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”.

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♦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

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]

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]

Case BriefsSupreme Court

Supreme Court: In a case where the 3-judge bench of Arun Mishra, BR Gavai and MR Shah, JJ was hearing a reference in a plea of SBI employees seeking pension on completion of 15 years of service as per the State Bank of India Voluntary Retirement Scheme, it was held that the employees who completed 15 years of service or more as on cut­off date are entitled to proportionate pension under SBI VRS to be computed as per SBI Pension Fund Rules.

Refraining from burdening the bank with interest, the bench directed,

“Let the benefits be extended to all such similar employees retired under VRS on completion of 15 years of service without requiring them to rush to the court.”

Factual Background

  • After obtaining approval of the Government of India, the Indian Bank Association (IBA) evolved a Voluntary Retirement Scheme. The Central Board of Directors of SBI adopted and approved the scheme in its meeting held on 27.12.2000 for implementing the VRS for the employees of the bank by retiring them on completion of 15 years of service with the benefit provided in the scheme. The heart and soul of the scheme were that benefits to be given on completion of 15 years of service. The eligibility for benefits was provided to those who had completed 15 years of service as on 31.12.2000.
  • The SBI submitted that it reserved a right under the scheme to modify, amend or cancel it or any of the clauses and to give effect to it from any date deemed fit. The Deputy Managing Director­cum­CDO was the competent authority for the purpose.
  • As specific queries were raised, a clarification was issued by the Deputy Managing Director on 15.1.2001, stating that as per the existing rules, employees who had not completed 20 years of pensionable service, were not eligible for pension.
  • The respondent before the Supreme Court questioned the refusal of the bank to pay pension. He retired on 31.3.2001 under the SBI VRS. On 18.3.2001, the bank accepted the offer of the employee to retire him voluntarily. He was aged 59 years three months and had nine months service still to go before attaining the age of superannuation. On 31.3.2001, when the VRS became effective, he had put in 19 years, nine months, and 18 days of pensionable service. He had to retire on completion of 60 years and would have put in a little more than 20 years of pensionable service.

Taking note of the facts, the Court noticed that once the Central Board of Directors accepted the memorandum for making payment of pension, in case it was not accepting the proposal in the memorandum, it ought to have said clearly that it was not ready to accept the proposals of the Government and the IBA and rejects the same. Once it approved the proposals referred to in the memorandum, which were on the basis of IBA’s letter and Government of India’s decision it was bound to implement it in true letter and spirit cannot invalidate its own decision by relying on fact it failed to amend the rule, whereas other Banks did it later on with retrospective effect.

“They cannot invalidate otherwise valid decision by virtue of exclusive superior power to amend or not to amend the rule and act unfairly and make the entire contract unreasonable based on misrepresentation.”

It further said that while construing a contract, the language and surrounding circumstances of the overall scheme, memorandum and letters are to be read conjointly to find out whether any departure made by the Board of Directors in its Resolution dated 27.12.2000 is of pivotal significance. In this case, the decision was taken by it of approval of the IBA scheme as proposed. Its binding effect cannot be changed on the basis what parties choose to say afterward, nor they can   be permitted to wriggle out. The contract is required to be read as a whole. It is apparent on a bare reading that optees will be eligible for proportionate pension under the Pension Regulations of the bank and therefore, the bank bears the risk of lack of clarity, if any.

 “It was not the provision in the VRS scheme that incumbents having completed 20 years of service would be entitled for pensionary benefits. The scheme was carved out specially for attracting the employees by providing pension and other benefits to eligible persons like ex gratia, gratuity, pension and leave encashment. Deprivation of pension would make them ineligible for the benefits and would run repugnant to the eligibility clause.”

The Court concluded by saying that the basic framework of socialism is to provide security in the fall of life to the working people and especially provides security from the cradle to the grave when employees have rendered service in heydays of life, they cannot be destituted in old age, by taking action in an arbitrary manner and for omission to complete obligation assured one. Though there cannot be estoppel against the law but when a bank had the power to amend it, it cannot take shelter of its own inaction and SBI ought to have followed the pursuit of other banks and was required to act in a similar fair manner having accepted the scheme.

[Assistant General Manager, State Bank of India v. Radhey Shyam Pandey, 2020 SCC OnLine SC 253, decided on 02.03.2020]

Case BriefsHigh Courts

Meghalaya High Court: H.S. Thangkhiew, J.  directed respondents 1 and 2 to substitute the name of petitioner in place of the deceased wife and directed them to communicate the same with respondent 3 for issuance of authorization for payment of pension.

The deceased husband of the petitioner worked as havaldar under respondent 2 and retired from service. After the death of his first wife, he married the petitioner, and out of the wedlock a female child was born. Thereafter the deceased employee had filed a representation to the authorities for the inclusion of the name of the petitioner and the child for the benefit of pension, but the said representation was not replied leading to the filing of a Writ Petition for necessary directions. However, during the pendency of the writ petition, he expired, after which the said writ petition was withdrawn and petitioner being lawfully wedded wife filed this petition.

Learned counsel of the petitioner S. Bhattacharjee, submitted that the petitioner should not be denied the pension as of Note (2) of Rule 48 of the Meghalaya Civil Services (Pension) Rules, 1983, permits post-retiral spouses and children born/adopted legally after retirement to be eligible for family pension. She further submitted that respondents had admitted the request of family pension and had informed the Accountant General.

Learned Additional Senior GA appearing on behalf of respondents 1 & 2 did not refute the submissions. He further referred to the letter issued by the Office of the Accountant General, wherein it was stated that change of nomination for family pension the deceased would depend upon the orders passed by this Court.

As there was no dispute regarding the marital status of the petitioner with regards to the deceased employee, it was directed that the name of the deceased wife be substituted with the name of the petitioner and same to be communicated to respondent 3 for issuance of authorization for payment of pension. The name of the child out of the said wedlock was also to be inserted.[Marcyana N. Marak v. State of Meghalaya, 2019 SCC OnLine Megh 89, decided on 15-05-2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: A Full Bench of Manzoor Ahmad Malik, Sardar Tariq Masood and Syed Mansoor Ali Shah, JJ. allowed a petition to charge Standard(Penal) Rent against unauthorized retention of government accommodation.

In the concerned case, the respondent filed a petition before the Federal Service Tribunal (FST) on 10-07-2006 before his retirement on 09-10 2006 praying that he should be allowed to retain the official accommodation after his retirement. He submitted that as his pension, GP Fund and other dues had not been paid, he was not in a position to rent a new house and, therefore, requested to retain the official accommodation in question for a period of six months. The Tribunal issued a stay order in the case and it was listed for final hearing in 2010 almost after 3 years. Till that time, the respondent continued to live in the official accommodation and then withdrew his petition before the date of final judgment. As regards to the decision of penal rent for the term extending 6 months, the Tribunal observed that the respondent was not liable to pay Penal Rent but only the regular rent as his was living in the official accommodation due to the stay order granted by the Tribunal. Aggrieved by the judgment of the Tribunal, an application has been filed in the Supreme Court.

Learned counsel for the applicant Mr Izharhul Haq contended that there is a clear abuse of power and process in the present case. The respondent had lived in the official accommodation for more than six months and was hence, liable to pay Penal rent for a term exceeding 6 months. He further said that the respondent had no convincing argument and kept hiding behind the stay order granted by the Tribunal. He also submitted that the petition of respondent in the Tribunal was not even maintainable in terms of Article 212(3) of the Constitution as it does not raise any substantial question of law of public importance.

Learned counsel for the respondent Mr Hafiz Tariq Nasim said before the Court that the respondent was only living in the official accommodation in light of the stay order which was granted by the Tribunal. The respondent had no intention to defeat the provisions of any law.

The Court after listening to both the parties observed that as per Article 212(3) of the Constitution of Islamic Republic of Pakistan, the jurisdiction of Supreme Court can be invoked only if the Court is satisfied that the case involves a substantial question of law of public importance. It is to be seen that whether the question of law transcends the facts of the individual case and is substantial enough to have a significant bearing on the public interest. Thus, the remedy under Article 212(3) is not an appeal in the ordinary sense of the word but is a unique constitutional jurisdiction that is to be exercised if the question of law raised before the Court impinges on the rights of the public or a segment of public or a community of civil servants.

The question as to whether a civil servant can unauthorizedly retain official accommodation beyond a period of six months without paying penal rent requires interpretation of the Accommodation Allocation Rules, 2002; and thus the same constitutes a substantial question of law of public importance because the decision by this Court would affect all those civil servants who are subject to the said Rules.

The Court opined that as per the rules, the respondent could have retained official accommodation after his retirement only for a period of six months and thereafter he was liable to pay standard rent for the remaining period. The stay order granted by the Tribunal was insignificant in the instant case as it was not decided on merits and was finally withdrawn by the respondent, resulting in the withdrawal of the stay order, as if it never existed. For the above reasons this appeal was allowed and order passed by the Tribunal was set aside. Appellant Department was entitled to recover Standard Rent from the respondent.[Secretary Revenue Division, Islamabad v. Iftikhar Ahmed Tabassam, 2019 SCC OnLine Pak SC 5, decided on 21-03-2019]

Know thy Judge

Justice Dr Arjan Kumar Sikri’s remarkable tenure of around 6 years ends as a Supreme Court Judge today i.e. 06-03-2019.

“Education took us from thumb impression to signature; Technology has taken us from signature to thumb impression, again” – Justice Sikri (Aadhaar Judgment)”

Justice Dr Arjan Kumar Sikri commonly known as the “Professor Judge” because of his spectacular academic record was born on 07-03-1954.

“Be patient. There is no limit, and work hard. Don’t think you can achieve name and fame in a day.”*

-Justice Dr A.K. Sikri

With an excellent academic record, he stood third in the merit list in Higher Secondary from CBSE, Delhi, following which he completed his B.Com (Hons.) from Shriram College of Commerce, Delhi University in the year 1974 and LL.B. from Law Faculty, Delhi University in the year 1977.

Strokes of Genius

He was awarded Gold Medal for attaining first position in LL.B. Awarded special prize for getting highest marks in Constitutional Law I & II. During his LL.M. from Delhi University, he was ranked first in 3-Year course. Acquired the position of president of Campus Law Centre, Delhi University during 1976-1977 and was also a member of Academic Council of Delhi University for the same duration along with being a member in various other committees of Delhi University.

Early Life as an Advocate

Justice Sikri had enrolled as an Advocate in July, 1977 with Bar Council of Delhi and started practicing in Delhi. Conducted cases of all types with specialization in Constitutional cases, Labour – Service Matters and Arbitration Matters. He was also a part-time lecturer at Campus Law Centre, Delhi University (1984-89). He was also the Vice-President, Delhi High Court Bar Association during 1994-1995. Following which he was designated as a Senior Advocate by Delhi High Court on 30-09-1997.

Journey of a “Judge” with the belief of – Sensitization of Judges to have speedy justice

The impeccable journey of Justice Sikri started with him being appointed as a Delhi High Court Judge on 7-07-1999. As a Judge, he dealt with all kinds of jurisdictions and gave many landmark judgments.

He was chosen as one of the 50 most influential persons in Intellectual Property in the world in a survey conducted by Managing Intellectual Property Association (MIPA) for the year 2007.

He achieved another milestone by being appointed as an Acting Chief Justice of Delhi High Court on  10-10-2011 and was elevated as the Chief Justice of Punjab and Haryana High Court on 23-09-2012.

Odyssey of the Illustrious Personality of Justice Dr A.K. Sikri

On 12-04-2013, A.K. Sikri was elevated to the Supreme Court of India.

Has been conferred Doctorate of Laws, Honoris Causa, by Dr Ram Manohar Lohiya National Law University, Lucknow, in November 2013.

As a Judge of the Supreme Court of India, Justice Sikri has been a part of more than 900 judgments from which several turned out to be landmark ones.

Some of the Judgments of which Dr A.K. Sikri was a part of and would always be used in common parlance are as follows:

Aadhaar Verdict | Aadhaar here to stay; K.S. Puttaswamy v. Union of India (Aadhaar-5 Judge) (2019) 1 SCC 1

“Better be unique than being best; Aadhaar means unique”

Passive Euthanasia is permissible; Human beings have a fundamental right to die; Common Cause v. Union of India2018 SCC OnLine SC 208

“It is an undisputed that Doctors’ primary duty is to provide treatment and save life but not in the case when a person has already expressed his desire of not being subjected to any kind of treatment. It is a common law right of people, of any civilized country, to refuse unwanted medical treatment and no person can force him/her to take any medical treatment which the person does not desire to continue with”

Only “green” fireworks permitted to be manufactured and sold: SC; Arjun Gopal v. Union of India 2018 SCC OnLine SC 2118

“directions to be followed for burning of crackers while refusing the complete ban on the sale of firecrackers as it may lead to extreme economic hardships”

Karnataka Elections: KG Bopaiah to continue to be pro-tem speaker; SC orders Live broadcast of Floor Test;

“Live broadcast of Floor Test would be the best way to ensure transparency of proceedings.”

Motilal Pesticides overruled as it missed the difference in the terms ‘Income’ and ‘Gross Total Income’; Vijay Industries v. CIT, 2019 SCC OnLine SC 299

“Reading of Section 80HH along with Section 80A would clearly signify that such a deduction has to be of gross profits and gains, i.e., before computing the income as specified in Sections 30 to 43D of the Act.”

Delhi v. Centre: Powers demarcated; Split verdict on power to transfer and appoint officers; State (NCT of Delhi) v. Union of India, 2019 SCC OnLine SC 193

Maharashtra Dance Bar law; Indian Hotel and Restaurant Assn. v. State of Maharashtra2019 SCC OnLine SC 41

Amend S. 80DD of IT Act to give benefit to disabled persons even during the lifetime of guardian: SC to Centre; Ravi Agrawal v. Union of India2019 SCC OnLine SC 5

“Where guardian has become very old but is still alive, though he is not able to earn any longer or he may be a person who was in service and has retired from the said service and is not having any source of income. In such cases, it may be difficult for such a parent/guardian to take care of the medical needs of his/her disabled child. Even when he/she has paid full premium, the handicapped person is not able to receive any annuity only because the parent/guardian of such handicapped person is still alive.”

In a recent judgment of the Supreme Court [Dnyaneshwar Suresh Borkar v. State of Maharashtra; 2019 SCC OnLine SC 304]in the case of a murder convict, of which Justice Sikri was a part; the Court took note of a very rare thing that “that, from the poems, written by him in the jail, it appears that he has realised his mistake which was committed by him at the time when he was of young age and that he is reformative; therefore the appellant can be reformed and rehabilitated.” and refused to place this case in “rarest of rare category”.

Ideology | Keyword to success: Hard Work

On analysing few of Justice Sikri’s interviews his only mantra to the student’s pursuing law was summed up in three stages as mentioned:

Three stages in a lawyer’s career – First: Work, work and no money; Second: money commensurate to the work; and finally, little work and a lot of money.

“While the human in law is important, humane in law is indispensable.”

-Justice Dr A.K. Sikri

How far that little candle throws his beams! So shines a good deed in a weary world”, this quote by William Shakespeare is apt, to sum up, the momentous journey of Justice Dr Arjan Kumar Sikri.


*https://lawschoolpolicyreview.com/2018/08/15/drawing-the-line-lspr-in-conversation-with-honble-justice-a-k-sikri/

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (AFT): The bench of Sunita Gupta, Member (J), Lt Gen Philip Campose, Member (A), allowed an application praying for revision of pension in accordance with the last rank held before retirement.

In the pertinent matter, the applicant in pursuance of the circular by the Government of India (GoI) approached the Tribunal, wherein the circular clarified that, 10 months continuous service in the last rank held is not required for grant of pension in such rank. They relied on Thiagrajan v. Union of India, O.A. No. 93 of 2014, where the ten months were waived-off and the Tribunal opined that “pension cannot be deprived to an individual to a rank for which he has already rendered his service and that the applicant has earned his pension in the rank of JWO already, and therefore, is entitled to be paid pension in the rank of JWO. Even if, for some reason, such a pension is found to be less, the applicant is entitled to receive the highest pension he earned already...

The respondent conceded that the requirement of holding the last rank of 10 months before retirement has been dispensed with in keeping with the circular and further contended that they are correct in giving pension to the applicants on the lower rank as it is financially more beneficial.

The Tribunal held that the argument of the respondents, where a junior promoted to a senior rank should be pegged at a pension of his last but one rank, is fallacious, while placing reliance on D.S. Nakara v. Union of India, 1983 (1) SCC 305. Further on the method of calculating the exact pension, relied on the explanation in P. Gopalakrishnan v. Union of India, the complete import and implication of Circular 430 dated 02-02-2009 Regulations for the Air Force Part 1, Ministry of Defence (MoD) letter dated 07-06-1999 and came to the conclusion that “the basis of calculation being pursued in the instant case was detrimental for the pension of petitioner..”. And it further directed the respondents to calculate the pension based on the last held rank by him before retirement and arrears to be paid accordingly.[Dhanushkodi Rajarajan v. Union of India, 2019 SCC OnLine AFT 4, Order dated 20-02-2019]

Case BriefsHigh Courts

Jharkhand High Court: A Single Judge Bench of Pramath Patnaik, J., dismissed a writ petition filed by the petitioner, whereby he sought directions upon the respondent to grant him promotions and benefits of Assured Career Progression as had been granted to one of his colleagues Akhouri Shrawan Prasad. 

The main issue that arose before the Court was whether the respondent authorities were liable for discriminating the petitioner with his colleagues.

The Court observed that the petitioner and the employee with whom the petitioner is claiming discrimination had joined the services in the same year. The petitioner was concerned with the fact that Mr Shrawan had been granted more promotions, however from the record it was crystal clear that the petitioner was granted promotion to Selection Grade Assistant and given the post of Head Assistant before the said Mr Akhouri Shrawan Prasad and even on the date of retirement, the basic salary of the petitioner was higher than that of Mr Akhouri Shrawan Prasad. Further, it was observed that promotion cannot be claimed as a matter of right, rather only consideration for promotion to a particular post can be asserted as a right. 

The Court held that the petitioner was duly considered for promotions time and again during the course of his service and he had failed to establish that the respondent authorities had ever deprived him of his right to be considered for promotion to a particular post. Resultantly, the petition was dismissed being devoid of merits.[Hira Lal Ram v. State of Jharkhand,2018 SCC OnLine Jhar 1550, order dated 05-11-2018]

Case BriefsSupreme Court

Supreme Court: The Bench of A.K. Sikri and Ashok Bhushan, JJ. allowed a writ petition filed by Presiding Officers of the Debt Recovery Tribunal seeking benefit of the amended Section 6 of the Recovery of Debts and Bankruptcy Act, 1993.

The unamended Section 6 of the Act, under which petitioners terms of service were governed, provided that such person shall remain in service till completion of 5 years in service or till attaining the age the 62, whichever is earlier. The petitioners had attained the of 62 but the five year period had not completed. The said section was substituted in 2016. The new section, which was to take effect prospectively, provided the age of retirement as 65 years apart from the five-year clause. The question for consideration before the Court was whether the petitioners would be governed by the unamended section or the substituted section. In other words, were the petitioners to retire at the age of 62 or could they continue till 65.

The Supreme Court gave due consideration to the submission made by the parties. It perused the object behind the amendment which was to reduce the pendency of cases by increasing the retiring age of Presiding Officers. Furthermore, the Court observed, wherever the word substitute or substitution is used by the legislature, it has the effect of deleting the old provision and make the new provision operative. Thus, the effect of amendment was to make the old provision non-existent from the date of such enforcement. The Court was of the view that examined in the above-mentioned perspective, the question of prospective or retrospective operation does not arise. Thus, it was held that the petitioners, who were serving at the time of enforcement of amended Section 6 would be given benefit of the same. The petitioners were allowed to continue in service till completion of five years or till attaining the age of 65, whichever is earlier. The petition was allowed. [Gottumukkala Venkata Krishamraju v. Union of India,2018 SCC OnLine SC 1386, decided on 07-09-2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Instant Letters Patent Appeal was filed before a 2-Judge Bench comprising of Dhiraj Singh Thakur and Sanjay Kumar Gupta, JJ., where appellant’s plea to remain in the accommodation even after retirement which was allotted during his service was rejected.

Appellant was granted three months after retirement to use the accommodation but he failed to show any provision under which he could be allowed to stay in the premise even after retirement. A communication between Deputy Director of Estates (A-II), Government of India, and one Deep Kumar was referred where Deep Kumar was given permission to live in the premise after retirement and an order was given to use the accommodation until finalization and implementation of the policy with regard to the accommodation of migrants from the Kashmir Valley. Appellant contended that the said policy has not been finalized and thus he can hold the premise till its finalization.

The High Court was of the view that appellant’s accommodation cannot be extended as other employees who are in service would require the said accommodation. Since appellant was also unable to show why he should be allowed to live in the said premise the appeal was dismissed. [Piaray Lal Koul v. Union of India,2018 SCC OnLine J&K 568, order dated 06-08-2018]

Case BriefsHigh Courts

Manipur High Court: A Single Judge Bench comprising of Kh. Nobin Singh, J. allowed a writ petition filed by a retired public servant challenging the notice of enquiry issued against him under Rule 9(7) of the Manipur Public Servants’ Personal Liability Rules, 2006.

The petitioner had retired from the post of Head Clerk in the Department of Minorities and Other Backward Classes. After a gap of six years from the date of his retirement, the Deputy Secretary (Finance/PIC), Government of Manipur issued a notice against him under the rule mentioned above. It was issued in contemplation of an enquiry to be held against him for his irregularity of action as a public servant. Being aggrieved by the said notice, the petitioner filed the instant petition. The ground being, inter alia, that since he had already retired from service, the provisions of Manipur Public Servants’ Personal Liability Act, 2006 would not apply to him.

The question for consideration before the High Court was ‘whether the provisions of the Act will apply to a retired employee or not?’. It was noted by the Court that the main object and reason behind enactment of the Act is the recovery of Government money misappropriated by a public servant. The Court perused Section 2(g) [which defines public servant]  and Section 4 [which provides for liability for irregular action of public servant]; and observed that the retired employee is nowhere referred to in those sections. If the Act was intended to apply to retired employees also, nothing prevented the State Government from including it in the Act. After retirement, the employee is no longer a public servant for all practical purposes. The Court was of the view that the notice impugned was issued without jurisdiction and was liable to be quashed and set aside. The writ petition was accordingly allowed. [B. Malsawma v. State of Manipur,2018 SCC OnLine Mani 86, dated 10-08-2018]

Case BriefsHigh Courts

Rajasthan High Court: A Single Judge Bench comprising of Arun Bhansali, J. declined to interfere with the transfer order of the petitioner which was challenged by him in the instant writ petition.

The petitioner worked as an Assistant Engineer in Drilling Division at Udaipur. He was transferred to the post of Assistant Engineer in Sub-Division at Buran. The petitioner laid threefold contention challenging his transfer order which were however dismissed by the High Court. The contentions as put forth by the petitioner and repelled by the High Court were as follows:

Contention: The petitioner held charge of nine sanctioned posts of Assistant Engineer in Udaipur Drilling Division. His transfer would render the Division without officer. Held: The Court repelled the contention observing that according to the respondents, the petitioner was transferred in the interest of government for administrative reasons. Further, one Vikram Singh Gurjar had already been posted to Udaipur awaiting posting order.

Contention: The petitioner all along worked in the Drilling Division and now his transfer in the Sub-Division was not justified. Held: The aspect of the petitioner having all along worked in the Drilling Division by itself could not be a reason to affect validity of transfer especially when he was eligible to be appointed in the Sub-Division.

Contention: The petitioner’s retirement was due in 2020 and his transfer at the far end of his career was not justified. Held: This ground could not invalidate the impugned order as in the cases of administrative exigencies; an officer can be transferred even when he is nearing retirement.

In light of the above, the High Court held that the impugned order did not call for any interference. [Niranjan Sharma v. State of Rajasthan, 2018 SCC OnLine Raj 1282, dated 21-5-2018]