961, the bench of L. Nageswara Rao and Vineet Saran, JJ., held that the scope of sub-section (5) of Section 80- IA of the Act is limited to determination of quantum of deduction under sub-section (1) of Section 80-IA of the Act by treating ‘eligible business’ as the ‘only source of income’.
Read more

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Bangalore Electricity Supply Co. Ltd. v. E.S. Solar Power (P) Ltd., (2021) 6 SCC 718

The bench of L. Nageswara Rao and Vineet Saran, JJ shed light on how Courts should proceed while interpreting contracts. Referring to various authorities, here is what the Court concluded that the duty of the Court is not to delve deep into the intricacies of human mind to explore the undisclosed intention, but only to take the meaning of words used i.e. to say expressed intentions.
Read more

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Vinod Dua v. Union of India, 2021 SCC OnLine SC 414

Upholding the citizens’ right to criticise the government, the bench of UU Lalit* and Vineet Saran, JJ, has quashed the FIR lodged against Journalist Vinod Dua over his YouTube show on communal riots in Delhi earlier this year. The Court held,

“… a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.”

Read more

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Imperia Structures Ltd. v. Anil Patni, (2020) 10 SCC 783

The bench of UU Lalit and Vineet Saran, JJ held that the Real Estate (Regulation and Development) Act, 2016 (RERA Act) does not bar the initiation of proceedings by allottees against the builders under the Consumer Protection Act, 1986.
Read more…

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CBI v. Mohd. Parvez Abdul Kayuum, (2019) 12 SCC 1

A bench headed by Justice Arun Mishra allowed the appeals of CBI and the Gujarat government challenging the High Court order by which the convicts were absolved of murder charges in the case. The Court, however, dismissed a PIL filed by NGO “Centre for Public Interest Litigation” (CPIL) seeking a court-monitored fresh probe in the Haren Pandya murder case.

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Siddaling v. State, (2018) 9 SCC 621

The Bench comprising of R. Banumathi and Vineet Saran, JJ., ordered for refusal of modification in quantum of sentence as sought for by the appellant; on the reasoning that the conviction of the appellant under Section 498-A and 306 IPC as given by the High Court is to be maintained and any leniency in the same would be a misplaced one. Read more.

Decisions that initiated broader discourse

Safeguarding Courts and Protecting Judges (Death of Additional Sessions Judge, Dhanbad): In Re.

While addressing the issue pertaining to the unfortunate demise of the Judicial Officer Uttam Anand, the 3-Judge Bench comprising of N.V. Ramana, CJ., Vineet Saran and Surya Kant, JJ., emphasized the institutional need to create a safe and secure environment for judicial officers and legal fraternity. A suo motu case was registered by the Supreme Court for addressing the issue of safeguarding courts and protecting judges.
Read more

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Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727:

A 3-judge bench of Arun Mishra, Vineet Saran and S. Ravindra Bhat, JJ has upheld the constitutional validity of the SC/ST (Prevention of Atrocities) Amendment Act, 2018, and said that a court can grant anticipatory bail only in cases where a prima facie case is not made out. In the unanimous verdict, Justice Mishra penned the opinion for himself and Justice Saran whereas Justice Bhat wrote a separate but concurring opinion.
Read more…

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Christian Medical College Vellore Association v. Union of India, 2020 SCC OnLine SC 423:

The 3-judge bench of Arun Mishra, Vineet Saran and MR Shah, JJ has held that prescribing uniform examination of NEET for admissions in the graduate and postgraduate professional courses of medical as well as dental science is not in violation of the rights of the unaided/aided minority to administer institutions under Articles 19(1) (g) and 30 read with Articles 25, 26 and 29(1) of the Constitution.
Read more

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Vijay Kurle, In re, 2020 SCC OnLine SC 407 and Rashid Khan Pathan v. Vijay Kurle, 2020 SCC OnLine SC 711: 

After finding advocates Vijay Kurle, Nilesh Ojha and Rashid Khan Pathan guilty of levelling scandalous allegations against Justice RF Nariman and Justice Vineet Saran, the bench of Deepak Gupta and Aniruddha Bose, JJ sentenced all 3 to undergo simple imprisonment for a period of 3 months each with a fine of Rs. 2000/-. It further said that in default of payment of fine, each of the defaulting contemnors shall undergo further simple imprisonment for a period of 15 days. Also Read:


†Sucheta Sarkar, Editorial Assistant has put this report together 

[1] Justice Vineet Saran, Orissa High Court.

[2] Justice Vineet Saran, Allahabad HC

[3] Refer fn. 2

[4] Hon’ble Mr. Justice Vineet Saran, Karanatka High Court

[5] Justice Vineet Saran, Orissa High Court

Case BriefsHigh Courts

Madhya Pradesh High Court: Sushrut Arvind Dharmadhikari, J. allowed a writ petition which was filed assailing the legality, validity and propriety of the order dated 1-8-2018 whereby the excess amount of Rs.81,239/- has been sought to be recovered from the gratuity payable to him.

Petitioner was aggrieved by the order of recovery after retirement, his grievance was that neither he was afforded any opportunity of hearing nor he was given any show cause notice before deducting the amount from the retiral dues i.e. gratuity of the petitioner. The petitioner was neither found guilty of any misconduct nor held guilty of any offence in the criminal proceedings. The inaction on the part of the respondents was in flagrant violation of principles of natural justice.

Counsel for the petitioner contended that the recovery cannot be made from the retiral dues of the petitioner because there was no misrepresentation or fault on the part of the petitioner. The said recovery had been done without prior approval of the Governor, which was in violation of Rule 9 of the Pension Rules, 1976.

The Court on the perusal of record noticed that it is not the case of the respondents that any undertaking was given by the petitioner for refund of the amount, if any excess payment is made. The Court relied on State of Punjab v. Rafiq Masih (White Washer), (2015) 4 SCC 334 wherein the Supreme Court had laid down the following few situations wherein recoveries by the employee would be impermissible in law:

(i) Recovery from employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’™s right to recover.

The Court held that the case falls under category 3 as the respondents 4 had wrongly issued the impugned order directing recovery of the amount of Rs.81,239/- and thus allowed the petition directing to refund the aforesaid amount, if already recovered, to the petitioner within a period of 3 months.[Rammani Patel v. State of Madhya Pradesh, 2022 SCC OnLine MP 879, decided on 22-04-2022]


For the petitioner: Mr C.L.Patel

For the respondents: Mr Dhiraj Tiwari


Suchita Shukla, Editorial Assistant has reported this brief.

Legal RoundUpSupreme Court Roundups

 

“Women are subject to a patriarchal mindset that regards them as primary caregivers and homemakers and thus, they are burdened with an unequal share of family responsibilities. Measures to ensure substantive equality for women factor in not only those disadvantages which operate to restrict access to the workplace but equally those which continue to operate once a woman has gained access to the workplace.”

Justice Dr. DY Chandrachud

SK Nausad Rahaman v. Union of India

2022 SCC OnLine SC 297


TOP STORIES


All India Bar Exams| From 1/4th negative marking to limiting the validity of Bar exam for three years; SC issues notice to BCI to respond to suggestions

“The right to practice a profession, also being a fundamental right, a balance has to be maintained between the same and the requirement to monitor the legal profession for its better ethics.”

Read more…

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POCSO| Is investigation of disclosure of victim’s identity permissible without Magistrate’s permission? SC gives split verdict

The bench of Indira Banerjee and JK Maheshwari, JJ has given split verdict on the issue as to whether the Special Court is debarred from taking cognizance of an offence under Section 23 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and obliged to discharge the accused under Section 227 CrPC, only because of want of permission of the jurisdictional Magistrate to the police, to investigate into the offence.

Read more…

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Supreme Court fixes outer limit for claiming COVID-19 death compensation; Claims to be filed within 90 days from now on

The Court agreed with the submission that by now all genuine claimants must have approached the authorities by establishing their claims and that if there is no outer time limit fixed, then the process of receiving the claims would go endless and, in that case, there is all possibility of submitting false claims.

Read more…


Women burdened with an unequal share of family responsibilities yet discriminated at workplace; State must consider family life while framing any policy

Speaking about the systemic discrimination on account of gender at the workplace which encapsulates the patriarchal construction that permeates all aspects of a woman’s being from the outset, including reproduction, sexuality and private choices, within an unjust structure, the bench of Dr. DY Chandrachud* and Vikram Nath, JJ has observed that it becomes necessary for the Government to adopt policies through which it produces substantive equality of opportunity as distinct from a formal equality for women in the workplace.

Read more…

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Issue of accommodation in a Domestic Violence dispute between husband and wife shall not affect landlord’s right to get possession of his property

The Court was hearing an appeal against the Delhi High Court verdict [2021 SCC OnLine Del 2109] wherein the Trial Court’s order granting the possession of the suit property on favour of the landlord was upheld. The appellant wife, in the present case, had challenged the Trail Court’s order on the ground that her husband should provide her accommodation as per the Domestic Violence Act, 2005.

Read more…

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‘IBC’s object is not to kill the company’; Builder’s Insolvency Proceedings closed as 82 out of 128 home buyers choose possession over refund/compensation

“If the original applicants and the majority of the home buyers are not permitted to close the CIRP proceedings, it would have a drastic consequence on the home buyers of real estate project.”

Read more…

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Permanent Injunction can’t be granted against true owner once the title dispute is settled

Supreme Court reverses three concurrent findings.

Read more…


EXPLAINED


Which law to prevail if provisions of Bihar Public Works Contracts Disputes Arbitration Tribunal Act, 2008 are in conflict with the Arbitration and Conciliation Act, 1996?

Can step-children claim property right in mother’s mehar after her death? Does a registered mehar deed become unenforceable for being nominal?

Can employees appointed for fixed period in temporary unit be absorbed/regularised by creating supernumerary posts?

Compensation under Section 4 of Employee’s Compensation Act, 1923 to be awarded from the date of accident or the date of Commissioner’s order? 

Can voluntary retiree seek retrospective promotion as a matter of right? 

Can State discriminate between persons having experience in home State from those having experience in other States? Is there any intelligible differentia?


More Stories


7-year-old’s “brutal” rape and murder: SC commutes Death sentence; No premature release/remission during 30 years’ LI as “conscience of the society cannot be ignored”

“The heinous nature of crime like that of present one, in brutal rape and murder of a seven-year-old girl child, definitely discloses aggravating circumstances, particularly when the manner of its commission shows depravity and shocks the conscience. But,…”

Read more…

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Refusal to continue to execute a contract unless reciprocal promises are performed by the other party is not abandonment of contract

“A party to a contract may abandon his rights under the contract leading to a plea of waiver by the other party, but there is no question of abandoning an obligation.”

Read more…

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Where post import, factum of sale isn’t disputed, no exemption from market fee can be claimed under Karnataka Agricultural Produce Marketing Act of 1966

“It is the sale within the market area that attracts levy of market fee, and not the first purchase that was outside the market area.”

Read more…

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Confiscation of Truck loaded with cow progeny despite acquittal in criminal proceedings amounts to arbitrary deprivation of property

“…to deprive any person of their property, it is necessary for the State, inter-alia, to establish that the property was illegally obtained or is part of the proceeds of crime or the deprivation is warranted for public purpose or public interest.”

Read more…

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Promotion cannot be granted retrospectively to give benefit and seniority from the date of notional vacancy

The bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has observed that a right to promotion and subsequent benefits and seniority would arise only with respect to the rules governing the said promotion, and not a different set of rules which might apply to a promoted post facilitating further promotion which is governed by a different set of rules.

Read more…

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Supreme Court lays down detailed guidelines for leave to defend in summary suits

Grant of leave to defend is the ordinary rule and denial is an exception.

Read more…

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APMCs liable to pay service tax under the category of ‘renting of immovable property service’

“In a taxing statute, it is the plain language of the provision that has to be preferred”.

Read more…

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Consent award cannot be the basis to determine compensation in other acquisition, especially, when there are other evidences on record

In case of a consent award, one is required to consider the circumstances under which the consent award was passed and the parties agreed to accept the compensation at a particular rate.

Read more…

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“A bus by bus, a mini-bus by mini-bus and not bus by a mini-bus” isn’t a correct way to interpret the expression “same nature”

The Division Bench comprising of K.M. Joseph and Pamidighantam Sri Narasimha*, JJ., held that Rule 174(2)(c) of the Kerala Motor Vehicle Rules,1989 is valid and salutary and does not go beyond the scope of Section 83 of the MV Act, 1988. While interpreting the expression “same nature” the Bench observed that such expressions are better kept open ended to enable courts to subserve the needs of changing circumstances.

Read more…

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Clarification vis-à-vis substantial alteration of commercial agreement; SC considers legality of retrospective application of modifications in agreement

The Division Bench comprising of Ajay Rastogi and Abhay S. Oka, JJ., held that a modification changing tariff for inadvertent drawal from temporary supply rate to the regular supply rate cannot be considered to be a mere clarification and is rather a substantial alteration which cannot be made applicable retrospectively.

Read more…

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Withdrawal of  Inter-Commissionerate Transfers not invalid but Recruitment Rules 2016 may be revisited to accommodate posting of spouses, disabled persons and compassionate grounds

The bench of Dr. DY Chandrachud* and Vikram Nath, JJ has upheld the Kerala High Court verdict that had held that the Central Excise and Customs Commissionerates Inspector (Central Excise, Preventive Officer and Examiner) Group ‘B’ Posts Recruitment Rules 2016 (RR 2016) withdrawing the Inter-Commissionerate Transfers (ICTs) is not invalid as ICTs would violate the unique identity of each cadre envisaged under Rule 5 of RR 2016.

Read more…

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Is Railway’s decision to disqualify persons with history of lasik surgery for the post of constables (RPF) just and reasonable?

Supreme Court directs constitution of experts committee to answer.

Read more…

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Eligibility Criteria fixed by UGC must be followed by all Universities

“… prescribing the eligibility criteria shall not be left to the sweet will of the search committee. It may lead to arbitrariness and different search committees in absence of any statutory guidelines and/or   prescription, may prescribe different eligibility criteria.”

Read more…

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HC spends 9 months on deciding appeal from an ‘unappealable’ adjournment order. SC imposes Rs. 5 Lakhs exemplary cost on litigant for wasting ‘precious judicial time’

“Such unwarranted proceedings at the behest of the parties who can afford to bear the expenses of such litigations, must be discouraged.”

Read more…

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SC reiterates the duties of Competent Authority and Court while issuing and testing externment orders

“An Order of Externment is an extraordinary measure which should be used sparingly”.

Read more…

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Declaration under the Income Declaration Scheme cannot lead to non-declarant’s immunity from taxation

The protection given, is to the declarant, and for a limited purpose.

Read more…

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OLX Frauds| SC sets aside P&H HC order directing deletion and re-listing of OLX advertisements with proofs

In recent years, in Districts of Gurugram, Faridabad, Rewari, Palwal and Mewat, hundreds of FIRs have been registered, in which accused persons, by using OLX platform, have given various advertisements regarding sale of gold (in different form) or sale of vehicles like motorcycle or car at cheaper price or asking for professional service like architect or accountants have allured many innocent persons and thus, have committed the offence of cheating and forgery.

Read more…

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[Bomikhal Flyover Collapse] Is permanent debarment of guilty contractor too harsh? What makes an order a pre-determined one? Supreme Court answers

“Merely because the show cause notice was issued after the inquiry committee report was considered and thereafter the State Government took the decision to initiate proceedings for blacklisting, that by itself it cannot be said that the order of blacklisting was predetermined as observed by the High Court.”

Read more…

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Murder convict seeks remission of sentence on the ground of being 100% visually impaired. Can disability be a ground for remission? SC answers

The appellant had contended that since he is visually impaired to the extent of suffering permanently from 100% blindness and that was not a result of any voluntary act of the prisoner, the aforementioned provision would come to his aid for consideration of his case for release from serving out the remaining sentence.

Read more…

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SC allows RPSC to go ahead with RAS Mains Exam; Candidates challenging Pre exam result allowed to sit in Mains

In a breather to the candidates challenging the RAS Pre-examination result, the bench of KM Joseph and Hrishikesh Roy, JJ has confirmed the Rajasthan High Court’s division bench directing Rajasthan Public Service Commission (RPSC) to go ahead with the RAS/RTS Combined Competitive Examination-2021 mains examination. It has, however, allowed the 243 candidates, who had approached the Courts, to sit in the Mains Examination to be conducted on March 20-21, 2022.

Read more…

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‘Business to business’ dispute not a consumer dispute

The bench of L. Nageswara Rao and BR Gavai*, JJ interpreted the true scope of a “consumer” in terms of Section 2(1)(d) of the Consumer Protection Act, 1986 and has held that the ‘business to business’ disputes cannot be construed as consumer disputes.

Read more…

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Frivolous petitions defeating the noble object behind PILs and burdening SC and HCs; Bonafides of Litigants must be examined carefully

“Although the jurisprudence of Public Interest Litigation has matured, many claims filed in the Courts are sometimes immature.”

Read more…

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Mere allegation of bias is not fatal to disciplinary inquiry unless supported by materials

Non-supply of demanded documents is not sufficient to challenge a disciplinary inquiry unless it is showed what prejudice has been caused due to non-supply.

Read more…

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Law on filing false affidavit: Can defaulter get benefit of equity? Read what made the Supreme Court reverse concurrent findings of Courts

“Once an affidavit has been filed which is on the face of it false to the knowledge of the executants, no benefit can be claimed on the ground that delivery of possession was given.”

Read more…

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‘Lotteries’ a species of ‘betting and gambling’; States Legislatures competent to levy tax

High Courts of Kerala and Karnataka were wrong in holding so as the Legislatures of the State of Karnataka and Kerala were fully competent to enact the impugned Acts and levy taxes on the activity of ‘betting and gambling’ being organised and conducted in the said respective States, including lotteries conducted by the Government of India or the Government of any State.

Read more…

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Interchangeability of unfilled posts of SC/ST category can be done only by the department concerned, not by appointing authority

Also, rejection of claims of appellants by the departmental authorities relying upon wrong instructions or mentioning incorrect fact of withdrawal of Policy letter would not confer any right to appellants to claim the reliefs.

Read more…

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Trap party recovers tainted currency notes from Tax Officer accused of demanding bribe. Supreme Court acquitted the officer in spite of proved recovery

In an interesting case relating to corruption, the Division Bench of Ajay Rastogi and Abhay S. Oka*, JJ., acquitted a Commercial Tax Officer in spite of proved recovery of tainted currency notes from her. The Bench observed that though the recovery was proved in the absence of demand being conclusively proved conviction cannot be made under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act.

Read more…

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Borrower’s offer to pay Rs.71 lakhs as a purchaser of mortgaged property will not discharge him from entire outstanding liability of approx 1.8 crores

The Division Bench of M. R. Shah* and Sanjiv Khanna, JJ., held that  the entire liability outstanding against the borrower could not be discharged on making the payment i.e. Rs.65.65 lakhs against the total dues Rs.1,85,37,218.80 and that the Division Bench of the High Court had erred in directing to release the mortgaged property/secured property and to handover the possession along with the original title deeds to the borrower on payment of a total sum of Rs.65.65 lakhs only.

Read more…

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Irregular Disciplinary Enquiry: Court cannot reinstate employee as such; Matter must be remanded to Enquiry Officer/Disciplinary Authority

In a case where it is found that the enquiry is not conducted properly and/or the same is in violation of the principles of natural justice, the Court cannot reinstate the employee as such and the matter is to be remanded to the Enquiry Officer/Disciplinary Authority to proceed further with the enquiry from the stage of violation of principles of natural justice is noticed.

Read more…

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How will the higher Court know why review jurisdiction was exercised? Courts must mention what was that error apparent on the face of the record

“Unless such reasons are given and unless what was that error apparent on the face of the record is stated and mentioned in the order, the higher forum would not be in a position to know what has weighed with the Court while exercising the review jurisdiction and what was that error apparent on the face of the record.”

Read more…

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Arakonam Naval Station dispute: Supreme Court puts a stop to over 3 decades long commercial dispute

“By going into the minute details of the evidence led before the learned Sole Arbitrator with a magnifying glass and the findings returned thereon, the Appellate Court has clearly transgressed the limitations placed on it.”

Read more…

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Is amount spent by pharmaceutical companies in gifting freebies to the doctors “business expenditure” under IT Act when act of accepting freebies by doctors is an offence? SC answers

“…the statutory regime requiring that a thing be done in a certain manner, also implies (even in the absence of any express terms), that the other forms of doing it are impermissible.”

Read more…


Supreme Court Cases


2022 SCC Vol. 1 Part 2

In this part, read a very pertinent decision of the Supreme Court, Amazon.com NV Investment Holdings LLC v. Future Retail Ltd.2021 SCC OnLine SC 557 wherein while holding that an award passed by Emergency Arbitrator is enforceable under the Arbitration and Conciliation Act, 1996, a Division Bench of R.F. Nariman and B.R. Gavai, JJ. has ruled in favour of Amazon in the infamous Future-Amazon dispute. It has been held that the interim award in favour of Amazon, passed by the Emergency Arbitrator appointed under the Arbitration Rules of the Singapore International Arbitration Centre is enforceable under the Indian Arbitration Act.

2022 SCC Vol. 1 Part 3

In this part read the Supreme Court decision in Jaypee Kensington Boulevard Apartments Welfare Association v. NBCC (India) Ltd.,(2022) 1 SCC 401, wherein the Court while the Adjudicating authority has the authority to disapprove the resolution plan approved by the Committee of Creditors (CoC), it cannot modify the same.

2022 SCC Vol. 2 Part 1

In this part read a very important matter, wherein a relative committed rape on the prosecutrix and none of the family members believed her and in fact beat her up when she narrated the incident, Supreme Court found it unfortunate that even the sister-in-law (Jethani) and mother-in-law though being women did not support the prosecutrix. [Phool Singh v. State of Madhya Pradesh, 2021 SCC OnLine SC 1153]

2022 SCC Vol. 2 Part 2


Uttarakhand High Court
Appointments & TransfersNews

Justice Sanjaya Kumar Mishra, senior-most Judge of the Uttaranchal High Court, to perform his duties of the office of the Chief Justice of Uttaranchal High Court with effect from 24-12-2021 consequent upon the retirement of Justice Raghvendra Singh Chauhan Chief Justice of Uttaranchal High Court.


Ministry of Law and Justice

[Notification dt. 22-12-2021]

Case BriefsSupreme Court

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

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

Factual Matrix

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

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

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

Findings of the Court

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

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

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

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

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

Conclusion

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

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

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


Kamini Sharma, Editorial Assistance has put this report together 


Appearance by:

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

For the Respondents: Malini Poduval, Counsel

For the State: G. Prakash Counsel


*Judgment by: Justice B.V. Nagarathna

 

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

Case BriefsSupreme Court

Supreme Court: The bench of Justice Hemant Gupta* and AS Bopanna, JJ has held that Kashmiri migrants, who were once Government employees, cannot retain Government accommodation for indefinite period on the ground that “they would return to the Valley when the situation will improve”.

The Court was deciding the case of where some Kashmiri migrants had occupied Government accommodation in Delhi and in National Capital Region on the strength of an order passed by the Delhi High Court in a judgment reported as Union of India v. Vijay Mam, 2012 SCC OnLine Del 3218, pursuant to which a rehabilitation scheme was framed by the Central Government on 28.3.2017 as modified on 19.5.2017.

The Court, however, noticed that since the Office Memorandum issued on 28.3.2017 was in terms of the order of the High Court of Delhi, which has not been approved by the Supreme Court vide order dated 5.8.2021, the entire basis of issuance of Office Memorandum falls flat as the very foundation of such Scheme stands knocked down.

It was held that the Office Memorandum allowing government accommodation to the retired Government employees who are Kashmiri Migrants did not meet the touchstone of Article 14 of the Constitution of India.

“The Government houses/flats are meant for serving Government employees. Post retirement, the government employees including Kashmiri Migrants are granted pensionary benefits including monthly pension. The classification made in favour of Government employees who were Kashmiri Migrants stands on the same footing as that of other Government employees or public figures. There cannot be any justification on the basis of social or economic criteria to allow the Kashmiri Migrants to stay in Government accommodation for indefinite long period.”

Noticing that the compassion shown to Kashmiri Migrants has to be balanced with the expectations of the serving officers to discharge their duties effectively, bench said that the applicants are occupying the government accommodation at the cost of other Government servants who are waiting in queue for allotment of a government accommodation to discharge their official duties. The Government accommodation is meant for serving officers and cannot be taken as a recourse to stay in Government accommodation for the life time of the Government servants or his/her spouse.

“To say that they would return to the Valley when the situation will improve is an open-ended statement capable of being interpreted in different ways. The satisfaction of improvement of situation would be widely different by the erstwhile Government employees and the State. But in no case it can be countenanced that the former Government employee, may be a Kashmiri Migrant, is entitled to stay in a government accommodation for an indefinite period. Thus, we are unable to uphold the Office Memorandum and strike it down as being totally arbitrary and discriminatory.”

The Court went on to explain that in Para 2(ii) of the Scheme, Kashmiri Pandits were to be accommodated in Delhi for first five years starting from the date of their retirement and thereafter be shifted to National Capital Region. Hence, it would be reasonable if

  • Kashmiri Migrants are allowed government accommodation for a period of three years from the date of retirement so as to make alternative arrangements within such period.
  • If an alternative accommodation is not available for them at their instance, they are at liberty to move to the transit accommodation or to avail cash amount in lieu of transit accommodation.

“Thus, a government employee who is a Kashmiri Migrant would not be entitled to retain Government  accommodation for a period exceeding three years, may be in Delhi or in the National Capital Region or for that matter anywhere in the country.”

The Court further held that the three-years period can also be considered as cooling off period for the officers who were in active intelligence work so that they can resume normal life but the excuse of once working for intelligence agency is not a valid ground to occupy the Government accommodation for indefinite period.

[Omkar Nath Dhar v. Union of India, MISCELLANEOUS APPLICATION NO. 1468 OF 2021, decided on 07.10.2021]

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Counsels:

For applicants: Senior Advocate Bimal Roy Jad

For UOI: Madhavi Divan, Additional Solicitor General


*Judgment by: Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

Case BriefsSupreme Court

Supreme Court: The bench of MR Shah* and AS Bopanna, JJ has held that once an officer of the department is appointed as an Arbitrator considering the arbitration clause, his mandate to continue the arbitration proceedings shall come to an end on his retirement if the Arbitration clause doesn’t specifically provide for the same. Consequently, it was held that continuance of the arbitration proceedings by such an Arbitrator after his retirement cannot be said to be committing a misconduct by such a Sole Arbitrator.

The ruling came in the case where a Chief Engineer was appointed as a Sole Arbitrator based on the Arbitration Clause in a contract relating to the earthwork including lining of V.U.G.C. from KM 10 to KM 11.

In order to understand the issue, it is important to note the key highlights of the Arbitration Clause i.e. Clause 52 of the Agreement:

  • on the receipt of the notice from the contractor of his intention to refer the dispute to the arbitration the Chief Engineer shall send to the contractor a list of three officers of the rank of Superintending Engineer or higher, who have not been connected with the work under the contract.
  • the contractor shall within fifteen days of receipt of the list select and communicate to the Chief Engineer the name of one officer from the list, who shall then be appointed as the Sole Arbitrator.
  • if a contractor is failed to communicate his selection of name, within the stipulated period, the Chief Engineer shall without delay select one officer from the list and appoint him as the Sole Arbitrator.
  • if the Chief Engineer fails to send such a list within 30 days, as stipulated, the contractor shall send a similar list to the Chief Engineer within fifteen days and the Chief Engineer shall then select an officer from the list and appoint him as the Sole Arbitrator within fifteen days.
  • the arbitration shall be conducted in accordance with the provisions of the Indian Arbitration Act, 1940.

The Court, hence, noticed that the only qualification for appointment as an arbitrator is that he should be the officer of the rank of the Superintending Engineer or higher. Once such an officer is appointed as an Arbitrator, he continues to be the Sole Arbitrator till the arbitration proceedings are concluded unless he incurs the disqualification under the provisions of the Indian Arbitration Act, 1940.

“Even after his retirement, the arbitration proceedings have to be continued by the same Arbitrator. Clause 52 of the agreement does not provide at all that on the retirement of such an officer, who is appointed as a Sole Arbitrator, he shall not continue as a Sole Arbitrator and/or the mandate to continue with the arbitration proceedings will come to an end.”

It is also pertinent to note that, in the present case, the Civil Judge (Senior Division), Roorkee extended the time to the Sole Arbitrator to complete the arbitration proceedings and granted further period of 30 days which was after his retirement and after specifically overruling/rejecting the objections raised by the respondents that after retirement, he cannot continue with the arbitration proceedings. Therefore, once the Sole Arbitrator continued with the arbitration proceedings and passed the award within the extended period of time, it cannot be said that he has misconducted himself as he continued with the arbitration proceedings.

Considering the relevant law and the provisions under the Arbitration clause, the Court held that the Sole Arbitrator, who at the relevant time was the Chief Engineer and was qualified to become the Sole Arbitrator was even nominated and/or appointed by the Chief Engineer as per clause 52. Therefore, considering the clause 52 of the agreement, it cannot be said that his mandate to continue with the arbitration proceedings would come to an end on his retirement.

[Laxmi Continental Construction Co. v. State of UP, 2021 SCC OnLine SC 750, decided on 20.09.2021]

_______________________________________________________

Appearances before the Court by:

For appellant: Advocate Mukesh Kumar Sharma

For State of UP: Senior Advocate Ravindra Raizada


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit and Ajay Rastogi, JJ has referred the question as to whether there would be a cut-off date under paragraph 11(3) of the Employees’ Pension Scheme to a larger bench. The larger bench will also decide whether the decision in R.C. Gupta v. Regional Provident Fund Commissioner Employees Provident Fund Organization, (2018) 4 SCC 809 would be the governing principle on the basis of which all these matters must be disposed of.

What was held in RC Gupta case?

In R.C. Gupta v. Regional Provident Fund Commissioner Employees Provident Fund Organization, (2018) 4 SCC 809, the Court had held that

“… the reference to the date of commencement of the Scheme or the date on which the salary exceeds the ceiling limit are dates from which the option exercised are to be reckoned with for calculation of pensionable salary. The said dates are not cut-off dates to determine the eligibility of the employer-employee to indicate their option under the proviso to Clause 11(3) of the Pension Scheme.

In RC Gupta case, the Court was dealing with a matter where the employer had deposited 12% of the actual salary and not 12% of the ceiling limit of Rs 5000 or Rs 6500 per month, as the case may be. In such a case, the Court held that a beneficial scheme, in our considered view, ought not to be allowed to be defeated by reference to a cut-off date.

“We do not see how exercise of option under Para 26 of the Provident Fund Scheme can be construed to estop the employees from exercising a similar option under Para 11(3). If both the employer and the employee opt for deposit against the actual salary and not the ceiling amount, exercise of option under Para 26 of the Provident Scheme is inevitable. Exercise of the option under Para 26(6) is a necessary precursor to the exercise of option under Clause 11(3). Exercise of such option, therefore, would not foreclose the exercise of a further option under Clause 11(3) of the Pension Scheme unless the circumstances warranting such foreclosure are clearly indicated.”

The Court had explained that if both the employer and the employee opt for deposit against the actual salary and not the ceiling amount, exercise of option under Para 26 of the Provident Scheme s inevitable. Exercise of the option under Para 26(6) is a necessary precursor to the exercise of option under Clause 11(3). Exercise of such option, therefore, would not foreclose the exercise of a further option under Clause 11(3) of the Pension Scheme unless the circumstances warranting such foreclosure are clearly indicated.

It was, hence, noticed that all that the Provident Fund Commissioner is required to do is an adjustment of accounts which in turn would have benefited some of the employees. At best what the Provident Commissioner could do was to seek a return of all such amounts that the employees concerned may have taken or withdrawn from their provident fund account before granting them the benefit of the proviso to Clause 11(3) of the Pension Scheme. Once such a return is made in whichever cases such return is due, consequential benefits in terms of this order will be granted to the said employees.

Why is the decision required to be re-visited?

Senior Advocate C.A. Sundaram invited the Court’s attention towards the difference between the Provident Fund Scheme and the Pension Scheme.

Under Provident Fund scheme, the contributions made by the employer and the employees during the employment of the employee would be made over to the employee along with interest accrued thereon at the time of his retirement. Thus, the obligation on the part of the operators of the Provident Fund Scheme would come to an end, after the retirement of the employee; whereas the obligation under the Pension Scheme would begin when the employee retired. The liability was only to pay interest on the amount deposited and to make over the entire amount at the time of his retirement.

Under Pension scheme, it would be for the operators of the Pension Scheme to invest amount deposited in such a way that after the retirement of the concerned employee the invested amount would keep on giving sufficient returns so that the pension would be paid to the concerned employee not only during his life time but even to his family members after his death. If the option under paragraph 11(3) of the Scheme, was to be afforded well after the cut-off date, it would create great imbalance and would amount to cross-subsidization by those who were regularly contributing to the Pension Scheme in favour of those who come at a later point in time and walk away with all the advantages.

Hence, it was submitted that the emphasis on investment of the amount in both the funds would qualitatively be of different dimension.

This difference was enunciated in Krishena Kumar Vs. Union of India, (1990) 4 SCC 207 and was not noted in the subsequent decision in R.C. Gupta. Submitting that it would not be a mere adjustment of amount to transfer from one fund to another as stated in R.C. Gupta case, it was submitted before the Court that the decision in R.C. Gupta was required to be re-visited.

The Court, hence, noted that

“These, and the other submissions touching upon the applicability of the principle laid down in the decision in R.C. Gupta1 go to the very root of the matter. Sitting in a Bench of two Judges it would not be appropriate for us to deal with said submissions. The logical course would be to refer all these matters to a Bench of at least three Judges so that appropriate decision can be arrived at.”

The matter has hence, been referred to a larger bench.

[Employees’ Provident Fund Organisation v. Sunil Kumar B., 2021 SCC OnLine SC 630, decided on 24.08.2021]

Know thy Judge

“The dignity of the individual encompasses the right of the individual to develop to the full extent of his potential. And this development can only be, if an individual has autonomy over fundamental personal choices and control over dissemination of personal information which may be infringed through an unauthorised use of such information.”

Justice R.F. Nariman in K.S. Puttaswamy (Privacy-9J.) v. Union of India,(2017) 10 SCC 1


As Hon’ble Justice Rohinton Fali Nariman prepares to call it a day as Supreme Court Judge, we make a humble attempt to recapitulate his extensive and inspiring journey which earned him admiration from all and sundry.

Travelling Back In Time

Justice Nariman was born on 13th August 1956 to eminent jurist Fali Sam Nariman. He received his education from Cathedral School, Mumbai, where he passed the ISC exams with 1st Division. Justice Nariman got his degree in B.Com from Shri Ram College of Commerce and then went on to pursue his LL.B from Delhi University (Faculty of Law) where he ranked 2nd in the batch.[1]

The next step in his legal education was Masters in Law, which he pursued from the prestigious Harvard Law School in 1980-81. For his LL.M thesis, Justice Nariman wrote a dissertation on “Affirmative Action- a comparison between India and US Constitutional Law[2]

Legal Career [1979- 2014]

As a Counsel

Justice Nariman got enrolled in the Bar in 1979. After obtaining his LL.M degree form Harvard, Justice Nariman practiced Maritime Law in New York at Haight, Gardener, Poor and Havens for 1 year.

In the year 1993, due to Nariman’s ‘magical court craft and obsessive attention to minutest of details and his remarkable grasp of the complicated facts and legal issues involved[3]; he was designated as a Senior Advocate of the Supreme Court of India when he was just 37 years old.

 *Did You Know? The then Chief Justice of India, M.N. Venkatachalaiah, J., amended the Rules as Nariman was of 37 years and the minimum age for being made a senior in the Supreme Court was 45 years.[4]

Justice Nariman possessed expertise in cases related to Comparative Constitutional Law and Civil Law; however his resume as a counsel is a versatile one and has argued in numerous Constitution Bench cases. Some of the prominent cases during Nariman’s tenure as an advocate are as follows

Prominent Cases where R.F. Nariman appeared as a Counsel

LIC v. Escorts Ltd., (1986) 1 SCC 264Case concerning S. 29(1) of Foreign Exchange Regulation Act, 1973.

Express Hotels (P) Ltd. v. State of Gujarat, (1989) 3 SCC 677 –  Case regarding constitutional validity of legislations of different States viz. State of Gujarat, State of Tamil Nadu, State of Karnataka and State of West Bengal, imposing a tax on “Luxuries” under Entry 62 of List II of the Seventh Schedule to the Constitution of India.

Sodan Singh v. New Delhi Municipal Committee, (1989) 4 SCC 155Case regarding the right of pavement hawkers to carry on trade on road pavements under Art. 19(1)(g) of the Constitution.

India Cement Ltd. v. State of T.N., (1990) 1 SCC 12Case regarding royalty payable on extraction of mineral

Synthetics and Chemicals Ltd. v. State of U.P., (1990) 1 SCC 109Case regarding constitutional validity of levies imposed on industrial alcohol.

Workmen v. Meenakshi Mills Ltd., (1992) 3 SCC 336Case regarding restrictions on employer’s right to retrench workmen.

Raghunathrao Ganpatrao v. Union of India, 1994 Supp (1) SCC 191– Constitutionality of abolishing privy purses, privileges and dignities of erstwhile Rulers of Indian States by deletion of Arts. 291 and 362; insertion of Art. 363-A and substitution of Art. 366(22) of the Constitution. 

H.R. Adyanthaya v. Sandoz (India) Ltd., (1994) 5 SCC 737Case regarding whether “workmen” as defined in S. 2(s) of the Industrial Disputes Act, 1947 covers medical representatives.

Khoday Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC 574The case where it was held that, a citizen has no fundamental right to trade or business in liquor as a beverage.

Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536  Case regarding customs duty levied on erroneous interpretation of statutory provisions or under mistake of law.

Saurabh Chaudri v. Union of India, (2003) 11 SCC 146Case regarding the constitutionality of reservation in government run medical colleges based on domicile.

State of Punjab v. Devans Modern Breweries Ltd., (2004) 11 SCC 26Case regarding the nature of trade/ business in intoxicating liquor.

P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537Case regarding unaided (minority and non- minority) institutions imparting professional education. 

Khoday Distilleries Ltd. v. Scotch Whisky Assn., (2008) 10 SCC 723Case related to the nature of a Registrar’s power under S. 56 of Trade and Merchandise Marks Act, 1958 to rectify the register; and tests to determine the likelihood of confusion and deception.  

Solicitor General of India

Justice Nariman was appointed[5] as the Solicitor General of India by the Indian Government on 27th July, 2011. However, after tenure of 18 months, Nariman resigned from the post. In this duration of 18 months, Nariman, in his capacity as the Solicitor General, appeared in the following important cases-

Vodafone International Holdings BV v. Union of India, (2012) 6 SCC 613Case regarding taxation of offshore transactions and the need for certainty in law to encourage FDI.

Ramlila Maidan Incident, In re, (2012) 5 SCC 1Case regarding proper and permissible response of State and Police vis-à-vis peaceful public meetings or demonstrations.

Ratnagiri Gas and Power (P) Ltd. v. RDS Projects Ltd., (2013) 1 SCC 524Case regarding vitiation of government tender processes due to arbitrariness.

State of Gujarat v. R.A. Mehta, (2013) 3 SCC 1Case regarding primacy of the opinion of the Chief Justice of High Court while appointing a Lokayukta under Gujarat Lokayukta Act, 1986.  

*Did You Know?  In his 35 years of practice, Justice Nariman has more than 500 reported Supreme Court Judgments to his credit.[6]


As Judge of the Supreme Court [2014 – 2021]


Given his stellar track record as a counsel, it was not a surprise when Justice Nariman was elevated as a Judge of the Supreme Court of India, on 7th July 2014[7]. During his tenure, Justice Nariman was also appointed as Chairman of the Supreme Court Legal Services Committee.

*Did You Know? In 2014, Nariman became the 5th person to be directly elevated from the Bar to be a Judge of the Supreme Court.[8]  

Very much like this time as an advocate, Justice Nariman in his 7 year tenure as a Supreme Court Judge was not only a part of, but also wrote a number of landmark decisions that had a profound effect on the development of law. Some of the significant decisions by Justice Nariman are as follows-

Significant Decisions

Gemini Bay Transcription Pvt. Ltd v. Integrated Sales Service Ltd, 2021 SCC OnLine SC 572

 A Division Bench comprising of R.F. Nariman and B.R. Gavai, JJ. held that a foreign arbitral award is enforceable against non-signatories to arbitration agreement. The Supreme Court reiterated that grounds for resisting a foreign arbitral award contained in Section 48(1)(a) to (e) of the Arbitration and Conciliation Act, 1996 are to be narrowly construed, and that a non-signatory’s objection cannot possibly fit into Section 48(1)(a). Furthermore, a foreign arbitral award cannot be challenged on the ground of “perversity”. Read More 

Amazon.com NV Investment Holdings LLC v. Future Retail Limited, 2021 SCC OnLine SC 557

Holding that an award passed by Emergency Arbitrator is enforceable under the Arbitration and Conciliation Act, 1996, a Division Bench of R.F. Nariman and B.R. Gavai, JJ., ruled in favour of Amazon in the infamous Future-Amazon dispute. It was held that the interim award in favour of Amazon, passed by the Emergency Arbitrator appointed under the Arbitration Rules of the Singapore International Arbitration Centre is enforceable under the Indian Arbitration Act. The Court declared that full party autonomy is given by the Arbitration Act to have a dispute decided in accordance with institutional rules which can include Emergency Arbitrators delivering interim orders. Read More

Neeraj Garg v. Sarita Rani, 2021 SCC OnLine SC 527

The Division Bench of R.F. Nariman and Hrishikesh Roy, JJ., directed that adverse comments recorded against the appellant─advocate in certain judgments of the Uttaranchal High Court be recalled. The Supreme Court found that the offending remarks were unnecessary for deciding the disputes and appeared to be based on personal perception of the Presiding Judge. The requisite degree of restraint and sobriety expected in such situations was also found missing in the offending remarks. Read More

Union of India v. Rajendra N. Shah, 2021 SCC OnLine SC 474

A 3-Judge Bench of the Court held that the Constitution (97th Amendment) Act, 2011 which inter alia inserted Part IX-B is ultra vires the Constitution insofar it is concerned with the subject of Cooperative Societies for want of the requisite ratification under Article 368(2) proviso. At the same time, the Court by a majority of 2:1, followed doctrine of severability in declaring that Part IX-B is operative insofar as it concerns Multi-State Cooperative Societies both within various States and in Union Territories.  R.F. Nariman and B.R. Gavai, JJ., formed the majority, whereas K.M. Joseph, J. penned a separate opinion dissenting partly with the majority. He expressed inability to concur with the view on the application of doctrine of severability. Read More

 Amway India Enterprises Pvt. Ltd v. Ravindranath Rao Sindhia, 2021 SCC OnLine SC 171

The Division Bench of R.F. Nariman and B.R. Gavai, JJ., addressed an important case regarding nature of arbitration under Arbitration and Conciliation Act, 1996. The Bench ruled, if at least one of the parties was either a foreign national, or habitually resident in any country other than India; or by a body corporate which was incorporated in any country other than India; or by the Government of a foreign country, the arbitration would become an international commercial arbitration notwithstanding the fact that the individual, body corporate, or government of a foreign country carry on business in India through a business office in India. Read More

PSA SICAL Terminals (P) Ltd. v. V.O. Chidambranar Port Trust, 2021 SCC OnLine SC 508

Division Bench comprising of R.F. Nariman and B.R. Gavai, JJ. held that an arbitral award which is based on no evidence and/or in ignorance of evidence would come under the realm of patent illegality. The Court also held that an arbitrator cannot rewrite the contract for the parties. Read More

Navinchandra Steels (P) Ltd. v. Srei Equipment Finance Ltd., (2021) 4 SCC 435

The Division Bench of Rohinton Fali Nariman and B.R. Gavai, JJ., addressed the instant appeal involving the question that whether an insolvency proceedings could be initiated after the winding up application had been admitted under the Companies Act. The Bench stated, that,“…every effort should be made to resuscitate the corporate debtor in the larger public interest, which includes not only the workmen of the corporate debtor, but also its creditors and the goods it produces in the larger interest of the economy of the country.Read More

Manish Kumar v. Union of India, (2021) 5 SCC 1

The 3-Judge Bench of Rohinton Fali Nariman, Navin Sinha and K.M. Joseph, JJ., in a 465-pages long judgment, upheld the validity of several provisions of the Insolvency and Bankruptcy Code (Amendment) Act, 2020, albeit with directions given in exercise of powers under Article 142 of the Constitution of India. While so upholding the impugned amendments, the Bench expressed an observation that, There is nothing like a perfect law and as with all human institutions, there are bound to be imperfections. What is significant is however for the court ruling on constitutionality, the law must present a clear departure from constitutional limits.” Read More

Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17

The bench of RF Nariman and Navin Sinha, JJ has, in a landmark verdict, upheld the validity of the Insolvency and Bankruptcy Code, 2016 in it’s entirety as the provisions contained therein pass the constitutional muster. Noticing that in the working of the Code, the flow of financial resource to the commercial sector in India has increased exponentially as a result of financial debts being repaid, the bench said: “The defaulter‘s paradise is lost. In its place, the economy‘s rightful position has been regained.” Read More

K.S. Puttaswamy v. Union of India (Privacy- 9 Judge), (2017) 10 SCC 1

Dr. Justice D.Y. Chandrachud was part of the 9 Judge Bench which unanimously held that, Right to Privacy is a basic fundamental right. The Bench, which also comprised of J.S. Khehar, CJ. and J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, S.K. Kaul and S.A. Nazeer, JJ., observed that Right to Privacy forms an intrinsic part of Art. 21 and freedoms guaranteed in Pt. III. It permeates core of Preambular philosophy underlying “liberty” and “dignity” as also human concepts of “life” and “personal liberty” enshrined in Art. 21 and wide ranging freedoms guaranteed under Pt. III, considered essential for a meaningful human existence. Read more

Shreya Singhal v. Union of India, (2015) 5 SCC 1

The Bench of J. Chelameswar and R.F. Nariman, JJ., struck down the Section 66A of the Information Technology Act, 2000 in its entirety for being violative of Article 19(1)(a) and not saved under Article 19(2) of the Constitution. Testing the validity of the Section on the touchstone of the clear and present danger test or the tendency to create public disorder, it was held that Section 66A would not pass muster as it has no element of any tendency to create public disorder which ought to be an essential ingredient of the offence which it creates. The judgment was authored by Justice Nariman. The Judges observed that several terms in the impugned law were “open-ended, undefined and vague” which made them nebulous in nature- “What may be offensive to one may not be offensive to another. What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another.” Read more 

Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

In this landmark 5 -Judge Bench decision which became instrumental in upholding the rights of the LGBT community, Dipak Misra, CJ., and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., held Section 377 IPC to be unconstitutional insofar it criminalised gay sex between consenting adults. The Bench reversed the 2-Judge Bench decision in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1. Read more

Joseph Shine v. Union of India, (2019) 3 SCC 39

The 5-Judge Constitution Bench held Section 497 IPC and Section 198 (2) CrPC to be unconstitutional and violative of Articles 14, 15 (1) and 21 of the Constitution. Dipak Misra, C.J., delivered the leading judgment for himself and A.M. Khanwilkar, J. While R.F. Nariman, Dr D.Y. Chandrachud and Indu Malhotra, JJ., each delivered their separate concurring opinions. Read more  

Jarnail Singh v. Lachhmi Narain Gupta, (2018)  10  SCC 396 

The 5-Judge Constitution Bench comprising of CJ Dipak Misra and Kurian Joseph, R.F. Nariman, Sanjay Kishan Kaul and Indu Malhotra, JJ., disposed of a batch of petitions holding that the judgment in M. Nagaraj v. Union of India, (2006) 8 SCC 212 does not need to be referred to a 7-Judge Bench. However, the conclusion in Nagaraj that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the 9-Judge Bench in Indra Sawhney v. Union of India, 1992 Supp (3) 217 was held to be invalid to this extent. The court held that applying creamy layer principle to SC/ST not invalid and collection of quantifiable data to show backwardness not allowed. Read more

Indian Young Lawyers Assn. v. State of Kerala,  (2019)  11  SCC 1

A 5-Judge Constitution Bench, by a majority of 4:1, held not allowing entry to women of the age group of 10 to 50 years in the Sabarimala Temple is unconstitutional. The judgment of the Court was delivered by CJ Dipak Misra for himself and A.M. Khanwilkar, J. While, R.F. Nariman and Dr D.Y. Chandrachud each gave separate concurring opinions. The only lady Judge on the Bench, Indu Malhotra, J. rendered a dissenting opinion. Read more 

Shayara Bano v. Union of India, (2017) 9 SCC 1

A 5-judge Bench of the Supreme Court has held by 3:2 majority that the practice of Triple Talaq is unconstitutional and violative of Articles 14 and 15 of the Constitution. The decision was rendered by the Bench comprising of J.S. Khehar, CJI along with Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit and Abdul Nazeer, JJ. While Nariman and Lalit, JJ. held that Triple Talaq is unconstitutional and violative of Article 14, Justice Joseph struck down the practice on the ground that it goes against Shariat and the basic tenets of the Quran. Read more  

Indira Jaising v. Supreme Court of India, (2017)  9  SCC 766

The 3-judge bench of Ranjan Gogoi, RF Nariman and Navin Sinha, JJ laid down elaborate guidelines for the system of designation of Senior Advocates in the Supreme Court as well as all the High Courts of India. The Court said: “The sole yardstick by which we propose to introduce a set of guidelines to govern the matter is the need for maximum objectivity in the process so as to ensure that it is only and only the most deserving and the very best who would be bestowed the honour and dignity. The credentials of every advocate who seeks to be designated as a Senior Advocate or whom the Full Court suo motu decides to confer the honour must be subject to an utmost strict process of scrutiny leaving no scope for any doubt or dissatisfaction in the matter.” Read more 

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1

In a reference dealing with the interpretation of Section 65B of the Evidence Act, 1872 that deals with admissibility of electronic records, the 3-judge bench of RF Nariman, S. Ravindra Bhat and V. Ramasubramanian, JJ has held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in by the 3-judge bench in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, and incorrectly “clarified” by a division bench in Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801. The Court further clarified that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. Read more

Public Interest Foundation v. Union of India, (2019) 3 SCC 224

The 5-Judge Constitution Bench comprising of Dipak Misra, C.J., and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., the Court issued certain directions while disposing the petition concerning the question whether disqualification from the membership of the legislature could be laid down by the Court beyond Article 102 (a) to (d) and the law made by the Parliament under Article 102 (e) of the Constitution. The Supreme Court, at the outset, perused Articles 102 and 191 of the Constitution and observed it to be clear as crystal that as regards the disqualification for being chosen as a member of either House of Parliament and similarly for a legislative assembly or legislative council of a State, the law has to be made by the Parliament. On the issue of criminalisation of politics, the Court observed that Election Commission has the plenary power and its view has to be given weightage. That apart, it has power to supervise the conduct of free and fair election. However, the said power has its limitations. The Election Commission has to act in conformity with the law made by the Parliament and it cannot transgress the same. Read More

Mohd. Arif v. Registrar, Supreme Court of India, (2014) 9 SCC 737

 The Bench of R.M. Lodha, CJ., and JS Khehar, J Chelameshwar, AK Sikri and RF Nariman, JJ., observed that the fundamental right to life under Art. 21 of the constitution, mandates that review of death sentence should be in open court and not by circulation. It was further observed that the time limit for oral reviews of death sentence cases should be limited to 30 minutes.

Membership of Various Trusts, Delegations and Committees and Lectures[9]

  • Justice Nariman set up the Supreme Court Lawyers Welfare Trust which works for the welfare of lawyers and encourages young talent.
  • Justice Nariman is a Member of the Mediation Committee of the Supreme Court of India.
  • Justice Nariman is on the Governing Board of Gujarat Law School.
  • Justice Nariman was a Member of the Delegation from the Supreme Court of India to the Supreme Court of the United States of America, 2002.
  • Lectured at the Bar Council of India, Supreme Court of India and the University of Delhi.

Tryst with Spirituality and Religion  

*Did You Know? Justice Nariman is an ordained Parsi priest (from Bandra Agiary) and adept at performing marriages and the Navjote ceremony (initiation ceremony)[10]

Justice Nariman is known not only for his legal acumen, but he is also keenly interested in religion, spirituality and philosophy. He has specialization in Comparative Religious Studies and held fortnightly Gatha classes for two years in Delhi[11]. In November 2016, Nariman’s book on the Zoroastrian religion, The Inner Fire- Faith Choice and Modern Day Living in Zoroastrianism” was released. The book is a translation and analysis of the Gathas[12].

Beside this, Justice Nariman has also delivered several lectures of import on religion and law, philosophy and spirituality-[13]

  • Justice Nariman delivered a keynote address at the K.L. Misra Lecture on Spirituality and Law along with the Chief Justice of India and other Supreme Court Judges in Allahabad in 2004.
  • Lectured in New York to the Zoroastrian Federation.
  • Gave the SEARCH lecture at the IIC, Delhi.
  • Gave religious talks at Philadelphia in 2005.
  • Gave two lectures in Ahmedabad at the invitation of the Ahmedabad Parsi Panchayat in 2003.
  • Delivered the Annual K.R. Cama Lecture at K.R. Cama Institute, Mumbai on “Through the Looking Glass- Zoroastrianism in Other Faiths” on 11.11.2006

Miscellaneous  Interests[14]

Besides law and religion, Justice Nariman has an avid enthusiasm for history, philosophy, literature and science and also enjoys nature walks and is a committed daily walker. He also has an ardent passion for Western Classical Music and gave a talk at IIC Delhi 2007 on Beethoven.

Legacy

Justice R.F. Nariman is one those legal luminaries who has earned the respect of due to his habit of being meticulous and to the point during his years as an advocate, a habit that he carried well during his time as a Supreme Court Judge. He did not restrict his intellect only in the study and development of law, but also devoted equal time and mind in understanding the various aspects of religion, philosophy and music among others- he indeed is a man of many talents.

Justice Nariman’s career and achievements have inspired the young advocates practicing in the Supreme Court. Known amongst the legal fraternity as a Judge who always valued and upheld the constitutional and human rights of an individual[15]; Justice Nariman’s legacy will definitely be cherished and will serve as an encouragement for all.


†Editorial Assistant, EBC Publishing Pvt. Ltd. 

[1] Supreme Court Observer, RF Nariman

[2] Supreme Court of India, Chief Justices and Judges

[3] Tax Sutra, Men Who Matter, R.F. Nariman

[4] Supreme Court of India, Chief Justices and Judges

[5] Ministry of Law and Justice, RF Nariman appointed as Solicitor General

[6] Supreme Court/ High Court Annual Report 2018-19

[7] Supreme Court of India, Chief Justices and Judges

[8] Supreme Court Observer, RF Nariman

[9] Supreme Court of India, Chief Justices and Judges

[10] The Print, Rohinton Nariman

[11] Refer Fn. 9

[12] Financial Express, Justice Nariman Book Launch

[13] Supreme Court of India, Chief Justices and Judges

[14] Refer Fn. 13

[15] The Print, Rohinton Nariman

Know thy Judge

A subjective notion of public or societal morality which discriminates against LGBT persons, and subjects them to criminal sanction, simply on the basis of an innate characteristic, runs counter to the concept of constitutional morality.”

 Justice Indu Malhotra in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1


As Hon’ble Justice Indu Malhotra prepares to call it a day as Supreme Court Judge, we endeavor take a look at her exceptional journey which has been an inspiration to the legal fraternity and women alike.             


Travelling Back in Time


Justice Malhotra was born on March 14, 1956 in Bengaluru (then known as Bangalore)[1], to Om Prakash Malhotra (former Senior Supreme Court advocate) and Satya Malhotra. She did her schooling from Carmel Convent School, Delhi and obtained her Bachelors Degree in Political Science from Lady Shri Ram College in 1975, and then Masters Degree in Political Science in 1977 from Delhi University. She also obtained a post-graduate Diploma in Corporate Laws & Secretarial Practice from the Indian Law Institute in 1978-79 and completed her Bachelors Degree in Law from Delhi University in 1983.

♦Did You Know?  In 1978, Justice Malhotra was appointed as a Lecturer of Political Science in Miranda House College and Vivekananda College, Delhi University.


As a Lawyer and SC Advocate on Record [1983- 2018]


Post obtaining her law degree, Justice Malhotra was enrolled as an Advocate on January 12, 1983 with Bar Council of Delhi. She qualified the Advocate-on-Record Examination in 1988. She specialized in the law of Arbitration and appeared as Counsel in various domestic and international commercial arbitrations both in India, and abroad. She also obtained certificate of the Diploma Course in International Commercial Arbitration by Chartered Institute of Arbitrators (CIArb), England.[2]

♦Did You Know? Justice Malhotra was awarded the Mukesh Goswami Memorial Prize for having topped the Supreme Advocates on Record Examination in 1988!!

From 1991 to 1996, Justice Malhotra served as the Standing Counsel for the State of Haryana in the Supreme Court and represented several corporations like Securities and Exchange Board of India (SEBI), Delhi Development Authority (DDA), Council for Scientific and Industrial Research (CSIR) and Indian Council for Agricultural Research (ICAR) before the Supreme Court[3]. She was appointed as a sole Arbitrator by various Arbitration Institutions.

♦Did You Know? Justice Indu Malhotra is the 2nd woman to be designated as a Senior Advocate by the Supreme Court in 2007 after 30 years!![4]

Prominent Cases

Even though Justice Malhotra did her specialization in the law of Arbitration, her tenure as a legal counsel was nothing short of versatile. As a prominent Senior Advocate, she dealt with several matters of constitutional and social importance. Some of the prominent cases where Justice Malhotra appeared as a counsel are as follows-

Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217

M.C. Mehta v. Union of India, (1992) 3 SCC 256

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441

T.M.A. Pai Foundation v. State of Karnataka, (1994) 2 SCC 734 and (2002) 8 SCC 481

P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626

Special Reference No. 1 of 1998, Re, (1998) 7 SCC 739

State of A.P. v. National Thermal Power Corpn. Ltd., (2002) 5 SCC 203

SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618

Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471

Save Life Foundation v. Union of India, (2016) 7 SCC 20

As Member of Major Committees and Panels

During her tenure as SC Advocate on Record, Justice Malhotra was a part of several prestigious committees and panels. She was also appointed as amicus curiae (friend of the Court) in various matters. Following are some of the important committees which were enriched by her inclusion as a member-

  • Being one of the members of the Vishaka Committee, Justice Indu Malhotra was a member of the Supreme Court Gender Sensitization and Internal Complaints Committee from November 2013 to 2017.[5]  
  • She was appointed as a member of the High Level Committee constituted by the Ministry of Law and Justice, Government of India in 2017 to review the working of Arbitration institutions in India, and to make recommendations for institutionalization of arbitration, and suggest legislative amendments to the Arbitration and Conciliation Act, 1966.
  • She was a Member of the Board of Examiners of the Advocates-on-Record Examination constituted by the Supreme Court from 2013 to 2017.
  • She was a Member of the Supreme Court (Middle Income Group) Legal Aid Society from July 2005 to July, 2008.
  • In 2016, she was nominated as a Member of Central Council of the Institute of Chartered Accountants of India, a statutory body established under the Chartered Accountants Act, 1949.
  • The Singapore International Arbitration Centre (SIAC) empanelled Justice Malhotra as an Arbitrator in CIDC-SIAC from March 2006 to 2011.
  • She also represented India at the Convention on the Rights of the Child, conducted by the Commonwealth Secretariat in May 1988 at Dhaka, Bangladesh. Member of the Indo-British Legal Forum held in January, 2003 and March, 2008.

Academic Pursuits

  • She authored the 3rd Edition of the Commentary on the Law and Practice of Arbitration and Conciliation.[6]
  • She was regularly invited by various Law Universities to deliver lectures including University of Delhi, National Academy of Legal Studies & Research (NALSAR), Hyderabad, Gujarat National Law University, ILS Law College, Pune, Symbiosis College of Law, Pune and Amity University, Delhi.
  • She was nominated by the Chief Justice of India in 2005 under the category of ‘Eminent Persons‘ as a member of the General Council of the Gujarat National Law University established under the Gujarat National Law University Act.
  • The Editorial Committee of ‘Nyaya Deep’, official publication of the Supreme Court, also benefited from Justice Malhotra’s involvement as its Member from August 2004 to 2013.

Philanthropic Pursuits

Along side her thriving legal career, Justice Malhotra also devoted her time to pursue several humanitarian causes; chief among them was her association with Save Life Foundation.[7] Save Life Foundation is an independent, non-governmental organization committed to taking various initiatives to prevent fatalities in road accidents throughout the country. Justice Malhotra was a Trustee and counsel[8] for Save Life Foundation from its inception till March 2018 and had played a key role in drafting the guidelines for the Good Samaritan law to provide protection to someone who helps victims of road accident.


As a Supreme Court Judge [2018-2021]


♦Did You Know? Justice Malhotra is the 1st female Advocate to be directly elevated as Supreme Court Judge and the 7th female Supreme Court Judge in 70 years!!

On 10.01.2018, the Supreme Court Collegium, comprising of the five senior-most judges, recommended the name of Indu Malhotra for elevation to the Supreme Court, which was duly cleared by the Central Government. However, her elevation as a Judge came at a time when the SC Collegium was mired in controversies regarding delayed judicial appointments. Despite the tumult, Malhotra’s appointment was applauded by all and the sundry and was heralded by the legal fraternity as a “step in the right direction for gender diversity in the Apex Court”.[9]

In the history of Supreme Court of India, this was the third occasion when it had two sitting women judges together – the first being Gyan Sudha Misra and Ranjana Prakash, Desai, JJ., then Ranjana Praksh Desai and R. Banumathi, JJ., and then R. Banumathi and Indu Malhotra, JJ.[10]

♦Did You Know? Justice Indu Malhotra was part of the Supreme Court In- House Committee constituted to investigate sexual harassment allegations leveled by a former Supreme Court employee against the CJI Ranjan Gogoi.  

Significant Decisions

During her 3 year tenure as SC Judge, Justice Indu Malhotra not only rendered and but also had been a part of some historic judgments; some of them are as follows-

Rajnesh v. Neha, (2021) 2 SCC 324,

The Bench of Indu Malhotra and R. Subhash Reddy, JJ., framed guidelines on the issue of maintenance of wife, covering overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance.

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Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

In this landmark 5 -Judge Bench decision, which became instrumental in advancing the LGBT movement in India; Dipak Misra, CJ., and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., held Section 377 IPC to be unconstitutional insofar it criminalised gay sex between consenting adults. The Bench reversed the 2-Judge Bench decision in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.

Indu Malhotra, J., observed that-

“LGBT persons, like other heterosexual persons, are entitled to their privacy, and the right to lead a dignified existence, without fear of persecution. They are entitled to complete autonomy over the most intimate decisions relating to their personal life, including the choice of their partners. History owes an apology to these people and their families. Homosexuality is part of human sexuality. They have the right to dignity and be free of discrimination. Consensual sexual acts of adults are allowed for LGBT community. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’.”

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Joseph Shine v. Union of India, (2019) 3 SCC 39

The 5-Judge Constitution Bench held Section 497 IPC and Section 198 (2) CrPC to be unconstitutional and violative of Articles 14, 15 (1) and 21 of the Constitution. Dipak Misra, C.J., delivered the leading judgment for himself and A.M. Khanwilkar, J. While R.F. Nariman, Dr D.Y. Chandrachud and Indu Malhotra, JJ., delivered their separate concurring opinions. As per the observations of Indu Malhotra, J.,

“A law which deprives women of the right to prosecute is not gender-neutral. Under Section 497, the wife of the adulterous male, cannot prosecute her husband for marital infidelity. This provision is therefore ex facie discriminatory against women, and violative of Article 14. Section 497 as it stands today, cannot hide in the shadows against the discerning light of Article 14 which irradiates anything which is unreasonable, discriminatory, and arbitrary”.  

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Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396

The 5-Judge Constitution Bench comprising of Dipak Misra, C.J., and Kurian Joseph, R.F. Nariman, Sanjay Kishan Kaul and Indu Malhotra, JJ., disposed off a batch of petitions holding that the judgment in M. Nagaraj v. Union of India, (2006) 8 SCC 212 does not need to be referred to a 7-Judge Bench. However, the conclusion in Nagaraj that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the 9-Judge Bench in Indra Sawhney v. Union of India, 1992 Supp (3) 217 was held to be invalid to this extent.

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Public Interest Foundation v. Union of India, (2019) 3 SCC 224

The 5-Judge Constitution Bench comprising of Dipak Misra, C.J., and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., the Court issued certain directions while disposing the petition concerning the question whether disqualification from the membership of the legislature could be laid down by the Court beyond Article 102 (a) to (d) and the law made by the Parliament under Article 102 (e) of the Constitution. The Supreme Court, at the outset, perused Articles 102 and 191 of the Constitution and observed it to be clear as crystal that as regards the disqualification for being chosen as a member of either House of Parliament and similarly for a legislative assembly or legislative council of a State, the law has to be made by the Parliament. On the issue of criminalisation of politics, the Court observed that Election Commission has the plenary power and its view has to be given weightage. That apart, it has power to supervise the conduct of free and fair election. However, the said power has its limitations. The Election Commission has to act in conformity with the law made by the Parliament and it cannot transgress the same.

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Rahna Jalal v. State of Kerala, (2021) 1 SCC 733

The 3-judge bench of Dr. DY Chandrachud, Indu Malhotra and Indira Banerjee, JJ., held that there is no bar on granting anticipatory bail for an offence committed under the Muslim Women (Protection of Rights on Marriage) Act 2019, provided that the competent court must hear the married Muslim woman who has made the complaint before granting the anticipatory bail.

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Vanitha v. Deputy Commissioner, 2020 SCC OnLine SC 1023

In a bid to harmonise the competing reliefs of a daughter-in-law and her in-laws under the Protection of Women from Domestic Violence Act 2005 and the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, respectively, the 3-judge bench of Dr. DY Chandrachud, Indu Malhotra and Indira Banerjee, JJ., held that the Tribunal under the Senior Citizens Act, 2007 may have the authority to order an eviction, if it is necessary and expedient to ensure the maintenance and protection of the senior citizen or parent, however, the over-riding effect for remedies sought under the Senior Citizens Act 2007, cannot be interpreted to preclude all other competing remedies and protections that are sought to be conferred by the DV Act 2005.

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Ritika Sharan v. Sujoy Ghosh 2020 SCC OnLine SC 878

The instant case dealing with the custody of a 7-year-old, wherein the issue arose that whether the custody of a child gets transferred from the mother to grand parents if they are assisting in looking after the child, the 3-judge bench of Dr. DY Chandrachud, Indu Malhotra and Indira Banerjee, JJ., held that, mere fact that a mother is looking after the child with the assistance of her parents, does not detract from her role and responsibility as a mother.

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Anokhilal v. State of Madhya Pradesh, (2019) 20 SCC 196

Noticing that where death sentence could be one of the alternative punishments, the courts must be completely vigilant and see that full opportunity at every stage is afforded to the accused, the 3-judge bench of UU Lalit, Indu Malhotra and Krishna Murari, JJ., laid down Guidelines for the appointment of amicus curiae.

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Government of India v. Vedanta Limited, (2020) 10 SCC 1

The 3-judge bench of SA Nazeer, Indu Malhotra and Aniruddha Bose, JJ has dismissed Central Government’s plea against enforcement of a 2011 foreign award passed in favour of Vedanta Limited in a dispute arising out of a contract for exploring and developing the petroleum resources in the Ravva Gas and Oil Fields. The Court held, “the enforcement of the foreign award does not contravene the public policy of India, or that it is contrary to the basic notions of justice.”

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XYZ v. State of Gujarat, (2019) 10 SCC 337

In an appeal against the verdict of Gujarat High Court that quashed the criminal proceedings against a man accused for sexually assaulting and blackmailing his employee, the 3-judge bench of UU Lalit, Indu Malhotra and R. Subhash Reddy, JJ., set aside the verdict and held that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the respondent was consensual. The Bench held that, when a woman says that she did not consent to a physical relationship, a court should not presume otherwise.

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Rachna v. Union of India, 2021 SCC OnLine SC 140,

In the instant matter where the last attemptees of the UPSC Civil Services (Preliminary) Examination, 2020 had sought an extra attempt to clear the exam in the wake of the COVID-19 pandemic, the bench of Justice AM Khanwilkar, Indu Malhotra and Ajay Rastogi, JJ., held that the Courts cannot issue mandamus to frame policy.

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Gajanan Babulal Bansode v. State of Maharashtra, 2021 SCC OnLine SC 57

The 3-Judge Bench comprising of L. Nageswara Rao, Indu Malhotra and Vineet Saran, JJ heard the petition challenging the decision of Maharashtra government to appoint 636 additional candidates without consulting MPSC (Maharashtra Public Service Commission. The Bench stated,

“It is well-settled in service jurisprudence that the authority cannot fill up more than the notified number of vacancies advertised, as the recruitment of candidates in excess of the notified vacancies, would be violative of Articles 14 and 16 (1) of the Constitution of India.”

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Phoenix Arc Pvt. Ltd. v. Spade Financial Services Ltd., 2021 SCC OnLine SC 51

The 3-judge bench of Dr. DY Chandrachud*, Indu Malhotra and Indira Banerjee, JJ., held that collusive transactions with the Corporate Debtor would not constitute a ‘financial debt’ under Insolvency and Bankruptcy Code.

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NN Global Mercantile Pvt Ltd v. Indo Unique Flame Ltd.,  2021 SCC OnLine SC 13

The three-judge bench comprising DY Chandrachud, Indira Banerjee and Indu Malhotra, JJ. has observed that non-payment of stamp duty in a commercial contract does not invalidate the arbitration clause mentioned in the contract.

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Dr. Naresh Kumar Mangla v. Anita Agarwal 2020 SCC OnLine SC 1031

In a case where within a couple of days of the alleged dowry death of a doctor in Agra, a suicide note was leaked to the newspapers of the city, the 3-judge bench of Dr. DY Chandrachud, Indu Malhotra and Indira Banerjee, JJ., stated that selective disclosures to the media affect the rights of the accused in some cases and the rights of victims families in others.

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Sri Marthanda Varma (D) v. State of Kerala, (2021) 1 SCC 225

The Bench of UU Lalit and Indu Malhotra, JJ upheld the rights of the Travancore royal family in the administration of Sree Padmanabhaswamy Temple, one of the world’s richest temples, in Kerala’s Thiruvananthapuram. Allowing the appeal filed by members of the Travancore family, the Court observed that the death of the Travancore ruler, who signed the covenant, does not affect the rights of the Shebaitship Travancore family over the temple and it will survive as per the customs.

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State of Uttarakhand v. Sureshwati, 2021 SCC OnLine SC 34,

The 3-judge Bench of L. Nageswara Rao, Navin Sinha and Indu Malhotra, JJ., held that Failure to make an enquiry before dismissal or discharge of a workman can be justified by leading evidence before the Labour Court.

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Dakshin Haryana Bijli Vitran Nigam Ltd.. v. Navigant Technologies Pvt. Ltd., 2021 SCC OnLine SC 157 ,

The bench of Indu Malhotra and Ajay Rastogi, JJ were posed with the question as to whether the period of limitation for filing the Petition under Section 34 of the Arbitration and Conciliation Act, 1996 would commence from the date on which the draft award is circulated to the parties, or the date on which the signed copy of the award is provided. Going with the latter, the Court held that the period of limitation for filing objections would have to be reckoned from the date on which the signed copy of the award was made available to the parties.

“There is only one date recognised by law i.e. the date on which a signed copy of the final award is received by the parties, from which the period of limitation for filing objections would start ticking. There can be no finality in the award, except after it is signed, because signing of the award gives legal effect and finality to the award.”

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National Co-operative Development Corporation v. Commissioner of Income Tax, 2020 SCC OnLine SC 733

The bench of SK Kaul and Indu Malhotra, JJ recommended the Central Government to consider the efficacy of the advance tax ruling system and make it more comprehensive as a tool for settlement of disputes rather than battling it through different tiers, whether private or public sectors are involved. It suggested that a council for Advance Tax Ruling based on the Swedish Model and the New Zealand System may be a possible way forward.

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Priti Saraf v. State of NCT of Delhi, 2021 SCC OnLine SC 206

Answering the “hotly debated” question as to in what circumstances and categories of cases, a criminal proceeding may be quashed either in exercise of the extraordinary powers of the High Court under Article 226 of the Constitution, or in the exercise of the inherent powers of the High Court under Section 482 CrPC, the bench of Indu Malhotra and Ajay Rastogi, JJ held that in the matter of exercise of inherent power by the High Court, the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the Court.

…the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarkingto scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception.”

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BSNL v. Nortel Network India Pvt. Ltd, 2021 SCC OnLine SC 207

In this significant ruling, the bench of Indu Malhotra and Ajay Rastogi, JJ., held that the period of limitation for filing an application under Section 11 of the Arbitration and Conciliation Act, 1996 would be governed by Article 137 of the First Schedule of the Limitation Act, 1963. Hence, the period of limitation will begin to run from the date when there is failure to appoint the arbitrator. Furthermore, in rare and exceptional cases, where the claims are ex facie time-barred and it is manifest that there is no subsisting dispute, the Court may refuse to make the reference.

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N. Patil v. K. Niranjan Kumar, 2021 SCC OnLine SC 172

In a case where the Karnataka High Court summarily reversed the judgment of the Trial Court without assigning any reasons, the bench of Indu Malhotra and Ajay Rastogi, JJ., held that though it is not necessary to record elaborate reasons in every case, the Courts should do so in order to facilitate the superior Courts to understand what weighed in with the Court to reverse the finding of the lower court.

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Asha John Divianathan v. Vikram Malhotra, 2021 SCC OnLine SC 147,

The 3-judge bench of AM Khanwilkar, Indu Malhotra and Ajay Rastogi held that the condition predicated in Section 31 of the Foreign Exchange Regulation Act, 1973 of obtaining “previous” general or special permission of the RBI for transfer or disposal of immovable property situated in India by sale or mortgage by a person, who is not a citizen of India, is mandatory.

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Sudipta Chakrobarty v. Ranaghta SD Hospital, 2021 SCC OnLine SC 107

After the Court noticed that, in a case, where the National Consumer Disputes Redressal Commission (NCDRC) had passed the reasoned order 8 months after the pronouncement of the operative order, the bench of Indu Malhotra and Ajay Rastogi, JJ has asked the President of the NCDRC into the matter, and take necessary steps so that this practice is discontinued, and the reasoned Judgment is passed along with the operative order. The Court also observed that in all matters where reasons are yet to be delivered, it must be ensured that the same are made available to the litigating parties positively within a period of two months.

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Federation of Bank of India Staff Unions v. Union of India, (2019) 4 SCC 462

The bench of Abhay Manohar Sapre and Indu Malhotra, JJ., held that there cannot be a uniform qualification or/and disqualification for the Board of Directors under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970.

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Management of the Barara Cooperative Marketing­cum Processing Society Ltd v. Workman Pratap Singh, (2019) 2 SCC 743

In the matter where an illegally terminated workman had sought reinstatement claiming preference over other persons being a “retrenched workman” as per Section 25(H) of the Industrial Disputes Act, 1947 (ID Act), the bench of Abhay Manohar Sapre and Indu Malhotra, JJ., held that it was not a case of a retrenchment of the respondent from service as contemplated under Section 25(H) of the ID Act as the workman had already accepted the compensation awarded to him in lieu of his illegal termination.

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Notable dissents

Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State of Kerala, (2019) 11 SCC 1

The 5-Judge Constitution Bench, by a majority of 4:1, held that not allowing entry to women of the age group of 10 to 50 years in the Sabarimala Temple is unconstitutional. The only lady Judge on the Bench, Justice Indu Malhotra, rendered a dissenting opinion. Justice Malhotra was of the view that the right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the petitioner’s personal rights to worship in the Temple have been violated. She noted that the petitioners herein did not claim to be devotees of the Sabarimala Temple and the absence of this bare minimum requirement must not be viewed as a mere technicality, but an essential requirement to maintain a challenge for impugning practices of any religious sect, or denomination. She observed that-

“Judicial review of religious practices ought not to be undertaken, as the Court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practise one’s religion according to one’s faith and beliefs. It would amount to rationalising religion, faith and beliefs, which is outside the ken of courts. Constitutional morality in a pluralistic society and secular polity would reflect that the followers of various sects have the freedom to practise their faith in accordance with the tenets of their religion. It is irrelevant whether the practice is rational or logical. Notions of rationality cannot be invoked in matters of religion by courts”.

Read more

♦Did You Know? Justice Indu Malhotra recused herself from hearing a batch of appeals and cross-appeals challenging a Bombay High Court order on possession, storage and consumption of beef brought into Maharashtra from other States, as she had earlier appeared as a lawyer in the case.


Considered by her peers to be ‘one of the best’, Justice Indu Malhotra, despite coming from a family of lawyers, carved her own niche in the legal field. During her exemplary and expansive legal tenure, Justice Malhotra shattered the proverbial glass ceiling on every step. Her drive and success in the legal echelons will forever be cherished and will serve as a beacon for future aspirants.


†Editorial Assistant, EBC Publishing Pvt. Ltd. 

[1] News 18, Meet Indu Malhotra

[2] Supreme Court of India, Chief Justices and Judges

[3] Indian Express, Who is Indu Malhotra

[4] Supreme Court of India, Chief Justices and Judges

[5] See also Binu Tamta v. High Court of Delhi, (2014) 13 SCC 257

[6] See also Business Standard, Need for professionalism in Arbitration.

[7] The Hindu, Who is Indu Malhotra

[8] Save Life Foundation v. Union of India, (2016) 7 SCC 203

[9] The Print, Indu Malhotra- India’s 7th Woman SC Judge

[10] Hindustan Times, Indu Malhotra takes oath as SC Judge

Armed Forces Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal: The Division Bench of Justice S.V.S. Rathore (Chairperson) and Air Marshal BBP Sinha (Member) A, partly allowed the instant application challenging the promotion and retirement policies of the IAF.

The applicants, in this case, had been promoted as Group Captain (Time Scale) and had retired on specific orders of respondents at the age of 54 years instead of 57 years of age i.e. the specified age of retirement for Group Captain Rank. Retirement age in Armed Forces is linked to last rank held and hence missing on promotions automatically results in relatively early retirement. The Armed Forces also have a system whereby if an officer misses his first merit-based promotion, in three consecutive promotion boards, then he is given a time scale promotion, after completing certain specified years of service. This discriminatory policy of retiring Group Captain (Time Scale) at the age of 54 years was challenged in AFT (PB) New Delhi, whereby the Tribunal vide its order dated 02-05-2013 quashed the discriminatory policy and ruled that for the purpose of retirement, Group Captain (Time Scale) and Group Captain (Select) are ‘one and the same’ rank and therefore Group Captains (Time Scale) are entitled to retire at the age of 57 years. This decision was further upheld by the Supreme Court vide its judgment dated 24-09-2014.

Counsel for the applicants, Abhishek R Shukla argued that there was gross negligence by the respondents in correcting their mistake and not passing the due benefits to the applicants despite their discriminatory retirement policy being set aside by AFT (PB) and the same being upheld by the Supreme Court. It was further stated that the respondents had unfairly decided to extend the benefits of the Supreme Court order only to those who have retired on or after 02-05-2013.

To ascertain whether the applicants deserve condonation of delay, the Bench relied on Union of India v. Tarsem Singh, (2008) 8 SCC 648, where the Supreme Court had held, Normally, a belated service related claim will be rejected on the ground of delay and laches or limitation. One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy.”

The Bench observed that pension revision of Armed Forces personnel is primarily based on twin factors of last rank held and total years of service rendered, therefore these applicants would continue to suffer financial losses in future after every pension revision due to OROP revision and new Pay Commission revisions. Thus, it was found out that the instant case was a case of continuing wrong because it was related to pension of the applicants. Considering the above mentioned, the Bench reached to the conclusion that ends of justice would be met if the applicants would be provided relief on all issues related to their pension.

However, it was ordered that, since other retirement benefits did not fall in the category of continuing wrong, the same should be treated as final and should not be reopened. The retirement of the applicants at the age of 54 years was set aside and the applicants were held entitled to notional service for additional three years till they attain the age of 57 years. The respondents were directed to conclude the matter within four months failing which a simple interest at 8 per cent per annum from the due date till the date of actual payment was levied. [Vijay Suman Sharma v. Union of India, 2019 SCC OnLine AFT 4563, decided on 29-07-2019]

Armed Forces Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (AFT): The Division Bench of Justice Umesh Chandra Srivastava (Chairperson) and Vice Admiral Abhay Raghunath Karve (Member) allowed an application for disability pension filed under Section 14 of the Armed Forces Tribunal Act, 2007.

The applicant was enrolled in Army on 28-02-1994 and was discharged on 29-02-2016 in Low Medical Category on completion of service limits under Rule 13 (3) Item III (i) of the Army Rules, 1954. The Release Medical Board (RMB) assessed his disabilities (i) Obesity (E-66) at 5% for life, (ii) Type II Diabetes Mellitus (E-11) at 20% for life, (iii) Dyslipidemia (E-78.0) at 5% for life and (iv) ACL Tear Complete (RT) OPTD (S-83.5) at 20% for life, composite at 40% for life and opined the disabilities to be neither attributable to nor aggravated (NANA) by service. The applicant approached the respondents for grant of disability pension but the same was rejected.

The questions before the Tribunal were of two-fold:

(a) Whether the disabilities of the applicant were attributable to or aggravated by Military Service?

(b) Whether the applicant was entitled to the benefit of rounding off the disability pension?

The Tribunal, while relying on Dharamvir Singh v. Union of India, (2013) 7 SCC 316, held that reasoning of RMB for denying disability pension stating that injury (i) to (iii) were lifestyle disease and injury (iv) occurred when the applicant was on leave, was not convincing and did not reflect the complete truth on the matter. Since, injury (i) to (iii) started after the applicant had served 20 years of service the benefit of the doubt should be given to the applicant and second and third disabilities of the applicant should be considered as aggravated by military service. Regarding injury (iv), the Tribunal observed that applicant suffered an injury while going to join on permanent posting, hence, it should be treated to have causal connection with military service and the same should be considered attributable to or aggravated by military service.

On the point of rounding off of disability pension, the Tribunal cited Union of India v. Ram Avtar, 2014 SCC OnLine SC 1761, wherein the Supreme Court held that, “an individual, who has retired on attaining the age of superannuation or on completion of his tenure of engagement, if found to be suffering from some disability which is attributable to or aggravated by the military service, is entitled to be granted the benefit of rounding off of disability pension.”

In view of the above, the Tribunal set aside the impugned order holding that benefit of rounding off of disability pension at 40% for life should be rounded off to 50% for life and be extended to the applicant from the date of his discharge. The disabilities of the applicant were held as aggravated by Service and the respondents were directed to comply with the order within a period of four months from the date of receipt of a certified copy of this order. Further, the interest of 9% per annum was awarded for default till actual payment. [Krishna Kumar v. Union of India, O.A. No. 14 of 2019, decided on 09-12-2020]

Case BriefsHigh Courts

Allahabad High Court: While deciding the petition in favour of the petitioner, Manish Kumar, J., prohibited the U.P. Government from adjusting the excess payment against gratuity.

The facts of the case are that the present petition had been filed by the petitioner for quashing the impugned order of District Development Officer, Sultanpur dated 21-01-2016 directing Senior Treasurer, Sultanpur to recover/adjust the excess payment made to the petitioner amounting to Rs 2,48,673 from his gratuity.

The petitioner retired from a Class III post on 31-01-2015. Vide order dated 31-1-2012 his grade pay was upgraded w.e.f. 01-12-2008 in pursuance of the Government orders at that point in time and the petitioner drew the increased grade pay till the date of his retirement.

Counsel for the petitioner, Vyas Narayan Shukla has contended that post one year of the petitioner’s retirement, the impugned order was passed in breach of the principles of natural justice as the petitioner was not served with any show cause, nor did he get any opportunity of hearing prior to the passing of the impugned order.

The State counsel argued that the impugned order has been passed in pursuance of the order dated 04-09-2013 passed by the Commissioner, Rural Development, Lucknow, U.P., wherein, the sanction of upgraded grade pay to the petitioner was held to be in contravention of relevant Government provisions, ordering the recovery of excess amount from the petitioner. The counsel for the respondent also exhibited a Request dated 06-07-2015 by the petitioner for fixation of his grade pay and sanction of pension after the necessary deduction of excess amount.

Upon careful examination of the facts, circumstances and arguments, the Court observed that the Commissioner was reticent about the manner in which relevant Government orders were transgressed.

The Court also remarked that even though the petitioner retired on 31-01-2015, his terminal benefits were withheld for a period of seven months, landing him in a predicament. It is clear that unpleasant treatment was meted out to the petitioner, exploiting his vulnerability thus compelling him into making the aforementioned request. Additionally, no person in his right frame of mind would go out of the way to give his assent for such an act of recovery.

Petitioner’s counsel cited the case of State of Punjab v. Rafiq Masih, (2015) 4 SCC 334 and the Court relied on the same while delivering the judgment in the present matter. The case lays down the circumstances under which recovery from retired employees is not permitted. The relevant para is quoted below for reference:

“18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

  • Recovery from employees belonging to Class-III and Class-IV service (or Group ‘C’ and Group ‘D’ service).
  • Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
  • Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
  • Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
  • In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover.”

Later, the Court while rendering the judgment held that the recovery via deduction from gratuity has been approved and executed in ignorance of the Payment of Gratuity Act, 1972 declaring the order dated 21-01-2016 as untenable. The respondents were directed to release the amount of Rs 2,48,673 along with an interest of 7% to the petitioner, calculated w.e.f. 31-01-2015 till the date of actual payment. Also, payment was to be effectuated within three months of service of a copy of the order.

In view of the above, the petition was allowed without costs.[Kapil Dev Chaturvedi v. State Of U.P, 2020 SCC OnLine All 933, decided on 24-07-2020]

Op EdsOP. ED.

Partnership

1. Section 4 of the Partnership Act, 1932[1] (“the Act”) defines ‘partnership’ as a relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. It further goes on to explain that the persons who have entered into partnership with one another are called individually ‘partners’ and collectively ‘a firm’, and the name under which their business is carried on is called the ‘firm name’.

2. The essence of the above definition is that a partnership is an agreement to share profits of a business, and the business should be carried on by all or any one of them acting for all.

3. The essential features of a partnership are:

  • partnership is the result of an agreement;
  • it is organised to carry on a business;
  • persons concerned agree to share the profits of the business; and
  • business is to be carried on by all or any one of them acting for all.

4. The Supreme Court in Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. K. Kelukutty[2], has elucidated the essentials of a partnership as:

“11. The  Partnership Act, 1932 has, by Section 4, defined a “partnership” as “the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting “for all”. The section declares further that the persons who have entered into partnership with one another are called individually “partners” and collectively “a firm”. The components of the definition of “partnership”, and therefore of “a firm” consist of (a) persons, (b) a business carried on by all of them or any of them q acting for all and (c) an agreement between those persons to carry on such business and to share its profits. It is the relationship between those persons which constitutes the partnership. The relation is founded in the agreement between them. The foundation of a partnership and, therefore, of a firm is a partnership agreement. A partnership agreement is the source of a partnership; it also gives expression to the other ingredients defining the partnership, specifying the business agreed to be carried on, the persons who will actually carry on the business, the shares in which the profits will be divided, and the several other considerations which constitute such an organic relationship. It is permissible to say that a partnership agreement creates and defines the relation of partnership and therefore identifies the firm.”

5. Section 6 of the Act states that while determining whether a group of persons is a firm or not, or whether a person is a partner in the firm or not, regard shall be given to the real relation between the parties, as shown by all the relevant facts taken together. In Laxmibai Roshan Lal[3],  the Rajasthan High Court held that a contract merely to take a share of profits, or giving a loan to a person engaged in any trade, upon a contract with such person that the latter shall receive interest along with share of the profits does not necessarily lead to an inference of partnership.

Therefore, as a general principle in determining the existence of a partnership, one must not merely see that the conditions of Section 4 are satisfied, but also whether in substance or in essence a partnership was intended.

Retirement of a Partner

6. Section 32 of the Act deals with the retirement of a partner as under:

“(1) A partner may retire,

  • with the consent of all the other partners,
  • in accordance with an express agreement by the partners, or
  • where the partnership is at will, by giving notice in writing to all the other partners of his intention to retire.

(2) A retiring partner may be discharged from any liability to any third party for acts of the firm done before his retirement by an agreement made by him with such third party and the partners of the reconstituted firm, and such agreement may be implied by a course of dealing between such third party and the reconstituted firm after he had knowledge of the retirement.

(3) Notwithstanding the retirement of a partner from a firm, he and the partners continue to be liable as partners to third parties for any act done by any of them which would have been an act of the firm if done before the retirement, until public notice is given of the retirement:

Provided that a retired partner is not liable to any third party who deals with the firm without knowing that he was a partner.

(4) Notices under sub-section (3) may be given by the retired partner or by any partner of the reconstituted firm.”

The word ‘retire’ in the said section is confined to cases where a partner withdraws from the firm and the remaining partners continue to carry on the business without dissolution as between them. It does not cover a case where a partner withdraws from the firm by dissolution and not by retirement.

Sub-section (2) of the said section states that a partner may be discharged from any liability to any third party for acts of the firm, before his retirement, by an agreement made by him with such third party and partners of reconstituted firm, and such agreement may be implied by course of dealing between such third party and reconstituted firm after he had knowledge of retirement. Further, sub-section (3) lays down that notwithstanding retirement of a partner, he and the other partners continue to be liable to third parties for any acts done by any of them which would have been act of the firm if done before retirement until public notice of the retirement is given. However, the retired partner shall not be liable to third party who deals with the firm without knowledge that he was a partner.

Dissolution of a Firm

7. Section 39 of the Act defines dissolution as the dissolution of partnership between all the partners of a firm. As per the said definition, a firm is said to be dissolved only when all and every one of the members of the firm cease to carry on its business in partnership with each other.

8. The question whether there has been a dissolution of the firm and or upon such dissolution a new firm has succeeded to the business of the old firm, is a question which can be ascertained from the facts and circumstances and documents available. The Supreme Court in Commissioner of Income Tax, West Bengal-III v. Pigot Champan & Company[4], has held that the question whether there has been a dissolution of the firm and upon such dissolution a new firm has succeeded to the business of the old firm is a question which depends upon the intention of the parties to be gathered from the document or documents, if any, executed by and between the partners and other facts and surrounding circumstances of the case.

Retirement and Dissolution

9. Retirement of a partner from a firm is not equivalent to dissolution of the firm, though if one partner retires in a partnership consisting of two partners, it shall amount to dissolution of the firm. But when a partner retires from a partnership consisting of more than two partners, the partnership is not automatically dissolved. It shall depend upon terms of partnership governing the parties.

  • The Supreme Court in Commissioner of Income Tax, West Bengal v. A.W. Figgies & Co.[5] has explained the provisions of retirement of a partner as:

“9. It is true that under the law of partnership a firm has no legal existence apart from its partners and it is merely a compendious name to describe its partners but it is also equally true that under that law there is no dissolution of the firm by the mere incoming or outgoing of partners. A partner can retire with the consent of the other partners and a person can be introduced in the partnership by the consent of the other partners. The reconstituted firm can carry on its business in the same firm’s name till dissolution. The law with respect to retiring partners as enacted in the Partnership Act is to a certain extent a compromise between the strict doctrine of English common law which refuses to see anything in the firm but a collective name for individuals carrying on business in partnership and the mercantile usage which recognises the firm as a distinct person or quasi corporation.”

 So, the retirement of a partner from a firm does not dissolve the firm, but merely severs the partnership between retiring partners and continuing partners, leaving the partnership among continuing partners unaffected.

  • The distinction between retirement and dissolution has also been highlighted by the Calcutta High Court in Sohanlal Pachisia & Co. v. Bilasray Khemani[6] as:

“31. But it is clear from Section 32 of the Partnership Act read with the relevant sections in Chapter VI of the said Act that by mere retirement of a partner, a firm is not dissolved but the retiring partner must give notice of his intention to dissolve the firm in order to bring about a dissolution…”

  •  The above distinction has been further elucidated by the Supreme Court in Pamuru Vishnu Vinodh Reddy v. Chillakuru Chandrasekhara Reddy[7], as under:

“Use of the word ‘retire’ in Section 32 of the Act is confined to cases where a partner withdraws from a firm and the remaining partners continue to carry on the business of the firm without dissolution of partnership as between them. Where a partner withdraws from a firm by dissolving it, it shall be dissolution and not the retirement. Retirement of a partner from a firm does not dissolve it, in other words it does not determine partnership inter se between all the partners. It only severs the partnership between the retiring partner and continuing partners, leaving the partnership amongst latter unaffected and the firm continues with the changed constitution comprising of the continuing partners. Section 32 provides for retirement of a partner but there is no express provision in the Act for the separation of his share and the intention appears to be that it would be determined by agreement between the parties…”

  •  Most recently, the Supreme Court in Guru Nanak Industries, Faridabad Amar Singh[8], also explained the distinction between ‘retirement of partner’ and ‘dissolution of partnership firm’, observing as under:

“13. There is a clear distinction between ‘retirement of a partner’ and ‘dissolution of a partnership firm’. On retirement of the partner, the reconstituted firm continues and the retiring partner is to be paid his dues in terms of Section 37 of the Partnership Act. In case of dissolution, accounts have to be settled and distributed as per the mode prescribed in Section 48 of the Partnership Act. When the partners agree to dissolve a partnership, it is a case of dissolution and not retirement…. In the present case, there being only two partners, the partnership firm could not have continued to carry on business as the firm. A partnership firm must have at least two partners. When there are only two partners and one has agreed to retire, then the retirement amounts to dissolution of the firm.”


*Advocate and a qualified Chartered Accountant.  Author  is currently a Senior Associate in the Dispute Resolution Practice at L&L Partners Law Offices, New Delhi. Author’s views are personal.

[1] Partnership Act, 1932

[2] (1985) 4 SCC 35

[3] 1971 SCC OnLine Raj 38

[4] (1982) 2 SCC 330

[5] 1954 SCR 171 

[6]  1953 SCC OnLine Cal 98

[7] (2003) 3 SCC 445

[8] 2020 SCC OnLine SC 469

Know thy Judge

Hon’ble Mrs. Justice R. Banumathi born on 20-07-1955 was the sixth woman to be a Judge of the Supreme Court of India and on her last working day as the Supreme Court Judge, we remember her contributions to the Judicial system and to the society.

A brief background on Justice Banumathi’s journey to becoming the 6th woman judge of the Highest Court of the Country:

  • Originally from Tamil Nadu, Justice Banumathi enrolled as an advocate in 1981 and practiced on Civil and Criminal sides in Tirupattur and District Court, Krishnagiri, Harur and moffusil courts.
  • entered Tamil Nadu Higher Judicial Service in 1988 as a direct recruit ‘District Judge’ and worked as District and Sessions Judge in Coimbatore, Vellore and Principal District and Sessions Judge, Pudukottai, Madras, Tirunelveli and Salem.
  • also worked as Chief Metropolitan Magistrate, Madras and as a District Judge dealt with number of landmark cases and also led One-Man Commission on Police Excess by STF in Chinnampathy village, Coimbatore District in 1995-1996.
  • was elevated as Judge, High Court, Madras on 03-04-2003. She was Executive Chairman of the Tamil Nadu State Legal Services with effect from 15-07-2013; Chairman of Madras High Court Legal Services Committee from 21-02-2011 to 20-01-2012 and was actively involved in Legal Services and organizing Lok Adalats.
  • was appointed as the Chief Justice of Jharkhand High Court on 16-11-2013.
  • was elevated as a Judge of the Supreme Court of India on 13-08-2014
  • also became the second woman after Justice Ruma Pal to be a part of the Supreme Court collegiums in the last thirteen years.

Did you know?

Justice R. Banumathi has always been interested in continuing judicial education for Judicial Officers and strengthening Judicial Systems, she has organized various training and induction programmes for different judicial batches from time to time along with authoring “Hand Book of Civil and Criminal Courts Management and use of Computers” for guidance of judicial officers and staff members.

Some of her notable judgments include:

  • Muniasamythevar v. Dy. Superintendent Of Police [2006 SCC OnLine Mad 306] where she held that that all types of Jallikattu, bullock cart races and oxen races causing cruelty to animals must be banned by the Tamil Nadu government. She further directed the state police to ensure prevention of cruelty to animals under the guise of such entertainments.
  • Modern Dental College & Research Centre v. State of M.P. [(2016) 7 SCC 353] where she authored the concurring opinion in the five-judge Bench judgment The judgment ruled in favour of the Madhya Pradesh Government, holding that regulation of private unaided colleges does not necessarily violate the fundamental right to free occupation under Article 19(1)(g). The Act under challenge prescribes for a compulsory State administered common entrance exam, fee fixation and reservations. The petitioners had argued that this amounted to excessive State interference in an autonomous private educational institution. She further observed that as providing education is positive duty of the State, it has an obligation to regulate private institutions to ensure they are providing quality education.
  • Mukesh v. State (NCT of Delhi) [(2017) 6 SCC 1] famously known as the “Nirbhaya Judgment” she had authored a separate concurring opinion which prescribed the death penalty for the accused. She stated that the accused’s actions fell within the ‘rarest of rare’ category.
  • Bir Singh v. Delhi Jal Board [(2018) 10 SCC 312] where the majority had held that candidates from all States and Union lists could apply to the Delhi Jal Board, as it was administered by the Union. Justice Banumathi dissented, distinguishing between posts for which recruitment was carried out by the Union government and those for which it was carried out by the NCT. She observed that for posts where the recruitment was done by a Union Territory (or the NCT), only SC/STs specified the Presidential Order for that territory may apply.
  • Chief Information Commissioner v. High Court of Gujarat [2020 SCC OnLine SC 285] Recently in a significant ruling on the applicability of the Right to Information Act, 2005 to the courts, she held that the Act cannot override the Gujarat High Court rules, in so far as requesting pleadings is concerned she further reasoned that that as the current High Court rules already have a system for obtaining pleadings, citizens cannot rely on the RTI Act to request them. The judgment is likely to set the precedent for all other High Courts and the Supreme Court itself.

It’s not easy being a successful representative and in 69 years of the Supreme Court of India, Justice Banumathi has been one of the 6 women judges giving remarkable judgments and pouring her wisdom for others to follow.

COVID 19Legislation UpdatesNotifications

In view of the unprecedented situation arising out of country-wide lockdown declared by the Government consequent to the outbreak of COVID-19, it is clarified that the central Government employees who are attaining the age of superannuation on 31st March, 2020 in terms of Fundamental Rule 56 and due to retire, shall retire from Central Government service on 31st March, 2020, irrespective of whether they are working from home or working from office.


Ministry of Personnel, Public Grievances & Pensions

[Press Release dt. 31-03-2020]

[Source: PIB]