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Indian Laws - Case Laws
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2023 (11) TMI 1304
Relaxation in the essential eligibility qualifications could be made post the last date fixed for receipt of application from the candidates - essential eligibility qualifications specified in the 2014 Rules - statutory regime in place to accord recognition to an Institution - clarificatory letter/relaxation order is in ignorance of such statutory regime or not - absence of prior consultation with the Commission, the relaxation/clarificatory order could be considered in conformity with the provisions of Rule 18 of the 2014 Rules - requirement for a written and computer typing test prior to selection, possession of one year diploma in Computer Science/Computer Application/Information Technology from a recognised University/Institution by a candidate - eligibility of qualifications other than the one prescribed by the 2014 Rules or the advertisement - State (i.e., the employer) could be forced to fill all vacancies advertised or not.
Whether relaxation in the essential eligibility qualifications could be made post the last date fixed for receipt of application from the candidates? - HELD THAT:- It is well settled that eligibility criteria/conditions, unless provided otherwise in the extant Rules or the advertisement, must be fulfilled by the candidate by the last date for receipt of applications specified in the advertisement.
In the instant case, it is not shown that the advertisement reserved the power to relax the essential eligibility qualifications specified in the advertisement at any later stage. Rather, the advertisement is specific that eligibility criteria must be fulfilled by an aspiring candidate by the last date fixed for receipt of the application. It is not demonstrated that after the decision to relax the eligibility criteria was taken, the same was widely publicised, and the last date to apply under the advertisement was extended to enable persons benefited by such relaxation to apply and compete. In these circumstances, the power to relax the eligibility criteria, even if it existed, was not exercised in consonance with the settled legal principles and it violated the constitutional mandate enshrined in Articles 14 and 16 of the Constitution.
Whether the essential eligibility qualifications specified in the 2014 Rules were ambiguous as to warrant clarification or relaxation with a view to declare certain other qualifications as equivalent to the one specified in the said Rules? - Whether there was a statutory regime in place to accord recognition to an Institution? If yes, whether the clarificatory letter/relaxation order is in ignorance of such statutory regime and is, therefore, invalid? - Whether, in absence of prior consultation with the Commission, the relaxation/clarificatory order could be considered in conformity with the provisions of Rule 18 of the 2014 Rules? - HELD THAT:- If there existed a statutory procedure for granting recognition, an Institution cannot be considered recognized dehors that procedure. No doubt, as held by a Constitution Bench of this Court in MOHAMMAD SHUJAT ALI VERSUS UOI. [1974 (5) TMI 114 - SUPREME COURT], issue of equivalence is a technical issue and where the decision of the Government is based on the recommendation of an expert body, the Court should not lightly disturb its decision unless it is based on extraneous or irrelevant considerations or actuated by mala fides or is irrational and perverse or manifestly wrong. But this is not a case of mere treating degrees or certificates obtained from a recognized Institution/University as equivalent to the one specified, rather it is of granting recognition to certain courses conducted by private institutes, whether recognized or not as per the extant statutory regime. This amounts to changing the eligibility criteria midway because the extant Rules and the advertisement both stipulated that the diploma/specified course had to be from a recognized Institution/University.
As there appears nothing on record to indicate that wide publicity of such relaxation in the specified qualifications was made, and opportunity was afforded to similarly situated candidates to apply and compete, considering the manner in which the relaxation was accorded, the same falls foul of the constitutional mandate enshrined in Articles 14 and 16 of the Constitution.
Whether in view of requirement for a written and computer typing test prior to selection, possession of one year diploma in Computer Science/Computer Application/Information Technology from a recognised University/Institution by a candidate was not an essential eligibility qualification? - HELD THAT:- A plain reading of the 2014 Rules and the advertisement would indicate that possession of one year diploma in Computer Science/ Computer Application/ Information Technology from a recognised University/ Institution is an essential qualification which must be possessed by a candidate desirous of appointment on the post concerned. The High Court has also not treated the same as a non-essential qualification. In this view of the matter, the argument that requirement to hold one year diploma in the specified courses was not an essential qualification, is rejected.
Whether candidates holding qualifications other than the one prescribed by the 2014 Rules or the advertisement, though allegedly higher, could be considered eligible? - HELD THAT:- There exists no provision in the extant Rules or the advertisement to treat any other qualification as higher or equivalent to the one specified therein, the claim of such candidates, who could not demonstrate that they held the prescribed essential qualifications, is liable to be rejected and has rightly been rejected by the High Court as well.
Whether the State (i.e., the employer) could be forced to fill all vacancies advertised? - whether it could be restrained from carrying it forward for filling it as per the amended/new Rules? - HELD THAT:- It is well settled that an employer cannot be forced to fill all the existing vacancies under the old Rules. The employer may, in a given situation, withdraw an advertisement and issue a fresh advertisement in conformity with the new or amended Rules. Even a candidate included in the merit list has no indefeasible right to appointment even if the vacancy exists.
The direction(s) contained in paragraphs 33 and 34 of the impugned judgment of the High Court setting aside the closure of the selection process for Post Code 556 and to re-cast the merit list as well as fill up remaining posts of Post Code 556, with the aid of relaxation/ clarification dated 21.08.2017/ 18.09.2017 read with communication dated 19.03.2018, after segregating it from those advertised as Post Code 817, are set aside.
Appeal disposed off.
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2023 (11) TMI 1289
Permissibility of reappointment in respect of a Tenure Post - applicability of outer-age limit stipulated under sub-section (9) of Section 10 of the Act 1996 in the case of reappointment of Vice-Chancellor - reappointment of Vice-Chancellor has to follow the same process as a fresh appointment under Section 10 of the Act 1996 or not - Chancellor abdicate or surrender his statutory power of reappointment of the Vice-Chancellor or not.
Whether reappointment is permissible in respect of a Tenure Post? - HELD THAT:- The statute itself has provided for reappointment with some object in mind. The ordinary meaning that can be ascribed to the term “reappointment” is the act or process of deciding essentially that someone should continue in a particular job. Ordinarily, the object behind providing for reappointment is twofold. First is “retention” i.e., where the incumbent to the office/post during his term is found to be extraordinary and has established himself or herself to be an asset to the institution, then in such circumstance, such person is retained with a view to allow him to continue on the same post for one more term. Secondly, having regard to the nature of the post the organization or institution may not be in a position to fill up the post in a time bound manner and in such circumstances, the provision for reappointment may enable the organization or institution to relieve itself of the tedium of going through the entire selection process afresh every time the post becomes vacant - the reappointment is permissible even in case of a tenure post.
Whether the outer-age limit stipulated under sub-section (9) of Section 10 of the Act 1996 is applicable in the case of reappointment of Vice-Chancellor? - HELD THAT:- The doctrine of purposive construction may be taken recourse to for the purpose of giving full effect to the statutory provisions, and the courts must state what meaning the statute should bear, rather than rendering the statute a nullity, as statutes are meant to be operative and not inept. The courts must refrain from declaring a statute to be unworkable. The rules of interpretation require that construction which carries forward the objectives of the statute, protects interest of the parties and keeps the remedy alive, should be preferred looking into the text and context of the statute. Construction given by the court must promote the object of the statute and serve the purpose for which it has been enacted and not efface its very purpose. The courts strongly lean against any construction which tends to reduce a statute to futility - The court must adopt a construction which suppresses the mischief and advances the remedy and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico. The court must give effect to the purpose and object of the Act for the reason that legislature is presumed to have enacted a reasonable statute.
The outer age limit of sixty years provided in sub-section (9) of Section 10 of the Act 1996 will not apply, when it comes to reappointment under sub-section (10) of Section 10 of the Act 1996.
Whether the reappointment of Vice-Chancellor has to follow the same process as a fresh appointment under Section 10 of the Act 1996? - HELD THAT:- In STATE OF WEST BENGAL VERSUS ANINDYA SUNDAR DAS AND ORS. [2022 (10) TMI 1260 - SUPREME COURT], it was held that by virtue of such amendment the reappointment was no longer subject to the provision / section detailing the ordinary procedure for appointment of Vice-Chancellor, and thus, this Court had no hesitation in holding that the legislature’s intent was to allow reappointment by the Chancellor itself without following the ordinary process of appointment.
In the case at hand, sub-section (10) of Section 10 of the Act, 1996, provides for reappointment and does not even contain the words “subject to provisions of this section”. This is as good as to reflect the legislature’s intention of permitting reappointment without following the ordinary process of appointment of Vice-Chancellor - it is not necessary to follow the procedure of appointment as laid down in Section 10 of the Act 1996 for the purpose of reappointment.
Did the Chancellor abdicate or surrender his statutory power of reappointment of the Vice-Chancellor? - HELD THAT:- he UGC Regulations provide for the procedure to be adopted for appointment of Vice-Chancellor. The UGC Regulations are silent in so far as reappointment of the Vice-Chancellor is concerned. There is no specific procedure prescribed by the UGC under its regulations for the purpose of reappointment of Vice-Chancellor. The entire focus of the Chancellor is on the aforesaid. However, nothing has been said in the counter-affidavit filed on behalf of the Chancellor as regards Chancellor’s own independent satisfaction or judgment for the purpose of reappointment of the respondent No. 4 as ViceChancellor.
It is now well settled that a writ of quo warranto lies if any appointment to a public office is made in breach of the statute or the rules. In the case on hand, we are not concerned with the suitability of the respondent No. 4. The “suitability” of a candidate for appointment to a post is to be judged by the appointing authority and not by the court unless the appointment is contrary to the statutory rules/provisions. We have reached to the conclusion that although the notification reappointing the respondent No. 4 to the post of Vice-Chancellor was issued by the Chancellor yet the decision stood vitiated by the influence of extraneous considerations or to put it in other words by the unwarranted intervention of the State Government.
The impugned judgment and order passed by the High Court dated 23.02.2022 is hereby set aside. As a consequence, the Notification dated 23.11.2021, reappointing the respondent No. 4 as the Vice-Chancellor of the Kannur University is hereby quashed.
Appeal allowed.
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2023 (11) TMI 1286
Jursdiction - power to grant anticipatory bail Under Section 438 of the Code of Criminal Procedure - power of the High Court or the Court of Session to grant anticipatory bail Under Section 438 of the Code of Criminal Procedure could be exercised with respect to an FIR registered outside the territorial jurisdiction of the said Court or not - practice of granting transit anticipatory bail or interim protection to enable an Applicant seeking anticipatory bail to make an application Under Section 438 of the Code of Criminal Procedure before a Court of competent jurisdiction is consistent with the administration of criminal justice or not.
HELD THAT:- This Court's jurisprudence on Section 438 of Code of Criminal Procedure, particularly in Gurbaksh Singh Sibbia [1980 (4) TMI 295 - SUPREME COURT] and Sushila Aggarwal [2020 (1) TMI 1193 - SUPREME COURT], has towed the line of wise exercise of judicial discretion while interpreting the silence of the Parliament to imply an intention to facilitate the grant of essential procedural relief to secure the right to life and personal liberty Under Article 21.
Whilst the Constitution Bench in Gurbaksh Singh Sibbia ruled against the procedural and substantive restrictions on the grant of relief of anticipatory bail, the Constitution Bench in Sushila Aggarwal held that the period of anticipatory bail cannot be limited, and may extend till the end of trial. The judgment of the Constitution Bench in Gurbaksh Singh Sibbia, in para 13, emphasises that, 'the High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant.'
A remedy such as anticipatory bail secures citizens afflicted in difficult life circumstances - and such difficulties would keep evolving as our collective lives and legal systems become more complex - The omission of any qualification of the expression 'the High Court or the Court of Session,' ought to be constructed in a fashion that furthers the constitutional ideal of safeguarding personal liberty. It would be in furtherance of fostering personal liberty enshrined in Article 21 of the Constitution of India in entrusting a wider jurisdiction to the Court of Session and the High Court in the grant of anticipatory bail, than in foreclosing the same by restructuring the exercise of jurisdiction in the matter of grant of anticipatory bail.
The exercise of the jurisdiction for grant of extra-territorial anticipatory bail must be cognizant of the possibility of forum shopping - it is deemed necessary to take note of the evolution of the law on inter-state arrests, as this lies at the heart of 'apprehension of arrest,' for which the extraordinary jurisdiction of the High Court and Court of Session are attracted in case the Accused resides in or is located in a territorial jurisdiction different from the jurisdiction in which cognizance of crime is taken by the Court of competent jurisdiction.
Considering the constitutional imperative of protecting a citizen's right to life, personal liberty and dignity, the High Court or the Court of Session could grant limited anticipatory bail in the form of an interim protection Under Section 438 of Code of Criminal Procedure in the interest of justice with respect to an FIR registered outside the territorial jurisdiction of the said Court, and subject to the fulfilment of conditions imposed.
The impugned orders are set aside - appeal allowed.
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2023 (11) TMI 1278
Dishonour of Cheque - non-payment against one dishonoured cheque - sufficient opportunity to be provided to a person who issues the cheque - HELD THAT:- Once a cheque is issued by a person, it must be honoured and if it is not honoured, the person is given an opportunity to pay the cheque amount by issuance of a notice and if he still does not pay, he is bound to face the criminal trial and consequences. It is seen in many cases that the petitioners with malafide intention and to prolong the litigation raise false and frivolous pleas and in some cases, the petitioners do have genuine defence, but instead of following due procedure of law, as provided under the N.I. Act and the Cr.PC, and further, by misreading of the provisions, such parties consider that the only option available to them is to approach the High Court and on this, the High Court is made to step into the shoes of the Metropolitan Magistrate and examine their defence first and exonerate them. The High Court cannot usurp the powers of the Metropolitan Magistrate and entertain a plea of accused, as to why he should not be tried under Section 138 of the N.I. Act. This plea, as to why he should not be tried under Section 138 of the N.I. Act is to be raised by the accused before the Court of the Metropolitan Magistrate under Section 251 of the Cr.PC & under Section 263(g) of the Cr.PC.
The parameters of the jurisdiction of the High Court, in exercising jurisdiction under Section 482 Cr.PC, are now almost well-settled. Although it has wide amplitude, but a great deal of caution is also required in its exercise. The requirement is, the application of well known legal principles involved in each and every matter. Adverting back to the facts of the present case, this Court does not find any material on record which can be stated to be of sterling and impeccable quality warranting invocation of the jurisdiction of this Court under Section 482 Cr.PC at this stage. More so, the defence as raised by the petitioner in these petitions requires evidence, which cannot be appreciated, evaluated or adjudged in the proceedings under Section 482 of Cr.PC and the same can only be proved in the Court of law.
There are no ground for quashing the CC NI Act 2459 of 2023 is made out and also there are no flaw or infirmity in the proceedings pending before the Trial Court. However, the Trial Court shall certainly consider and deal with the contentions and the defence of the petitioner in accordance with law.
Petition dismissed.
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2023 (11) TMI 1274
Direction to deposit Rs. 6 crores in a separate interest-bearing account in the name of the Limited Liability Partnership (LLP) namely Concrete Developers LLP - HELD THAT:- The arbitrator was of the view that there is a likelihood that the legal heirs of the claimant (the respondent no.1 herein) would remain embroiled in litigation and that the claimant is entitled to accounts and to share in the profits in the LLP in accordance with the LLP Agreement. The arbitrator also expressed concern of the claimant being left without a remedy in the event the right of the deceased partner in a running business is not protected considering the substantial profits made by the LLP after the demise of the deceased partner.
Essar House Private Limited vs. Arcellor Mittal Nippon Steel India Limited [2022 (9) TMI 672 - SUPREME COURT] actually helps the respondent no.1 since the Supreme Court reiterated the wide power conferred on the Court to pass orders securing the amount in dispute in arbitration and proceeded to hold that the Court exercising such power should not withhold relief if a strong prima facie case is made out and the balance of convenience is in favour of an interim order.
The facts and circumstances which were presented before the learned arbitrator or were disclosed in fits and spurts by the appellant/surviving partners fully justify the impugned interim order dated 17.4.2023. There can be no jurisdictional objection to the impugned order as the Act of 1996 grants the arbitral tribunal plenary powers to pass such orders for preserving the dispute in the arbitration. The order also does not suffer from any factual or legal infirmity and is certainly not arbitrary or perverse.
The Court is accordingly of the view that the impugned order does not call for any interference - Application dismissed.
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2023 (11) TMI 1272
Bar of admissibility created by Section 35 of the Indian Stamp Act 1899 applies to the agreement(s) to sell dated 04.02.1988 executed by the parties - copy of a document be adduced as secondary evidence when the original instrument is not in possession of the party or not - applicability of decision of this Court in Jupadi Kesava Rao v. Pulavarthi Venkata Subha Rao [1971 (1) TMI 111 - SUPREME COURT].
Whether the bar of admissibility created by Section 35 of the Indian Stamp Act 1899 (Stamp Act) applies to the agreement(s) to sell dated 04.02.1988 executed by the parties? - HELD THAT:- The Explanation inserted in Article 23 of Schedule I-A contained in the Act creates a new obligation for the party and, therefore, cannot be given retrospective application. Thus, it will not affect the agreement(s) executed prior to such amendments - If the documents sought to be admitted are not chargeable with duty, Section 35 has no application. Thus, in the present case, since the document was dated 04.02.1988, the instrument was not chargeable with duty. It follows therefrom that when such document(s) are not required to be stamped, then no bar could be imposed due to it being not duly stamped.
Can a copy of a document be adduced as secondary evidence when the original instrument is not in possession of the party? - Whether, in the facts of the present case, would the decision of this Court in Jupadi Kesava Rao v. Pulavarthi Venkata Subha Rao be binding as held by both the Courts below? - HELD THAT:- Section 35 of the Stamp Act which forbids the letting of secondary evidence in proof of its contents. The Section excludes both the original instrument and secondary evidence of its contents if it needs to be stamped or sufficiently stamped. This bar as to the admissibility of documents is absolute. Where a document cannot be received in evidence on the ground that it is not duly stamped, the secondary evidence thereof is equally inadmissible in evidence.
In relation to secondary evidence of unstamped/insufficiently stamped documents, the position has been succinctly explained by this Court in Jupudi Kesava Rao wherein it dealt with an issue, i.e., whether reception of secondary evidence of a written agreement to grant a lease is barred by the provisions of Sections 35 and 36 of the Stamp Act and answered it in affirmative.
Thus, if a document that is required to be stamped is not sufficiently stamped, then the position of law is well settled that a copy of such document as secondary evidence cannot be adduced. The present facts, however, differ - The Trial Court and the High Court have relied on Jupadi Kesava Rao to hold that the Plaintiffs cannot lead secondary evidence as the document sought to be produced needed to be duly stamped.
It is a settled position of law that where the question is whether the document is liable to stamp duty and penalty, it has to be decided at the threshold even before marking a document. In the present case, the document in question was not liable to stamp duty - in the instant case, the Plaintiff's prayer for leading the secondary evidence ought to be allowed in so far as the documents sought to be introduced as secondary evidence be taken by the concerned Court and exhibited, with its admissibility being decided independently, in accordance with law under the Evidence Act.
Appeal allowed.
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2023 (11) TMI 1263
Seeking grant of bail - offences under Sections 147, 148, 149, 241, 323, 307, 353, 332, 333, 337, 393, 448, 427, 506 and 120-B of the Indian Penal Code, 1860 (I.P.C.) and under Section 27 of the Arms Act - HELD THAT:- When the offences alleged, inter alia, includes one under Section 307, IPC and the accused concerned is so arraigned with the aid of Section 149, IPC, such submissions, reflected in paragraph or the mere factum of completion of investigation by itself, cannot be the reason(s) for grant of bail without due consideration of the relevant aspects. At any rate, mere claim of innocence or undertaking to participate in the trial or contention of absence of specific allegation of any overt act cannot, in such circumstances, be assigned as reasons for grant of bail in a case of serious nature.
The impugned order deserves to be set aside and the matter is liable to be remanded to the High Court for fresh consideration in accordance with law - appeal disposed off by way of remand.
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2023 (11) TMI 1261
Grant of Regular Bail - misappropriation and transfer of money into various shell companies - Hawala transactions - seeking to include the additional conditions in the interim bail order - HELD THAT:- It is evident from the record that the petitioner has been shown as an accused one year and ten months after the registration of the crime. The case against him was filed just before his arrest. There is no indication on the record that, during this period of one year and ten months, the petitioner interfered with the investigation. The Prosecution has not made any such claim either.
This Court directed the petitioner to abstain from making any public comments relating to the case and from organizing or participating in public rallies and meetings. In the said order, this Court observed that the petitioner holds the position of the National President of Telugu Desam Party and restricting him from appearing before print, electronic media, or any social media platform to make statements or express opinions during his interim bail period affects his fundamental right to freedom of speech. As this Court granted interim bail on medical grounds, this Court thought fit that the petitioner was not supposed to conduct public meetings and rallies.
This Court directed the petitioner, while disposing of interim bail application on medical grounds, to place the details about his treatment in a closed cover to the Superintendent, Central Prison, Rajamahendravaram, at the time of his surrender. In view of granting of regular bail, this Court views that a direction can be given to the petitioner to file such medical record before the Special Court, Vijayawada, on or before 28.11.2023.
Accordingly, the interim bail granted to the petitioner/A.37 vide common order dated 31.10.2023 is made absolute, and the petitioner/A.37 is ordered to be released on regular bail on the bail bond already furnished by him in respect of this case. However, the condition imposed in respect of his organizing or participating in public rallies and meetings shall stand relaxed from 29.11.2023 onwards. The petitioner/A.37 is directed to produce the medical reports, regarding his treatment, before the Special Court, Vijayawada on or before 28.11.2023 instead of producing the same before the Superintendent, Central Prison, Rajamahendravaram. The remaining conditions imposed in the common order shall be followed by the petitioner/A.37 scrupulously.
This Criminal Petition is disposed of.
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2023 (11) TMI 1245
Retention of certain goods as security - claiming release of goods - it was held by High Court that Application is accordingly allowed and disposed of by appointing Mr. S. Muralidhar, former Chief Justice of the Orissa High Court to act as the Arbitrator subject to the learned Arbitrator communicating his consent in the prescribed format to the Registrar, Original Side of this Court within three weeks from date.
HELD THAT:- No case for interference under Article 136 of the Constitution of India is made out - However, it will be always open for the petitioner to raise all permissible objections/contentions before the Arbitral Tribunal in accordance with law.
The Special Leave Petition is accordingly dismissed.
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2023 (11) TMI 1240
Time Limitation - challenge to award of the Facilitation Council - award set aside on the ground that the claim was barred by limitation - Articles 226/227 of the Constitution - HELD THAT:- The appellant failed to avail of the remedy under Section 34. If it were to do so, it would have been required to deposit seventy-five per cent of the decretal amount. This obligation under the statute was sought to be obviated by taking recourse to the jurisdiction under Articles 226/227 of the Constitution. This was clearly impermissible.
The appellant sought to urge that the view of the Facilitation Council to the effect that the provisions of the Limitation Act 1963 have no application, which has been affirmed by the Division Bench in the impugned judgment, suffers from a perversity, and hence a petition under Article 226 of the Constitution ought to have been entertained. This submission cannot be accepted for the simple reason that Section 18 of the MSMED Act 2006 provides for recourse to a statutory remedy for challenging an award under the Act of 1996. However, recourse to the remedy is subject to the discipline of complying with the provisions of Section 19. The entertaining of a petition under Articles 226/227 of the Constitution, in order to obviate compliance with the requirement of pre-deposit under Section 19, would defeat the object and purpose of the special enactment which has been legislated upon by Parliament.
The decision of the Division Bench is affirmed by holding that it was justified in coming to the conclusion that the petition under Articles 226/227 of the Constitution instituted by the appellant was not maintainable - appeal disposed off.
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2023 (11) TMI 1235
Setting aside of order of penalty of withholding of 50% pension for all times to come, imposed upon the Respondent herein in connection with the disciplinary proceedings initiated on the allegations of sexual harassment.
Whether the Central Complaints Committee committed any egregious error in looking into the second complaint dated 18.09.2012? - HELD THAT:- It is well settled that when it comes to disciplinary proceedings, it is the inquiry authority and the disciplinary authority who could be said to be the fact-finding authority and the courts in exercise of their powers of judicial review should not sit in appeal and reappreciate the evidence or substitute its own findings. The scope of judicial review of the courts is limited only to the propriety of the decision-making process and the fairness of the inquiry procedure as held by this Court in BC. CHATURVEDI VERSUS UNION OF INDIA AND OTHERS [1995 (11) TMI 379 - SUPREME COURT] - As regards the manner in which the court ought to exercise its powers of judicial review in matters of disciplinary proceedings particularly one pertaining to sexual harassment, this Court in APPAREL EXPORT PROMOTION COUNCIL VERSUS A.K. CHOPRA [1999 (1) TMI 522 - SUPREME COURT] observed that the courts should not get swayed by insignificant discrepancies or hyper-technicalities. The allegations must be appreciated in the background of the entire case, and the courts must be very cautious before any sympathy or leniency is shown towards the delinquent. It further held that the courts are obliged to rely on any evidence of the complainant that inspires confidence.
Whether the Central Complaints Committee committed any egregious error in putting questions to the witnesses in the course of the departmental enquiry and thereby vitiating the disciplinary proceedings? - HELD THAT:- The obligation on the part of the Authority to ask the delinquent whether he pleaded guilty or had any defence to make is only in the circumstances, if the delinquent had not admitted any of the articles of charge in his written statement of defence or had not submitted any written statement of defence. Indisputably, in the case on hand, the Respondent had filed his written statement of defence dealing with all allegations on the ten points framed for determination that were enquired into by the Committee and also cross-examined all the witnesses on the same - mere violation of Rule 14(9) of the 1965 CCS Rules would not vitiate the entire inquiry. Rule 14(9) is only procedural.
A four-Judge bench of this Court in MANAGING DIRECTOR. ECIL. HYDERABAD & OTHERS VERSUS KARUNAKAR & OTHERS [1993 (10) TMI 310 - SUPREME COURT] held that in order to determine if prejudice had been caused by a violation of a procedural Rule or facet of natural justice, it must be shown that violation had some bearing either upon the outcome or the punishment imposed.
The High Court completely failed to advert itself to the principles laid down by this Court as aforesaid, and mechanically proceeded to set-aside the order of punishment imposed by the disciplinary authority on the ground that there was nothing to indicate that the Respondent was asked whether he pleaded guilty to the charges imputed in the second complaint without applying the principle of "test of prejudice".
Whether the Central Complaints Committee could be said to have based its findings on mere conjectures and surmises? Whether the case on hand is one of "No Evidence"? - HELD THAT:- If Section 165 of the Indian Evidence Act, 1872 permits a Judge to put questions to the parties or to the witnesses in order to discover or obtain proper proof of relevant facts and this provision being widely used by the judges throughout the country, we fail to understand as to how the complaints committee after being equated with a judge in a judicial proceeding be denied that privilege. However, it would be a different situation if a specific case of personal bias is made out against the members of the committee. After all, the very purpose of the disciplinary proceedings is to reach to the bottom of the fact while affording adequate opportunities to the affected party - the High Court was not correct in taking the view that the proceedings stood vitiated because the Central Complaints Committee put questions to the prosecution witnesses.
Whether the High Court committed any egregious error in passing the impugned judgment and order? - HELD THAT:- This is not a case of "no evidence". Some evidence has come on record to indicate or rather substantiate the allegations of sexual harassment levelled by the complainant. What is most important to note at this stage is that the High Court has not gone into the sufficiency of evidence as it was aware that the law does not permit it to go into the issue of sufficiency of evidence for the purpose of holding a public servant guilty of the alleged misconduct. It is in such circumstances that in the entire judgment the High Court has concentrated only on technical pleas raised by the Respondent. It is only on the issue of point 7(a) that the High Court seems to have taken the view that the findings in that regard are based on conjecture and surmises.
The High Court took the view that in respect of the allegations contained in Point 7(a) which relates to the Respondent making unsolicited phone calls to the complainant, although no evidence of the call recordings had been produced to substantiate the same, yet the Central Complaints Committee accepted the allegations as true, and therefore its findings could be said to be based on conjectures and surmises.
The High Court committed an egregious error in passing the impugned judgment and order - Appeal allowed.
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2023 (11) TMI 1218
Illegal mining - Punishment for having excavated over Plot No. 824 Kha - HELD THAT:- In the show cause notice dated 31.5.2022, the District Magistrate, Sonebhadra had directed the petitioner to show cause with regard to the illegal mining over Plot No. 824 Kha but when the order impugned was passed we find that it is with regard to Plot No. 421Kha.
It is also found that the plot, which was mentioned in the show cause notice, had no bearing with the order impugned in the instant writ petition. In the light of above, it is crystal clear that not only is show cause notice badly drafted and incomplete but also the order passed subsequently is inherently misconceived going way beyond the show cause notice issued. Ergo, show cause notice dated 31.05.2022 and the order dated 20.6.2022 are quashed and set aside.
The writ petition is allowed.
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2023 (11) TMI 1216
Doctrine of Forum non-conveniens - Seeking permission to Appellant to appear for Class X and Class XII examinations - Appellant's father received a message from the Respondent School that due to non-payment of fees for the academic year 2017-2018, the Appellant was debarred from attending the Respondent School - HELD THAT:- On an examination of the peculiar facts and circumstances that have led to the present appeal, it is evident that the grievance of the Appellant emerges from the actions of the Respondent School which is located in Uttar Pradesh. This Court had directed the Respondent School to conduct Grade VIII examinations for the Appellant, not the CBSE. Therefore, contrary to the contention of the Appellant, in effect, the Appellant is seeking compensation from the CBSE not for any decision/action taken by the CBSE but instead due to an alleged failure of the CBSE to regulate the actions of the Respondent School.
It is a settled position of law that where only a small part of the cause of action arises in the territorial jurisdiction of a Court, the same cannot automatically clothe the Court with jurisdiction under Article 226 of the Constitution of India. In such cases, the Court is obligated to follow the doctrine of forum conveniens.
Division Bench of this Court in M/S SHRISTI UDAIPUR HOTELS AND RESROTS (P) LTD VERSUS HOUSING AND URBAN DEVELOPMENT CORPORATION LIMITED [2014 (5) TMI 1231 - DELHI HIGH COURT] dealt with a similar issue and observed that where the most vital parts of the cause of action have arisen elsewhere, the mere presence of the registered office of the Respondent in Delhi would be irrelevant in determining territorial jurisdiction as it amounts to a miniscule part of the cause of action.
The principle emerging from Shristi Udaipur is squarely applicable to the facts of the present case. In essence, the basis of the Appellant's claim for compensation is the loss of an academic year due a delay in examinations for Grade VIII. As the responsibility for conducting the examinations fell on the Respondent School, it is plain that the most vital part of the cause of action arose in Uttar Pradesh, where the Respondent School is located. Moreover, it must also be noted that the Appellant is a resident of Uttar Pradesh. Therefore, on a holistic examination of these circumstances, as the Appellant has failed to produce any material establishing that the grievance caused to her is directly attributable to the actions of the CBSE, we cannot but conclude that this Court is not the appropriate forum for adjudication of this matter.
It must be noted that the doctrine of forum conveniens is invoked to determine the most appropriate forum for adjudication of a dispute and this exercise is undertaken not only for the convenience of the parties but also in the interest of justice. Therefore, this Clause cannot be read in a matter that would permit all cases filed against the CBSE, regardless of the existence of a more appropriate forum, to be adjudicated in the Union Territory of Delhi; the existence of such a clause cannot exempt Courts from invoking the doctrine of forum conveniens especially in cases like the present where no direct actions of the CBSE have been impugned by the Appellant. Thus, the Clause has to be interpreted purposively to include within its ambit only those cases where the cause of action is attributable to the CBSE.
This Court finds no reason to interfere with the Impugned Judgement. Accordingly, the present LPA is dismissed.
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2023 (11) TMI 1211
Seeking permission to prosecution to produce the report and the certificate under Section 65B of the Indian Evidence Act, 1872 - delay of six years in producing the certificate or not - HELD THAT:- It cannot be inferred that there was delay of six years in producing the certificate. In fact, report received from CFSL, Hyderabad on the basis of the contents of electronic devices dated 29.11.2010 was already placed before the Trial Court on 16.10.2012. In fact, the stand of the prosecution was that when the original electronic devices were already produced and marked MOs, there was no need to produce the certificate under Section 65-B of the Act. Still, as a matter of abundant caution, the same was produced that too immediately after objection was raised by the accused against the production of CFSL report prepared on the basis of the electronic devices seized.
Fair trial in a criminal case does not mean that it should be fair to one of the parties. Rather, the object is that no guilty should go scot-free and no innocent should be punished. A certificate under Section 65-B of the Act, which is sought to be produced by the prosecution is not an evidence which has been created now. It is meeting the requirement of law to prove a report on record. By permitting the prosecution to produce the certificate under Section 65B of the Act at this stage will not result in any irreversible prejudice to the accused. The accused will have full opportunity to rebut the evidence led by the prosecution. This is the purpose for which Section 311 of the Cr.P.C. is there. The object of the Code is to arrive at truth. However, the power under Section 311 of the Cr.P.C. can be exercised to subserve the cause of justice and public interest - In the case in hand, this exercise of power is required to uphold the truth, as no prejudice as such is going to be caused to the accused.
The orders passed by the courts below are set aside - Appeal allowed.
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2023 (11) TMI 1158
Refund of stamp duty - Stamp papers purchased for registration of immovable property but the same could not be executed - Retention of 10% of the stamp duty - Constitutional Validity of Section 54 of the Indian Stamp Act, 1899 - ultra vires of Articles 265 and 300A of the Constitution of India or not - challenge to Section 54(c) of the Act as being ultra vires of Articles 14, 265 and 300A of the Constitution of India.
The refund claim rejected on the ground that the said application was filed beyond the period of six months from the date of purchase of the E-stamp Certificate.
HELD THAT:- It is settled law that stamp duty is chargeable on the instruments as stipulated in the said Schedule and not the transactions in respect of which the instrument is executed - It is apparent that, the duties in respect of which instruments are chargeable are to be reflected by stamps on those instruments. In terms of Section 11 of the Act, certain instruments may be stamped with adhesive stamps. Section 12 of the Act mandates that adhesive stamps be cancelled once used so that the same cannot be used again.
It is well settled that the right to refund the tax collected is governed by the statute governing the said tax. An assessee who has paid tax does not have any inherent right for refund of tax paid. In view of the above, the petitioner’s contention that the provisions of Section 50(2) of the Act, which provides for retention of 10% of the allowance for stamps is ultra vires to Article 265 of the Constitution of India or falls foul of Article 300A of the Constitution of India, is unmerited.
Section 49 of the Act provides for allowance for spoiled stamps. In terms of Clause (a) of Section 49 of the Act, a Collector can make an allowance in respect of a stamp inadvertently and undesignedly spoiled, obliterated or by error in writing or any other means rendered unfit for the purpose intended, prior to the instrument being executed. Further, an application for allowance is required to be made within the period as prescribed under Section 50 of the Act - Although, a Collector can make an allowance for the stamp paper only if an application is made within the period as prescribed. The life of the stamp paper is not circumscribed by Section 54(c) of the Act.
In the present case, the petitioner has been denied the refund as the condition under Section 54(c) of the Act has not been satisfied. However, if the stamp papers available with the petitioner are inadvertently obliterated or spoiled, the petitioner would have two months thereafter to apply for a refund of the stamp paper due. In our view, if the provisions of Section 54 of the Act are read in the aforesaid manner, the same are clearly arbitrary and unreasonable and are liable to be declared as ultra vires Article 14 of the Constitution of India - It is a well settled that a legislative enactment is presumed to be constitutionally valid unless it is found to be contrary. Additionally, it is also a well settled principle that the courts will, in so far as possible, construe a statute in a manner so that it does not fall foul of the constitution.
The denial of refund of the stamp duty collected even though no duty is payable because the charging event has not occurred and the cause of action for claiming the refund has not arisen, militates against the scheme of providing for allowance of stamps. Clearly, if the provisions of the Act are construed in a manner so as to permit collection and retention of stamp duty, which is not chargeable without any recourse for refund whatsoever, it would run contrary to the scheme of the Act. If Section 54 of the Act is read as restricting the right for seeking refund in a case such as the present one, it would suffer from the vice of arbitrariness and fall foul of Article 14 of the Constitution of India.
The present petition is disposed off by directing the Collector to process the petitioner’s claim for the refund of stamp paper (to the extent of 90% of the E-stamp paper) within a period two weeks from date.
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2023 (11) TMI 1122
Dishonour of Cheque - no proper service of notice - complainant has not proved his case - do the question of rebuttal arise? - HELD THAT:- Once the cheques are placed before the Court and the petitioner has not denied the signatures available in the cheques, except a general denial that he has not issued the cheques, he has not given any explanation. The Trial Court has rightly drawn the presumption under Sections 118 and 139 of Negotiable Instruments Act and once the issuance of cheque is proved by the complainant, the same has to be rebutted and no such rebuttal evidence is placed by the petitioner. Though he has been examined before the Court, in his chief evidence, except denying the service of notice and issuance of cheques, no material is placed before the Court to substantiate this contention.
The First Appellate Court also having reassessed the material on record, in Para No.13, taken note of both oral and documentary evidence placed on record and with regard to proving of the transaction, the complainant has relied upon Exs.P11 to P17, credit bills and in order to rebut the claim of the complainant, no documents are produced and though the accused took the contention that those three cheques were issued to the son of the complainant towards chit transaction, nothing is stated in his chief evidence that those three cheques were given to the son of the complainant his evidence is silent with regard to the same and the defence has remained as a defence.
Thus, no error committed by the Trial Court and the First Appellate Court in appreciating both oral and documentary evidence placed on record and unless the Trial Court and the First Appellate Court fail to consider the material on record, the question of invoking revisional jurisdiction does not arise. The Court can exercise its revisional jurisdiction, only if the material evidence is not considered by the Courts below and if the order suffers from its legality and correctness. The petitioner has not made out any ground to exercise revisional jurisdiction and there is no merit in the revision - answered in negative.
The revision petition is dismissed.
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2023 (11) TMI 1121
Dishonour of Cheque - Acquittal of accused - insufficient funds - trial Court has recorded the statement accused/respondent on the basis of affidavit instead of examination-in-chief - Section 145 of Negotiable Instruments Act, 1881.
Whether the appellant/complainant has made out a ground to remand the matter to the trial Court for fresh disposal in accordance with law? - HELD THAT:- On perusal of the provisions of Section 145 of Negotiable Instruments Act, 1881, it is clear that the trial Court has not followed the provisions of Section 145 of the said Act, and the evidence of the accused by way of affidavit is not permissible in law. Relying on the evidence of accused DW1, along with the material contradiction of PW2, the trial Court has acquitted the accused. Since the accused had not adduced his evidence in accordance with law, the same cannot be looked into by this Court. Hence, it is just and proper to remit the matter to the trial Court with a direction to provide opportunity to the accused to adduce his evidence in accordance with law. Accordingly, complainant has made out a ground to interfere with the impugned judgment of acquittal and also to remand the case to the trial Court.
Judgment of acquittal dated 03rd February, 2014 passed in CC No.81 of 2010 by the Additional Civil Judge and JMFC, Ramanagar, is set aside and the case is restored to file - Matter is remitted back to the trial Court with a direction to provide opportunity to the accused to adduce his oral evidence in accordance with law - appeal allowed.
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2023 (11) TMI 1120
Dishonour of Cheque - Amount of cheques are not paid even after statutory notice was served - presumption in favour of complainant - rebuttal of presumption - exercise of jurisdiction under section 482 of Cr.P.C. or Article 226 of the Constitution of India - section 138 of NI Act - HELD THAT:- The Court after prima facie verifying material on record issued process for the offence punishable under section 138 of N.I.Act. The trial of the offence is at large before the learned Trial Court. It is to be noticed that in offence under section 138 of N.I.Act, provision of law provides for presumption under section 139 of N.I.Act - The complainant being holder of the cheques and in view of the fact that signature on the cheques is not denied by the accused / petitioner, legal presumption shall be drawn that cheques were issued for discharge of debt or any other liability. This presumption stands till it has been discharged. Presumption under section 139 is rebuttable presumption. It is system of reverse onus burden.
In case of MS NARAYANA MENON @ MANI VERSUS STATE OF KERALA & ANR. [2006 (7) TMI 576 - SUPREME COURT] the Hon’ble Apex Court has considered sections 118(a), 138 and 139 of Negotiable Instrument Act and held that presumption both under section 118(a) and 139 are rebuttable in nature.
Looking back to the contention raised by the petitioner, it is the case of the petitioner that there is difference in agreement to sell and complaint regarding number of flats and therefore, it cannot be said that questioned cheques were given for discharge of any liability. This argument was canvassed with a view to submit that transaction is different. Cheques in question is given for transaction for flat Nos.C/402 to C/406 as per agreement on record but the complainant has mentioned that cheques in question has been given for transaction for flat Nos.C/202 to C/ 206. Mere there is difference regarding flat numbers in agreement and complaint, it would not attract submission that cheques were not given for any legal liability. There may be typographical mistake.
Burden can be discharged under section 139 of NI Act by the petitioner after leading evidence either by cross examining the complainant or by leading necessary evidence. No mala fide or vexatious claim are found. The case deserves trial. No case is made to exercise power vested under section 482 of Cr.P.C. to quash the proceedings.
Needless to say that jurisdiction under section 482 of Cr.P.C. or Article 226 of the Constitution of India is requires to be exercised in circumspection and sparingly. The person calling Court to exercise such jurisdiction needs to establish from record that proceedings against him is manifestly mala fide and vexatious. In the present case, the petitioner has failed to make out such case.
The petition does not deserve consideration and requires to be dismissed in limine - petition dismissed.
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2023 (11) TMI 1119
Dishonour of Cheque - Vicarious liability of director - Section 141(1) of the Negotiable Instruments Act, 1881 - HELD THAT:- Mere extracting the expression used in Section will not satisfy the requirement to hold a director vicariously liable for the offence under Section 138 of Negotiable Instruments Act, 1881. The averment of the complaint must satisfy the test, whether there are averments to prima facie satisfy the Court taking cognizance that the person deemed to be guilty of offence have role in the conduct of the business and in charge of the company - As far as the instant case, the cheque is for the discharge of the loan advanced to the company for its business purpose. The petitioner had stood guarantee for the loan advanced. She cannot deny knowledge of the borrowing or issuance of cheque just because she is not the signatory of the subject cheque.
This Criminal Original Petition is dismissed.
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2023 (11) TMI 1118
Dishonour of Cheque - presumption with regard to existence of consideration amount - onus to rebut the presumption - shifting the burden upon the original accused to prove his case beyond reasonable doubt - HELD THAT:- While responding to such defence, the complainant has fairly accepted the fact about the actual outstanding amount dues from the complainant to be Rs.8,99,000/-, whereas the cheque in dispute appears to be figures of Rs.9,99,000/-. In the opinion of this Court, the aforesaid contradiction goes to the root of the matter. It straightway hit the presumption drawn in favour of the complainant under Section 118(a) of the Negotiable Instruments Act, which permits the Court to raise presumption with regard to existence of consideration amount. Section 139 of the Negotiable Instruments Act further permits the Court to raise presumption with regard to the cheque being issued towards discharge of legally recoverable debt as on the date of the presentation of the cheque. It is a settled legal position that in absence of any challenge to the signature on the disputed cheque, the statutory presumption available under Section 118 and Section 139 of the Act comes into play. The aforesaid statutory provision permits the Court to raise presumption against the respondent accused. The onus is upon the accused on the issuance of cheque to rebut the presumption that the cheque was not issued for discharge of any debt or liability under Section 138 of the Act. However, such presumption is subject to probable defence to be raised by the accused to create doubt with regard to existence of any debt or liability.
In case of Rangappa Vs. Sri Mohan [2010 (5) TMI 391 - SUPREME COURT], the Hon’ble Supreme Court held that the standard of proof to discharge of such presumption can be in the form of probable defence which is weighed on the scale of preponderance of probabilities - As noticed hereinabove, in the present matter, the learned Court below has consciously and carefully taken into consideration this aspect, which has emerged on record to arrive at finding with regard to the discrepancy in the amount dues to be realized from the respondent accused, coupled with the fact that the original complainant has failed to offer any explanation with regard to the additional amount of Rs.1 Lakh - no fault can be found in the approach of the learned Magistrate in shifting the burden upon the original accused to prove his case beyond reasonable doubt. The discrepancy noted in the amount due against the respondent – accused against which the cheque is alleged to have been issued goes to the root of the matter, which can be treated as material contradiction.
In the opinion of this Court, no arguable case is made out to entertain a present application seeking leave to appeal. Hence, present application is hereby rejected - In view of dismissal of the application seeking leave to appeal, Criminal Appeal No.34 of 2023 stands disposed of.
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