Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Vipin Sanghi, C.J. and Ramesh Chandra Khulbe, J., allowed this writ petition imposing a stay, for a day, on Government order banning animal slaughter in Haridwar district.

This writ petition was moved by one Faisal Hussain as an intervener and pleaded to allow slaughter of animals in the legally permitted slaughterhouses which already existed in the Manglaur[1] Municipality area as the festival of Eid- al- Adha (‘Bakra – Eid’) is about to be celebrated on 10-07-2022.

The intervener contended that in the town of Manglaur, there are 87% Muslims. The effect of the Government order dated 03-03-2021 was that when the festival of Bakra Eid was celebrated, animals were sacrificed in the streets. Apart from this, an abattoir, a slaughtering house, has already been constructed under the Public-Private Partnership Model with all requisite permissions. It was also stated that these legally approved slaughterhouses were not operational because of the blanket ban imposed by Government order dated 03-03-2021 restraining slaughter of animals in entire Haridwar district.

The Court allowed animal slaughter on the upcoming Bakra Eid on 10-07-2022, because it is an essential religious practice in Islam.

The Court directed interveners to ensure that no sacrifice should be made within the compound of an abattoir, and not outside their residences.

The Court also directed the Municipal Board, Manglaur, District Haridwar, to make necessary arrangements at the abattoir on Bakra Eid on 10-07-2022.

[Iftakhar v. State of Uttarakhand, (PIL) No.44 of 2021, decided on 07-07-2022]

[1] Ed. Note: The Judgment of the Court mentions ‘Mangalore’ which falls in the State of Karnataka. However, we have corrected the same to ‘Manglaur’ which is a town Haridwar District in the State of Uttarakhand.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Ravindra Maithani, J. allowed an appeal against an order of the Trial Court which convicted a man of raping a girl and thereby ordered that the man be released from jail forthwith.

The facts stated by the prosecution were that the prosecutrix left her house to get some goods from the market but did not return. She returned on the next day. She told that the appellant, accompanied by the co-accused Rajat enticed her in Scooty. The appellant then took her to his Aunt’s house. He made her drink beer and, in the night, forcibly raped her and threatened her to life if she reveals it to anyone. A case was registered under the POCSO Act, 2012 and under Sections 363, 376 and 506 IPC. Upon further investigation, age of the prosecutrix was ascertained to be above 18 years and the complaint under the POCSO Act, 2012 was dropped.

In order to establish the offence, it must be proved that the act was done without the ‘consent’ of the prosecutrix. The Court referred to the case of Satpal Singh v. State of Haryana, (2010) 8 SCC 714, which stated-

“30. An act of helplessness in the face of inevitable compulsions is not consent in law. More so, it is not necessary that there should be actual use of force. A threat of use of force is sufficient.”

Also, it is well laid down that where the sexual intercourse by the accused is proved and the woman states before the court that she did not consent, the court shall presume that the woman did not consent.

However, the Court opined that conviction cannot be based on the statement of the prosecutrix alone unless it qualifies the parameters of reliability, credibility and truthfulness.

The Court noted the following points to come to the conclusion that the prosecutrix gave her consent to the act:

  • At the first instance, why did the prosecutrix joined the company of the appellant and Rajat. If Rajat wanted to speak to her and she was not willing for it, she would have simply denied it.
  • According to the prosecutrix, she was in the market. She was not all alone. Instead of Rajat raising alarm, why the prosecutrix did not raise alarm? Why did she join the appellant and the co-accused? In her cross examination, the prosecutrix has categorically stated that she did not raise any alarm.
  • In her statement, the prosecutrix categorically tells that on mutual consent she had gone Pauri. She also bought a beer for herself on the way. It means she was not forced to go to Pauri by the appellant.
  • The room in which the prosecutrix was sleeping in was bolted in from the inside. The appellant called her 2:30 in the night. But she did not inform about it to anyone instead she silently unbolted the door and sneaked into the kitchen suggesting that she was a consenting party. This belies her statement that she was raped forcefully.
  • In her statement, she told that after the incident, she slept quietly. She did not tell about it to anyone in the house she was staying on the next day also.

In view of the above arguments, the Court was of the view that the prosecution could not establish the offence under Section 375 IPC since the act was with the free and voluntary consent of the prosecutrix. The Court further ordered that the appellant be released from jail. [Sanjay Semwal v. State of Uttarakhand, Criminal Appeal No. 265 of 2021, decided on 11-11-2021]

Advocates before the Court:

For Appellant: Mr V.B.S. Negi, Senior Advocate, assisted by Ms Prabha Naithani

For State: Mr Lalit Miglani, A.G.A.

Appointments & TransfersNews

Supreme Court Collegium has recommended the elevation of the following Chief Justice / Judge of the High Courts, as Judges in the Supreme Court:

1. Mr Justice Sudhanshu Dhulia, Chief Justice, Gauhati High Court, (PHC: Uttarakhand); and

2. Mr Justice J.B. Pardiwala, Judge, Gujarat High Court

Supreme Court Collegium

[Statement dt. 5-5-2022]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of S.K. Mishra and A.K. Verma, JJ., dismissed the appeal for acquittal considering it to be devoid of substantial and compelling reasons.

An application for grant of leave to appeal against the order of acquittal was rendered by the Court of Sessions Judge, Pithoragarh, Camp Didihat in Session Trial 11 of 2015 dated 21-08-2021.

The view of Ghurey Lal v. State of U.P., (2008) 10 SCC 450 was also considered. There have to be very substantial and compelling reasons for setting aside a judgment of acquittal, as the presumption of innocence becomes stronger by acquittal of the respondent, i.e. the accused, by the Trial Court. It was also decided that, while appreciating evidence, merely because the Appellate Court has a different opinion, the

Appeal cannot be allowed.

Court also took note of the judgment in State of Orissa v. Urmila Nayak, CRLLP 103 of 2015, in which S.K. Mishra, A.C.J. had opined that Court must be satisfied about the existence of, prima facie, compelling and substantial reasons.

The Court held that in the present case, there were no, prima facie, ‘substantial and compelling reasons’, to come to the conclusion that the matter should be heard, the impugned judgment should be re-examined or examined by the Appellate Court in an Appeal against acquittal.[State of Uttarakhand v. Ganesh Ram, 2022 SCC OnLine Utt 160, decided on 08-03-2022]

Counsel for the appellant: Mr. J.S. Virk, Deputy Advocate General assisted by Mr Rakesh Joshi, Brief Holder for the State of Uttarakhand.

Counsel for the respondent: None

Suchita Shukla, Editorial Assistant has reported this brief.

Uttarakhand High Court
Appointments & TransfersNews

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

Ministry of Law and Justice

[Notification dt. 22-12-2021]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Emphasizing on the purpose and object of Section 9 of the Arbitration and Conciliation Act, 1996, Division bench of Raghvendra Singh Chauhan, CJ and Alok Kumar Verma, J., held that,

A person not a party to an arbitration agreement cannot invoke jurisdiction of the Court for interim relief under Section 9 of the Act, 1996.

Instant appeal was filed under Section 37 of the Arbitration and Conciliation Act, 1996 against the decision of Additional District Judge, whereby the application under Section 9 of the Act, 1996 filed by the appellants was dismissed on the ground that the appellants neither made out a prima facie case nor was the balance of convenience in their favour nor they would suffer any irreparable loss in the event of being denied injunction because the appellants were not “partners” in the light of the arbitration clause.

Question for Consideration:

Whether the appellants have a right to claim the said reliefs under Section 9 of the Act, 1996?

Analysis, Law and Decision

High Court expressed that a partnership business is run in accordance with the terms of the contract of partners.

Whether a retired partner has right to affect the business of the partnership?

The relation between the partners is quasi fiduciary and is expressed in the maxim in societatis contractibus fides exuberet. The relation of the partners is based on mutual confidence, and it is the duty of the partners to one another and carry on the business of the firm to the greatest common advantage, to be just and faithful to each other and to render true accounts and full information of all things affecting the firm to any partner or his legal representative. Therefore, a retired partner has no right to affect the business of the partnership.

Further, the Bench did not accept the appellant’s contention that the “Partnership Deed-Retirement cum Admission Deed” is a void document and the said void document causes harm to the appellants, therefore, the appellants wanted to refer the matter, as a party to the said Deed, to the arbitration and for the interim measure, the appellants had filed the application under Section 9 of the Act, 1996.

Court gave the reasoning for the above that on one hand the said Deed was being called void by the appellants and on the other hand Clause 22 of the same Deed was being relied upon by them.

In Clause 22 of the said Deed, there was no provision to the effect that the retiring partners can invoke the said provision for the purpose of arbitration and, secondly, Section 31 of the Specific Relief Act, 1963 provides that only “court” has jurisdiction to cancel any void or voidable document.

Section 9 of the Act

Adding to the above analysis Court expressed that Section 9 of the Act, 1996 enables the parties to arbitral proceedings to obtain interim relief from a Court.

Section 9 entitles ‘any party’ to obtain interim relief from the court at three stages i.e.

(i) before the commencement of arbitral proceedings,

(ii) during the course of the arbitral proceedings, and

(iii) after the arbitral award is made but prior to its enforcement.

Further, the Court added that Section 9 of the Act, 1996 was enacted with the intention of preserving and protecting the subject matter of the arbitral proceedings, hence for invoking the jurisdiction of the Court under Section 9 of the Act, 1996 the person should be a party to an arbitration agreement.

Therefore, a person not a party to arbitration agreement cannot invoke jurisdiction of the Court for interim relief under Section 9 of the Act, 1996.

In the matter at present appellants were not “Partners” under the “Partnership Deed-Retirement cum Admission Deed”.

Hence the appellants were not parties to the arbitration agreement to invoke the arbitration clause leading to no prima facie case.

In view of the above, present appeal was dismissed. [Mohd Yusuf v. Ashish Aggarwal, 2021 SCC OnLine Utt 1274, decided on 10-11-2021]

Advocates before the Court:

For the Appellants:

Mr Arvind Vashisth, Senior Advocate assisted by Mr Kartikey Hari Gupta, learned counsel.

For respondent 1:

Mr Rakesh Thapliyal, Senior Advocate assisted by Mr Rajat Mittal, learned counsel.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Lok Pal Singh, J., allowed a petition which was filed mainly seeking a writ, order or direction directing the respondents to provide employment to the petitioner in terms of the agreement executed between their forefather and sugar factory.

At the time of establishment of the Kisan Sahkari Chinni Mill Ltd. some farmers provided their land for the Mill, in lieu whereof, they were given share in the respondent Mill as per the area of their land. Besides this, the land owners/shareholders and the respondent Mill were entered into an agreement whereby it was provided that on the basis of land provided, employment will be given to the farmer himself, his son/grandson as per their qualification in the factory.

The grievance of the petitioner was that he was the heir /member of one of such family whose land was acquired for the purpose of establishment of factory but he had been denied employment by the respondent.

Counter affidavit had been filed by the respondent 2 stating that as per the agreement executed between shareholder Chandan Singh and the respondent Mill, employment was provided to two grandsons of Late Shri Chandan Singh. Petitioner was great grandson of shareholder Shri Chandan Singh and was therefore not entitled to get the employment.

The fact that the land of the petitioner’s grandfather was taken for the establishment of the sugar mill was not disputed and no compensation was paid for the land acquired, instead a share certificate was issued to the land donor and a unilateral letter was written on behalf of the sugar mill which suggests that employment will be provided to the landowner, his son/grandson, as per their eligibility.

The Court noted that in the instant case, on the one hand, the petitioner had been deprived of the land, whereas on the other, he was being denied employment by the respondent. The respondent 2 Sugar Mill, which was an instrumentality of the State, should have considered the fact that the land owner who donated the land for establishment of sugar mill, their future generation should not be left starving. The interpretation of the agreement by the respondent to the effect that either the son or grandson will be provided employment was unsustainable in the eyes of law.

The Court allowed the petition and held that denial of employment to the petitioner by the respondent mill was arbitrary and illegal.[Shashikant Singh v. State of Uttarakhand, Writ Petition (S/S) No.862 of 2019, decided on 17-09-2020]

Suchita Shukla, Editorial Assistant has reported this brief.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of Manoj Kumar Tiwari and Alok Kumar Verma, JJ., heard and disposed of a petition which was filed seeking a direction to the State Government to hold promotion exercise for filling the post of Chief Engineer.

Petitioner was regularly promoted as Superintending Engineer and had completed more than four years of service as Superintending Engineer. Petitioner contended that there were four sanctioned posts of Chief Engineer in Uttarakhand and all of them were lying vacant since 2018, but, no promotion exercise had been initiated to supply these four vacancies.

Counsel for the petitioner pointed out that petitioner was due to retire in the month of October, 2021 and Regulation 14 of the Uttarakhand Peyjal Sansadhan Vikas Evam Nirman Nigam Engineering Service Regulations, 2012 stated that,

“14. Determination of vacancies. The appointing authority shall determine the number of vacancies to be filled during the course of the year of recruitment, as also the number of vacancies to be reserved for the candidate belonging to the Scheduled Castes, Scheduled Tribes and other categories to the State of Uttarakhand, under regulation.”

The Court noted that it was an admitted position that the post of Chief Engineer had to be filled 100% by promotion and direct recruitment was not permissible under the Rules. The Court was of the view that Since all the four posts of Chief Engineer are lying vacant since long, therefore, there appears to be inaction on the part of the competent authorities in initiating promotion exercise in terms of the provisions contained in Service Regulations. The Court also opined that right to promotion is not a vested right, however, right to be considered for promotion has been held to be a fundamental right.

The Court finally held that as petitioner was eligible for promotion to the post of Chief Engineer and all the posts of Chief Engineer were lying vacant since long and petitioner was also due to retire within next two months, therefore certain directions need to be issued:

  1. Secretary, Drinking Water and Sanitation Department, Uttarakhand shall constitute a Selection Committee and shall also place the service record, including ACRs of all eligible persons for promotion as Chief Engineer, before the Selection Committee, within ten days from the date of production of certified copy of this order.
  2. The Selection Committee shall consider the claim of all eligible persons as per the provisions contained in Service Regulations and prepare a final merit list within ten days thereafter.
  3. The merit list prepared by Selection Committee along with recommendation of the Selection Committee shall be sent to the Appointing Authority, within next one week and the Appointing Authority shall issue promotion order, within one week thereafter.

[Vinod Kumar Pant v. State of Uttarakhand,  2021 SCC OnLine Utt 991, decided on 23-08-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

For the petitioner: Mr Anil Kumar Joshi

For the respondent: Mr Pradeep Joshi and Mr Bhupendra Singh Bisht

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of Raghvendra Singh Chauhan, CJ. and Alok Kumar Verma, J., dealt with the petition which came up in pursuance to order dated 07-07-2021. All the affidavits submitted were taken on record.

It was informed to the Court that there were 8,590 Isolation Centres which have been established and that State Government had directed the district administration to analyze the influx of tourists during the weekends at the tourist spots in their respective districts, and to cap the number of persons permitted to visit such tourist destinations keeping in mind its capacity and its geographical conditions after the Court had directed in the previous order dated 12-07-2021. However the affidavit was silent with regard to the steps which were required to be taken by the police against the erring tourists.

Next affidavit dealt with the operationalisation of COVID Care Services for Children and Adolescents. According to the data, at the peak, there were about 10,000 cases which were reported in Uttarakhand. The total number of beds required for children at the peak of the surge would be 600; the total number of ward beds required for children would be 360; and the total number of High Dependency Unit (HDU)/Intensive Care Unit (ICU) beds required for children would be 240. It was informed to the Court that State was well-equipped to tackle any challenge that may come in its way in the wake of the third wave of COVID-19 pandemic. It was further informed that, presently, the number of COVID-19 cases in the State was on the decline.

In case of availability of Ambulances it was informed that there were 272 ambulances in the Dial-108 Emergency Service and out of those, 54 ambulances were Advanced Life Support (ALS) Ambulances, and the remaining 218 were the Basic Life Support (BLS) Ambulances in the State. State Government has already sent requisition and a proposal to the Central Government for buying 41 more ALS ambulances.

It was submitted that there were large number of vacancies in the cadre of Medical Officers and the selection process has already commenced; 451 Medical Officers have been selected, out of which 250 Medical Officers have already joined their duties.

In relation to availability of vaccines it was submitted that State has received three lakhs vaccines from the Central Government and State was well equipped to vaccinate its people.

The affidavit was silent about the any information relating to emergence of Delta variant in the State. It was brought to the notice of the Court that although the State Government had made a public announcement that it is increasing the stipend being paid to the intern Doctors, the matter relating to the amount to be paid to the intern Doctors was “still under consideration of the Government”.

It was further pointed out that despite the existence of the Uttarakhand Anti-Littering and Anti-Spitting Act, 2016, the said Act was not being implemented by the Nagar Palikas, the Municipal Corporations and the Municipalities for ensuring hygienic conditions of the towns and villages. It was further added that there is no incentive scheme launched by the State Government, which will applaud those entities, which continue to abide by the SOPs. Since, there is no encouragement or appreciation by the State Government of those entities, which do abide by the SOPs, such followers of SOPs are disheartened when they see others, who are going scot-free while they violate the SOPs.

The Court issued certain directions keeping in mind the above submissions:

(i) Mr. Amit Negi, the learned Secretary, Medical Health and Family Welfare, is directed to inform this Court with regard to :

 (a) the availability of paediatric ventilators and paediatric wards available in the Government Hospitals;

(b) with regard to the steps taken, if any, for filling up the vacancies of Staff Nurses, Lab Technicians, Female Health Workers (ANMs), and the present status of the selection process, if already initiated;

(c) with regard to either the presence, or the discovery of the Delta Plus variant in the State; and

(d) with regard to the 300 samples, which were sent to the NCDC lab at Noida, and whether any case of Delta Plus variant has been discovered in those 300 samples, or not? (ii) The State is directed to take a decision with regard to the increase in the stipend of the intern Doctors as expeditiously as possible, and preferably before the next date of this case. Moreover, the State is directed to ensure that the stipend is paid to the intern Doctors on time, rather than with delay.

(iii) The State is further directed to enforce the Uttarakhand Anti-Littering and AntiSpitting Act, 2016, and to issue the necessary directions for the implementation of the same for the benefit of the competent authorities under the Act.

(iv)The State is directed to initiate a campaign for removing any superstition, suspicion, or misinformation that people may have with regard to vaccination for COVID19. Simultaneously, the State is directed to increase the number of vaccinations being carried out throughout the State.

(v) The State is directed to instruct all the District Magistrates to discover the number of physically challenged persons within their jurisdiction, who may be unable to come to the “Near to Home Vaccination Centres”. As and when such persons are discovered by the District Magistrates, it shall be the duty of the concerned District Magistrate to ensure that those physically challenged persons, who cannot possibly leave their homes, are inoculated by the medical staff at their homes. The steps so taken by the District Magistrates shall be informed to this Court by the next date. Moreover, the District Magistrates are directed to ensure that in case any camps were to be held for the benefit of the physically challenged persons, the date, the time, and the place is informed well in advance to the community at large by the use of print and electronic media. The necessary arrangements at the camps should be made to ensure that comfortable accommodation is provided to the physically challenged persons, and their other needs such as food, water and availability of toilets are met by the Civil Administration, or by the Medical Health Department.

(vi) The State is also directed to reconsider its decision of withdrawing the 25% reservation of beds in the private Hospitals for the weaker sections of the society. Therefore, the State should reconsider whether it should withdraw the order dated 25.07.2021, or not?

(vii) Mr. Amit Negi, the learned Secretary, Medical Health and Family Welfare, and the State are directed to consider the Audit Report vis-à-vis the condition, the capacity, and the lack of infrastructure of the Ambulances, which are attached with the District Hospitals. Mr. Amit Negi should also inform this Court with regard to the steps taken for filling up the lacunae pointed out in the Audit Report by the next date.

The Counsel for the petitioner had filed an application wherein he had sought the continuation of the Stay Order dated 28-06-2021 passed by this Court, whereby this Court had stayed the opening of the Char Dham Yatra submitting that the stay was granted by this Court only for a period of four weeks, and since the said period of four weeks was over, the SLP filed by the State Government, against the said order, before the Hon’ble Supreme Court has become infructuous. He prayed that since the conditions continue to be as hazardous as ever, and considering the fact that even the Central Government and the ICMR are constantly speaking about ensuring that people do not congregate in large numbers for religious purposes the stay order must continue.

The Court directed that the ban on Char Dham Yatra would continue till the Supreme Court pronounces its judgment in the said SLP.

Matter to be taken up next on 18-08-2021.[Sachdanand Darbal v. Union of India, Writ Petition (PIL) No. 58 of 2020, decided on 28-07-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Ravindra Maithani, J., decided on a petition which was filed seeking transfer of investigation in the case arising out from FIR No. 261 of 2021, under Section 302 Penal Code, 1860, Police Station Haldwani, District Nainital from Police to Central Bureau of Investigation (“CBI”).

The petitioner, on 03-03-2021, had lodged a report under Sections 323, 504, 345 IPC and Section 9 read with 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) against her husband and pursuant to which he was arrested and lodged at Police Station. He was remanded to judicial custody on 05-03-2021 by the court of Additional District Judge/FTC/Special Judge, POCSO. On 06-03-2021, in the hospital of Sub-Jail, Haldwani, in its OPD register an entry was made that he suddenly fell down on the ground and he was referred to Base Hospital and later it was recorded that he was brought dead. His post mortem report suggested that there were ten injuries on his body which was not the case when he was taken into custody.

The petitioner was informed about the death but the reason for injury was not explained to her.

Petitioner thereafter moved an application to the Secretary, District Legal Services Authority (for short, “DLSA”), Nainital giving details as to how her husband died in judicial custody, who killed him and how the petitioner came to know about it. The Secretary, DLSA forwarded the application to SSP for taking necessary action at the earliest. Instead of lodging an FIR, the SSP, Nainital got an inquiry conducted by Circle Officer Police, Haldwani and thereafter, informed the Secretary, DLSA that since Magisterial inquiry is underway, any further action may be taken only after the perusal of the Magisterial inquiry.

The petitioner again approached the Magistrate of competent jurisdiction under Section 156 (3) of the Code of Criminal Procedure, 1973 and an order was passed, thereafter, FIR under Section 302 IPC at Police Station has been lodged against four named Guards of Sub-Jail, Haldwani. In this case, the petitioner seeks transfer of the investigation to CBI.

Advocate General argues that there is no provision of law that authorizes SSP to get an enquiry conducted by C.O. Haldwani. He further argued that investigation in accordance with law is underway, therefore, the Court should be slow in interfering at this stage and after the outcome of the investigation, if occasion arises, the matter may be considered.

The Court observed that the FIR in the instant case was lodged after directions under Section 156 (3) of the Code on 26.05.2021. More than 45 days after death of a person in judicial custody. How can a fair investigation be ensured?

Fair investigation and fair trial are necessary ingredients of right to life. It is true that a party may not choose investigating agency at the drop of a hat.

The Court in this aspect relied on the Supreme Court rulings of State of M.P. v. Shyamsunder Trivedi, (1995) 4 SCC 262, D.K. Basu v. State of West Bengal, (2015) 8 SCC 744, Sube Singh v. State of Haryana, (2006) 3 SCC 178, Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1 and Mehboob Batcha v. State, (2011) 7 SCC 45.

The Court stressed that it was needless to say that incidences of custodian violence and deaths have come up again and again for adjudication before the higher Courts.  The Court quoted the part of judgment in the case of Inhuman Conditions in 1382 Prisons, In Re., (2017) 10 SCC 658.

“Like most societies, we are not strangers to custodial violence and unnatural deaths but our vibrant democracy permits us to debate and discuss these issues with rational arguments. However, right sounding noises critical of custodial violence (in any form) cannot achieve any useful purpose unless persons in authority hear the voices of the victims or the silence of the dead and act on them by taking remedial steps. There must be a greater degree of sensitivity among those in authority with regard to persons in custody and it has been the endeavour of the constitutional courts in our country, over several decades, to consistently flag this issue.”

The Court relying on Dr Naresh Kumar Mangla v. Anita Agarwal, 2020 SCC OnLine SC 1031 stated that the power which is vested in the superior court to transfer the investigation to another agency, such as the CBI, must be wielded with caution.

The Court finally opined that the instant case was not an ordinary case. Allegations were of custodial death. Having considered the manner in which police proceeded in the case, the Court found that it is a case in which definitely investigation should be transferred to CBI. The Court further issued some directions:

  • Investigation in FIR No.261 of 2021 under Section 302 IPC, Police Station Haldwani, District Nainital be immediately transferred to S.P., Central Bureau of Investigation, Dehradun.
  • The Investigating Officer shall ensure that all the documents relating to investigation are handed over to S.P., CBI, Dehradun within a period of three days.
  • The named accused Devendra Prasad Yadav – Head Guard, Kriti Nainwal – Guard, Devendra Rawat – Guard, Harish Rawat – Guard, at Sub-Jail Haldwani be immediately transferred from Sub-Jail Haldwani to some place outside the district, so as to ensure fair investigation otherwise within those four walls of Sub-Jail Haldwani perhaps nobody would dare to speak the truth and only witness would be those stone walls which unfortunately cannot speak as to what had happened on 06.03.2021, which resulted in the death of deceased Pravesh Kumar.
  • SSP Nainital and CO Police Haldwani be considered for their transfer immediately from district Nainital.
  • Departmental action, as may be deemed appropriate, be considered to be taken against SSP Nainital who despite under legal obligation to lodge an FIR promptly did not lodge FIR and also without any authority under law directed an enquiry by CO Haldwani in a case of ‘custodial death’.

[Bharti v. State of Uttarakhand, 2021 SCC OnLine Utt 767, decided on 22-07-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Advocates before the Court:

Advocate for the petitioner: Mr Sanjay Kumar

Advocate for the respondent: Mr S.N. Babulkar, Advocate General

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of Raghvendra Singh Chauhan, CJ. and Alok Kumar Verma, J., decided on a petition which was in relation to the deprivation of salaries of the employees of Transport Corporation.

The Court on 29-06-2021 had issued an order asking the respondents to submit an affidavit regarding the same.

According to the said affidavit, Rs 23.00 crores were released to the Transport Corporation on 29-06-2021. Using the said amount, the salaries of the employees for the month of February, 2021, and the salaries of the “contractual employees” for the month of March, 2021 have been disbursed.

Dr. Ranjit Sinha (Transport Secretary) informed the Court that in the last meeting of the Board of Directors, a decision was taken to defer 50% of the employees’ salary for the coming months. The Court asked a pointed query to Dr. Sinha as to under what law, such a decision could be taken to defer the salaries of the employees? To this query, Dr. Sinha could not point out any provision of law that permits the Board of Directors to defer the salaries of its employees. The Court found it disturbing that a decision had been taken by the Board of Directors, which was per se contrary to and violative of Articles 21, 23 and 300A of the Constitution of India.

The Court questioned the Chief Secretary and the Transport secretary to explain as to why the State of Uttarakhand was not negotiating with the U.P. Government with regard to the amount owed by the U.P. Government to the Transport Corporation.

The Court was surprised to witness that the employee of the Transport Corporation continue to be denied their rightful monthly salaries. The Court considered the fact that these employees do not belong to the upper echelon of the Corporation, and were mere workers, as most of them happened to be drivers, conductors, and other employees, and that both the Corporation, and the State Government have abandoned them out in the cold.

The Court opined that deprivation of the salary was violative of Articles 21, 23 and 300-A of the Constitution of India. Thus, neither the Corporation nor the State Government can be permitted to deprive the employees of their rightful salaries, that too, month after month.

The Court also relied on the Supreme Court judgment in Kapila Hingorani v. State of Bihar, (2003) 6 SCC 1 where it was clearly held that the State cannot be permitted to violate the fundamental rights and the human rights of the employees. It cannot be permitted to hide behind the fig leaf to claim that the responsibility of paying the salaries of their employees is that of the Corporation, and not of the State Government. When such a contention was raised before the Apex Court, the Apex Court rejected the same. Therefore, it does not lie in the mouth of the State to claim that it will not rush to the rescue of the employees of the Corporation.

[Roadways Karamchari Sanyukt Parishad Uttarakhand v. State of Uttarakhand, WPSS No. 3735 of 2018, decided on 20-07-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Advocates before the Court:

Counsel for the petitioners: Mr M.C. Pant and Mr Shobhit Saharia

Counsel for the respondents: Mr S.N. Babulkar, Advocate General

Uttarakhand High Court
Case BriefsHigh Courts

 Uttaranchal High Court: The Division Bench of Raghvendra Singh Chauhan, CJ and Alok Kumar Verma, J., heard and issued directions in relation to the affidavit submitted in compliance with the order dated 28-06-2021.

Mr. Shiv Bhatt, the Counsel for the petitioner brought to the notice of this Court that certain guidelines have been issued by the Department of Health and Family Welfare. These guidelines were required to be strictly implemented by the State Governments and the Union Territories. The States were directed to have a continuous focus on five-fold strategies for effective management of Covid-19 i.e. tests-track treatment-vaccination, and adherence to Covid appropriate behavior. However, certain relaxations have been given, such as “the lockdown is not to be observed during the weekends”. The counsel stated that the moment the lockdown is relaxed, a large number of people are flooding in the hill stations of the State. Many of them are arriving within the State without the required registration, and without the required RT-PCR negative test reports. Therefore, these tourists, who are pouring in, are beginning to pose a threat both to the creation of the new mutant, and to the spread of Delta Plus mutant.

Mr Amit Negi, Secretary, Health and the Family Welfare, submitted that in total 521 samples have been sent to the NCDC from the State. Out of these, 144 samples have been found to be Covid19 positive, and belong to the Delta variant. A single sample, arising from the Udham Singh Nagar district, has been discovered to be as a Delta Plus variant sample. Therefore, Mr Shiv Bhatt submitted that a direction should be issued to the Government to review its decision with regard to relaxing the lockdown during the weekends; the State Government should also be directed to control the inflow of tourists into the State. He further conveyed his concerns regarding the poor healthcare system and vaccination.

The Court issued the following directions in light of the above-mentioned facts:

1. To review its decision to relax the lockdown during the weekends, and to permit a large number of tourists to invade the State during the said period. For, the tourists may bring in and introduce the dreaded Delta plus variant in the State.

2. The State is further directed to take concrete steps to control the inflow of tourists in the State. The steps, so taken by the State, should be informed to the public at large so that the potential tourists are informed about the steps being taken by the State.

3. This Court directs Mr. Amit Negi, the learned Secretary, Medical Health and Family Welfare, to inform this Court about the number of samples sent to the NCDC; about the reports received from the NCDC with regard to these samples; with regard to the steps taken, either by the District Magistrate, or by the Health Officers of the concerned district where anyone is found to be suffering from the Delta variant, or from the Delta plus variant.

4. Amit Negi is further directed to inform this Court with regard to the number of MRI machines available in the Government Hospitals of the State.

 a. Whether these MRI machines are available in all the Government Hospitals or not?

b. Which Government Hospitals of the State, the MRI machines are not available in the State?

c. Whether all the CHCs’ have doctors appointed in them or not?

d. A complete list of CHCs without doctors should be provided in the report.

5. Amit Negi is further directed to inform this Court with regard to the availability of the pediatric beds, pediatric ventilators, and pediatric wards in the Government Hospitals, and in the private hospitals operating in the State.

6. He is further directed to inform this Court with regard to the position of vaccination in the State. He shall inform this Court with regard to the number of innoculation carried out in each district of the State. How many persons have received the first doze? How many persons have received the second doze? What is the daily rate of vaccination in the State?

7. He is further directed to consider, and to implement the scheme for vaccinating the physically challenged and elderly people, as expeditiously as possible. In case, “near to home clinics” can be established, the possibility for the same should be explored by the State Government.

8.Amit Negi is further directed to consider the possibility of increasing the stipend being paid to the intern doctors. For, on the one hand, according to Mr. Amit Negi, it is difficult to attract the doctors to the State, yet, on the other hand, the stipend being paid to the intern doctors is too low as compared to the other States. Therefore, the State Government should consider the possibility of increasing the stipend of intern doctors within the State.

9. Lastly, Mr. S.S. Sandhu, the learned Chief Secretary is directed to inform this Court with regard to the decision, if any, taken by the State Government concerning tightening of the lockdown during the weekends in the State.

[SACHDANAND DABRAL v. UNION OF INDIA, 2021 SCC OnLine Utt 687, decided on 28-06-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of Ragvendra Singh Chauhan, CJ and Alok Kumar Verma, J., decided in the matter of a petition filed apprehending a threat to life and liberty.

The Petitioners had submitted that they had fallen in love with each other, both of them got married on 26-02-2021 as per the Muslim customs and rites and that their marriage was inter-faith. Both petitioners were found to be major. Respondents, the mother and father of petitioner 1 never accepted the marriage and threatened to kill them. The petitioner stated that they had filed a representation to the Senior Superintendent of Police for the protection of their lives and liberties but no action has been taken.

The Court concluded that since both the petitioners are major, they are free to choose their life partners, the respondent cannot be permitted to interfere with the fundamental rights of the petitioners. The Court directed the Station House Officer, Police Station Rudrapur to immediately provide police protection to both the petitioners. The Court added that “The protection shall not only be for their lives, but shall also extend to protecting their property, if any.”

[Noori Begum v. State of Uttarakhand, Writ Petition (Crl) No. 955 of 2021, decided on 22-06-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Uttarakhand High Court
Case BriefsCOVID 19High Courts

Uttaranchal High Court: The Division Bench of Raghvendra Singh Chauhan, CJ. and Alok Kumar Verma, J., have been hearing a series of petitions after a PIL which was filed on 03-05-2021 regarding the submission of a report with regard to the number of jails, the population of each jail in both the categories of under-trial prisoners and convicted prisoners, the number of the prisoners, who have come down with Covid19, the availability of the medical facilities for dealing with those, who are suffering from Covid-19, the number of staff, which is equally affected by Covid-19, the facilities available for quarantining the affected persons, the medical facilities available within the jail, the availability of oxygen tanks, oxygen beds and ventilators, if any, the availability of protective gears such as PPE kits, masks and gloves. The I.G. Prisons, was directed to be present before this Court on 06-05-2021.

On 06-05-2021 the I.G. prisons, informed the Court that there were 6,647 inmates, who were housed in different jails throughout the State out of which 4,474 were under-trials prisoners, while 2173 were convicted. He further furnished all the information sought to by the Court. He informed the Court in accordance with the directions of the Supreme Court in Suo Motu In RE: Contagion of Covid 19 Virus In Prisons, W.P. (C) No. 1 of 2020, a High Powered Committee was constituted by the Uttarakhand State Legal Services Authority by order dated 26-03-2020. The Court after perusing the information submitted had given certain direction:

  • The Jail Department and the Principal Secretary, Home / Prison, respondent no. 1, are directed to ensure that the number of the prisoners being inoculated is drastically increased. In fact, since most of the prisoners would be above the age of eighteen years, the inoculation of prisoners must be ensured by the State Government as expeditiously as possible, and preferably within one month from the date of this order.
  • When a prisoner is being released, he must be subjected to Rapid Antigen Test /RT-PCR test in order to ensure that he does not leave the jail premises as a Covid-19 positive case. For, there are great chances that such a prisoner, who is being released, may carry the virus with him, and may infect his family, in particular, and the society, in general.
  • The High Powered Committee is directed to convene its meeting within a period of two weeks, and to review the cases of under-trial prisoners and the case of those, who have been convicted for offences punishable for less than seven years. It shall make its recommendations within two weeks from its meeting, since there is a possibility that this pandemic may continue for many months to come and since there are reports which show that India may face the third wave of Covid-19, which may continue even in the next year. The High Powered Committee is directed to meet once every month, and to review the cases of the present inmates, and to make its necessary recommendations.
  • The learned I.G. Prison is directed to inform the Chairman, Bar Council of Uttarakhand about the existence of the “E-Mulakaat” portal. Furthermore, he is directed to ensure that sufficient hardware and software is available in the jails so as to permit the prisoners to converse with their counsel through the “EMulakaat” portal.
  • The learned counsel for the State is directed to file a detailed report with regard to the implementation of the directions issued by this Court within a period of three weeks.

The case was next heard on 14-06-2021.

As per the directions issued by the Court on 06-05-2021 a short counter-affidavit had been filed by I.G. Prisons, Uttarakhand according to which 2813 inmates have been vaccinated so far. It was informed that the remaining inmates shall be vaccinated in a systematic manner, and at a rapid speed. However, as the vaccines were not presently available, inoculation programme is progressing slowly. The Committee considered parole of 106 convicts, and interim bail application for 685 under-trial prisoners. Out of 106 convicts, 92 were granted parole by the Committee. With regard to the E-Mulakaat, the I.G. submitted that all the jail Superintendents have been directed to convene the Video Conferencing through E-Mulakat, or through any other portal.

The Court while disposing of the petition held that the directions issued by this Court had been duly complied with. Hence, no further direction needed to be issued by this Court.[Omveer Singh v. State of Uttarakhand, 2021 SCC OnLine Utt 561, decided on 14-06-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Counsel for the appellant: M. Ajay Veer Pundir

Counsel for respondent 1 & 3: Mr C.S. Rawat

Uttarakhand High Court
Appointments & TransfersNews

Appointment of Permanent Judge

President appoints Justice Alok Kumar Verma, Additional Judge of Uttaranchal High Court to be Judge of Uttaranchal High Court from the date he assumes charge of his office.


Justice Alok Kumar Verma — Born on 16-08-1964 in District Varanasi, Uttar Pradesh. Graduated from D.A.V. (P.G.) Degree College, Varanasi, Uttar Pradesh. He Did his LL.B. from Harish Chandra Postgraduate College in the year 1985 and joined Judicial Service of 1982 batch in Uttar Pradesh in the year 1987 and posted at Jhansi as Munsif [Civil Judge (Junior Division)].

He remained posted in various Districts in State of Uttar Pradesh. Opted for Judicial Service in the State of Uttaranchal (now Uttarakhand) after creation of State on 09-11-2000.

Remained posted as District Judge at Tehri Garhwal, Chamoli, Udham Singh Nagar and Dehradun. Also posted as Principal Secretary, Law-cum-L.R. to the Government of Uttarakhand.

Appointed as Additional Judge of High Court of Uttarakhand in pursuance of Notification No. K.13032/01/2019-US-I dated 22nd May, 2019 issued by the Department of Justice, Ministry of Law & Justice, Government of India and took oath of his office on 27th May, 2019 in the Forenoon.

Ministry of Law and Justice

[Notification dt. 24-05-2021]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Manoj Kumar Tiwari, J., partly allowed an appeal which was filed challenging an order passed by the State Information Commissioner by which a penalty of 25,000 had been imposed upon the petitioner for not providing timely information to respondent 2.

The application, under Section 6 (1) of the Right to Information Act, was made by respondent 2 to District Education Officer, who had referred the application to the petitioner for doing the needful. Petitioner had asked the Principal, Delhi Public School, Ranipur, to supply information; but, Principal, Delhi Public School had initially refused to supply the information on the ground that it is not bound to supply such information, however, subsequently, on petitioner’s persuasion, the desired information was supplied by the Principal, Delhi Public School to the petitioner which, in turn, was furnished to respondent 2.Fact of the matter was that the information was supplied to respondent 2 and the said penalty had been imposed on the ground that some delay was caused in supplying the desired information.

The court relied on the judgment of Public Prescribed Authority v. Uttarakhand State Information Commissioner, 2014 SCC OnLine Utt 2440 where it was held that,

            “A plain reading of Sub-Section 1 of Section 20 of the Act would reveal that penalty can be imposed for delayed information if delay was caused without any valid reason.

In the present case, explanation furnished by the petitioner before the Chief Information Commissioner was that concern file was not traceable in the department and same was got reconstructed later on and thereafter information was supplied to the applicant. Chief Information Commissioner has nowhere observed that explanation furnished by the petitioner is a mere eye-wash and is not reasonable.

In my considered opinion, if explanation for delayed information is reasonable and delay was caused due to valid reasons then penalty should not be imposed by invoking of Sub-Section 1 of Section 20. Therefore, impugned judgment does not sustain in the eyes of law. Consequently, writ petition is allowed. Impugned judgment dated 13.12.2011 is hereby quashed.”

The Court partly allowed the petition and held that penalty imposed upon the petitioner appeared to be unjust and uncalled for, setting aside the penalty.[Suman Agarwal v. State Information Commissioner, 2021 SCC OnLine Utt 297, decided on 08-03-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Gauhati High Court
Appointments & TransfersNews

President of India appointed Justice Sudhanshu Dhulia, Judge of the Uttarakhand High Court, as Chief Justice of the Gauhati High Court.

Justice Sudhanshu Dhulia was enrolled as an Advocate on July 07, 1986, and practiced in the Allahabad and Uttarakhand High Courts in Civil, Constitutional, Service, and Labour matters and has specialized in Service and Constitutional matters. He was appointed as Permanent Judge of the Uttarakhand High Court on November 1, 2008.

Ministry of Law and Justice

[Press Release dt. 07-01-2020]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Manoj K. Tiwari, J., dismissed a writ petition that was filed by the petitioner who was serving as Medical Officer in Community Health Centre. She had participated in NEET-PG for admission to Masters Degree Course in Medicine and according to her, she was entitled to admission against the P.G. seat in General Medicine Course in Government Medical College, Haldwani by virtue of more marks; but, the said seat had been wrongly allotted to respondent 5.

The counsel for respondent 2, Shailendra Nauriyal contended that since petitioner had not got herself registered with the Counseling Board for admission to P.G. Courses while respondent 5 had got herself registered, the petitioner’s claim could not be considered for admission during first counseling. He further submitted that the petitioner got herself registered with the Counseling Board for second counseling and, in second counseling; she has been allotted to a Pediatrician Course in Government Medical College.

The Court while dismissing the petition stated that Petitioner herself is to be blamed for not applying for registration at the relevant point of time. No one can claim to be given admission only in Government Medical Colleges, especially when common counseling is held for admission to Government as well as Private Medical Colleges and admission would be given as per score of marks in NEET-PG. [Sushmita Ringwal v. State of Uttaranchal, 2020 SCC OnLine Utt 495, decided on 18-08-2020]

Suchita Shukla, Editorial Assistant has put this story together

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: A Full-Bench of Ramesh Ranganathan CJ, Sudhanshu Dhulia and Alok Kumar Verma JJ, held that contractual state employees are also entitled to child care leave, and that its denial would mean the denial of the rights of a child.

The petitioner is a lady Ayurvedic doctor in Uttarakhand’s State Medical and Health Services, appointed on a contractual basis for one year which had been repeatedly renewed since her appointment in 2009. After her maternity leave, she did not rejoin service and instead claimed Child Care Leave (CCL), citing a 2015 Judgement by a division bench of the Uttaranchal High Court which allowed a contractual employee to get CCL for 730 days. Her application was rejected on the grounds of a 2011 Government Order which excluded contractual employees from availing CCL. A division bench referred the matter in the present case to a Full Bench, which had to decide whether CCL of 730 days could be granted to a contractual employee hired for only one year, and whether the High Court, exercising its jurisdiction under Article 226, could issue mandatory guidelines extending this benefit to contractual employees in the absence of any legislation in this regard.

Chief Standing Counsel for the State, Paresh Tripathi, contended that the petitioner was only entitled to a “fixed monthly honorarium,” and could claim CCL as a matter of right since she is not technically a government servant. He also argued that the petitioner is only relying upon Part IV of the Constitution i.e., the Directive Principles of State Policy, which are not enforceable. He rebutted claims of alleged violations of Articles 14 and 16, averring that regular and contractual employees form two different classes and their separation would fall under ‘reasonable classification’, and Article 21.

While acknowledging the recent worldwide emergence of the otherwise neglected concepts of maternity and child care leave, the Court stated that “the leave is not a recognition of the rights of a woman but it is more a recognition of the rights of a child.”

Bench took due cognizance of various Constitutional and statutory provisions, including Article 15(2) and several Articles under Part IV of the Constitution, which were enforced bearing the needs and rights of children in mind. It rejected the State’s argument that DPSPs are not enforceable, instead upholding their importance by citing Supreme Court judgments where the DPSPs were hailed as “fundamentals in the governance of the country.”

The Court opined that since no distinction is made between a regular and a contractual employee with respect to maternity leave, the same principle should be adopted while considering CCL as well. On the first issue, the Court held that a contractual employee employed for a year was also entitled to CCL, but not for 760 days. Rather, they can be granted paid CCL for 31 days on the same terms as “earned leave” given to other employees under the 2011 Government Order. With regard to the second issue, the Court stated that it has merely read the rights of a contractual employee into the 2011 Order, which have duly been subjected to the restrictions imposed on any regular employee under the said Order. [Tanuja Tolia v. State of Uttarakhand, 2020 SCC OnLine Utt 337, decided on 24-07-2020]

Uttarakhand High Court
Hot Off The PressNews

Justice Ravi Vijaykumar Malimath, senior-most Judge of the Uttarakhand High Court, to perform the duties of the office of Chief Justice of that High Court with effect from 28th July, 2020 consequent upon the retirement of Shri Justice Ramesh Ranganathan, Chief Justice, Uttarakhand High Court.


Ministry of Law and Justice

[Notification dt. 16-07-2020]