SERVICE

CASUAL WORKERS HAVE NO VESTED RIGHT TO

BE REGULARISED

N THE YEAR 1989, THE FINANCE OFFICER OF

THE UNIVERSITY of Lucknow, Mr. R.S.
Vishvakarma engaged Akhilesh Kumar Khare & Anr.
(the respondents) as Routine Grade Clerk (RGC)/Peon
by oral engagement as daily wagers for the Central
Accounts Office and they were being paid from out
of the contingency fund. In order to prevent the
abuse of power in engaging daily wagers, the then
Vice-Chancellor of the Lucknow University issued
Order No. VC/1932/90 dated 3.8.1990 notifying that
the daily wagers would not be allowed to continue
in any case after 31.12.1990 unless prior written
approval was obtained from the Vice-Chancellor. It
was further directed that if there was any need of any
extra hand, the Section Heads must send a demand
for creation of posts of the Deputy Registrar (Admn.)
with details justifying the need so that a consolidated
statement for sanction of new posts in the university
be sent to the State Government. As per the appellantuniversity, the Finance Officer neither dispensed with
the respondents/daily wagers nor did he obtain
written approval from the Vice-Chancellor. The
engagement of the respondents came to an end with
effect from 1.1.1991.

dated 18.8.1992 referred all the cases to the Labour

Court, Lucknow for adjudication of the dispute
between respondents and the appellant-university.
The Presiding Officer, Labour Court vide order dated
30.1.1996 held that termination of the workmen from
1.1.1991 by the university is illegal and directed the
reinstatement of respondent No. 1 with full back
wages. Being aggrieved, the appellant-university filed
a Writ Petition before the High Court challenging the
award. The High Court disposed of the writ petition
and connected petitions vide a common order dated
14.9.2009 affirming the award passed by the Labour
Court and inter alia issued direction as aforesaid.

The terminated workers sent a legal notice on

28.1.1992 through Mazdoor Sabha to the ViceChancellor stating that they served the university till
31.12.1990 continuously and that they were terminated
without assigning any reason and put forth the
demand for reinstatement in service and backwages.
All the ex-daily wagers further filed individual
applications to the Deputy Labour Commissioner,
Lucknow for conciliation of the dispute raised by
them in February 1992. As no conciliation could be
achieved, on the recommendation of the Conciliation
Officer, the Deputy Labour Commissioner by his order

The operative part of the judgement read as under :

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The university filed batch of appeals assailing the

order passed by the High Court. The Supreme Court
modified the judgement of the High Court, keeping
in view the fact the respondents were facing hardship
on account of pending litigation for more than two
decades and the fact that some of the respondents
were over aged and thus have lost the opportunity
to get a job elsewhere, interest of justice would be
met by directing the appellant-university to pay
compensation of Rs. 4 lacs to each of the
respondents, directed the Supreme Court.

The Finance Officer by himself had no right to

appoint any person and university has not created
extra post of Routine Grade Clerk or Record Boy or
Peon. In the present case, the Finance Officer in the
university engaged the respondents as daily wagers
for his Central Accounts Section. Admittedly, the
respondents were not engaged by following due
procedure and their engagement was not against any
sanctioned posts. In order to curb the illegal practice
of engaging daily wagers, Vice-Chancellor of the
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I Lawteller I 55

SERVICE
University issued an order dated 3.8.1990 clarifying
that the daily wagers will not be allowed to continue
after 31.12.1990 until prior written approval is
accorded by the Vice-Chancellor. No such approval
was taken qua the respondents for their continuance.
The respondents were terminated w.e.f. 1.1.1991.
When the respondents appointments were illegal, the
respondents would not be entitled to any right to be
regularized or absorbed.
TTTTTTT

There is no appointment letter issued to the

respondents by the Registrar on which they were
engaged. The respondents have based their claim on
service certificate issued by Mr. R.L. Shukla, the then
Finance Officer of the University of Lucknow. So far
as the certificate issued to the r espondents, Mr.
Shukla has stated that those certificate issued to the
respondents-workmen only to enable them to seek
other job.
TTTTTTT

Learned Senior Counsel for the respondents has

submitted that after removal of the respondents,
similarly placed employees have been regularized
and drawn our attention to regularization of one
such Narendra Pratap Singh. The said Narendra
Pratap Singh was appointed by the Registrar of the
University as Routine Grade Clerk (RGC) on daily
wage basis, the respondents were not so appointed
by the Registrar of the university. The respondents
have admittedly not produced any document to show
that they were appointed by the university against
sanctioned posts in accordance with statutory rules.
If the original appointment was not made following
due process of selection as envisaged by the relevant
rules, the respondents cannot seek regularization.
The Labour Court and the High Court, in our view,
fell in error in directing the regularization of the
respondents.
TTTTTTT

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I February 2016

The State Government sanctioned only 330 posts in

various categories, as a result of which
regularization/samayojan of 330 persons were made
strictly on the basis of their seniority. A perusal of
minutes of the Sub-Committee constituted by the
Executive Committee held on 16.1.2001, it is clear
that employee who were continuously working in the
university were only regularized. The respondents
have been out of employment from 1.1.1991 and at
the time of regularization/Samyojan, the respondents
were not in service and, therefore, they cannot seek
parity with the persons absorbed.
TTTTTTT

In Umadevis case, this Court settled the principle

that no casual workers should be regularized and
as per constitutional provisions all the citizens of
this country have right to contest for the employment
and temporary or casual workers have no right to
seek for regularization. As the respondents worked
as casual workers only for about one and half years
and not against any sanctioned posts, be it noted
that even the benefit of para (53) of Umadevis case
cannot be extended to the respondents.
TTTTTTT

The respondents were merely casual workers and

they do not have any vested right to be regularized
against the posts. The High Court fell in error in
affirming the award passed by the Labour Court
directing regularization. In the facts and
circumstances of the case, as the respondents were
out of employment for more than twenty years and
now they are over aged and cannot seek for regular
appointment, in our view, the interest of justice will
be sub served if the judgement of the High Court is
modified to the extent by directing payment of
monetary compensation for the damages to the
respondents.
TTTTTTT

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SERVICE
The appellant-university is directed to pay the
respondents rupees four lakhs each within four
months from the date of receipt of this judgement. The
payment of rupees four lakhs shall be in addition to
wages paid under Section 17B of the Industrial

Disputes Act, 1947.

TTTTTTT

Reference : Supreme Cour t. Vice-chancellor,

Lucknow University Lucknow, U.P. v. Akhilesh Kumar
Khare & Anr., civil appeal no. 5731 of 2011.

GLOBAL GLIMPSE

US SC: SUFFICIENCY CHALLENGES SHOULD NOT BE BASED ON JURY

INSTRUCTIONS
The US Supreme Court ruled in Musacchio v. US that sufficiency of the evidence appeals should not be
based on the elements in an erroneous jury instruction, but rather on the elements of the crime charged.
Musacchio was found guilty of unauthorized access to the protected computer of a competitor and conspiracy
to make unauthorized access. During the trial, the jury instructions added an element to the charged crime,
but the government did not object to that instruction. The instruction required the jury to find that Musacchio
both agreed to make unauthorized access and exceeded authorized access, when the statute requires only
that he agreed to make unauthorized access or exceed authorized access. In the unanimous decision, the
court held "When a jury finds guilt after being instructed on all elements of the char ged crime plus one more
element, the jury has made all the findings that due process requires. If a jury instruction requires the jury to
find guilt on the elements of the charged crime, a defendant will have had a "meaningful opportunity to
defend" against the charge. And if the jury instruction requires the jury to find those elements "beyond a
reasonable doubt", the defendant has been accorded the procedure that this Court has required to protect
the presumption of innocence. The Governments failure to introduce evidence of an additional element does
not implicate the principles that sufficiency review protects. All that a defendant is entitled to on a sufficiency
challenge is for the court to make a "legal" determination whether the evidence was strong enough to reach
a jury at all."

GERMANY TOP COURT RULES FACEBOOK FRIEND FINDER TOOL

UNLAWFUL
Germanys Federal Court of Justice ruled that a Facebook feature is unlawful. Confirming two lower court
decisions, the court ruled that Facebooks "friend finder" feature constitutes advertising harassment. The
lawsuit was filed in 2010 when the Federation of German Consumer Organisations challenged whether Facebook
breached German consumer protection law by sending e-mails to consumers without their consent. Individuals
who agree to Facebooks terms and conditions give permission for Facebook to search their contact book
and send messages inviting users friends who have not signed up for Facebook to do so. The federal court
determined that Facebook "had not adequately informed members about how it was using their contacts
data" and concluded that this was a deceptive marketing practice that violated German laws on data protection
and unfair trade practices.
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I Lawteller I 57

SERVICE

TO BE AN EFFECTIVE ORDER, COMMUNICATION

OF SAID ORDER IS NECESSARY

.K.B.K. LTD. (THE FIRST RESPONDENT) WAS

GRANTED THE licence for carrying on business
of superior kerosene oil as an agent by the Joint
Director of Consumer Goods, West Bengal in
accordance with the paragraph 5(1) of the West
Bengal Kerosene Oil Control Order, 1968. The monthly
allocation of public distribution system of superior
kerosene oil to the said respondent was fixed by the
Director of Consumer Goods, West Bengal at 1,82,000
litres per month. On 10.8.2012 a physical inspection
was carried out by the Area Inspector attached to the
office of the Sub Divisional Controller, Food and
Supplies, Burdwan (SCFS) at the depot of the
respondent. The concerned Inspector submitted the
report to the SCFS stating that 71,494 litres of
superior kerosene oil had been delivered in excess by
the dealer. On 8.4.2013, the SCFS issued a notice
seeking explanation about the discrepancy pointed
out by the Area Inspector. On receipt of the said show
cause notice, the first respondent submitted his
explanation on 16.4.2013. The SCFS afforded an
opportunity of personal hearing to the dealer on
3.5.2013 and the same was availed of. After
conducting the enquiry, the SCFS forwarded the
entire record to the District Controller, Food and
Supplies Department, Burdwan, who in turn sent the
entire case records to the Director of Consumer
Goods for appropriate decision. After scrutiny of the
records, the Director of Consumer Goods issued a
show cause notice to the dealer on 26.6.2013. The first
respondent replied to the same on 28.6.2013 through
his counsel stating, inter alia, that under the Control
Order, after the licence is issued to an agent by the
Office of the Director, the District Magistrate having
jurisdiction or any officer authorized by him, is alone
empowered to look into the functioning of the said

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I February 2016

agency and to give directions to him and/or initiate

action against the concerned agent. Additionally, it
was also put forth that the second show cause notice
on the self-same allegations was untenable in law and
accordingly prayer was made to withdraw and/or
rescind the notice and take steps for disposal of the
matter in terms of the provisions of the Control Order.
As the factual matrix would further undrape, the
Director of Consumer Goods, vide order dated
22.7.2013 narrated the facts in detail and came to hold
that SCFS has the authority to ask for explanation
regarding distribution of superior kerosene oil in his
jurisdiction; and that the Director of Consumer goods
being the Licensing Authority, can exercise the power
to issue show cause notice and after giving the
delinquent agent a fair opportunity of being heard,
pass appropriate orders. The said order also would
reflect that the counsel for the first respondent had
appeared before the Director on 17.7.2013. The
concerned Director analysed the factual matrix and
in exercise of power conferred on him under paragraph
9(ii) of the Control Order imposed a penalty of Rs.
26,08,816.00 and further directed reduction of monthly
allocation of superior kerosene oil of the agent by
12,000 litres for a period of one year.
The order passed by the Director was assailed by the
agent W.P. No. 25204(W) of 2013. The learned Single
Judge vide order dated 22.8.2013 referred to paragraph
10 of the Control Order which provides for an appeal
to be preferred and accordingly directed that if the
agent prefers an appeal by 6.9.2013, the appellate
authority shall dispose of the same by 31.12.2013. The
learned Single Judge further directed that the agent
shall maintain with utmost care an inventory of stocks
and accounts for periodical submission to the
authorities and the penalty amount should be
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SERVICE
deposited by 6.9.2013 and the said penalty amount
shall be kept in a separate interest bearing account.
Being aggrieved by the aforesaid order , the
respondents 1 and 2 preferred an appeal being AST
No. 177 of 2013 before the Division Bench. It was
urged in the intra-court appeal that the proceeding
before the Director of Consumer Goods was patently
without jurisdiction, for power of cancellation or
suspension could only be exercised by the Director
or District Magistrate having jurisdiction and in the
case at hand the District Magistrate, Burdwan is the
competent authority to exercise the power under
paragraph 9 of the Control Order and not the Director
of Consumer Goods; that assuming the Director had
jurisdiction, the proceeding that was initiated had
lapsed after expiry of 30 days after the date of
issuance of the show cause notice by the Director;
and that in any case the proceeding was initiated by
SCFS and could not have sent the record to the
Director after expiry of 30 days when the proceeding
stood lapsed. It was also urged that the order in
question was served on the first respondent on
12.8.2013 and, therefore, the date mentioned in the
order could not validate the same as it was not
dispatched within 30 days. The submissions put forth
by the first respondent before the Division Bench of
the High Court were seriously contested by the
learned counsel for the Department.
The Division Bench posed the following two
questions:
a. Who is the competent authority to take
disciplinary action either by cancellation or
suspension of the licence of a S.K. Oil agent
appointed in a district outside the Calcutta?
b. Whether the order of cancellation or
suspension of licence in terms of Paragraph
9 of the West Bengal Kerosene Control
Order will become effective on the date of
passing of the said order or when the said

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order is communicated to the concerned

party?
After passing the aforesaid two questions, the
Division Bench took note of the fact that the
respondent-dealer was authorized to carry on the
business as an agent of super kerosene oil in the
district of Burdwan and the SCFS had issued a show
cause to the respondent and instead of taking the
final decision himself, forwarded the records to the
Director of Consumer Goods for necessary action who
issued a fresh show cause notice on the self-same
allegations and passed an order on 22.7.2013 which
was without jurisdiction in view of the conjoint
reading of the language employed in paragraphs 8, 9
and 10 of the Control Order. Thereafter, the Division
Bench proceeded to deal with the issue whether the
Director had passed the order imposing penalty
within 30 days from the date of serving the show
cause notice in terms of paragraph 9 of the Control
Order, for the same was served on the dealer on
12.8.2013. The Court took note of the contention of
the advanced by the learned counsel for the
appellants therein that the order under Paragraph 9
passed by the competent authority in writing within
30 days from the date of serving the show cause
notice should mean the communication of the order
in writing within the said period of 30 days and not
from the signing of the order and accepted the same.
To arrive at the said conclusion, the appellate Bench
placed reliance on Rani Sati Kerosene Supply
Company and Others v. The State of West Bengal and
Others [2005 (4) CHN 264]. It referred to paragraph
27 and 29 of the said decision and thereafter came to
hold thus:
For the reasons discussed hereinabove, we
hold that the Sub-Divisional Controller, Food
and Supplies, Burdwan lawfully initiated the
proceeding against the appellant/writ
petitioner no. 1 by issuing show cause

February 2016

I Lawteller I 59

SERVICE
notice but did not conclude the same within
30 days as required under paragraph 9 of the
West Bengal Kerosene Control Order, 1968.

Order whereas dealer is granted licence under

paragraph 6 of the Control Order.

We further hold that the Director of

Consumer Goods had no jurisdiction and/or
authority to initiate any proceeding against
the appellant/writ petitioner no. 1 in terms
of paragraph 9 of the West Bengal Kerosene
Control Order since the licence was granted
to the appellant/writ petitioner no. 1 for
carrying on business as S.K. Oil agent in the
district of Burdwan which is outside
Calcutta.
In the result, the impugned order dated 22nd
July, 2013 passed by the Director of
Consumer Goods cannot survive and is
liable to be set aside since the said Director
had no authority and/or jurisdiction to pass
any order under paragraph 9 of the West
Bengal Kerosene Control Order, 1968 in
respect of S.K. Oil agent of Burdwan.
Therefore, the impugned order dated 22nd
July, 2013 issued by the Director of
Consumer Goods in respect of the appellant/
writ petitioner no. 1 is quashed.
Being of the view, it allowed the appeal and set aside
the judgement of the learned Single Judge of the High
Court.

On a reading of Paragraph (7) it is clear that power

conferred on the Director and the District
Magistrate are different, for the Director is a higher
authority and the rule clothes him with more
authority and the rule clothes him with more
authority. It is clear fr om paragraph 5 that the
Director alone is authorized to grant a licence to an
agent whereas a dealers licence can be granted
either by the Director or by the District Magistrate.
Sub-para 3 of Paragraph 5 of the Control Order is
also indicative of the fact that the agent operates at
a larger scale than the dealer. An agent can sell,
supply or transfer kerosene to a dealer, holder of a
permit or delivery order and no other person. Subpara 2 of paragraph 6 of the Control Order is
differently worded as it postulates that conditions
can be specified by the Director or the District
Magistrate having the jurisdiction.

Against the judgement of the High Court special leave

petition was filed. The Supreme Court accepted the
appeal and the order passed by the Division Bench
was set aside and the respondent no. 1 was granted
liberty to prefer an appeal within the prescribed period
before the State Government.

The operative part of the judgement read as under :

As the scheme would reflect there is a distinction
between an "agent" and a "dealer", for the agent is
granted licence under paragraph 5 of the Control

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Lawteller

I February 2016

TTTTTTT

TTTTTTT

Paragraph 9, which pertains to cancellation or

suspension of licence is a composite paragraph and
stipulates when and who can cancel or suspend a
licence of an agent or a dealer. The said power is
exercised, when an agent or dealer has indulged in
any kind of malpractice or contravened any
provision of the Control Order or conditions
applicable, etc. On a literal reading of paragraph
9, it may convey or one may be emboldened to urge
that Director as well as the District Magistrate
including the authorized officers mentioned in
paragraph 3(e), have concurrent jurisdiction to
cancel or suspend the licence granted to an agent
or a dealer. However, such an interpretation could
not be occurred with the legislative intent and would
lead to absurdity and anomaly. Therefore, such kind
of an interpretation has to be avoided. W e are

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disposed to think so inasmuch as an agent is
appointed by the Director and has the authority to
carry on trade of kerosene within the entire State.
But a dealer, cannot supply, sell or transfer kerosene
to any person other than a holder of a permit,
delivery order or through a dealer specified in
paragraph 6. That apart, it is noticeable that subparagraph (e) of paragraph (3) a District Magistrate
would include a sub-Divisional Controller of Food
and Supplies, authorized by the District Magistrate
or Deputy Commisisoner and District Magistrate is
for a specified small area within the State. He cannot
exercise jurisdiction in respect of an area beyond the
geographical boundaries of the area/district. In such
a situation to place a construction on Paragraph 9
that the Director as well as the District Magistrate
would have concurrent jurisdiction would be
inapposite. A logical and reasonable interpretation
to paragraph 9 of the Control Order has to be
preferred instead of adopting the loose meaning in
the literal sense. Such an interpretation would be in
consonance with the principles of harmonious
construction, that is, harmonious reading of
paragraphs 5, 6, 7 and 9 of the Control Order. It is
based on the premise that the authority who has the
right to grant licence has the authority to suspend
or cancel the licence.
TTTTTTT

Be it noted, as per Section 21 of the General Clauses

Act, power to issue notification/order/rules/bye-laws,
etc. includes the power to amend/vary or rescind.
Though the said provision is not applicable, yet it is
indicative that generally unless the statute or rule
provides to the contrar y, either expr essly or
impliedly, issuing or appointing authority would also
exercise the right to cancel or suspend the licence.
Paragraph 9 refers to the power of a Director and
District Magistrate having jurisdiction. The words
"District Magistrate having jurisdiction" are also

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used in paragraph 6. The expression "District

Magistrate having jurisdiction" reflects the
legislative intent that District Magistrate having
jurisdiction under paragraph 9 would be the same
District Magistrate or authority which has the power
to grant licence to a dealer in Form B under
paragraph 6. Read in this manner , we have no
hesitation in holding that it is the Director alone
who could have issued the show cause notice under
paragraph 9 and has the authority and jurisdiction
to pass an order in terms of paragraph 9 of the
Control Order. The earlier notice issued by SCFS has
to be regarded at best a show cause notice to
ascertain and affirm facts alleged and it ensured a
response and reply from the first respondent. The
said notice by SCFS could not have culminated in
the order under paragraph 9, for he has no authority
and jurisdiction to pass an order suspending or
cancelling the licence. Therefore, the matter was
rightly referred to the Director for action, if required,
in terms of paragraph 9 of the Control Order.
TTTTTTT

If it is held that the order would become a nullity, it

really does not serve the purpose of the Control
Order. On the contrary, it frustrates it and, therefore,
the interpretation placed by the High Court on
Paragraph 9 in juxtaposition with Paragraph 10 to
treat the order has null and void is neither correct
nor sound. It is desirable that the authority shall
pass an order within 30 days from the date of show
cause. Be it noted that there are two contingencies
when the show cause is issued for violation or when
an order of suspension is passed. There can be no
trace of doubt that the order will take effect from the
date when it is served. The order, unless it is served,
definitely neither the agent nor the dealer would
suspend its activities or obey any order, for he has
not been communicated. Regard being had to this
aspect, it is to be seen whether the prescription of

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30 days from the date of order as provided in
Paragraph 10 would make the order null and void.
The order passed by the authority comes into effect
when it is communicated. An order passed in file in
case of this nature would not be an effective order,
for it is adverse to the interest of the dealer or agent
and, therefore, paragraph 10 has to be given a
purposive meaning. It has to convey that 30 days
from the date of the order which is an effective order,
and that is the date of communication. Unless such
an interpretation is placed, the intention of the rule
making authority and also the intention behind the
object and reasons behind the Control Order and the
Essential Commodities Act, 1955 would be frustrated.
Thus, we are of the considered opinion that the view
expressed by the High Court on this score also is
absolutely incorrect and wholly unsustainable.

date when the order is effective. The High Court in

Rani Sati Kerosene Supply Company and Others
(supra) has opined that if the order of cancellation
is not served on the affected person and the appeal
period expires, there is the possibility that the
adverse order would become unassailable. The
reasoning is totally fallacious. An appeal can only
be preferred when the order is effective. The ineffective
order, that is to say, uncommunicated order cannot
be challenged. Therefore, the reasoning given by the
court in earlier judgement is erroneous and hence,
the reliance thereupon by the impugned order is
faulty. There has to be a purposive construction of
the words "from the date of or der". To place a
construction that the date of an order would mean
passing of the order, though not made effective would
lead to an absurdity.

TTTTTTT

TTTTTTT

Apart above, the words used in Paragraph 10 are

"date of the order". In the scheme of the Control
Order, the order comes into effect from the date of
receipt by the agent or the dealer. Once that becomes
the decision, the commencement of limitation of 30
days for the purpose of Paragraph 10 would be the

Authorities relied upon : 2005 (4) CHN 264,AIR 1961

SC 1500, AIR 1958 SC 353, AIR 1954 SC 194.
Reference : Supreme Court. State of West Bengal
and Others v. R.K.B.K. Ltd. & Anr., civil appeal no.
2825 of 2015.

GLOBAL GLIMPSE

ONTARIO COURT RULES POLICE CELLPHONE DATA COLLECTION

VIOLATED HUMAN RIGHTS
The Ontario Superior Court ruled that police orders requiring telecommunications companies to hand over
cellphone user data breached the Canadian Charter of Human Rights and Freedoms. The orders, labeled "tower
dumps", demanded that Rogers Communications Inc. and Telus Corp. provide the police with personal
information for more than 40,000 individuals, including their names and billing details.The police alleged that
the information was procured to screen for possible criminal activity. Rogers and Telus argued that the orders
violated the privacy of their consumers and fought the 2014 order. The court found that the orders violated
the Section 8 protections against unreasonable search and seizures. According to estimates the police make
over a million such requests in a given year.

62

Lawteller

I February 2016

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BUSINESS

NO CASE OF UNFAIR TRADE PRACTICE IS

MADE OUT : SC

ATA ENGINEERING & LOCOMOTIVE CO. LTD.THE APPELLANT is a company engaged in

manufacture and sale of automobiles. It is
aggrieved by the impugned order dated 28.2.2006
passed by the Monopolies and Restrictive Trade
Practices Commission in U.T.P. Enquiry whereby
the Commission has directed the appellant to cease
and desist from continuing with the practices
complained of and not to repeat the same in future.
Since there is no dispute on facts the case of the
parties on facts is common and to the following
effect:
(i) The practice under scrutiny is of the
year 1999 when the appellant was to begin
the manufacture and delivery of newly
introduced Tata Indica cars into the market
with effect from February 1999, with the
installed capacity of approximately 60,000
cars in a year. The appellant invited the
prospective customers to book the car
through dealers. The booking amount
demanded by the appellant was quite high
and close to the estimated price finally
payable which would include excise duty ,
sales tax and transportation charges. The
terms and conditions for booking of order
for purchase of Tata Indica cars were
mentioned in detail indicating the model
wise price depending upon the city of
booking. It was indicated that the price of
vehicle as well as taxes, duties and cess
will be as applicable on the date of
delivery. Those making valid booking
were to be supplied the vehicle as per
priority numbers generated and allocated
by a computerized technique, for the first

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10,000 bookings only. The terms also

provided that the payments against the
remaining bookings will be refunded to
the customers, without interest at the
earliest but in any case within a month
from the closing of the booking. For
refunds after a month, interest will be paid
at the rate of 10% per annum. The order
booking form mentioned in Clause 7 that
the person concerned had carefully read
the terms and conditions of the bookings
and agreed to the same.
(ii) Although the initial allotment was
confined only to 10,000 cars, the appellant
received as many as 1,13,768 booking
applications along with stipulated amount
which aggregated to Rs. 3,216.44 crores.
The appellant gave an option to
prospective customers to opt for a second
phase of 50,000 vehicles likely to be
delivered from April-May 1999 to March
2000. It refunded the balance amounts to
those who desired for refund, along with
interest as represented. No complaint was
made to the Commission by any of the
persons who made the booking and
thereafter either purchased the car or
withdrew the deposits with or without
interest, as the case may be.
(iii) However three complaints were made
before the Commission by persons who
claimed that they had intentions to make
the booking but were dissuaded by the
high quantum of deposit required for the
purpose. There specific objection was that
the demanded amount the basic price of

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BUSINESS
the car if cess, taxes and transportation
cost were left out. According to the
complainants the appellant had indulged
in Unfair Trade Practice (UTP) by
demanding an excessive amount for
booking of Indica cars and by including
the likely taxes, cess and transportation
cost.
Since the defence taken by the appellant was also
not disputed on facts, it would be relevant to note
the same. When the Commission received the three
complaints, it sent them to the Director (Research)
for investigation. The Director submitted
Preliminary Investigation Reports (PIR) in all the
three matters and three cases were registered as
per numbers noted earlier . The Notices of Enquiry
under Section 36-B (d), 37, 36-D of the Act of the
Act and under Regulation 51 were issued to the
appellant who contested the complaints. The
appellant filed its reply to the Notice of Enquiry in
which it also raised a preliminary objection that the
allegations of the restrictive trade practice were
vague and not permissible by law . Their further
defence was that there are no facts and material to
show that the alleged practice is prejudicial to the
public interest requiring an enquiry under Section
37 of the Act and that no facts were disclosed in
the Notice of Enquiry to show prejudice to the
public interest. On merits some of the allegations
were denied as incorrect. It was pointed out that
none of the complainants had applied for the
booking of Tata Indica vehicle and hence they
lacked locus standi to file the complaints in the
capacity of the defence that there was no false and
misleading statement made by the appellant for
inviting booking of Tata Indica cars, the appellants
made the bookings with open eyes being aware
about the stipulation for payment of interest.
According to appellant by letter dated 6.2.1999 the
successful applicants were intimated of the priority

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number allotted to them and the unsuccessful

applicants were also informed that they had an
option to be considered for the second phase of
50,000 cars and such optees would be entitled to
receive interest at the rate of 11% per annum with
effect from 1.2.1999 till the date of delivery . Those
who did not opt for the second phase deliveries
were refunded their booking amounts along with
10% interest.
The appellant explained their practice by pleadings
which are not controverted, that their past
experiences as automobile manufacturer were
limited to heavy vehicles and hence in their initial
venture into the car segment, they were not sure
of public response and they had decided to plan
their production schedule on the basis of reality
test of car s demand in the market. For this
speculative bookings were required to be
discouraged and the same was sought to be
achieved by demanding an amount closer to the
anticipated price which the customer would be
required to pay. According to submissions, such
practice could not have promoted the sale of their
vehicle rather it was discouraging. The large
response shows peoples faith in the products of
the appellant and also that the interest rate offered
by the appellants was appreciable and fair .
The Supreme Court set aside the Commissions
conclusion that the allegation and materials against
the appellant make out a case of unfair trade
practice against the appellant. As a result the
appeal was allowed.

The operative part of the judgement read as under :

The Commission could not have travelled beyond the
specific allegations in the Notice of Enquiry because
such a course would violate rules of fairness and
natural justice. The scope of enquiry could have been
enlarged only after serving further notice with

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BUSINESS
necessary details of allegations and supporting facts.
This was clearly not done by the Commission. It is a
flagrant violation of audi alteram partem rule. It
renders the impugned order invalid and bad in law.
The order is also bad for non-application of mind to
requirement of law as stipulated in Section 36A(1)
of the Act and the relevant facts.
TTTTTTT

We do not find any material or even allegation in

the PIR which could satisfy any of the four unfair
trade practices covered by various Clauses such as
Clause (i), (ii), (iv) and (vi) of Section 36-A (1) of
the Act. A careful perusal of the Notice of enquiry
dated 25.9.2000 reveals that no doubt a copy of the
PIR was enclosed but the notice made it clear itself
that the Commission came to a considered opinion
that the Director (Research) had found the appellant
indulging in unfair trade practices falling precisely
and only under clauses (i), (ii), (iv) and (vi) of
Section 36A(1) of the Act. The enquiry, as per the
notice, was to cover: (a) whether the respondent has
been indulging in the above said unfair trade
practice(s) and (b) whether the said unfair trade
practice(s) is/are prejudicial to public interest.
TTTTTTT

Commission failed to keep in mind the practice

allegations against the appellant with a view to find
out whether the facts could satisfy the definition of
Unfair Trade Practice(s) as alleged against the
appellant in the Notice of Enquiry. The Commission
was apparently misled by the Preliminary
Investigation Report also which claimed to deal with
reply received from the appellant in course of the
preliminary enquiry but patently failed even to notice
the stipulation as regards payment of interest on the
booking amount although this fact was obvious from
the terms and conditions of the booking and was
reportedly relied upon by the appellant in its reply
even at the stage of preliminary investigation. The

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Commission noticed the relevant facts including

provision for interest while narrating the facts, but
failed to take note of this crucial aspect while
discussing the relevant materials for the purpose of
arriving at its conclusions. Such consideration and
discussion begins from paragraph 32 onwards but
without ever indicating that the booking amounts
had to be refunded within a short time or else it was
to carry interest at the rate of 10% per annum.
TTTTTTT

The order of the Commission appears to be largely

influenced by a conclusion that the appellant should
not have asked for deposit of an amount above the
basic price because in the opinion of the Commission
it was unfair for the appellants to keep excise and
sales tax with itself for any period of time. Such
conclusion of the Commission is based only upon
subjective considerations of fairness and do not pass
the objective test of law as per precise definitions
under Section 36A of the Act. The submissions and
contentions of Mr. Desai merit acceptance.
TTTTTTT

Even after stretching the allegations and facts to a

considerable extent in favour of respondent
Commission, we are unable to sustain the
Commissions conclusions that the allegations and
materials against the appellant make out a case of
unfair trade practice against the appellant. Nor there
is any scope to pass order under Section 36-A(1) of
the Act when no case of any unfair trade practice is
made out. As a result the appeal stands allowed.
TTTTTTT

Reference : Supreme Court. Tata Engineering and

Locomotive Company Ltd. v. The Director (Research)
for and on behalf of Deepak Khanna & Ors., civil
appeal no. 2069 of 2006.

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I Lawteller I 65

GENERAL

RECALL OF WITNESS ON GROUND OF INCOMPETENCY

OF ADVOCATE TO CROSS-EXAMINE
WITNESSES, REFUSED

N 6TH DECEMBER, 2014, FIR WAS LODGED

ALLEGING THAT the respondent accused who
was the driver of cab No. DL-1YD-7910, Swift Dezire,
hired by the victim on 5th December , 2014 for
returning home from her office committed rape on her.
The statement of the prosecutrix was recorded under
Section 164 Cr.P.C. on 8th December, 2014. After
investigation, charge sheet was filed before the
Magistrate on 24th December, 2014. Since the accused
was not represented by counsel, he was provided
legal aid counsel. Thereafter on 2nd January, 2015,
the accused engaged his private counsel M/s. Alok
Kumar Dubey and Ankit Bhatia in place of the legal
aid counsel. Thereafter, the case was committed to
the Court of Session. Charges were framed on 13th
January, 2015. Prosecution evidence commenced on
15th January, 2015 and was closed on 31st January,
2015. The witnesses were duly cross-examined by the
counsel engaged by the accused. Statement of the
accused under Section 313 Cr.P.C. was recorded on
3rd February, 2015. On 4th February , 2015, an
application for recall of prosecutrix PW2 and formal
witness PW-23 who booked the cab was made, but
the same was rejected and the said order was never
challenged. Thereafter, on 9th February, 2015, the
accused engaged another counsel, who filed another
application under Section 311 Cr.P.C. for recall of all
the 28 prosecution witnesses on 16th February, 2015.
The said application was dismissed on 18th February
by the trial court but the same was allowed by the
High Court vide impugned order dated 4th March,
2015 in a petition filed under Article 227 of the
Constitution of India read with Section 482 Cr.P.C.
Even though the specific grounds urged in the

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application were duly considered and rejected, it was

observed that recall of certain witnesses was deemed
proper for ensuring fair trial.
Aggrieved by the order of the High Court the victim
as well as the State filed special leave petition. The
Supreme Court set aside the order passed by the High
Court and dismissed the application for recall.

The operative part of the judgement read as under :

While advancement of justice remains the prime
object of law, it cannot be understood that recall can
be allowed for the asking or reasons related to mere
convenience. It has normally to be presumed that the
counsel conducting a case is competent particularly
when a counsel is appointed by choice of a litigant.
Taken to its logical end, the principle that a retrial
must follow on every change of a counsel, can have
serious consequences on conduct of trials and the
criminal justice system. Witnesses cannot be expected
to face the hardship of appearing in court
repeatedly, particularly in sensitive cases such as the
present one. It can result in undue hardship for
victims, especially so, of heinous crimes, if they are
required to repeatedly appear in court to face crossexamination.
TTTTTTT

The interest of justice may suffer if the counsel

conducting the trial is physically or mentally unfit
on account of any disability. The interest of the
society is paramount and instead of trials being
conducted again on account of unfitness of the
counsel, reform may appear to be necessary so that
such a situation does not arise. Perhaps time has
come to review the Advocates Act and the relevant

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GENERAL
Rules to examine the continued fitness of an advocate
to conduct a criminal trial on account of advanced
age or other mental or physical infirmity, to avoid
grievance that an Advocate who conducted trial was
unfit or incompetent. This is an aspect which needs
to be looked into by the concerned authorities
including the Law Commission and the Bar Council
of India.
TTTTTTT

It is difficult to approve the view taken by the High

Court. Undoubtedly, fair trial is the objective and it
is the duty of the court to ensure such fairness. Width
of power under Section 311 Cr.P.C. is beyond any
doubt. Not a single specific reason has been assigned
by the High Court as to how in the present case recall
of as many as 13 witnesses was necessary as directed
in the impugned order. No fault has been found with
the reasoning of the order of the trial court. The High
Court rejected on merits the only two reasons pressed
before it that the trial was hurried and the counsel
was not competent. In the face of rejecting these
grounds, without considering the hardship to the
witnesses, undue delay in the trial, and without any
other cogent reason, allowing recall merely on the
observation that it is only the accused who will suffer
by the delay as he was in custody could, in the
circumstances, be hardly accepted as valid or serving
the ends of justice. It is not only matter of delay but
also of harassment for the witnesses to be recalled
which could not be justified on the ground that the
accused was in custody and that he would only suffer
by prolonging of the proceedings. Certainly recall
could be permitted if essential for the just decision
but not on such consideration as has been adopted
in the present case. Mere observation that recall was
necessary "for ensuring fair trial" is not enough
unless there are tangible reasons to show how the
fair trial suffered without recall. Recall is not a matter
of course and the discretion given to the court has
to be exercised judiciously to prevent failure of justice
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and not arbitrarily. While the party is even permitted

to correct its bona fide error and may be entitled to
further opportunity even when such opportunity may
be sought without any fault on the part of the
opposite party, plea for recall for advancing justice
has to be bona fide and has to be balanced carefully
with the other relevant considerations including
uncalled for hardship to the witnesses and uncalled
for delay in the trial. Having regard to these
considerations, we do not find any ground to justify
the recall of witnesses already examined.
TTTTTTT

We may now sum up our reasons for disapproving

the view of the High Court:
(i) The trial court and the High Court held
that the accused had appointed counsel of his
choice. He as facing trial in other cases also.
The earlier counsel were given due
opportunity and had duly conducted crossexamination. They were under no handicap;
(ii) No finding could be recorded that the
counsel appointed by the accused were
incompetent particularly at back of such
counsel;
(iii) Expeditious trial in a heinous offence as
is alleged in the present case is in the interests
of justice;
(iv) The trail Court as well as the High Court
rejected the reasons for recall of the witnesses;
(v) The Court has to keep in mind not only the
need for giving fair opportunity to the accused
but also the need for ensuring that the victim
of the crime is not unduly harassed;
(vi) Mere fact that the accused was in custody
and that he will suffer by the delay could be no
consideration for allowing recall of witnesses,
particularly at the fag end of the trial;
(vii) Mere change of counsel cannot be ground
to recall the witnesses;
(viii) There is no basis for holding that any

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GENERAL
prejudice will be caused to the accused unless
the witnesses are recalled;
(ix) The High Court has not rejected the
reasons given by the trial court nor given any
justification for permitting recall of the
witnesses except for making general
observations that recall was necessary for
ensuring fair trial. This observation is
contrary to the reasoning of the High Court in
dealing with the grounds for recall, i.e., denial
of fair opportunity on account of incompetence
of earlier counsel or on account of expeditious
proceedings;
(x) There is neither any patent error in the
approach adopted by the trial court rejecting
the prayer for recall nor any clear injustice if
such prayer is not granted.
TTTTTTT

It is well settled that fairness of trial has to be seen

not only from the point of view of the accused, but
also from the point of view of the victim and the
society. In the name of the fair trial, the system cannot
be held to ransom. The object of provision for recall
is to reserve the power with the court to prevent any
injustice in the conduct of the trial at any stage. The
power available with the court to prevent injustice
has to be exercised only if the Court, for valid
reasons, feels that injustice is caused to a party. Such
a finding, with reasons, must be specifically recorded
by the court before the power is exercised. It is not
possible to lay down precise situations when such
power can be exercised. The Legislature in its

wisdom has left the power undefined. Thus, the scope

of the power has to be considered from case to case.
The guidance for the purpose is available in several
decisions relied upon by the parties.
TTTTTTT

It will also be pertinent to mention that power of

judicial superintendence under Article 227 of the
Constitution and under Section 482 Cr.P.C. has to
be exercised sparingly when there is patent error or
gross injustice in the view taken by a subordinate
court [Jasbir Singh v. State of Punjab JT 2006 (9)
SC 35]. A finding to this effect has to be supported
by reasons. In the present case, the High Court has
allowed the prayer of the accused, even while finding
no error in the view taken by the trial court, merely
by saying that exercise of power was required for
granting fair and proper opportunity to the accused.
No reasons have been recorded in support of this
observation. On the contrary, the view taken by the
trial court rejecting the stand of the accused has been
affirmed. Thus, the conclusion appears to be
inconsistent with the reasons in the impugned order.
TTTTTTT

Authorities relied upon : 2011 (8) SCC 136, Crl.A. No.

242/2010, High Court of Delhi, 2008 (11) SCC 108,
Crl.M.C. 8479/2006 & Crl.M.A. 14359/2006 decided on
20.2.2008 Delhi H.C., 1981 (3) SCC 191, 1984 (1) SCC
722, 1980 (1) SCC 81, 1974 (4) SCC 186, 1967 (3) SCR
415, 1966 (1) SCR 178.
Reference : Supreme Court. AG Shiv Kumar Yadav
& Anr., criminal appeal nos. 1187-1188 of 2015.

What do you get in place of a conscience? Dont answer

,
I know: a lawyer.
KIRK DOUGLAS

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GENERAL

FOR LOSS OF MEMORY RETENTION POWER,

COMPENSATION OF RS. 4 LAC, AS CLAIMED
FOUND JUST AND REASONABLE

N 13.9.1987, WHEN MITHUSINH PANNASINH

CHAUHAN-the appellant/claimant was going
on his bicycle from Godhra to Popatpura, at that time,
respondent no. 2 who was driving S.T. Bus No. GRU8749 belonging to Gujarat State Road Transport
Corporation came from Lunawada side and hit the
appellant as a result of which he fell down and
sustained serious injuries. The appellant was taken
to the hospital at Godhra but later on transferred to
Baroda Hospital and from there to Civil Hospital at
Ahmedabad for further treatment. He sustained a
serious head injury as a result of which he lost his
memory. Now, he is neither able to speak and not able
to move properly. He underwent medical treatment in
hospital for a long time. At the time of accident, he
was aged about 35 years and was working as a
Constable in SRP. His earning was Rs. 1400/- p.m. Due
to the accident and resultant injuries sustained the
appellant unfortunately lost his job also.
The appellant then filed a claim petition being Motor
Accident Claim Petition No. 1071 of 1987 before the
Motor Accident Claims Tribunal, Panchmahals at
Godhra under Section 166 of the Motor Vehicle Act,
1988 (the Act) for award of compensation and claimed
a sum of Rs. 4 lakhs under various heads. By award
dated 30.5.2000, the MACT partly allowed the
appellants claim petition and held that accident in
question was caused due to negligence of respondent
No. 1 therein (respondent no. 2 herein) that the
appellant had suffered 50% disability in his body due
to injuries sustained and accordingly awarded to
compensation which included expenses in receiving
treatment and compensation for injuries sustained.
Dissatisfied with the compensation awarded by the

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MACT, the appellant filed an appeal being F.A. No.

1819 of 2001 for enhancement of claim awarded by
the MACT whereas the Corporation-respondent
No.1 herein filed F.A. No. 1536 of 2001 against that
part of the award which allowed the claim petition in
part and awarded Rs. 2,19,000/- contending that it was
on the higher side and hence be reduced.
By the common impugned judgement, the High Court
partly allowed the appeal filed by respondentCorporation and held that the claimant is entitled to
Rs. 1,15,200/- towards future loss of income instead
of Rs. 1,80,000/- awarded by the MACT and directed
the claimant to refund the excess amount of Rs.
64,800/- with interest at the rate of 12% p.a. to the
respondent-Corporation. As a consequence, the
appeal filed by the appellant for enhancement for
compensation, was dismissed.
Against the order of the High Court special leave
petition was filed. The Supreme Court accepted the
appeal, impugned order was modified in appellantclaimants favour by awarding a sum of Rs. 4,00,000/
- by way of compensation against respondent no. 1Gujarat State Transport Corporation.

The operative part of the judgement read as under :

In our considered opinion, in a case where the
appellant has proved that he has lost his speaking
power as also lost his memory retention power due
to causing of head injury and further he is not able
to move freely at the age of 35 years and lastly due
to these injuries, he has also lost his job, we fail to
appreciate as to how and on what reasons the MACT
and the High Court could come to a conclusion that
a compensation of Rs. 4,00,000/- claimed by the

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GENERAL
appellant was on a higher side and thus reduced it
to Rs. 1,54,200/- indeed we found no reason.
TTTTTTT

In our considered opinion, keeping in view of the

nature of injuries sustained by the appellant,
resultant permanent disabilities caused to him to the
extent of 50% or 30% due to such injuries which are
held proved by the appellant coupled with the
amount spent by him in receiving medical treatment
also duly held proved (Ex-P-1 to Ex-P-58) by him,
losing the permanent job due to injuries sustained
by him, future loss of income caused as a result of
the injuries and lastly the continuous mental pain
and agony suffered by him, a sum of Rs. 4,00,000/claimed by the appellant by way of compensation is
just and reasonable.
TTTTTTT

In a case of this nature, in our opinion, the injuries

sustained by the claimant-appellant herein are more
painful because he has to live his remaining life with
such disabilities, which he did not have before

accident. This undoubtedly deprives him to live his

normal life. The Courts below failed to take note of
this material fact while determining the
compensation, which in our opinion, calls for
interference by this Court.
TTTTTTT

In view of foregoing discussion, the appeals filed by

the claimant succeed and are hereby allowed.
Impugned order is modified in appellant-claimants
favour by awarding a sum of Rs. 4,00,000/- by way
of compensation against respondent No. 1Corporation. An awarded sum, i.e. Rs. 4,00,000/- (Rs.
4 lakhs) would carry interest at the rate of 6% per
annum payable from the date of claim petition till
realization.
TTTTTTT

Reference : Supreme Court. Mithusinh Pannasinh

Chauhan v. Gujarat State Road Transport Corporation
& Anr., civil appeal nos. 7201-7202 of 2015.

GLOBAL GLIMPSE

US SC: RULING AGAINST MANDATORY JUVENILE LIFE SENTENCES

APPLIES RETROACTIVELY
The US Supreme Court ruled in Montgomery v. Louisiana that a landmark decision banning mandatory
sentences of life without parole for juveniles should apply retroactively. The Supreme Court reached that
decision in Miller v. Alabama and Jackson v. Hobbs in 2012, but until now the outcome was being applied
retroactively only by certain states. The case involves Henry Montgomery, convicted in 1963 of murdering
a deputy sheriff at the age of 17. He was sentenced to life in prison without the possibility of parole. Now,
at the age of 70, he is asking for a new sentencing hearing in hopes that the ruling in 2012 will apply to his
1963 life sentence. In a 6-3 opinion authored by Justice Anthony Kennedy, the court concluded "Henry
Montgomery has spent each day of the past 46 years knowing he was condemned to die in prison. Perhaps
it can be established that, due to exceptional circumstances, this fate was a just and proportionate punishment
for the crime he committed as a 17-year-old boy. In light of what this Court has said in Roper, Graham, and
Miller about how children are constitutionally different from adults in their level of culpability, however,
prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable
corruption; and, if it did not, their hope for some years of life outside prison walls must be restored."

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LAW FOR YOU

GOVERNING PRINCIPLES FOR
GRANT OF LEAVE TO DEFEND
UNDER CPC
As regards the entitlement of a defendant to the grant
of leave to defend under order 37, Rule 3 CPC, the
law is well settled long back in the year 1949 in Sm.
Kiranmoyee Dessi v. Dr. J. Chatterjee [AIR 1949 Cal
479], in the form of the following propositions:
(1) If the defendant satisfies the Court that
he has a good defence to the claim on its
merits, the plaintiff is not entitled to leave
to sign the judgement and the defendant is
entitled to unconditional leave to defend.
(2) If the defendant raised a triable issue
indicating that he has a fair or bona fide or
reasonable defence although not a positively
good defence the plaintiff is not entitled to
sign judgement and the defendant is entitled
to unconditional leave to defend.
(3) If the defendant discloses such facts as
may be deemed sufficient to entitle him to
defend, that is to say, although the affidavit
does not positively and immediately made
it clear that he has a defence, yet, shows
such a stage of facts as leads to the inference
that at the trial of the action he may be able
to establish a defence to the plaintiffs claim,
the plaintiff is not entitled to judgement and
the defendant is entitled to leave to defend
but in such a case the court may in its
discretion impose conditions as to the time
or mode of trial but not as to payment into
court or furnishing security.
(4) If the defendant has no defence of the
defence set up is illusory or sham or
practically moonshine then ordinarily the
plaintiff is entitled to leave to sign judgement
and the defendant is not entitled to leave to
defend.

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(5) If the defendant has no defence or the

defence is illusory or sham or practically
moonshine then although ordinarily the
plaintiff is entitled to leave to sign
judgement, the court may protect the plaintiff
by only allowing the defence to proceed if
the amount claimed is paid into court or
otherwise secured and give leave to the
defendant on such condition, and thereby
show mercy to the defendant by enabling
him to try to prove a defence.
Reference : SC. State Bank of Hyderabad v.
Rabo Bank, civil appeal no. 8194 of 2015
[arising out of Special Leave Petition (Civil)
No. 33549 of 2014].

AN ORDER OF REFERENCE
CANNOT BE MADE MECHANICALLY
WITHOUT FORMING AN OPINION
The satisfaction of the existence of an industrial
dispute or the satisfaction that an industrial dispute
is apprehended is a condition precedent to the order
of reference. An order of reference cannot be made
mechanically without forming an opinion. For
formation of the necessary opinion, the appropriate
Government must also be satisfied that a person
whose dispute is being referred for adjudication is a
workman. If the dispute is not between an employer
and his workman, it is not an industrial dispute and
the Government can justifiably refuse to refer the
dispute. From the material placed before it, the
Government reaches an administrative decision
whether there exists an existing or apprehended
industrial dispute. In other event, it can exercise that
power under this Section. The Government would not
decide the dispute between the parties which may be
termed as judicial function and such judicial function
is to be discharged by the Labour Court/Industrial
Tribunal only. The adequacy or the sufficiency of the

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LAW FOR YOU

material on which the opinion was formed is beyond
the pale of judicial scrutiny. If the action of the
Government in making the reference is impugned by
a party, it would be open to such a party to show
that what was referred was not an industrial dispute
and that the Tribunal had no jurisdiction to make the
award. But if the dispute was an industrial dispute,
its factual existence and the expediency of making a
reference in the circumstances of a particular case are
matters entirely for the Government to decide upon
and it will not be competent for the Court to hold the
reference bad and quash the proceedings for want
of jurisdiction merely because there was, in its
opinion, no material before the Government on which
it could have come to an affirmative conclusion on
those matters. If the power is not exercised properly,
it is amenable to judicial review. Thus, where an
industrial dispute exists or is apprehended but the
appropriate Government refuses to make reference
such a refusal can be challenged in the court of law.
Conversely, which is equally true, if the reference is
made even when no dispute exists or is apprehended,
such a reference will also be subject to judicial review.
Reference : SC. Prabhakar v. Joint Director
Sericulture Department & Anr., Special Leave
Petition (C) No. 27080 of 2015 [arising out of
SLP (C) No..CC 16129 of 2015].

DELAY DEFEATS EQUITIES

It is now a well recognized principle of jurisprudence
that a right not exercised for a long time is nonexistent. Even when there is no limitation period
prescribed by any statute relating to certain
proceedings, in such cases Courts have coined the
doctrine of laches and delays as well as doctrine of
acquiescence and non-suited the litigants who
approached the Court belatedly without any justifiable
explanation for bringing the action after unreasonable
delay. Doctrine of laches is in fact an application of

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maxim of equity "delay defeats equities". This

principles is applied in those cases where
discretionary orders of the Court are claimed, such
as specific performance, permanent or temporary
injunction, appointment of receiver etc. These
principles are also applied in the writ petitions filed
under Articles 32 and 226 of Constitution of India. In
such cases, Courts can still refuse relief where the
delay on the petitioners part has prejudiced the
respondent even though the petitioner might have
come to Court within the period prescribed by the
Limitation Act.
Reference : SC. Prabhakar v. Joint Director
Sericulture Department & Anr., Special Leave
Petition (C) No. 27080 of 2015 [arising out of
SLP (C) No..CC 16129 of 2015].

COURT
CANNOT
CONFER
JURISDICTION UPON IT BY
CONSENT OR WAIVER
It is well settled that essentially the jurisdiction is an
authority to decide a given case one way or the other.
Further, even though no party has raised objection
with regard to jurisdiction of the court, the court has
power to determine its on jurisdiction. In other words,
in a case where the Court has no jurisdiction, it
cannot confer upon it by consent or waiver of the
parties.
Reference : SC. Foreshore Co-operative
Housing Society Limited v. Praveen D. Desai
(Dead) thr. Lrs. and others, civil appeal no.
7732 of 2011.

AN INDIVIDUAL IS ENTITLED TO
LEAD A PEACEFUL LIFE, BUT ONE
CANNOT HARM OTHERS
It is an established fact that a crime though committed
against an individual, in all cases it does not retain

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LAW FOR YOU

an individual character. It, on occasions and in certain
offences, accentuates and causes harm to the society .
The victim may be an individual, but in the ultimate
eventuate, it is the society which is the victim. A
crime, as is understood, creates a dent in the law and
order situation. In a civilized society, a crime disturbs
orderliness. It affects the peaceful life of the society.
An individual can enjoy his liberty which is definitely
of paramount value but he cannot be a law unto
himself. He cannot cause harm to others. He cannot
be a nuisance to the collective.

on by the educational institution, it will not

be cease to be one existing solely for
educational purposes.

Reference : SC. Neeru Yadav v. State of U.P.

and Anr., criminal appeal no. 1272 of 2015
[@ SLP (Crl) No. 1596 of 2015].

MISCONDUCT FORMS THE

FOUNDATION OF TERMINATION,
RULES OF NATURAL JUSTICE HAVE
TO BE FOLLOWED

PURPOSE OF EDUCATION SHOULD

NOT BE SUBMERGED BY A PROFIT
MAKING MOTIVE
The law common to Section 10 (23C) (iiiad) and (vi)
of Income Tax Act, 1961 may be summed up as
follows:
(1) Where an educational institution comes
on the activity of education primarily for
educating persons, the fact that it makes a
surplus does not lead to the conclusion that
it ceases to exist solely for educational
purposes and becomes an institution for the
purpose of making profit.
(2) The predominant object test must be
applied-the purpose of education should not
be submerged by a profit making motive.
(3) A distinction must be drawn between the
making of a surplus and an institution being
carried on "for profit". No inference arises
that merely because imparting education
results in making a profit, it becomes an
activity for profit.
(4) If after meeting expenditure, a surplus
arises incidentally from the activity carried
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(5) The ultimate test is whether on an overall

view of the matter in the concerned
assessment year the object is to make profit
as opposed to educating persons.
Reference : SC. M/s. Queens Educational
Society v. Commissioner of Income Tax, civil
appeal no. 5167 of 2008.

There is a marked distinction between the concepts

of satisfactory completion of probation and
successful passing of the training/test held during or
at the end of the period of probation, which are sine
qua non for confirmation of a probationer and the
Banks right to punish a probationer for any defined
misconduct, misbehavior or misdemeanor. In a given
case, the competent authority may, while deciding the
issue of suitability of the probationer to be confirmed,
ignore the act(s) of misconduct and terminate his
service without casting any aspersion or stigma
which may adversely affect his future prospects but,
if the misconduct/misdemeanor constitutes the basis
of the final decision taken by the competent authority
to dispense with the service of the probationer albeit
by a non-stigmatic order, the Court can lift the veil
and declare that in the grab of termination simpliciter,
the employer has punished the employee for an act
of misconduct.
Reference : SC. Ratnesh Kumar Choudhary v.
Indira Gandhi Institute of Medical Sciences,
Patna, Bihar and Others, civil appeal no. 8662
of 2015 [arising out of SLP (C) No. 8450 of
2012].

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I Lawteller I 73

LAW FOR YOU

THE
TITLE
CANNOT
BE
CONSIDERED TO BE A LITERARY
WORK
It must be noted that in India copyright is a s tatutory
right recognized and protected by The Copyright Act,
1957. On a plain reading of Section 13, copyright
subsists in inter-alia an original literary work. In the
first place a title does not quality for being described
as "work". It is incomplete in itself and refers to the
work that follows. Secondly, the combination of the
two words "Desi" and "Boys" cannot be said to have
anything original in it. They are extremely common
place words in India. It is obvious, therefore, that the
title "Desi Boys", assuming it to be a work, has
nothing original in it in the sense that its origin
cannot be attributed to the respondent No. 1. In fact
these words do not even quality for being described
as "literary work". The Oxford English Dictionary
gives the meaning of the word literary as
"concerning the writing, study , or content of
literature, especially of the kind valued for quality of
form". The mere use of common words, such as those
used here, cannot quality for being described as
literary.
Reference : SC. Krishika Lulla & Ors. v. Shyam
Vithalrao Devkatta & Anr., criminal appeal
no. 258 of 2013.

RESORT TO ARBITRATION IN A
PENDING SUIT, WOULD BE WHEN
PARTIES AGREE FOR SETTLEMENT
First thing that has to be kept in mind, when in a
pending suit the parties agree for reference to
arbitration, though there was no arbitration agreement
when the suit was filed, is that they have consciously
preferred arbitration rather than the court process. It,
thus, follows that the intention is to settle the
disputes through arbitration and not the Court.

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Secondly, in such a situation, Section 89 of the CPC

also springs into action, which provides for
settlement of disputes outside the Court.As per this
provision, here it appears to the Court that there exists
elements of a settlement which may be acceptable to
the parties, the Court shall formulate the terms of
settlement and give them to the parties for their
observations and after receiving the observation of
the parties, the Court may reformulate the terms of a
possible settlement and refer the same for - a)
arbitration; b) conciliation; c) judicial settlement,
including settlement through Lok Adalat; or d)
mediation. Section 89 provides methods of dispute
resolution, i.e. those methods which are alternate to
the Court and are outside the adjudicatory function
of the Court. Insofar as reference of dispute to
arbitration is concerned, it has been interpreted by
Supreme Court that resort to arbitration in a pending
suit by the orders of the Court would be only when
parties agree for settlement of their dispute through
arbitration.
Reference : SC. Shailesh Dhairyawan v.
Mohan Balkrishna Lulla, civil appeal no.
8731 of 2015 [arising out of SLP (Civil) No.
19617 of 2015].

ON TRANSFER OF VEHICLE THERE

IS DEEMED TRANSFER OF
CERTIFICATE OF INSURANCE
What is provided under Section 157 of theAct of 1988
is that the certificate of insurance and the policy
described in the certificate shall be deemed to have
been transferred in favour of the person to whom the
motor vehicle is transferred with effect from the date
of its transfer. Even if there is a transfer of the "vehicle
by sale, the insurer cannot escape the liability as there
is deemed transfer of the certificate of insurance.
Hence, liability of insurer continues notwithstanding
the contract of transfer of vehicle, such contractual

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LAW FOR YOU

liability cannot be said to be excluded by virtue of
second proviso to Section 147(1) of Act of 1988. Hire
purchase agreement, an agreement for lease or an
agreement for hypothecation are covered under
Section 2(30) of the Act of 1988. A person in
possession is considered to be owner of the vehicle
under such agreements. In case such contractual
liability is excluded then anomalous results would
occur and financer under hire purchase agreement
would be held liable and so on.
Reference : SC. Managing Dir ector,
K.S.R.T.C. v. New India Assurance Co. Ltd. &
Anr., civil appeal no. 5293 of 2010.

SUBSTANTIAL QUESTION OF LAW

Time and again Supreme Court has held that unless
the High Court is satisfied that there is a substantial
question of law, jurisdiction under Section 100 of the
Code of Civil Procedure cannot be exercised. The
court has drawn the following conclusion:
(i) On the day when the second appeal is
listed for hearing on admission if the High
Court is satisfied that no substantial
question of law is involved, it shall dismiss
the second appeal without even formulating
the substantial question of law;
(ii) In cases where the High Court after
hearing the appellate is satisfied that the
substantial question of law is involved, it
shall formulate that question and then the
appeal shall be heard on those substantial
question of law, after giving notice and
opportunity of hearing to the respondent;
(iii) In no circumstances the High Court can
reverse the judgement of the trial court and
the first appellate court without formulating
the substantial question of law and

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complying with the mandatory requirements

of Section 100 CPC.
Reference : SC. Ashok Rangnath Nagar v.
Shrikant Govindrao Sangvikar, civil appeal
no. 8909 of 2015 [arising out of SLP(C) No.
1120 of 2015].

MERE ADMISSION OF DOCUMENTS

DOES NOT AMOUNT TO ITS PROOF
The pre-condition for leading secondary evidence are
that such original documents could not be produced
by the party relied upon such documents in spite of
best efforts, unable to produce the same which is
beyond their control. The party sought to produce
secondary evidence must establish for the nonproduction of primary evidence. Unless, it is
established that the original documents is lost or
destroyed or is being deliberately withheld by the
party in respect of that document sought to be used,
secondary evidence in respect of that document
cannot accepted. It is well settled that if a party
wishes to lead secondary evidence, the Court is
obliged to examine the probative value of the
document produced in the Court or their contents and
decide the question of admissibility of a document
in secondary evidence. At the same time, the party
has to lay down the factual foundation to establish
the right to give secondary evidence where the
original document cannot be produced. It is equally
well settled that neither mere admission of a document
in evidence amounts to its proof nor mere making of
an exhibit of a document dispense with its proof,
which is otherwise required to be done in accordance
with law. The court made it clear that mere admission
of secondary evidence, does not amount to its proof.
The genuineness, correctness and existence of the
document shall have to be established during the trial
and the trial court shall record the reasons before

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I Lawteller I 75

LAW FOR YOU

relying on those secondary evidence.
Reference : SC. Rakesh Mohindra v. Anita
Beri and others, civil appeal no. 13361 of 2015
[arising out of SLP (C) No. 29621 of 2014].

WIFE IS ENTITLED TO A RIGHT TO

BE MAINTAINED
It is well settled that under the Hindu Law , the
husband has got a personal obligation to maintain
his wife and if he is possessed of properties then his
wife is entitled to a right to be maintained out of such
properties. It is equally well settled that the claim of
Hindu widow to be maintained is not a mere formality
which is to be exercised as a matter of concession,
grace or gratis but is a valuable, spiritual and moral
right. From the judicial pronouncement, the right of a
widow to be maintained, although does not create a
charge on the property of her husband but certainly
the widow can enforce her right by moving the Court
and for passing a decree for maintenance by creating
a charge.
Reference : SC. Jupudy Pardha Sarathy v.
Pentapati Rma Krishna and others, civil
appeal no. 375 of 2007.

INHERENT POWERS BE EXERCISED

SPARINGLY
The inherent power of the High Court under Section
482, Code of Criminal Procedure should be sparingly
used. Only when the Court comes to the conclusion
that there would be manifest injustice or there would
be abuse of the process of the Court if such power
is not exercised, Court would quash the proceedings.
In economic offences Court must not only keep in
view that money has been paid to the bank which
has been defrauded but also the society at large. To
quash the proceeding merely on the ground that the
accused has settled the amount with the bank would
be a misplaced sympathy. It has been categorically
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I February 2016

held in Janta Dal v. H.S. Chowdhary, that the inherent

power under Section 482, Cr.P.C. though unrestricted
and undefined should not be capriciously or
arbitrarily exercised, but should be exercised in
appropriate cases, ex debito justitiae to do real and
substantial justice for the administration of which
alone the courts exist. In Inder Mohan Goswami [AIR
2008 SC 251], it has been emphasized that inherent
powers have to be exercised sparingly, carefully and
with great caution.
Reference: SC. State, Rep. by Inspector of
Police, Central Crime Branch v. R. Vasanthi
Stanley, criminal appeal nos. 2006-2009 of
2014.

MERE PASSING OF AN ORDER OF

DISMISSAL WOULD NOT BE
EFFECTIVE
UNLESS
COMMUNICATED
Mere passing of an order of dismissal or termination
would not be effective unless it is published and
communicated to the officer concerned. If the
appointing authority passes an order of dismissal, but
does not communicate it to the officer concerned,
theoretically it is possible that unlike in the case on
a judicial order pronounced in Court, the authority
may change its mind and decide to modify its order.
The order of dismissal passed by the appropriate
authority and kept with itself, cannot be said to take
effect unless the officer concerned knows about the
said order and it is otherwise communicated to all the
parties concerned. If it is held that mere passing of
order of dismissal has the effect of terminating the
services of the officer concerned, various
complications may arise.
Reference : SC. Dulu Devi v. State of Assam
and Others, civil appeal no. 8249 of 2015
[arising out of SLP (C) No. 19947 of 2010].
ooooooo

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GENERAL

LACK OF KNOWLEDGE NEITHER TO BE

CONSIDERED NOR ACCEPTED IN
ECONOMIC OFFENCES

. VASANTHI STANLEY-FIRST RESPONDENT,

ACCUSED NO. 2 alongwith her husband
submitted an application for home loan to the
Centurion Bank of Punjab, presently known as HDFC
Bank Ltd. for a sum of Rs. 6 lakhs by depositing the
sale deed dated 31.10.2001. The HDFC Bank found
that documents were forged and accordingly filed a
complaint with the Commissioner of Police, Chennai
on 20.12.2005 which eventually gave rise to
registration of FIR No. 579/06 dated 19.7.2006.
Another FIR came to be lodged on 3.8.2006 by Bank
of India, Cathedral Branch from which the couple had
availed a loan of Rs. 25 lakhs for a Company
Development (Medicrops and Medigel) on the
grounds that the documents were forged. On
10.7.2006, Vijaya bank, G.N. Chetty Road Branch filed
a complaint that the husband of the accused had
applied for a mortgage loan of Rs. 18 lakhs with
forged documents by depositing the title deed and
the wife stood as a surety. Taking into consideration
the complaints lodged by the aforesaid banks, the
Inspector of Police, Central Crime Branch, Team-XII,
Egmore Chennai, registered the FIRs and commenced
the investigation. When the matter stood thus, the
Syndicate Bank, Mylapore Branch filed a complaint
with the Commissioner of Police, Chennai on 11.1.2007
to the effect that the husband of the first respondent
herein had submitted an application for grant of home
improvement loan for a sum of Rs. 12 lakhs with
forged documents and the wife was the guarantor and
on that basis another FIR was registered and
investigation took place. Thus, the first respondent
was a co-applicant in respect of the loans availed
from HDFC Bank and Bank of India and was a

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guarantor in respect of the loans availed from Vijaya

Bank and Syndicate Bank were 579/06, 643/06, 550/
06 and 206/07 respectively. After due investigation,
chargesheets were filed before the Chief Metropolitan
Magistrate, Egmore, Chennai and Metropolitan
Magistrate, Saidapet, Chennai and the proceedings
before the trial court were instituted bearing CC No.
1624/2010, CC No. 5669/2010, CC No. 6258/2010 and
CC no. 1169/2010.
After placing of the chargesheets, the accused
persons moved the High Court in Criminal OP No.
14759-14762 of 2011 for quashing of the criminal
proceedings. During the pendency of the cases, the
husband, accused No. 1 breathed his last and
thereafter before the High Court it was contended
that she was not aware of any transaction done by
her husband as she was working as a public servant
and that apart she was not aware of the business
activities carried on by her husband; that she had
signed the documents as instructed by her husband
without any intention or knowledge to cheat the
banks; that after demise of her husband, she had
come to know about the cases pending against her
due to the alleged involvement of her husband and
immediately she had taken necessary steps to settle
the entire dues of the banks and, therefore, there
was no justification for continuance of the criminal
proceedings. The stand and stance put forth by the
accused person was combated by the prosecution
on the ground that she was in employment in
Commercial Tax Department in the rank of Assistant
Commissioner and had availed voluntary retirement
and hence, she could not claim ignorance of the
transaction despite being a co-applicant to the loans

February 2016

I Lawteller I 77

GENERAL
by executing the pronotes jointly along with her
husband as a borrower and being a guarantor in
respect of the loans availed of by her husband from
two banks. The quashment of the criminal
proceedings was also resisted by the respondent
Bank in Criminal O.P. No. 14762 of 2011 that certain
loan availed of by her husband had remained unpaid
and One Time Settlement was arrived at without
prejudice to the rights regarding pending cases
against her before the learned 11th Metropolitan
Magistrate. Saidapet, Chennai, Learned counsel for
the accused had placed reliance on Nikhil Merchant
v. Central Bureau of Investigation [2008 (9) SCC 677],
Manoj Sharma v. State and others [2008 (16) SCC
1], State of Karnataka v. L. Muneswamy [1977 (2)
SCC 699], Madhvrao Jiwajirao Scindia and others v .
Sambhajirao Chandrojirao Angre and others [1988 (1)
SCC 692] Hira Lal Hari Lal Bhagwati v. C.B.I., New
Delhi [2002 (5) SCC 257], and Shiji @ Pappu and
others v. Radhika and another [201 1 (10) SCC 705]
before the High Court for quashing of the criminal
proceedings. On behalf of the prosecution, reliance
was placed on Sushil Suri v. CBI and Anr. [2011 (5)
SCC 708].
The High Court adverted to the authorities cited at
the Bar and thereafter came to hold that as "No due
certificate" had been issued by the respective
banking institutions and further settlement had been
arrived at under the scheme, continuance of the
prosecution would be an exercise in futility and,
therefore, quashing of the criminal proceedings was
required to prevent the abuse of the process of law.
Being of this view, the High Court has quashed all
the proceedings.
Against the judgement of the High Court special leave
petition was filed. The Supreme Court accepted the
appeal, set aside the order passed by the High Court
and directed the trial magistrate to proceed in
accordance with law.

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The operative part of the judgement read as under :

High Court has been erroneously guided by the ambit
and sweep of power under Section 482 CrPC for
quashing the proceedings. It has absolutely
fallaciously opined that the continuance of the
proceeding will be the abuse of the process of the
Court. It has been categorically held in Janta Dal v.
H.S. Chowdhary (supra), that the inherent power
under Section 482 CrPC though unrestricted and
undefined should not be capriciously or arbitrarily
exercised, but should be exercised in appropriate
cases, ex debito justitiae to do real and substantial
justice for the administration of which alone the
courts exist. In Inder Mohan Goswami (supra), it has
been emphasized that inherent powers have to be
exercised sparingly, carefully and with great caution.
TTTTTTT

The submission as put forth is that the first

respondent is a lady and she was following the
command of her husband and signed the documents
without being aware about the transactions entered
into by the husband and nature of the business. The
allegation in the chargesheet is that she has signed
the pronotes. That apart, as further alleged, she is a
co-applicant in two cases and guarantor in other
two cases. She was an Assistant Commissioner of
Commercial Taxes and after taking voluntar y
retirement she has joined the public life, and became
a member of the Rajya Sabha. Emphasis is also laid
that she is a lady and there is no warrant to continue
the criminal proceeding when she has paid the dues
of the banks, and if anything further is due that shall
be made good. The assertions as regards the
ignorance are a mere pretence and sans substance
given the facts. Lack of awareness, knowledge or
intent is neither to be considered nor accepted in
economic offences. An offence under the criminal law
is an offence and it does not depend upon the gender
of an accused. True it is, there are certain provisions

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GENERAL
in CrPC relating to exercise of jurisdiction under
Section 437, etc. therein but that altogether pertains
to a different sphere. A person committing a murder
or getting involved in a financial scam or forgery of
documents, cannot claim discharge or acquittal on
the ground of her gender as that is neither
constitutionally nor statutorily a valid argument. The
offence is gender neutral in this case.
TTTTTTT

As far as the load on the criminal justice

dispensation system is concerned it has an
insegregable nexus with speedy trial. A grave
criminal offence or serious economic offence or for
that matter the offence that has the potentiality to
create a dent in the financial health of the
institutions, is not to be quashed on the ground that
three is delay in trial or the principle that when the

matter has been settled it should be quashed to avoid

the load on the system. That can never be an
acceptable principle or parameter, for that would
amount to destroying the stem cells of law and order
in many a realm and further strengthen the marrows
of the unscrupulous litigations.
TTTTTTT

Authorities relied upon : 2013 (14) SCALE 235, 2013

(10) SCC 586,AIR 2012 SCW5333, 2011 (10) SCC 705,
2002 (5) SCC 257, 1996 (5) SCC 581, 1977 (2) SCC 699.
Reference : Supreme Court. State, Rep. by Inspector
of Police Central Crime Branch v. R. Vasanthi Stanley
& Anr., criminal appeal nos. 2006-2009 of 2014 [from
the Judgement and Order dated 24.1.2012 passed by
the High Court of Madras in Crl. O.P. (MD) Nos. 14759
to 14762 of 2011].

GLOBAL GLIMPSE

US SC: RULES EQUITABLE TOLLING DOES NOT APPLY TO TRIBES

CONTRACT CLAIM
The US Supreme Court ruled unanimously in Menominee Indian Tribe of Wisconsin v. United States that
equitable tolling does not apply to the presentment of a tribes contract claim. The Menominee Tribe contracted
with the Indian Health Service (IHS), under the terms of the Indian Self-Determination and EducationAssistance
Act, to take control of a Federal aid program that would otherwise be operated by the Federal government.
In accordance with the law, the Menominee Tribe was eligible to receive the amount of money that the
government otherwise would have spent on the program, including reimbursement for "contract support costs".
Following a pair of successful claims by other tribes levied against the federal government over a failure to
pay contract support costs, the Menominee Tribe filed a case with the IHS over contract support costs in
2005 for contract years 1995-2004. The contracting officer for the IHS denied the Menominee Tribes claim
based on its 1996, 1997 and 1998 contracts because those claims were barred by the six-year statute of
limitations of the Contract Disputes Act. The Menominee Tribe appealed to the US Court of Appeals for the
District of Columbia Circuit, which denied the claim because it failed to meet the test outlined by the Supreme
Court in Holland v. Florida that stipulates when equitable tolling permits an exception to the statute of
limitations. According to the test in Holland, "a litigant is entitled to equitable tolling only if the litigant
establishes two elements: 1) that he has been pursuing his rights diligently and 2) that some extraordinary
circumstance stood in his way to prevent a timely filing". The court held that the Menominee Tribe failed to
meet the elements of the test, affirming the ruling of the DC Circuit.

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February 2016

I Lawteller I 79

LEGAL UPDATES
PLEA TO QUASH APPOINTMENT OF
VICE-CHANCELLOR
The Supreme Court has sought Aligarh Muslim
Universitys response on a petition seeking a direction
to quash the appointment of its Vice-Chancellor. The
Bench issued notice to the university directing it to
file its reply in six weeks on the appeal challenging the
Allahabad High Court order which had dismissed the
plea of an alumni of the university. The High Court on
October 16 had junked the petition challenging the
appointment of Lt. Gen. Zameer Uddin Shah, noting
there was "nothing wrong with the procedure
(adopted)". The appointment of Shah as V-C of AMU
on May 11, 2012 was challenged on the ground that
according to the regulations of University Grants
Commission, the V-C ought to have worked for at least
10 years as a professor in a university or on an
equivalent post in a research or academic institute.

UNDESERVED LENIENCY IN
SENTENCING WILL ONLY CAUSE
HARM TO SOCIETY
Noting that "criminal of all types are on the rise" and
reformation of prisoners had not worked but only
produced more crime in society, the Supreme Court
said the judiciary should show no mercy in sending a
man in the gallows or to jail for life in heinous crimes.
"Any further lenience is shown in the matter of
imposition of sentence, at least in respect of capital
punishment or life imprisonment, it can only be said
that that will only led to further chaos and there will
be no rule of law, but only anarchy will rule the country,
enabling the criminals and their gangs to dictate
terms," a majority judgement of the five-judge
Constitution Bench in the Rajiv Gandhi killers
remission case observed. The apex court was dealing
with the legality of "special category of sentence" by
which constitutional courts can mandatorily send a

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person convicted in a heinous crime like rape, dacoity,

gang-rape and terrorist crimes to imprisonment of 20
to 40 years without remission. Under the Criminal
Procedure Code, a life convict can apply for remission
after serving 14 years of his sentence. The provision
is reformative in nature. This "special sentencing" for
20 to 40 years depriving prisoners of their statutory
right to apply for remission was introduced in the 2008
Swami Shraddananda murder case judgement as an
alternative to death penalty . Upholding the
constitutionality of such a special sentencing, Justice
F.M.I. Kalifulla, who wrote the majority verdict, said
such harsh measures were required to tame "heartless,
hardened, money-minded, lecherous, paid assassins"
who preyed on the common man and the vulnerable.
The court said remission after 14 years would only
succeed in "letting loose" hardened, remorseless
criminals back into society. "Lawlessness is the order
of the day It is the hard reality that the state
machinery is not able to protect or guarantee the life
and liberty of the common man. Therefore, any
sympathy shown, will only amount to a misplaced one
which the courts cannot afford to take," the majority
verdict observed. Justice Kulifulla wrote that unless
there was infrastructure to provide education and
induce repentance in a criminal, prolonged periods of
imprisonment without remissions was an effective way
to keep them away from society.

TEESTA GETS PROTECTION FROM

ARREST
The Supreme Court has extended social activist Teesta
Setalvad and her husband Javed Anand protection
from arrest in a case of alleged embezzlement of funds
for a memorial to mark the carnage at Ahmedabads
Gulbarg Society in the 2002 Godhra riots. The Bench
asked the CBI to respond on a petition filed by Ms.
Setalvad in connection with a separate case on alleged
violation under the Foreign Contribution Regulation

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LEGAL UPDAES
Act (FCRA). The court also agreed to hear a CBI
petition, seeking the cancellation of the couples
anticipatory bail granted by the Bombay High Court
in August in the FCRA case

SC REJECTS PLEA TO CANCEL

SALMAN KHANS BAIL
The Supreme Court has declined a plea to cancel the
bail granted to actor Salman Khan by the Bombay High
Court in the 2002 hit-and-run case. The Bench rejected
the plea of Sushila Bai Himmat Rai Patil, mother of
police constable Ravindra Patil, a key witness, who
died in mysterious circumstances. The petition also
wanted a probe into the constables death. The court
had refused a similar plea by Sushila Bai Patil in
August. On May 6, the actor was convicted of culpable
homicide not amounting to murder and sentenced to
five year in jail. But the Bombay High Court suspended
the sentence and granted him interim bail, pending his
appeal against conviction.

SUPREME COURT WILL ENSURE

RULE OF LAW
Noting that there is a political angle to the whole
religious intolerance debate, Chief Justice of India T.
S. Thakur sent a strong message against divisive
forces, saying that India is an inclusive society where
people of all faiths and religious flourish with mutual
respect and the Supreme Court will ensure that the
rule of law reigns supreme. "When the Constitution
guarantees Rule of Law to those who are not our
citizens, there is no question that citizens of India,
no matter of what religion on faith should feel
unprotected. Supreme Court has no reluctance to
protect the beliefs of our fellow citizens. As long as
Rule of Law prevails no one has to be afraid," Chief
Justice Thakur said during a media interaction. Mr.
Justice Thakur said the spirit of India is tolerance and

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not intolerance. "There is a politics in the religious

intolerance debate. But I am not a politician. As a part
of the judicial institution, I want to remind you that
this country has a history of becoming a home to
those who have fled their own countries fearing
religious persecution. Here these people of different
faiths and beliefs have flourished. Look at the Parsi
community, they have contributed so much to
national progress in the fields of law, industry, etc.,"
he pointed out. On the issue of rising judicial
vacancies in the High Courts and the Supreme Court,
he said he would prefer to wait till the five-judge
Constitution Bench led by Justice J.S. Khehar
pronounces the guidelines for the Collegium. "It
should not be the case that the Collegium makes
appointments of judges first and later discovers that
they were not in consonance with the Constitution
Benchs guidelines. It is better to avoid such
confusion and wait till the Bench pronounces the
verdict on the Collegium. It is also not proper for us
to make fresh appointments when a Bench has
already reserved the case for judgement," he said. He,
however, pointed out that filling the current 400
judicial vacancies would be a "big challenge." A
proposal to increase the retirement age of High Court
judges from 62 to 65 is pending and would require
an amendment in the law. He said retired judges who
are good can also be appointed as adhoc judges.
Proposing "we may have more women judges," he
said there should be a balance between regional
representation and merit while appointing judges. On
post-retirement jobs for judges, the Chief Justice said:
"If you dont need judges anywhere in any jobs,
change the law. If you can find a substitute in a
politician or a bureaucrat, change the law. If judges
are of no use to you, change the law." Asked whether
he considered death penalty to be a civilized method
of punishment, he agreed that there is a strong feeling
against courts awarding death penalty even in the
rarest of rare cases. "But as long as the statute allows

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LEGAL UPDATES
it, we have no choice. The parliament has to change
the law. I believe that there are certain of fences,
terrorism and heinous crimes, for which, if a court
finds the accused guilty, the only punishment is
death."

PANEL GETS ACCESS TO RANJIT

SINHAS DIARY
The Supreme Court has allowed its panel headed by
former CBI official M.L. Sharma to access the visitors
diary of the premier investigating agencys former chief
Ranjit Sinha. The diary, maintained in a sealed cover
with the Supreme Court, would be crucial to decide if
Mr. Sinhas meetings with persons involved in the coal
scam affected the CBIs probe and prosecution in the
multi-crore Coalgate scam. The diary first made its
existence known through advocate Prashant Bhushan,
who said an anonymous source had passed it on to
him. It allegedly contains information about visits from
both accused persons in the 2G Spectrum and coal
scam cases. A Special Bench directed that Mr. Sharma
share the contents with his team and file a report back
in the court, Senior advocate Vikas Singh, appearing
for Mr. Sinha, reiterated his stand that the alleged
meetings alone cannot per se be termed objectionable
as the real test would be whether those meetings led
to according of favours to any named accused. The
Bench, meanwhile, refused to commit on a plea raised
by Mr. Bhushan seeking a direction to the CVC that
the Sharma panel also be given documents of those
cases where the CVC did not favour prosecution.

CJI READY TO WALK OR EVEN TAKE

A BUS
After being pulled up by the Delhi High Court and the
National Green Tribunal for the worsening air pollution
in the National Capital, the Delhi government got a
breather with none other than Chief Justice of India

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I February 2016

T.S. Thakur expressing full support to Chief Minister

Arvind Kejriwals odd even formula" of car use, even
to the extent of saying that Supreme Court Judges are
prepared to pool cars or take the bus to the Tilak Marg
apex court complex. "It is the minimum we can do for
the city," Chief Justice Thakur said. "Judges have no
problem with the odd-even formula. We would love to
adopt it," he said.

ARE THESE HIS ILL-GOTTEN GAINS?

The Supreme Court wanted to know from underworld
don Dawood Ibrahims family if a piece of Mumbai
property it owned, and now facing confiscation, is part
of the "ill-gotten gains" of Indias most wanted
fugitive. "Are these ill-gotten properties?" Chief Justice
asked the familys lawyer. Before counsel could
respond, Additional Solicitor-General told the bench
that the petitioners were the mother and sister of
Dawood, as if the fact was self-explanatory. The dons
mother Amina Bi Kaskar and his sister Hasina Ibrahim
Parkar, both now deceased, had challenged the
governments move after the 1993 Mumbai serial blasts,
to confiscate property allegedly acquired through
Dawoods ill-gotten wealth. The move to seize the
familys property was based on orders issued under
the Smugglers and Foreign Exchange manipulators
(Forfeiture of Property) Act (SAFEMA). The familys
petitions in the Delhi High Court against the tribunal
order had failed. The government had maintained that
the decision to seize the assets came after the family
failed to establish that the property purchase was bona
fide. It had argued that provisions of SAFEMA
extended not only to the done, who fled the country,
but also to the assets of relatives. Denying the familys
claim that it was not served proper notices before the
forfeiture order was passed in 1998, the government
contended that the appeal against forfeiture was not
time-barred and had no merit whatsoever. However,
Chief Justice asked the government if the provisions

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LEGAL UPDAES
of SAFEMA would condone the delay if there was a
genuine cause to back it.

IS USING ELEPHANTS FOR JOYRIDES

CRUEL?
The Supreme Court has asked the Centre clarify
whether it was cruelty to employ elephants for joyrides.
The Bench sought responses from tourist havens
where the sight is common. The courts query was
based on pleas made by six organizations and
individuals, including Wildlife Rescue and
Rehabilitation Centre, which said the number of captive
elephants kept by private persons and religious
institutions stood at over 3,000. The two pleas alleged
that elephants used for such rides were chained and
ill-treated in violation of the statutory provisions.
Solicitor General gave a preliminary response in court
that there was no provision that suggested that an
elephant could not be used for such joyrides.

SUPREME COURT UPHOLDS

HARYANA LAW ON ELIGIBILITY TO
CONTEST PANCHAYAT POLLS
In what may be a precedent preventing illiterate person
from participating in grass roots democracy , the
Supreme Court upheld a Haryana State law mandating
that only those having "minimum" educational
qualifications will be eligible to contest panchayat
elections in the State. The other grounds for
disqualification from contesting polls under the
Haryana Panchayat Raj (Amendment) Act, 2015 are
failure to pay arrears to any primary agriculture cooperative society or agriculture co-operative banks,
failure to pay electricity bill arrears and not having a
functional toilet at home. The "minimum" education
required for eligibility to contest in a panchayat election
is completion of matriculation in case of general
candidates; completion of Class 8 for a woman

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candidate or a candidate or a candidate belonging to

Scheduled Caste; and completion of Class 5 pass for
a Scheduled Caste woman candidate contesting for the
post of Panch. The law leaves 68 percent of the
Scheduled Caste women and 41 percent of the
Scheduled Caste men in Haryana ineligible to contest
panchayat elections. The judgement may become a
relying point for other States also to amend their laws
in the same fashion. The apex court failed to find any
merit in the argument of three women candidates,
spurned by Haryanas new poll law and who moved
the Supreme Court, that "people do not choose to be
illiterate."

FSSAI TOLD SC, DID NOT ORDER

MAGGI BAN
In a twist to the Maggi noodles ban case, the Food
Safety and Standards Authority of India (FSSAI) told
the Supreme Court it had never, in the first place,
banned nestle Indias popular household two-minute
snack. Instead, the FSSAI said it only issued a showcause notice to the company, seeking an explanation
about the "excess" lead levels in its products and
secondly, why it had made a "false declaration of no
added MSG (monosodium glutmate) when its products
contained MSG." "The High Court erred in coming to
the conclusion that the show-cause notice was a ban
order," the FSSAI argued in its appeal against a
Bombay High Court lifting the ban on the Maggi
noodles. Seeking a stay of the High Court judgement,
that has paved the way for Maggis return, the top food
regulator said "harm may be caused to consumers of
the products, which will have an adverse effect on
human health and life in the country." Apprehensions
raised by the FSSAI prompted a Bench led by justice
Dipak Misra to direct the Nestle and the Maharashtra
government to respond by January 13. The FSSAI,
represented by Attorney-General Mukul Rohatgi,
explained that it had only asked the company to stop

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I Lawteller I 83

LEGAL UPDATES
further manufacture, production, import distribution
and sale of its noodle variants in public interest during
the period of consideration of the notice. This, it
contended, would hardly have the effect of "bank
orders," especially when Nestle had already issued a
press release declaring that it was recalling its products
under the scanner for excessive lead content. Nestle
went on to destroy over 25,000 tones of Maggi
products. The FSSAI argued that the company, instead
of replying to the show-cause notice, moved the
Bombay High Court. The High Court had interpreted
the FSSAI notice as a ban order, and concluded that
banning the companys products without even
affording it an opportunity to be heard was against
the basic principles of natural justice. The FSSAI
termed the High Court order as fallacious." It asked
how a notice issued in public interest could be
described "arbitrary, unreasonable, lacking
transparency" by the High Court. That too when the
High Court itself has recorded the fact that out of 82
samples, 30 had lead levels in excess of permissible
limits. The Food Authority said the High Court had
erred in disregarding the reports of two notified and
NABL-accredited labs (Kolkata and AVON) that levels
of lead were over the limit. It said the High Court has
committed a mistake by asking the company itself to
provide the fresh samples for testing instead of asking
a neutral authority to do so. "The High Court erred in
not considering that the sampling procedure and an
accurate analysis can only be in a case of a surprise
check on random samples sold in the market and not
from samples that the company (Nestle) will have
liberty to choose and send for testing," the FSSAI
contended.

SC SEEKS GREEN CREMATORIUM

NEAR TAJ
The Supreme Court has asked Uttar Pradesh to
explore the possibility of introducing more electric

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furnaces at the crematorium next to the Taj Mahal and

offer last rite services free of cost to save the historic
monument. It was responding to the governments
stand that shifting the crematorium will hurt "religious
sentiments." The crematorium caught the Supreme
Courts attention recently when sitting apex court
judge Justice Kurian Joseph wrote to the Chief
Justice of India that smoke and ash emanating from
funeral pyres may cause further damage to the 17th
Century monument and UNESCO World Heritage site.
Justice Joseph wrote that the wind direction often
played havoc and caused the smoke and ash to fly
towards the Taj Mahal. This, he pointed out, was
"among the major identified causes for the
deterioration of the physical luster, which ultimately
may even pose a threat to the stability of the
structure." The apex court, acting on the letter, had
in the previous hearing asked the State to respond
by December 14 whether the crematorium could be
shifted. The State government said there was
scientific proof that smoke from the pyres had
affected the Taj physically. The Advocate-General
said the S tate administration was, however ,
apprehensive that shifting the centuries old cremation
site would hurt religious sentiments." The court then
said the government should consider using
technology to reduce carbon emission from the
existing electrical furnace. It could also build more
such furnaces and offer free cremation services. "If
you make it free, more people will opt for it. Do it for
the sake of the monument," Chief Justice said. At one
point during the hearing, Chief Justice expressed
shock when a senior government official said that
there were at least four cremation services every day
and "half-burnt" bodies were removed and placed on
a tray to make space for others. "We are shocked by
what you are saying. Please do not disrespect the
dead," the Chief Justice warned the official. The
Bench asked the State government to frame a
comprehensive scheme to beautify the areas around

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LEGAL UPDAES
the crematorium, including landscaping, "to soften
the blow dealt by the "harsh reality of life". Justice
Kurians letter had come up for hearing as part of a
long-pending petition filed by noted environment
lawyer M.C. Mehta highlighting the threat of air
pollution around Agras grand symbol of love.

SC APPOINTS U.P. LOKAYUKTA

Annoyed with the lack of consensus among
constitutional authorities in Uttar Pradesh, the
Supreme court invoked its extraordinary powers to
assume authority and appoint the States Lokayukta.
In a rare display of flexing its extraordinary powers
under Article 142 of the Constitution to enforce its
own orders in order to do "complete justice", the
Supreme Court for the first time in its history
appointed a Lokayukta after slamming the "failure"
of the constitutional authorities of the State to
comply with the orders. The Bench appointed
former High Court Justice Virendra Singh as Uttar
Pradeshs Lokayukta after expressing its annoyance
at how the U.P. government failed to meet the
Supreme Court deadline. "The failure of
constitutional functionaries to comply with the
orders of the highest court of the land is deeply
regretted and astonishing," Justice Gogoi observed.
No consensus had been reached among the threemember committee of Chief Minister, Opposition
Leader and the Chief Justice of the State High Court
despite two rounds of talks. A five-hour-long
midnight meeting of the committee failed, after
which talks had resumed at the residence of Chief
Minister Akhilesh Yadav in Lucknow, which also
failed to end the freeze. The committee was
supposed to submit the name to the Supreme Court
and file a compliance report. The apex court had
given the U.P. Government 48 hours to comply or
face "dire consequences". The Bench zeroed in on
Justice (retired) Singh after examining a list of five

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names. It has directed the State government to

comply with this order and report back. Earlier the
apex court had rapped the U.P. government for not
appointing the Lokayukta despite its directions,
saying it seemed that appointing authorities have
their "own agenda". The Bench was hearing the
pleas filed by Mahendra Kumar Jain and lawyer
Radhakant Tripathi for a direction on appointment
of the States Lokayukta.

PLEA
FOR
REVIEW
OF
STORMWATER DRAINS, DISMISSED
The Supreme Court has dismissed a petition seeking
for direction to the Centre and Tamil Nadu
government to set up an expert committee to inspect
and scientifically re-design the existing stormwater
drainage management system in these areas to
manage floods and prevent water-logging. A Social
Justice Bench said that a comprehensive petition on
the same issue is pending before the Madras High
Court and there was no need for the apex court to
step in at this point. The petition filed by Chennaibased lawyer Kiruba Munusamy had pointed out that
the coastal regions of Tamil Nadu, Puducherry and
Andhra Pradesh were highly prone to annual cyclone
surges and scientific review of the existing stormwater
drainage management system is required to manage
floods and prevent water-logging possibly leading to
a second disaster. Ms. Munusamy had endeavoured
to bring to the apex courts attention that 450 people
were reportedly dead and over 1.8 million people
displaced in the flood which wrecked havoc in Tamil
Nadu and neighbouring parts. It said that the
estimated loss to ordinary citizens is over Rs. 20,000
crore. Focussing on Chennai during the deluge, the
petition highlighted the citys plight worsened by
"years of illegal development and inadequate levels
of flood preparedness".
ooooooo

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I Lawteller I 85

GENERAL

WHETHER SANCTION FOR PROSECUTION OF DOCTORS

OF GOVT. HOSPITAL IS MANDATORY, HELD YES

ISS TAPSI RAI, AGED 14 YEARS,

DAUGHTER OF RESPONDENT Surendra
Nath Rai, underwent surgery on 5.8.1997 in Maharani
Government Hospital, Jagdalpur, Bastar. The operation
necessitated due to pain developed by the patient in
the abdomen, was performed by the appellants, namely,
Dr. (Smt.) Manorama Tiwari, Dr. B.R. Kawdo and Dr.
Pradeep Pandey Before conducting the surgery, consent
to operate was taken from the respondent. However,
even after surgery, the condition of the patient did not
improve, and she died on the same day.
A First Information Report was lodged by the respondent
after lapse of more than five months, i.e. on 2.2.1998
relating to offence punishable under section 304A of
Indian Penal Code at Police Station, Jagdalpur against
Dr. Manorama Tiwari and Dr. Pradeep Pandey (appellant
Nos. 1 and 3 respectively). Meanwhile, enquiry was got
conducted on the complaint of the respondent under
orders of the District Magistrate, in which report dated
nil shows that the surgeons were opined to be
negligent. However, subsequently another enquiry was
held under orders of the Government, in which Joint
Controller Health Services, Bastar, submitted his report
dated 11.3.1998 with the finding that there was no
negligence on the part of the surgeons.
It appears that the police did not file charge sheet, and
the complainant (respondent) filed criminal complaint
before the Chief Judicial Magistrate, Jagdalpur, making
allegations of commission of murder against the
appellants. Said case was registered as Criminal
Complaint case No. 954 of 2000. The appellants moved
an application on 18.10.2001 (No. 889 of 2002) alleging
that prosecution against them is not maintainable
without sanction as required under Section 197 Cr.P.C.
Said application was rejected by the Magistrate vide
order dated 16.3.2002, against which appellants filed
criminal revision, but no relief is granted by the High
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Court and the same was disposed of summarily without

any observation.
Against the judgement of the High Court special leave
petition was filed. The Supreme Court accepted the
appeal, set aside the order passed by the High Court
dismissing the criminal revision and the one passed by
the Magistrate on 16.3.2002 rejecting the application
under Section 197 Cr.P.C. The application under Section
197 Cr.P.C. moved by the appellant before the trial court
was allowed.

The operative part of the judgement read as under :

High Court has erred in law in dismissing the
criminal revision filed by the appellants and
affirming the order of the Magistrate rejecting their
application as to maintainability of the criminal
complaint without sanction from the State
Government. It is a clear case where appellants were
discharging their public duties, as they were
performing surgery on the patient in the Government
Hospital. It is not disputed that the appellants were
the Medical Officers in the Government Hospital. As
such, the criminal prosecution of the appellants
initiated by the respondent (complainant) is not
maintainable without the sanction from the State
Government. That being so, we are inclined to allow
this appeal.
TTTTTTT

Authorities relied upon : AIR 1956 SC 44.

Reference : Supreme Court. Dr. (Smt.) Manorama
Tiwari and others v. Surendra Nath Rai, criminal
appeal no. 1193 of 2015 (from the Judgement and
Order dated 16.4.2012 of the High Court of Judicature
Chhattisgarh at Bilaspur in Criminal Revision No. 220
of 2002).

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GENERAL

SC RESTORES DIVORCE GRANTED BY FAMILY

COURT ON GROUND OF CRUELTY

CCORDING TO C. SEMBIAM SIVAKUMAR

(THE APPELLANT), the marriage was
solemnized on 13.11.1997 as per customary rites. It
was an arranged marriage. It is the case of the
husband that the marriage was never consummated
and the respondent was not interested in marital life.
It is alleged that respondent left the company of the
appellant on 271.1998; however, according to the
respondent, she left appellants company on
10.3.1998. Though, the petition for dissolution was
filed in 1998 it was disposed of by the Family Court
only in the year 2002. Having regard to the evidence
available on record, the Family Court was of the view
that the appellant was entitled to the decree of
divorce on the ground of cruelty.
In appeal, the High Court, however, came to the
conclusion that the evidence available on record was
not sufficient to establish cruelty so as to grant a
decree of divorce and hence the order of decree of
divorce granted by the Family Court was set aside.
When the matter came up before the Supreme Court
on 30.10.2012, Supreme Court passed the following
order:
Learned counsel for the petitioner submitted
that after passing of the decree of divorce
by the trial Court his client had remarried
and it will cause him immense injury if the
impugned judgement of the High Court is
not set aside. He also pointed out that
during the pendency of the matter before the
High Court, the respondent had agreed to
accept permanent alimony of rupees four
lacs.
In reply to the Courts query, learned counsel
submitted that his client is still ready and

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willing to pay the amount of permanent

alimony with little enhancement. Issue notice
to the respondent, returnable in the first
week of February, 2013. Dasti, in addition,
is permitted. Issue notice on the petitioners
prayer for interim relief returnable in the first
week of February, 2013. Dasti, in addition,
is permitted.
In the meanwhile, operation of the impugned
judgement shall remain stayed subject to the
condition that within eight weeks from today
the petitioner shall pay to the respondent a
sum of rupees five lacs. If the needful is not
done, the interim order passed today shall
stand automatically vacated and the special
leave petition shall stand dismissed.
The Registry shall issue notice to the
respondent only after the petitioner
produces evidence showing payment of
rupees five lacs to her.
On 26.9.2014, the matter again came up and Court
passed a further order which reads as under:
Learned counsel for the petitioner submits
that a sum of Rs. 5 Lacs has been paid in
favour of the respondent (wife).
On joint request of the learned counsel for
the parties, we refer the matter to the
Coordinator. Supreme Court Mediation
Centre at 110, Lawyers Chambers (R.K. Jain
Block), Supreme Court Compound, Tilak
Marg, New Delhi-110001. The parties to
appear before the Mediator on 16th October,
2014 at 11.00 A.M. Let the Mediator examine
all the option to resolve the dispute
amicably.

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I Lawteller I 87

GENERAL
Report may be submitted within six weeks
from the date of appearance. Post the mater
after ten weeks. In the meantime, petitioner
shall pay a sum of Rs. 30,000/- in favour of
the respondent (wife) towards her to and fro
journey and stay at Delhi.
The proceedings before the Mediator did not take
place since it was informed by the respondent that
she was not willing for any mediation.
Thereafter, on 16.1.2015, Supreme Court passed the
following order:
Learned counsel for the petitioner and
respondent are directed to find out whether
there is a possibility between the parties to
settle the dispute.
We direct respondent-Ms. V. Sivachitra Devi
and petitioner - Mr. C. Sembiam Sivakumar
to appear before this Court on 10th
February, 2015 at 1.30 p.m. in Chambers.
List the matter on 10th February, 2015 at 1.30
p.m. in Chambers.
It appears that the respondent was not willing for the
course of action either. On 17.2.2015, Supreme Court
hence passed the following order:
Pursuant to the court order dated 16.1.2015
the petitioner-Mr. C. Sembiam Sivakumar is
present. Respondent-Mrs. V. Sivachitra Devi
is not present. Mr. Sureshan P. Advocateon-Record for respondent-Mrs. V. Sivachitra
Devi has filed an application seeking leave
of this Court to discharge himself from the
matter since he did not receive any
instructions from his client being
respondent. The prayer made in the
application is allowed.
Further, as we find that the respondent is not
interested to settle the dispute amicably, we
re-call the order dated 16.1.2015 and direct

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I February 2016

to list the case before an appropriate Bench

on 24.3.2015.
After discharge of the Advocate-on-record, notice
was sent to the respondent and yet she did not
appear on 2.7.2015. However, the Court was inclined
to grant one more opportunity and the case was
adjourned. When the matter was taken up, neither the
respondent was present nor any representation as
there on her behalf.
The Supreme Court on scanning the evidence, in the
light of the conduct of the respondent found that
ground of cruelty has been made out. The Supreme
Court set aside the order passed by the High Court
and restored decree of divorce granted by the Family
Court.

The operative part of the judgement read as under :

It is fairly clear that the respondent is not interested
to prosecute the matter any further, perhaps, because
she has already received Rs. 5 lakhs by way of
permanent alimony pursuant to the order passed by
this Court and as recorded in the order dated
26.9.2014. It is seen from the record that there was
an earlier attempt when the matter was pending
before the High Court, to have the matter settled on
payment of permanent alimony to the tune of Rs. 4
lakhs. Be that as it may. Now that the appellant is
since remarried for more than a decade back,
pursuant to the decree of divorce granted by the
Family Court and since the respondent has accepted
the amount of Rs. 5 lakhs offered by the appellant/
husband towards permanent alimony and since the
appellant submits that he does not want to prosecute
any litigation for recovery of gold jewellery and
other articles worth more than Rs. 5 lakhs, we do
not think that three is any fruitful purpose in
keeping this matter pending. For all practical
purposes, there is no matrimonial bond between the
parties. On scanning the evidence, in the light of the

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GENERAL
conduct of the respondent, we are satisfied that
ground of cruelty has been made out. We set aside
the impugned order passed by the High Court and
restore decree of divorce granted by the Family
Court.

Reference : Supreme Court. M/s. Ludhiana

Mediways v. M/s. IAA Hospital Pvt. Ltd. & Ors., civil
appeal no. 5491 of 2015 (from the Judgement and
Order dated 11.7.2014 of the High Court of Punjab and
Haryana at Chandigrh in C.W.P. No. 17785 of 2012).

TTTTTTT

GLOBAL GLIMPSE

US SC: RULES AGAINST MITIGATING FACTOR JURY INSTRUCTION IN

DEATH PENALTY CASES
The US Supreme Court ruled in Kansas v. Carr that a jury in a death penalty case does not need to be advised
that mitigating factors, which can lessen the severity of a criminal act, do not need to proven beyond a reasonable
doubt like aggravating factors. The defendants argued that without this instruction the jury would have
understood that the mitigating factors had to be proven beyond a reasonable doubt in order to be considered
in their decision. Justice Antonin Scalia wrote the opinion for 8-1 majority, stating that it may not even be possible
to place a burden of proof requirement on mitigating factors because they are not factual determinations, rather
they are judgement calls or questions of mercy and "what one juror might consider mitigating another might
not". He also wrote that the possibility of juror confusion in this scenario does not rise to the "reasonable
likelihood" of confusion required for the instruction to be considered a constitutional error. On a separate issue,
the court also held that a joint trial for the two defendants who committed crimes together was not
unconstitutional. Justice Sonia Sotomayor was the only dissenting justice, writing that the Court should not
have heard the case at all because she does not believe it involves a federal question. The cases have been
remanded to the Kansas Supreme Court.

EUROPE RIGHTS COURT RULES EMPLOYER MAY MONITOR PERSONAL

MESSAGES AT WORK
The European Court of Human Rights (ECHR) ruled that an employer may monitor an employees private
communications when the communications are transmitted with the employers Internet and hardware. The
applicant, Bogdan Barbulescu, was employed as an engineer in charge of sales at a private company in Romania.
Barbulescu created a Yahoo Messenger account at the employers request to communicate with clients. Over
the course of a week in July 2007, Barbulescu was informed by his employer that his communications were
monitored and he had violated the companys internal policies that forbid the use of the employers computer
resources for personal purposes. This violation of company policy resulted in his termination in August 2007.
Barbulescu challenged the termination in Romanian courts and eventually filed a challenge with the ECHR,
arguing that his e-mails were protected byArticle 8 of the European Convention on Human Rights, which provides
a right to respect for private and family life. The ECHR ruled that the essential purpose ofArticle 8 is "to protect
an individual against arbitrary interference by the public authorities". While Barbulescu was allowed to raise an
argument under Article 8, the ECHR determined that the employer acted within its disciplinary authority and the
domestic authorities in Romania struck a fair balance regarding any invasion into his private life.

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I Lawteller I 89

SERVICE

DENIAL OF PROMOTIONAL BENEFIT FOUND TAINTED

WITH MALA FIDES; SC DIRECTS TO RECONSIDER CLAIM
FOR THE POST OF BATTALION COMMANDER

ALJIT SINGH GREWAL-THE APPELLANT

JOINED THE PUNJAB Home Guards
Department as District Commander in the year 1993
after being selected through Punjab Public Service
Commission under the Punjab Home Guard Class-II
rules, 1988. The work of the appellant was appreciated
by the ADGP, Railways when a big tragedy on the
railway tracks was averted as a result of his efforts.
His work and conduct was considered as excellent.
The dispute in the instant case arose when he received
a letter dated 28.6.2000, wherein theAnnual Confidential
Report (ACR) for the period 1.7.1999 to 31.3.2000 rated
his performance as average. The D.G.P.-cumCommandant General had written the following remarks:
A mediocre officer, whose performance was
barely satisfactory. His own officers intrigue
and directly make unfounded allegations.
This work environment, he has not been able
to change.
The said assessment of his performance by the Deputy
Commandant General-cum-Deputy Director, Civil
Defence and the D.G.P.-cum-Commandant General,
Home Guards & Director Civil Defence led the
appellant to place a representation dated 7.7.2000
before the DGP-cum-Commandant General, Home
Guards and Director Civil Defence, Punjab-respondent
No. 5, requesting the supply of documents on the basis
of which his conduct and diligence was graded as
average. But no satisfactory response was received
by the appellant despite having been made reminder
representations dated 18.8.2000 and 25.8.2000 for
supply of the said documents. On 29.12.2000,
instructions were issued by the Department of
Personnel, State Government, Punjab whereby a
benchmark system was introduced for promotion to

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Group-A and Group-B posts.

On 15.3.2001, the appellant submitted a detailed
representation to the Secretary, Personnel, Punjab, Civil
Secretariat-respondent No. 3 herein, requesting him to
re-consider the said instructions on the ground that
the same were violative of principles of natural justice.
He also stated in the representation that the recording
of adverse entries in the ACR must be conveyed to
the concerned officers so as to enable them to improve
their work accordingly. On 7.5.2001, the appellant
received a letter from the Under Secretary, Department
of Home Affairs and Justice, informing him that his
representations dated 18.8.2000 and 25.8.2000 to the
Government had been considered and rejected.
The appellant again made a representation on 31.5.2001
to the then Principal Secretary, Department of Home
and Justice, requesting that the adverse remarks made
in his ACR for the year 1999-2000 be expunged so that
he could be promoted to the post of Battalion
Commander.
On 30.6.2001, the appellant became eligible for
promotion to the post of Battalion Commander after
completion of 8 years of service as per Punjab Home
Guard Class-I Rules, 1988. Rule 8(2) of the Rules
provides that the District Commanders having 8 years
of experience are entitled to promotion to the post of
Battalion Commander on the basis of seniority-cummerit and that no person could claim promotion on the
basis of seniority alone.
Ultimately, having received no satisfactory response
from the respondent Nos. 3 to 5 despite making several
representations, the appellant filed Civil Suit No. 70 of
2001 before the Civil Judge (Sr. Div.), challenging the
adverse entries made in hisACR for the year 1999-2000.

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SERVICE
Meanwhile, the representation of the appellant was
rejected by respondent No. 4 by way of a nonspeaking order on 8.8.2001.
By letter No. 4/6/2000-3PPI/13720 dated 6.9.2001, the
government modified its earlier instructions dated
29.12.2000, whereby the benchmark dated 29.12.2000,
whereby the benchmark system was introduced for
promotion to the Group-A and Group-B posts which
was approved and published by the Government of
Punjab on 18.12.2001. A conscious policy decision was
taken to set up Departmental Promotion Committees
for considering cases of eligible officers for promotion
to Class-I and Class-II (Group A and Group B) posts,
which inter alia reads thus:
a.
b.
NO.
OF

NORMAL
ZONE

VACA
NCIES

ZONE
FOR
CONSID
ERATION

1
2

5
8

SC/ST
5
10

3
4

10
12

15
20

Twice the
number of

5
times

vacancies
plus 4

number of
vacancies

xxx xxx

xxx

(c) It has been decided to retain the

numbering system of evaluation of ACRs as
contained in the instructions dated
29.12.2000 which is as under:
Outstanding
4 MARKS
Very good

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3 MARKS

Good
Average

2 MARKS
1 MARK

ACRs for the last 5 years are to be taken into

consideration for promotion. The criteria for
promotions will be as under:
1.
2. For promotion to posts falling in Group
A other than Head of Department, the
minimum bench mark will beVery Good with
at least 12 marks. Amongst those meeting
this criteria, there would be supersession.
3. In the case of promotion to posts falling
in Group B the minimum bench mark will be
"Good" and there would be no supersession
i.e. promotions would be made strictly on
seniority-cum-merit.
xxxxxxxxxx.
By the judgement and order dated 15.3.2002, the Civil
Judge, (Sr.Div.), Patiala in Civil Suit No. 70 of 2001
decreed the suit in favour of the appellant. The adverse
remarks recorded against the appellant in the ACR for
the period 1.4.1999 to 31.3.2000 were expunged and all
consequential benefits were granted to the appellant.
Since no appeal was filed by the respondents against
the said judgement and decree of the Civil Judge (Sr.
Divn.), the appellant requested the respondents vide
representation dated 8.5.2002 to consider him for
promotion to the post of Battalion Commander .
Thereafter, despite having submitted representations
dated 10.5.2002 and 20.6.2002 to the respondent No.
4, no action was taken to implement the decree passed
in favour of the appellant.
In the meanwhile, the Division Bench of High Court
passed an order on 14.1.2003 in CWP No. 4491 of 2001
and CWP No. 11011 of 2001 (filed by some other
petitioners, who had also challenged instructions
dated 29.12.2000) issuing direction to the State
Government for considering the case of petitioners
therein, by ignoring the Instructions dated 29.12.2000.

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SERVICE
Two more representations were made by the appellant
on 31.3.2003 and 9.4.2003 to respondent No. 4, but no
action was taken.
Once again, having found that his performance was
shown as average in theACR for the period 1.4.2001
to 31.3.2002 which was graded by the respondent No.
4, the appellant submitted another representation on
16.4.2003 for upgrading his ACR for the period 19992000 and 2001-2002 as his controlling officer i.e.
Division Commander has awarded him "A" Grade and
Review Authority i.e. Deputy Commandant General
also awarded him "+A" which entries were accepted
by the final authority i.e. Commandant General, Home
Guard-respondent No. 5. He also mentioned in the
representation that he was shocked to find that his
ACR for the period 2001-2002 was downgraded by
respondent No. 4 without assigning any reason or
affording an opportunity of being heard. As per the
departmental procedure, Rules and Instructions, the
then Principal Secretary, Home who has not seen the
work and conduct of the appellant, could not have
downgraded his performance by making an adverse
entry in his ACR. However, no action was taken on
this representation made by him.
As per the Instructions dated 6.9.2001, at least 12 marks
were required for promotion to the post of Battalion
Commander. The appellant was not considered for
promotion even after having a decree passed in his
favour by the Civil Court which was deliberately not
placed before the Departmental Promotion Committee
(DPC) for its consideration. Due to the adverse remarks
in the ACR for the year 2001-2002, the appellant fell
short of this benchmark.
The appellant again made representations dated
10.9.2003 and 15.9.2003 to the respondent No. 4 for
implementing the judgement and decree passed by the
Civil Judge (Sr.Div.) in his favour and requested them
to promote him to the post of Battalion Commander.
He also got a legal notice issued to the respondents

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on 6.10.2003. The respondents deliberately ignored the

request of the appellant by placing reliance on the
instructions referred to supra and the non-upgraded
ACRs for the year 1999-2000, 2000-2001 and 2001-2002,
though the suit was decreed in his favour.
On 16.2.2004, the appellant issued a legal notice to the
respondent Nos. 4 and 5 for upgrading the ACR for
the period 2001-2002 from Average to Excellent.
A similar issue arose for consideration of promotion
and quashing of instructions regarding the benchmark
method introduced by the State Government,
Department of Personnel in the case of Balbir Singh
Bedi v. State of Punjab & Ors. [2013 (11) SCC 746],
wherein Supreme Court upheld the validity of the
executive instructions dated 29.12.2000 and 6.9.2001,
holding that these instructions are nothing but a
codification of directions issued by Supreme Court
regarding promotions and the criteria of seniority-cummerit in a catena cases.
The appellant made a complaint on 11.3.2004 to the
respondent no. 4 seeking that action be taken against
the persons who were tampering with the ACRs to
harm the service career of the appellant.
Ultimately, the appellant filed CWP No. 5643 of 2004
before the High Court challenging the legality and
validity of the instructions and orders dated 2.5.2003
and 30.1.2004. The said petition was dismissed by the
Division Bench of the High Court on 2.4.2004.
Meanwhile, the appellant was supplied certain
documents under the RTI Act which had material
effect on the merits of his case. The appellant filed
SLP (C) No. 14964 of 2004 against the order of the
High Court dated 2.4.2004. Supreme Court granted
leave in the said SLP and the same was converted
into Civil Appeal No. 5192 of 2004 and was directed
to be heard along with the case of Balbir Singh Bedi
referred to supra. The case was dismissed, but the
appellant was granted liberty by Supreme Court to

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of columns 1 to 18 for the year by the Competent
The appellant approached the High Court after being Accepting Authority, but he further stated assessed
granted liberty by Supreme Court in the above referred the officer to be an average officer without assigning
case and a Review Application No. 208 of 2013 was any reason whatsoever apart from his competence to
filed for recall of order dated 2.4.2004. The High Court make such adverse entries. The overall grading of
having found no merit in the Review Application the ACR is based upon the observations made by the
dismissed the same vide its order dated 27.8.2013. On Reporting Authority, Reviewing Authority and final
the issue of the performance of the appellant being Accepting Authority. As per the entries made by the
graded as average, the High Court observed that respondent No. 4, he had agreed to the overall
grading as given by the Accepting Authority. In such
though it was not clear as to whether the adverse
entries in theACR for the period of 1.4.2001 to 31.3.2002 a case, he could not have downgraded the overall
were conveyed to the appellant, yet it was clear from grading in the ACR by using the words "an average
officer". Further, if the comments made on 20.5.2004
his representations that the contents of the reports
by the respondent No. 4 on the ACR for the year
were in his knowledge and he had specifically
represented against its downgrading. The High Court 2000-2001 are being sought to justify the stand of
further held that the appellant could not contend that denial of promotion to the appellant to the post in
the adverse ACRs were made behind his back. Hence, question, then the clarification needs to take effect
the present appeal is filed questioning the correctness from that date, i.e. 20.5.2004. In such a case, the
appellant was to be assigned 3 marks as per the
of the action of the respondents in not giving
promotion to the appellant to the post of Battalion instructions for the year 2003, when he was ignored
Commander though he was entitled for the same and for the promotion for the first time.
TTTTTTT
also challenged the judgement and orders passed in
A perusal of the copy of the ACR for the period 2003writ petition and also review petition.
Against the judgement of the High Court special leave 2004 reflects a true picture of the injustice that has
been perpetrated against the appellant. The ACR has
petition was filed. The Supreme Court accepted the
been written by Mr. Tejinder Singh, respondent No.
appeal, set aside the impugned judgement and order
passed by the High Court in both the Civil Writ 4 who was the Reporting Authority as the Divisional
Commandant. The very same officer was also the
Petition and the Review Application and also the order
Reviewing Authority as Deputy Commandant
of denying the promotional benefit by the respondentsDepartment to the post of the Battalion Commander General. Further, the same officer also happened to
be the Final Accepting Authority as the Commandant
from the year 2001-2002.
General, as is evident from his comment dated
he operative part of the judgement read as under : 30.9.2004. The fact that in the said year also the
performance of the appellant had been graded as
A perusal of the ACR for the period 2000-2001
average clearly reveals the malafide intention of the
reveals that though the general remarks stated that
respondent nos. 1-4 in deliberately denying the
"He is very good and responsible officer" respondent
promotion to the appellant to the post in question.
No. 4 had given a grade which read, "I agree. An
According to the respondents themselves, the
average officer". The said entry shows that he had
executive instructions dated 6.9.2001 have not been
agreed to all the remarks of the ACR given in respect
file a Review Petition before the High Court.

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SERVICE
superseded by any other instructions or rules framed
by the competent authority . If these illegal
downgrading entries in the ACR for the relevant
period are ignored, then the appellant would attain
14 marks. As per the instructions dated 6.9.2001, 12
mars were required for promotion to the post as per
the benchmark fixed.
TTTTTTT

Further, the adverse remarks for the period 19992000 were conveyed to appellant vide
communication dated 28.6.2000 by the D.G.P-cumCommandant General. The representations dated
18.8.2000 and 25.8.2000 made by the appellant
against the same were submitted to respondent No.
4. The said representation was rejected on 7.5.2001.
The appellant had challenged the same by filing Civil
Suit No. 70 of 2001, wherein the respondent No. 4
was impleaded as defendant No. 3. The civil suit was
decreed on 15.3.2002 in favour of the appellant. The
said judgement and decree passed in favour of the
appellant has not been implemented by the
respondent Nos. 4 and 5, despite having attained
finality, which clearly r eflects the fact that the
respondent No. 4 was not fair in considering him for
promotion to the post of Battalion Commander as
provided under Rule 8(2) of the Rules. According to
the Rules, the appointment to the promotional post
shall be made on seniority-cum-merit basis. As per
the ACRs placed on record, the appellant has fulfilled
the aforesaid requirement of seniority-cum-merit by
securing 14 marks, as per the instructions in relation
to all aspects entered in the ACR. The strong reliance
placed upon the adverse remarks made by the
respondent No. 4, who has made the same without
assigning any reasons, has resulted in the appellant
being denied of the promotional benefit, even though
the order of the respondent No. 4 was set aside by
the judgement and decree in Civil Suit No. 70 of
2001. The action of respondent No. 4 in denying the
promotional benefit to the appellant is tainted with

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malafides. It can further be observed from the record

that it was respondent no. 7 who had filed the reply
on behalf of all the respondents in the writ petition
proceedings before the High Court. It is important
to note at this stage that respondent No. 7 happens
to be an officer junior to the appellant, who was
promoted to the post in question. The non-filing of
written statement by respondent No. 4 traversing the
allegations of malafide against him proves the
malafide intention on part of the respondent No. 4.
Therefore, there was no justification for the
respondent No. 4 in denying the promotional benefit
to the post of Battalion Commander to the appellant
and.
TTTTTTT

As per the record submitted by the respondents, the

appellant was given grade A+ for the year 20012002, but only 1 mark was assigned. According to
the executive instructions, the grade A+ is to be
assigned 4 marks. Accordingly, if 4 marks ar e
assigned for the ACR of the appellant for the period
2001-2002, then he would have scored 12 marks at
the time of consideration for promotion in the year
2003, whereas admittedly, the appellant was
required to achieve only 10 marks in order to be
promoted to the post of Battalion Commander. Hence,
if the calculation of marks made by the respondents
on the various aspects in the ACR of the appellant
is believed to be true, then also he has achieved the
required benchmark. The action of the respondent
No. 4 in deliberately ignoring the claim of the
appellant is vitiated in-law as the same is contrary
to the Rules and records of ACR for the relevant
period and instructions issued by the State
Government laying down certain guiding principles.
TTTTTTT

Authorities relied upon : AIR 1979 SC 1622.

Reference : Supreme Court. Daljit Singh Grewal v.
State of Punjab & Ors., civil appeal no. 6532 of 2015.

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LANDLORD & TENANT

PROPERTY OWNER HAS THE RIGHT TO USE HIS

PROPERTY AS HE CHOOSES

HE PETITIONERS-PLAINTIFFS PURCHASED
THE SUIT PROPERTY bearing CTS No. 2640/C
in Barshi town, Barshi Taluka, District Sholapur,
measuring 9.7 square meters, on 6.9.1980. At the
time of purchase of the property , the ancestor of
the respondent-defendant (who has since expired,
and is now represented by his legal heirs) was
occupying the suit property as a tenant. The
contractual rent thereof was Rs. 36/- per month.
Having purchased the aforesaid property , the
petitioners issued a notice to the respondent,
intimating him about the change in title. In spite
of receipt of the attornment notice, the respondent
did not tender any rent to the petitioners for the
period from 1980 to 1982. The petitioners then
issued a notice dated 1.5.1982, demanding arrears
of rent at the rate of Rs. 36/- per month. Despite of
the receipt of aforesaid notice, the respondent did
not tender any rent to the petitioners. In fact,
through a communication dated 10.9.1982, the
respondent took a stand, that he had filed an
application for fixation of "standard rent", and as
such, till the aforesaid application was disposed of,
no rent was payable by him to the petitioners.
Insofar as the issue of non-payment of rent, and
the prayer made by the petitioners in the aforesaid
notice for eviction from the premises are concerned,
the stand adopted by the respondent was that he
was not a defaulter for a period of more than six
months, and as such the notice issued by the
petitioners was invalid under the provisions of the
Bombay Rents Hotel and Lodging House Rate
Control Act, 1947 (the Rent Act). The assertion that
the respondent was not a defaulter for more than
six months, was based on yet another factual
assertion, that the respondent had paid a sum of

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Rs. 180/- by cash to the uncle of the petitioners,

whereafter the respondent was not in default for a
period of more than six months.
Consequent upon the denial by the respondent to
tender any rent, the petitioners filed Regular Civil
Suit No. 420 of 1982. In the aforesaid Suit, besides
the plea of eviction based on non-payment of rent,
the petitioners also claimed the premises for their
reasonable and bona fide need.
The respondent contested the aforesaid Suit by
preferring a written statement wherein he reiterated,
that the rent was not payable by him to the
petitioners till the fixation of "standard rent". It
was also his claim, that an application for
determination of "standard rent" was pending. He
also undertook to pay all arrears of rent, as and
when the aforesaid application was disposed of. It
is not a matter of dispute that the respondent had
impleaded the petitioners, in the aforesaid
application (for fixation of "standard rent") and for
all intents and purposes, the petitioners
participated in the proceedings pertaining to the
fixation of "standard rent". On the issue of eviction
based on non-payment of rent, the stand adopted
by the respondent was that he had paid a sum of
Rs. 180/- by cash to the uncle of the petitioners,
and on account of the said payment, the notice
issued by the petitioners seeking eviction of the
respondent on the ground of non-payment of rent,
was defective.
The Standard Rent Application No. 80/1979 was
finally decided on 16.10.1984. The Court fixed the
"standard rent" at Rs. 36/- per month, which
admittedly was the same as the contractual rent
payable by the respondent on account of the

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LANDLORD & TENANT

tenancy of the suit property.
The trial Court disposed of Regular Civil Suit No.
420 of 1982, on 15.3.1989. The pleas raised by the
petitioner were accepted Dissatisfied with the order
passed by the trial Court, the respondent preferred
Civil Appeal No. 187 of 1989 before the IV
Additional District Judge, Sholapur . The IV
Additional District Judge, Sholapur, disposed of
the above appeal on 21.4.1993 by reversing the
decision rendered by the trial Court. It is, therefore,
that the petitioners-landlords approached the High
Court by filing Writ Petition No. 2254 of 1993. The
said Writ Petition was dismissed on 26.2.2010.
Against the judgement of the High Court special
leave petition was filed. The Supreme Court
accepted the appeal, set aside the judgement of the
High Court. The respondents were directed to
vacate the premises on or before 31.12.2015.

The operative part of the judgement read as under :

The respondent contested the aforesaid Suit by
preferring a written statement wherein he
reiterated, that the rent was not payable by him
to the petitioners till the fixation of "standard
rent". It was also his claim, that an application
for determination of "standard rent" was pending.
He also undertook to pay al arrears of rent, as and
when the aforesaid application was disposed of.
It is not a matter of dispute that the respondent
had impleaded the petitioners, in the aforesaid
application (for fixation of "standard rent") and
for all intents and purposes, the petitioners
participated in the proceedings pertaining to the
fixation of "standard rent". On the issue of eviction
based on non-payment of rent, the stand adopted
by the respondent was that he had paid a sum of
Rs. 180/- by cash to the uncle of the petitioners,
and on account of the said payment, the notice
issued by the petitioners seeking eviction of the

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respondent on the ground of non-payment of rent,

was defective.
TTTTTTT

We are satisfied that no interference whatsoever is

called for, on the claim of the appellants for the
eviction of the respondents, on the ground of nonpayment of rent. We, therefore, hereby affirm the
findings recorded by the IV Additional District Judge,
Sholapur, as also by the High Court, on the issue of
non-payment of rent.
TTTTTTT

The fact, that the instant premises was purchased by

the appellants on 6.9.1980 for a total consideration
of Rs. 10,000/- even though the same was earning a
meager rent of Rs. 36/- per month, is indicative of
the fact, that the appellants had not purchased the
premises for earning rent therefore, but for the
purpose of running a business therein. The assertion
made by the appellants that they wished to sell betelleaves and related articles in the premises, has not
been seriously contested at the hands of the
respondents. But then, were the appellants engaged
in some other alternative business, at the time when
the civil suit was filed? It was not the case of the
respondents, that any business activities were being
carried out by the appellants independently, from
their father and uncle, when the civil suit was filed.
It certainly cannot be the claim at the behest of a
tenant, that the owner of a premises must continue
in business with his parents or relations, assuming
there was a joint business activity, to start with. That
is usual, and happens all the time when children
come of age. And thereafter, they must have the
choice to run their own life, by earning their own
livelihood. The property owner has the right to use
his property as he chooses, and if the appellants in
the instant case had purchased the suit property, for
running their own business, we find no irregularily

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LANDLORD & TENANT

therein, nor can there be any doubt about their bona
fide desire to run the proposed business in the
premises, independent of the other family members.
The premises measuring a mere 9.7 square meters,
we are satisfied would be most suitable for the
business proposed by the appellants, namely, for
selling betel-nuts and betel-leaves. This is the usual
size of the shops engaged in such business.
TTTTTTT

A property bearing CTS No. 3569/A admeasuring

114-2 square meters was pur chased during the
pendency of the proceedings arising out of Regular
Civil Sit No. 420 of 1982. The affidavit itself
indicates, that the aforesaid premises is being used
by the appellants to run a flour mill. Even if the
aforesaid factual position is accepted, it cannot be
the case of the respondents, that the appellants can
run their betel-nuts and betel-leaves business, from
the premises which has a running flour mill. Thus
viewed, the purchase of property bearing CTS No.
3569/A is inconsequential insofar as the present
controversy is concerned. The above affidavit further
indicates, the purchase of property bearing CTS No.
3568/A admeasuring 105-7 square meters by the
appellants. This property was also purchased during
the pendency of the proceedings arising out of
Regular Civil suit No. 420 of 1982. It was also
submitted, that the instant property bearing CTS No.
3568/A, is at a distance of merely 100 meters from
the suit property. It is also the asser tion of the
learned counsel for the respondents, that the
appellants are running wholesale business of various
goods including betel-leaves, cigarettes and firework items, and as such, the instant premises could
be put to use for the additional purpose, for which
the suit premises is being claimed by the appellants.
Even though the instant contention appears to be
attractive, it is not possible for us to accept the same,
because a retail business of selling betel-nuts, bidi

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and tobacco etc. cannot be run from a premises as

large as the one in CTS No. 3569/A which admittedly
measures 105-7 square meters. It is unlikely for
customers to visit such a large premises for buying
betel-leaves, betel-nuts and bidis etc. In our view, the
suit premises which measures 9.7 square meters
would attract retailers of the trade under reference,
as shops selling betel-leaves and betel-nuts are
usually of the size of the suit property. We therefore
decline the submissions advanced by the learned
counsel for the respondents in this regard.
TTTTTTT

The reason for us to rely on the averments recorded

in paragraph 13 extracted hereinabove, emerges
from the fact, that the factual position depicted
therein, as not disputed by the respondents, in the
affidavit filed before the High Court. Although, in the
affidavit filed before the High Court, respondent No.
1 made a reference to some of the properties which
were used for business by his wife Kusum Kokate, he
did not dispute the fact that he was running a
grocery shop in CTS No. 2641, and besides premises
wherein he was having a bicycle-shop and, in
addition thereto, he had agricultural lands. It is also
not disputed that the respondent was running a wine
shop in partnership with his wife. Thus viewed, we
are satisfied, that the comparative hardship would
be that of the appellants, as against the respondents.
TTTTTTT

Authorities relied upon : 1981 (3) SCC 103, 1974 (2)

SCC 365.
Reference : Supreme Court. Faruk Ilahi Tamboli &
Anr. v. B.S. Shankarrao Kokate (D) By Lrs. & Ors.,
civil appeal no. 8648 of 2015 (from the Judgement and
Order dated 26.2.2010 of the High Court of Bombay
in Writ Petition No. 2254 of 1993).

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NOT TO RECOVER ANY EXCESS AMOUNT PAID

DUE TO THE STEPPING UP OF PAY SCALE: SC

R. B. RADHAKRISHNAN AND MR. K.

PADMARAJ-APPELLANTS were enlisted in
the Police Department of the Coimbatore City Police
Unit in the year 1976 and 1977 respectively as GradeII Police Constables. One Eswaran and others were
recruited between 1979 and 1982 in the Tamil Nadu
Special Police Battalion as Grade-II Police Constables,
Category III. These persons were promoted to the
post of Naik in the year 1985 and subsequently in
the year 1987 to the post of Havaldar. At that time
these persons were drawing higher pay than the
appellants.
In the year 1993, Eswaran and others exercised their
option as provided in the Tamil Nadu Special Police
Subordinate Service Rules 1978 and sought their
transfer to the Armed Reserve, Coimbatore City
Division. It was allowed.
After their transfer, it was found that in the transferred
post, they have to receive lower pay and accordingly
instructions were issued by the office of the Director
General vide memo dated 27.7.1982 for protection of
their pay and hence their pay was regularized in the
scale of pay of Rs. 825-15-900-20-1200 on the basis
of the pay last drawn by them in the time scale of
pay of Rs. 1200-30-1560-40-2040. Subsequently, they
got promotion as Grade-I Police Constable and Head
Constable in the Taluk Police at Coimbatore and
consequently their pay was fixed under Fundamental
Rule 22B.
With regard to their pay protection, the Accountant
General of Tamil Nadu raised objection, therefore, the
Government ordered recovery of excess pay and
allowances from them.
Aggrieved by the orders of recovery, Eswaran and
others filed application being O.A. No. 10317 of 1997

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etc. etc. before the Tamil Nadu Administration

Tribunal, Chennai. By order dated 6.4.2004, the
Tribunal allowed the applications and set aside the
orders of recovery.
The appellants herein, therefore, gave a
representation to the Commissioner of Police,
Coimbatore to fix their pay at par with their juniors,
namely, Eswaran and others. By order dated 17.9.2005,
their representation was rejected on the ground that
the conditions in Fundamental Rule 22B Ruling (2)
are not fulfilled.
Aggrieved by the refusal to step up their basic pay
at par with Eswaran and others, the appellants herein
preferred writ petitions being W.P. Nos. 9527 & 9528
of 2006 before the High Court. By order dated
13.9.2010, the learned Single Judge of the High Court
allowed the writ petitions and directed stepping up
of basic pay of the appellants herein at par with
Eswaran and others. This order was implemented by
the respondents by issuing the order dated 8.10.2011
and accordingly the basic pay of the appellants was
stepped up.
Aggrieved by the order of the learned Single Judge,
the respondents (State) filed appeals being Writ
Appeal Nos. 398 and 399 of 2013 before the Division
Bench of the High Court. By common impugned
judgement, the Division Bench allowed the appeals,
set aside the order of the learned Single Judge and
dismissed the appellants writ petitions. It was held
that the case of the appellants could not be compared
with that of the other set of employees-namely
Eswaran and others to claim parity in pay in terms of
Ruling 2 of Fundamental Rule 22B and Ruling 2 of
Fundamental Rule 27 for the reason that in order to
claim parity in pay, firstly, both junior and senior

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SERVICE
officers should belong to the same Cadre/Post in
which they have been promote/appointed. Secondly,
there should be parity in pay in lower and higher pay.
Thirdly, Eswaran and others became Armed Reserve
Grade-II Police Constable on their own reasons and
apart from that they were promoted as Naik and
Havaldar and were, therefore, in receipt of higher
emoluments after transfer. Fourthly, their emoluments
were lower than the amount received by them as
members of Tamil Nadu Special Police Battalion. This
view was taken by the Division Bench by placing
reliance on the decision of Supreme Court in Union
of India & Ors. v. O.P. Saxena (supra), wherein it was
held inter alia that when the feeder post of employee
concerned is different, the principle of stepping up
of pay would not apply.

The operative part of the judgement read as under :

In somewhat similar facts, a Bench of three Judges
of this Court in Shyam Babu Vermas case (supra)
had issued a direction against the Government not
to make recovery of any excess payment in relation
to the money which was already paid to the
employees concerned because it was noticed that the
excess payments were not made to the employees
concerned on account of any fault on their part.
TTTTTTT

in hand, we notice that firstly, the respondents issued

an order sanctioning stepping up of the pay scale of
the appellants on the strength of the order of High
Court. Secondly, while claiming this r elief, the
appellants neither committed any fault not made any
incorrect/false statement to secure the benefits
because it was being claimed only on the basis of
parity and lastly, the appellants r endered their
services for the period in question.
TTTTTTT

We are of the view that similar directions, which

were given in the case of Shyam Babu, can also be
given in these appeals against the respondents. In
other words, it shall only be just and proper not to
recover any excess amount from the appellants, which
has been paid to them on the basis of stepping up of
their pay scale. It is much more so when as
mentioned above, the appellants have given up their
challenge to the respondents main action taken
against the appellants objecting for the grant of
benefit of stepping up of their pay and confined their
attack to the issue of recovery of excess amount from
them.
TTTTTTT

Reference : Supreme Court. B. Radhakrishnan v. The

State of Tamil Nadu & Ors., civil appeal no. 13407 of
2015.

Applying the same principle to the facts of the case

GLOBAL GLIMPSE

ZIMBABWE COURT OUTLAWS CHILD MARRIAGE

Zimbabwes Constitutional Court ruled that neither boys nor girls can legally marry under the age of 18, even
in unregistered, customary or religious unions. Previously, the Marriage Act allowed girls to be married at the
age of 18 and boys to be married at the age of 16 and did not address a minimum age for customary unions.
The head of the Peoples Democratic Party, Tendai Biti, filed an application along with two women from Harare,
now 20, who say they were forced to marry at the age of 15. They argued that the sections of the Marriage
Act allowing child marriage were discriminatory and violated childrens rights as laid out in the 2013
constitution. The ban is effective immediately.

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February 2016

I Lawteller I 99

GENERAL

CONCEPT OF "CONTINUING OFFENCE" GETSATTRACTED

FROM THE DATE OF DEPRIVATION OF STRIDHAN

HE MARRIAGE BETWEEN KRISHNA

BHATACHARJEE-THE appellant and Sarathi
Choudhury (respondent no. 1) was solemnized on
27.11.2005 and they lived as husband and wife. As
the allegations proceed, there was demand of dowry
by the husband including his relatives and, demands
not being satisfied, the appellant was driven out from
the matrimonial home. However, due to intervention
of the elderly people of the locality, there was some
kind of conciliation as a consequence of which both
the husband and the wife stayed in a rented house
for two months. With the efflux of time, the husband
filed a petition seeking judicial separation before the
Family Court and eventually the said prayer was
granted by the learned Judge, Family Court. After the
judicial separation, on 22.5.2010 the appellant filed an
application under Section 12 of the 2005 Act before
the Child Development Protection Officer (CDPO), O/
O the District Inspector, Social Welfare & Social
Education, A.D. Nagar, Agartala, Tripura West seeking
necessary help as per the provisions contained in the
2005 Act. She sought seizure of Stridhan articles from
the possession of the husband. The application which
was made before the CDPO was forwarded by the said
authority to the learned Chief Judicial Magistrate,
Agartala Sadar, West Tripura by letter dated 1.6.2010.
The learned Magistrate issued notice to the
respondent who filed his written objections on
14.2.2011.
Before the learned Magistrate it was contended by
the respondent that the application preferred by the
wife was barred by limitation and that she could not
have raised claim as regards Stridhan after the decree
of judicial separation passed by the competent court.
The learned Magistrate taking into consideration the
admitted fact that respondent and the appellant had

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I February 2016

entered into wedlock treated her as an "aggrieved

person", but opined that no "domestic relationship"
as defined under Section 2(f) of the 2005 Act existed
between the parties and, therefore, wife was not
entitled to file the application under Section 12 of the
2005 Act. The learned Magistrate came to hold that
though the parties had not been divorced but the
decree of judicial separation would be an impediment
for entertaining the application and being of this
view, he opined that no domestic relationship
subsisted under the 2005 Act and hence, no relief
could be granted. Be it stated here that before the
learned Magistrate, apart from herself, the appellant
examined three witnesses and the husband had
examined himself as DW-1. The learned Magistrate
while dealing with the maintainability of the petition
had noted the contentions of the parties as regards
merits, but has really not recorded any finding
thereon.
The aggrieved wife preferred criminal appeal No. 6(1)
of 2014 which has been decided by the learned
Additional Sessions Judge, Agartala holding, inter
alia, that the object of the 2005Act is primarily to give
immediate relief to the victims, that as per the decision
of Supreme Court in Inderjit Singh Grewal v. State of
Punjab [2011 (12) SCC 588] that Section 468 of the
Code of Criminal Procedure applies to the proceedings
under the 2005 Act and, therefore, her application was
barred by time. Being of this view, the appellate court
dismissed the appeal.
On a revision being preferred, the High Court, as is
demonstrable from the impugned order, after referring
to the decision in Inderjit Singh Grewal (supra), has
stated that the wife had filed a criminal case under
Section 498(A) IPC in the year 2006 and the husband
had obtained a decree of judicial separation in 2008,

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GENERAL
and hence, the proceedings under the 2005 Act was
barred by limitation. That apart, it has also in a way
expressed the view that the proceedings under the
2005 Act was not maintainable.
The appellant having lost the battle for getting her
Stridhan back from her husband, the first respondent
herein, before the learned Magistrate on the ground
that the claim preferred under Section 12 of the
Protection of Women from Domestic Violence Act,
2005 (the 2005 Act) was not entertainable as she had
ceased to be an "aggrieved person" under Section
2(a) of the 2005 Act and further that the claim as put
forth was barred by limitation, preferred an appeal
before the learned Additional Sessions Judge who
concurred with the view expressed by the learned
Magistrate, and being determined to get her lawful
claim, she, despite the repeated non-success,
approached the High Court of Tripura, Agartala in
Criminal Revision No. 19 of 2014 with the hope that
she will be victorious in the war to get her own
property, but the High Court, as is perceivable,
without much analysis, declined to interfere by
passing an order with Spartan austerity possibly
thinking lack of reasoning is equivalent to a
magnificent virtue and that had led the agonized and
perturbed wife to filed special leave petition against
the judgement of the High Court.
The Supreme Court accepted the appeal, set aside the
order passed by the High Court. The matter was
remitted to the learned Magistrate to proceed with the
application under Section 12 of 2005 Act on merits.

been snapped. Thus understood, the finding recorded

by the courts below which have been concurred by
the High Court that the parties having been judicial
separated, the appellant wife has ceased to be an
"aggrieved person" is wholly unsustainable.
TTTTTTT

As long as the status of the aggrieved person remains

and stridhan remains in the custody of the husband,
the wife can always put forth her claim under section
12 of the 2005 Act. We are disposed to think so as
the status between the parties is not severed because
of the decree of dissolution of marriage. The concept
of "continuing offence" gets attracted from the date
of deprivation of stridhan, for neither the husband
nor any other family members can have any right
over the stridhan and they remain the custodians. For
the purpose of the 2005 Act, she can submit an
application to the Protection Officer for one or more
of the reliefs under the 2005 Act. In the present case,
the wife had submitted the application on 22.5.2010
and the said authority had forwarded the same on
1.6.2010. In the application, the wife had mentioned
that the husband had stopped payment of monthly
maintenance from January 2010 and, therefore, she
had been compelled to file the application for
stridhan. Regard being had to the said concept of
"continuing offence" and the demands made, we are
disposed to think that the application was not barred
by limitation and the courts below as well as the
High Court had fallen into a grave error by
dismissing the application being barred by
limitation.

The operative part of the judgement read as under :

TTTTTTT

There is a distinction between a decree for divorce

and decree of judicial separation; in the former, there
is severance of status and the parties do not remain
as husband and wife, wher eas in the later, the
relationship between husband and wife continuous
and the legal relationship continues as it has not

Authorities relied upon : 1993 (1) SCC 325, 1985 (2)

SCC 370, 1984 (4) SCC 222, AIR 1980 Mad 294, AIR
1979 Guj 209, 1972 (2) SCC 890.
Reference : Supreme Court. Krishna Bhatacharjee v.
Sarathi Choudhury and Anr., criminal appeal no. 1545
of 2015.

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February 2016

I Lawteller I 101

LIGHTER SIDE OF LA
W
LAW
Whats two plus two ??
An engineer, a physicist, and a lawyer were being
interviewed for a position as chief executive officer
of a large corporation.
The engineer was interviewed first, and was asked
n
a long list of questions, ending with "How much is
two plus two?"
The engineer excused himself, and made a series
of measurements and calculations before returning
to the board room and announcing, "Four."
n
The physicist was next interviewed, and was asked
the same questions. Before answering the last
question, he excused himself, made for the library,
and did a great deal of research. After a consultation
with the United S tates Bureau of Standards and
many calculations, he also announced "Four."
n
The lawyer was interviewed last, and was asked the
same questions. At the end of his interview, before
answering the last question, he drew all the shades
in the room, looked outside the door to see if
anyone was there, checked the telephone for n
listening devices, and asked,
"How much do you want it to be?"

The car accident !

A woman and a man are involved in a car accident;
its a bad one. Both of their cars are totally
demolished but amazingly neither of them are hurt.
After they crawl out of their cars, the woman says,
"So youre a man; thats interesting. Im a woman.
Wow, just look at our cars! Theres nothing left, but
fortunately we are unhurt. This must be a sign from
God that we should meet and be friends and live
together in peace for the rest of our days."
Flattered, the man replied, "Oh yes, I agree with you
completely! This must be a sign from God!"
The woman continued, "And look at this, heres
another miracle. My car is completely demolished
but this bottle of wine didnt break. Surely God wants
us to drink this wine and celebrate our good
fortune."
Then she hands the bottle to the man. The man
nods his head in agreement, opens it and drinks
half the bottle and then hands it back to the woman.
The woman takes the bottle, immediately puts the
cap back on, and hands it back to the man.
The man asks, "Arent you having any?"
The woman replies, "No. I think Ill just wait for the
police."

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Lawteller

I February 2016

DID YOU KNOW?

Italy
Since 1173 it has been illegal to die.

Italy
It is illegal to practice the profession of
being a fraud.

Greece
No one is allowed to play electronic games.

Norway
If you challenge a man to a fist fight to the
death, he must accept or pay a penalty of 4
deer.

Disclaimer - Lawteller T eam is not responsible for the

actuality of the above information as available in the
public domain.

"Give a man a fish, hell eat for a day.

Teach a man to sue, and hell eat for a lifetime."
Courtesy - www.condenaststore.com

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