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Showing 21 to 40 of 571 Records
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2005 (12) TMI 591
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... ... ..... ll as Section 59 of the Indian Contract Act while passing directions similar to those prayed for in these writ petitions. I have in some cases assumed jurisdiction under Article 226 of the Constitution even in respect of contractual dealings of the State or Authority. However no convoluted and contested questions of fact had arisen in those cases with the result that appropriate orders could easily have been passed, as had been done by my Learned Brother Vijender Jain in DSCO Cooperative case. In writ proceedings it would be wholly inappropriate to consider the implementation of the legal principles of First In First Out basis. This would involve looking into the Books of Accounts, the date on which the liability occurred etc. which are matters that should be left for determination either in a civil suit or in arbitral proceedings. 6. This is not a case which justifies or warrants the exercise of extraordinary jurisdiction under Article 226 of the Constitution. 7. Dismissed.
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2005 (12) TMI 590
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... ... ..... difference so far as the principle enunciated above is concerned. The CBSE consists of experts in the field of education and it is not proper for this court to interfere with its functioning. The court must exercise judicial restraint in this connection. 64. It is well settled that in academic/educational matters Courts should be reluctant to interfere vide Rajendra Prasad Mathur v. Karnataka University 1986 2SCR912 , J.P. Kulshreshtra v. Allahabad University (1980)IILLJ175SC , University of Mysore v. Govinda Rao 1964 4SCR575 , etc. 65. The entire philosophy of judicial restraint has been laid down by the Madras High Court in Rama Muthuramalingam v. Deputy Superintendent of Police Mannargudi and Anr. AIR2005Mad1 . In that decision the relevant case law has been referred to and we fully agree with the views expressed therein. 66. For the above reason, this appeal is allowed and the impugned judgment of the learned Single Judge is set aside and the writ petition is dismissed.
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2005 (12) TMI 589
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... ... ..... opment Authority shall be transferred strictly in terms of the Rule 5 of the Rules which provides that the lands shall be transferred as under -- (a) By direct negotiations with the party; or (b) By public auction; or (c) By inviting tenders; or (d) Under concessional terms. Lands in the present case shall be transferred in the light of the directions of the Division Bench of the Indore High Court in the case of Shri Kranti Kumar Shukla (supra) or by public auction or by inviting tenders. If the Authorities decide to dispose of the lands by negotiations, then negotiations shall be strictly in terms of the Rule 6 of the Rules and not otherwise. Development Authority will be at liberty to transfer the lands in terms of Rule 6 of the Rules. Parties who had been allotted the lands will also be entitled for transfer of lands in terms of the Rules and not on concessional rates. Petition succeeds and is allowed. In the circumstances of the case, there shall be no order as to costs.
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2005 (12) TMI 588
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... ... ..... arable loss and injury that would be caused to the appellants, who were plaintiffs in the said suit, in granting the order of injunction. 23. In view of above, we are of the considered opinion that the respondent has failed to make out a strong prima-facie case for granting injunction. The balance of convenience is also not in favour of the respondent for granting such injunction. The appellants would also suffer immensely if the order of injunction is passed, as in that case they will be debarred from executing the lawful decree obtained by them. Hence, the order of injunction dated 3.11.2005 passed by the learned Trial court is liable to be set aside and quashed, which we hereby do. Before parting we would like to observe that the learned Executing Court shall execute what is there in the degree passed in T.S. No. 494/96 and shall not go beyond the said decree. 24. The appeal is accordingly allowed with cost of ₹ 10,000 to be paid by the respondent within two months.
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2005 (12) TMI 587
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... ... ..... ef for the alleged acts of oppression and mismanagement, it is far from doubt that (a) whether the Company's affairs are being conducted in a manner oppressive to any member; (b) whether the facts set out would justify the making up of a winding up order on the ground that it was just and equitable that the Company should be wound up; and (c) whether a winding up order would unfairly prejudice the petitioner, could be gone into when the company petition is considered on merits. Similarly, the prayer for investigation of the affairs of the Company by the independent chartered accountants and for reconstitution of the board of directors would not arise at the preliminary stage and therefore the company petition cannot be rejected, as not maintainable. In view of these conclusions, the prayer made in the present application must fail. Ordered accordingly. The company petition will be heard on 20.01.2006 at 2.30 p.m. With these directions, the application stands disposed of.
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2005 (12) TMI 586
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... ... ..... is modified to that extent and the manner as indicated above. The accused petitioner is directed to pay the aforesaid sum of ₹ 1,50,000/- as indicated above in the Court of learned CJM, Purulia within 60 days from the date of this order. 14. In view of the discussion made above this Court finds no ground at all for remanding the case for retrial. The learned Sessions Judge rightly affirmed the conviction and sentence imposed on the petitioner by the learned CJM, Purulia. The conviction is affirmed but the sentence is modified in view of the indication made above. The revisional application in view of the discussion made in the previous paragraphs having no merit fails and is dismissed. 15. All interim orders passed earlier stand vacated. 16. Criminal section is directed to send down the lower Court records along with the copy of this order to the learned Sessions Judge, Purulia and to the learned Chief Judicial Magistrate, Purulia for information and necessary action.
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2005 (12) TMI 585
Accident Claims - 'Doctrine of election' - 'Rule of estoppel' - Whether an insurer, while defending an action initiated under the Workmen's Compensation Act, 1923, ('1923 Act') is precluded from raising any defence as envisaged in under sub-section (2) of Section 149 of the Motor Vehicles Act, 1988, ('the 1988 Act') ? - HELD THAT:- Under the 1988 Act, the driver of the vehicle is liable but he would not be liable in a case arising under the 1923 Act. If the driver of the vehicle has no licence, the insurer would not be liable to indemnify the insured. In a given situation, the Accident Claims Tribunal, having regard to its rights and liabilities vis-`-vis the third person may direct the insurance company to meet the liabilities of the insurer, permitting it to recover the same from the insured. The 1923 Act does not envisage such a situation. Role of Reference by incorporation has limited application. A limited right to defend a claim petition arising under one statute cannot be held to be applicable in a claim petition arising under a different statute unless there exists express provision therefor. Section 143 of the 1988 Act makes the provisions of the 1923 Act applicable only in a case arising out of no fault liability, as contained in Chapter X of the 1988 Act.
The provisions of Section 143, therefore, cannot be said to have any application in relation to a claim petition filed under Chapter XI thereof. A fortiori in a claim arising under Chapter XI, the provisions of the 1923 Act will have no application. A party to a lis, having regard to the different provisions of the two Acts cannot enforce liabilities of the insurer under both the Acts. He has to elect for one.
Section 167 of the 1988 Act statutorily provides for an option to the claimant stating that where the death of or bodily injury to any person gives rise to a claim for compensation under the 1988 Act as also the 1923 Act, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both. Section 167 contains a non-obstante clause providing for such an option notwithstanding anything contained in the 1923 Act.
The 'doctrine of election' is a branch of 'rule of estoppel', in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. .Although there are certain exceptions to the same rule but the same has no application in the instant case.
Thus, appeals are allowed and the matters are remitted to the High Court for consideration of these appeals afresh on merit. The appeals, it is needless to say, would be entertained only in the event, the Appellants satisfy the requirements contained in the proviso appended to sub-section (1) of Section 30 of the 1923 Act.
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2005 (12) TMI 584
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... ... ..... roval in the decision of Supreme Court in Gujarat Agro Industries Co. Ltd. v. Municipal Corporation of the city of Ahmedabad and Ors. (supra). The Supreme Court has also referred to its decision in Shyam Kishore and Ors. v. Municipal Corporation of Delhi and Anr. AIR 1992 SC 2279 in which a similar provision was upheld. 20. It may be noted that in Gujarat Agro Industries Co. Ltd. v. Municipal Corporation of the city of Ahmedabad and Ors.(supra) the appellant had challenged the constitutional validity of Section 406(e) of the Bombay Municipal Corporation Act which required the deposit of the tax as a precondition for entertaining the appeal. The proviso to that provision permitted waiver of only 25 of the tax . In other words a minimum of 75 of the tax had to be deposited before the appeal could be entertained. The Supreme Court held that the provision did not violate Article 14 of the Constitution. 21. In view of the above there is no force in this petition and is dismissed.
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2005 (12) TMI 583
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... ... ..... preme Court reported in AIR 1963 SC 795. Besides, the judgment of the Hon. CEGAT in the case of M/s. Ellora Mechanical Co. v. CCE - 1998 (24) RLT 175 CEGAT is also in their favour wherein it was held that bringing of duty paid plastic films does not amount to manufacture.” 2. After hearing Shri Vimlesh Kumar, learned SDR, we find that apart from the decision relied upon by the Commissioner (Appeals), the Hon’ble Supreme Court in their latest judgment in the case of CCE, New Delhi-I v. S.R. Tissues Pvt. Ltd. - 2005 (186) E.L.T. 385 (S.C.) has held that slitting/cutting of jumbo rolls of plain tissue paper/aluminium foil into smaller size does not amount to manufacture as character and end-use do not undergo any change on account of such activity. Applying the ratio of the above decision of the Hon’ble Supreme Court, it has to be held that no manufacturing activity was involved. 3. In view of the foregoing, we reject the appeal filed by the Revenue.
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2005 (12) TMI 582
Termination of the service of the workman - Non- Ferrous Mill - Whether direction to pay backwages consequent upon a declaration that a workman has been retrenched in violation of the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947 (equivalent to Section 25F of the Industrial Disputes Act, 1947) as a rule ? - HELD THAT:- In the instant case, we have noticed hereinbefore that the establishment of the Appellant wherein the Respondent could be directed to be reinstated had been sold on 26.3.1993. In that view of the matter, Section 6 of the U.P. Industrial Disputes Act would apply in terms whereof compensation will be payable in the same manner as if he was retrenched under Section 6N thereof.
It is not in dispute that the Respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well-settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the Indian Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman.
The only question is whether the Respondent would be entitled to back wages from the date of his termination of service till the aforementioned date. The decision to close down the establishment by the State of Uttar Pradesh like other public sector organizations had been taken as far back on 17.11.1990 wherefor a GO had been issued. It had further been averred, which has been noticed hereinbefore, that the said GO has substantially been implemented. Thus, we are of the opinion that interest of justice would be subserved if the back wages payable to the Respondent for the period 1.4.1987 to 26.3.1993 is confined to 25% of the total back wages payable during the said period.
The judgments and orders of the Labour Court and the High Court are set aside and it is directed that the Respondent herein shall be entitled to 25% back wages of the total back wages payable during the aforesaid period and compensation payable in terms of Section 6-N of the U.P. Industrial Disputes Act. If, however, any sum has been paid by the Appellant herein, the same shall be adjusted from the amount payable in terms of this judgment.
Thus the appeal is allowed in part and to the extent mentioned hereinbefore.
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2005 (12) TMI 581
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... ... ..... ollowed under Sections 81(1), 100, 101, 102 and 103 of the Act and without there being an amendment in the clause relating to authorised share in the Memorandum and Articles of Association, it would be ultra vires. I also do not agree with the CLB that doctrine of relation back would not be applicable. When the permission for exemption was given on 28th January, 2005 in the circumstances explained above, it has to be deemed that this was the provision in the original scheme and, Therefore, doctrine of relation back would apply. 80. Therefore, I am of the opinion that the CLB had no jurisdiction to entertain the petition under Sections 397/398 of the Act to deal with the issues which related to SS and are within the exclusive domain of the BIFR. 81. In this conspectus, Co.A.(SB) No. 18/2005 and Co.A.(SB) No. 20/2005 are allowed and the impugned order passed by the CLB is hereby quashed and Co.A.(SB) No. 19/2005 is dismissed. 82. There shall, however, be no orders as to costs.
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2005 (12) TMI 580
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... ... ..... pass an order directing the respondent to renew the bank guarantee for a further period of 6 weeks in the event the appeal is decided in favour of the respondent. 3. We make it clear that this observation does not mean that there is a case for the respondent or that there is no such case.
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2005 (12) TMI 579
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... ... ..... at the genuineness of the loan transactions had not been established. In the light of the said material which the authorities below have appreciated and relied upon in support of their conclusion, it is difficult to see how the finding regarding the genuineness of the loan transactions can be described as perverse. It is also not possible in the light of the said evidence to hold that the finding regarding the non-genuineness of the transactions was so irrational that no reasonable or prudent person could have arrived at the same. 4. In the totality of these circumstances, therefore, and in view of the clear findings of fact recorded by the authorities that the alleged loan transactions had not been proved by the assessee and the burden that lay upon the assessee was not discharged in terms of section 68 of the Act, we see no reason to interfere especially when no substantial question of law arises for our consideration. The appeal, accordingly fails and is hereby dismissed.
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2005 (12) TMI 578
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... ... ..... the argument of the learned counsel and perused the materials on record. 5. As seen from the order of the Tribunal, the commission as earned by the assessee has been approved in the board meeting, which is relevant to the assessment year 1997-98. It is further clear that the TDS has also been deducted only for the assessment year 1997-98 and not for the assessment year prior to that. This Court, in a comparable set of facts, in the case of CIT v. Seshasayee Bros. (P) Ltd. (1999) 151 CTR (Mad) 598 had taken the view that the income is taxable in the assessment year in which the same has been approved by the board. As a matter of fact, the said decision has also been taken aid by both the Commissioner (Appeals) and Tribunal. Hence, we are of the view that the appeal requires no entertainment, as the issue follows the Division Bench judgment of this Court. 6. Accordingly, the tax case (appeal) is dismissed. The issue is decided in favour of the assessee and against the revenue.
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2005 (12) TMI 577
Validity of Termination of services - Appointments made in Mandi Parishad and Mandi Samities - Unauthorized/ irregular - Scheme for regularisation of the employees of the U.P. State Agricultural Produce Market Board ("the Board") - Regulations of terms and conditions of the service of the employees framed by the Board u/s 25-A and 26-X of the Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964 ("the Act") - Similar regulations also framed by the Board in respect of its own employees being the Uttar Pradesh Agricultural Produce Markets Board Regulations, 1984 ("Establishment Regulations") - Violation of Principles of Natural Justice - HELD THAT:- The fact that all appointments have been made without following the procedure or services of some persons appointed have been regularised in past, in our opinion, cannot be said to be a normal mode which must receive the seal of the court. Past practice is not always the best practice. If illegality has been committed in the past, it is beyond comprehension as to how such illegality can be allowed to perpetrate. The State and the Board were bound to take steps in accordance with law. Even in this behalf Article 14 of the Constitution of India will have no application. Article 14 has a positive concept. No equality can be claimed in illegality is now well- settled.
Furthermore, no post was sanctioned. It is now well-settled when a post is not sanctioned, normally, directions for reinstatement should not be issued. Even if some posts were available, it is for the Board or the Market Committee to fill-up the same in terms of the existing rules. They, having regard to the provisions of the regulations, may not fill up all the posts.
Conclusion - The upshot of our discussions is: (i) The Board and the Market Committees were bound by the Act, the Rules and Regulations framed thereunder in making appointments. Statutory provisions as also the constitutional requirements were required to be complied with.
(ii) The Board had no jurisdiction to frame any scheme for regularization in the pith of the statutory regulations operating in the field. Any legislation involving appointment or laying down the conditions of service of the employees would require prior sanction of the State.
(iii) The State of Uttar Pradesh in exercise of its purported power u/s 26-M of the Act could not have issued the directions as it has been done but such a direction cannot be said to be wholly unreasonable.
(iv) The State although could not exercise a statutory power beyond the provisions of the statute but the same although might have been done under a misconception of law but was not otherwise arbitrary or mala fide.
(v) Availability of vacancies and/ or the fund by themselves would not allow the Market Committees or the Board to make appointments in flagrant violation of the statutory provisions. Although the direction of the State of U.P. which had been acted upon by the Board did not have a statutory backing, the High Court could not have issued a writ of or in the nature of mandamus as the writ petitioners Respondents did not have any legal right.
(vi) We are not oblivious of the fact that there may be some employees whose services have been terminated without any rhyme or reason. Mr. Verma appearing on behalf of the Board has assured us that the Board shall look into cases of such employees whose termination has been effected beyond the policy decision taken by the State although we do not intend to express any opinion as regards such employees.
We, however, direct the Board and the Market Committees to fill up all existing vacancies strictly in accordance with law as expeditiously as possible and preferably within six months from date. While doing so, amongst other eligible candidates, the candidature of the employees whose services have been terminated should also be taken into consideration and in the event, the appropriate authority of the Market Committees or the Board can relax the age-bar, the same would be done.
The respective Market Committees, however, in the meanwhile, if for exigencies of the work, intend to appoint any person, it may do so. However, post facto approval therefor should be obtained from the Board. In the offers of appointment which may be issued to such temporary or ad hoc employees it shall be made clear that their appointments would be ad hoc in nature and the same shall be co-terminus with the appointment of regular employees.
Thus, we are of the opinion that the judgment and order passed by the learned Single Judge which has been upheld by the Division Bench by its order does not lay down the law correctly and the judgment and order passed by a Division Bench of the Lucknow Bench of the Allahabad High Court in Writ Petition No. 1093 (S/B) of 1999 lays down the law correctly. In the result, Civil Appeal is dismissed and other civil appeals filed by the Board and the State of Uttar Pradesh as also civil appeal filed by the Board are allowed.
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2005 (12) TMI 576
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... ... ..... if the amount payable under the compromise entered into by the parties in the execution case would have been less than the amount paid by the Respondent to the Appellant in terms of the consent decree passed originally. It is not so. Whereas under the original decree, a sum of ₹ 41,69,110/- was payable, in terms of the consent order passed in the execution case, a sum of ₹ 42,04,222/- became payable. The sum which was waived by the Appellant did not form part of the consent decree. It was merely a claim. Such a claim never fructified into any decree and in that view of the matter the plea of Respondent being liable to pay the said amount to the Appellant despite the fact that no decree in relation thereto was passed cannot be countenanced. For the reasons aforementioned, we are of the opinion that the impugned judgment and order cannot be faulted. This appeal is dismissed. However, in the facts and circumstances of this case, there shall be no order as to costs.
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2005 (12) TMI 575
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... ... ..... ppendix 1, Block 3, Item No. 2 (iii) of Rule 5 which is described as “Moulds used in rubber and plastic goods factories.” 1. Heard Mr. M.R. Bhatt, the learned Senior Standing Counsel for the appellant. 2.As can be seen from the impugned order of Tribunal dated 27th August, 2004, it has found as a matter of fact that the dyes and moulds were used in manufacturing of various plastic components which are used for the purposes of assembling of air coolers manufactured by the assessee. The Tribunal has also referred to the list of 28 parts manufactured by user of these dyes and moulds as available in the paper book. 3. In the circumstances, it is apparent that the impugned order of Tribunal which concurs with the order of Commissioner (Appeals), is based on facts on record after appreciation of evidence. 4.In the result, in absence of any substantial question of law, the appeals are dismissed. The Registry is directed to place a copy of this order in connected matter.
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2005 (12) TMI 574
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... ... ..... ishna, JJ. ORDER Appeal dismissed.
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2005 (12) TMI 573
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... ... ..... id the amount of ₹ 8,10,518 to Siemens AG, Germany during 1998-99. It was argued that management consultancy service came into service tax net w.e.f. 16-10-1998. During July, 1998 the services were provided. Service tax was not chargeable on such service. Therefore, they were not liable for any service tax and the appeal of the Revenue has no merits. 3. I have considered the submissions made by both sides. I find that there is no dispute that management consultancy services came into existence w.e.f. 16-10-1998 under the service net. Therefore, any service provided before that date is not chargeable to service tax. The respondents have established that service provided by them was between 15th to 19th July, 1998. Therefore, I do not find any reason that service tax should be charged from the respondents. The department has not given any grounds to rebut this view. Therefore, the appeal filed by the department is not sustainable and, accordingly, the appeal is rejected.
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2005 (12) TMI 572
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... ... ..... in the show-cause notice. Therefore, the Department cannot enforce the demand for the larger period in the absence of invoking the larger period in the show-cause notice and due to inordinate delay in issuing the show-cause notice. Even on going through the show-cause notice, it is clear that the assessee had taken license and paid service tax and filed returns for the initial period and thereafter due to loss in the business, he failed to pay the service tax. In these circumstances, the department should have proceeded at the earliest to recover the dues from him. In view of the plea on the time bar, the demand for the larger period is set aside. The matter is remanded to the Original Authority to re-calculate the demand arising within the time limit and fix appropriate penalty accordingly. The Original Authority should complete the proceedings within a period of four months from the date of receipt of this order, after providing an opportunity of hearing to the appellants.
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