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]

Supreme Court

Supreme Court: Dealing with the question as to whether departmental proceeding can be initiated against an employee after his retirement from service on attainment of the age of superannuation for a charge sheet issued to him at the time of his employment, the bench of J.S. Khehar and Arun Mishra, JJ. held that correct interpretation of Rule 10(1); of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 reveals that the departmental proceeding can be initiated against an employee on account of “grave misconduct or negligence”, even if there is no pecuniary loss to the Government.

The Counsel for the respondent contended that the departmental proceedings for the charge sheet issued to him during his term of employment with regard to disproportionate assets cannot be initiated after his retirement from the Service. The West Bengal Administrative Tribunal directed the enquiry authority to dispose of the pending department proceeding. Aggrieved with the order of the Tribunal, the respondent approached the High Court of Calcutta, which interpreted Rule 10(1); of the 1971 Rules and concluded that departmental proceeding could be initiated after the employee’s retirement only when there is pecuniary loss to the State Government.

Holding that the High Court erred in the interpretation of Rule 10 (1); of the 1971 Rules, the Court set aside the impugned order passed by the High Court and affirmed the order passed by the Administrative Tribunal. The Court concluded that “grave misconduct or negligence” on the part of employee is sufficient to further proceed departmental enquiry against him and that pecuniary loss to the Government is not necessary. State of West Bengal v. Pronab Chakraborty, 2014 SCC OnLine SC 835, decided on October 15, 2014.