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MONTHLY DIGEST- JANUARY

It is not possible to compute two different spells of service as a single service: SC.

The appellant was initially appointed by the Board of School Education, Haryana, Bhiwani on 08.05.1970 on the post of Proof Reader. The appellant due to his family circumstances voluntarily retired on 01.02.1988. The appellant submitted a representation to the Education Minister of Haryana. Later it vides his letter dated 27.03.1993 forwarded the application of the appellant recommending consideration of his case for re-appointment on the humanitarian ground after treating the period of absence without pay even if be Rules have to be relaxed. The Board keeping into view the recommendation of the Education Minister resolved on 31.05.1994 granting sanction to reappoint the appellant afresh. The appellant retired on 31.05.2002. After retirement, certain retirement benefits were paid to the appellant, which were accepted with protest. The Learned Single Judge rejected the application saying that it is not possible to compute two different spells of service as a single service. The review petition which was filed was also dismissed. The appeal filed before the Division Bench was also dismissed.

The question of law is whether Rule 4.23 of PCSR will be attracted or not?

“Rule 4.23 does not permit condonation of interruption of more than one year’s duration, hence the case of the appellant was not covered under Rule 4.23.”

When Rule 4,23 is not attracted to the appellant, the state can refuse the grant of relaxation. Further, the refusal made by the respondent for adding the period of interruption for pensionary benefit cannot be faulted.

The appeal was dismissed

The question of irreparable harm to a party complaining of a breach of contract does not arise if other remedies are available to the party complaining of the breach: SC

There was a contract existing between the defendants no.1 and the plaintiff ( Neptune infraspace private limited) for sale of the suit lands. But the Defendants had underhandedly entered into a registered agreement for sale with defendant no.2. The Principal Civil Judge by order temporary injunction the defendants were restrained from executing any further documents including a sale deed or creating a further charge, interest or deal with the suit lands in any manner. The High Court by its order said that communication of acceptance to the draft MoU sent by e­mail and exchange of WhatsApp correspondences between the parties amounted to a concluded contract.

As there is no evidence provided to show that the plaintiff accepted the agreement before the sale agreement carried on with the defendant no.2, therefore, the court held that the plaintiff’s agreement was at the “embryo stage”.

The court observed that the suit was filed 7 months later which was not taken into account by the The Special Civil Judge and The High Court. The Court made an explanation that the plaintiff waited hopefully for a solution outside litigation as a prudent businessman before finally instituting the suit is too lame an excuse to merit any consideration.

The court allowed the appeal saying that the grant of specific injunction by the Special Civil Judge to the plaintiff was unsustainable and so the orders related to injunction were set aside.

High Court Registry cannot refuse to number the anticipatory bail application on the ground of maintainability: SC

The petitioners had filed an anticipatory bail application before the Hon’ble High Court of Madras in the matter of Crime No. 937 of 2017 involving offences under the SC/ST Act. The Registry had denied numbering of the application on the grounds that a bail application cannot be filed in an SC/ST Act offence. The petitioners filed the present SLP regarding the issue of a judicial function being performed by the registry which is an administrative body.

The Court held that the registry had performed a judicial function that was ultra vires its administrative powers and ordered for a requisite bench to be constituted to adjudicate upon the merits of the bail application.

The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status: SC

The appellant was arrested by the police for the possession of cannabis in the presence of ASP Abohar under Sec. 18 of the NDPS Act. The police seized the cannabis that was found with him and the samples were collected for examination. After due investigation the appellant was arrested.  The trial was intiated and the trial court sentenced the appellant to rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/-. Aggrieved by the order of the trial court the appellant appealed to the High Court which was dismissed.

The bench evaluated the question of law regarding whether the non-examination of independent witnesses and link evidences would vitiate the trial proceedings and the subsequent findings?

The Hon’ble Supreme Court held that the non-examination of independent witnesses cannot vitiate the trial and that the link evidences had been properly examined by the trial court. The Court dismissed the appeal based on a lack of merits and cancelled the bail bonds of the appellant.

The Commission shall be competent to select and nominate teachers to various Madarshas in accordance with the provisions of the West Bengal Madrasah Service Commission Act, 2008: SC

The Managing Committee of Contai Rahmania High Madrasah challenged the validity of Sections 8, 10, 11 and 12 of the Commission Act by filing the Writ Petition. The provisions were related to the process of appointment of teachers in an aided Madrasah, which was recognized as a minority institution. It was submitted that the provisions of the Commission Act transgressed upon the rights of a minority institution of choosing its own teachers. The submission was accepted by the Single Judge of the High Court and the Writ Petition was allowed. Aggrieved by this judgment some of the candidates including the appellant who had got the appointment as a teacher in the minority institution filed the appeal in the SC.

The question of fact is whether provisions of Act violate Article 30?

The SC also made a point that when the minority institutions reject the nominations made by the regulatory regime even if the candidates are well capable then it can be said that those institutions are not using their rights in an efficient manner. Rights ensured in Article 30(1) will be misused.

All nominations made by the regulatory regime in the enactment of the provisions of the Commission Act to be valid and operational. But the nomination of the candidates shall hereafter be competent to select and nominate teachers to various Madarshas in accordance with the provisions of the Commission Act.

The appeal was allowed by the SC and the order of the Calcutta High Court was set aside.

Hearing starts from January 13, 2020 on Sabarimala Review of the original judgment

The age old religious custom of prohibition of entry of women between the ages of 11 and 50 into the shrine of Sabarimala in Kerala was challenged before the Hon’ble Supreme Court of India as a violation of fundamental rights of equality, expression and religion guaranteed under Article 14, Article 19(1) (a) and Article 21 respectively in the case of Young Indian Lawyers Association v. Union of India

The five judge constitutional bench of the Supreme Court after listening to arguments of both the parties delivered the original judgement on 28th September, 2018 in favour of the petitioners. The Court declared the practice as oppressive and in violation of the fundamental rights and allowed the entry of women of all ages into the shrine.

The advanced cause list for 13th January, 2020 issued 06.01.2020 gave the composition of the 9 judge bench that is to be constituted for the hearing of the review references. The causelist specifies that the bench shall hear only the reference and will not hear arguments on the review petitions or writ petitions in case.

If the real purpose of a partnership is subletting of the premises to such other person, it shall be deemed to be an act of subletting: SC

The appellant filed an eviction suit on the ground of subletting as well as on the ground of arrears of rent against the respondents herein – original defendants – Bala Venkatram and another under Sections 10(2)(i), 10(2)(ii)(a)(b) and 10(2)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the ‘Act’) in the Court of District Munsiff, Pollachi. Upon default in payment of rent and noticing a change in the name as well as ownership of the shop in the tenanted premises from ‘Best Mark Super Market’ to ‘Amutham Super Market’, she discovered there was a complete change of hand from original defendant – Bala Venkatram to respondent no.2 – Shahu Hameed which also on the face of it was a gross breach of the rent agreement. The landlady issued a legal notice to the respondent – calling upon him to collect balance amount from the advance payment deposited after adjusting the arrears of rent and handover possession of the tenanted premises within 15 days failing which the appropriate legal action would be taken. There was no reply to the legal notice from respondent. Therefore, the landlady, the appellant herein, filed decree of eviction on the ground of subletting and arrears of rent.

The learned Rent Controller dismissed the eviction petition. Aggrieved by the same, the landlady appealed. The learned Rent Control Appellate Authority allowed the appeal in part. The learned Rent Control Appellate Authority passed the eviction decree on the ground of subletting only and therefore allowed the petition filed. The original tenant – Bala Venkatram died. Therefore, the legal heirs of the original tenant and the second respondent preferred the revision application before the High Court. By the impugned judgment and order, the High Court has allowed the said revision application and has quashed and set aside the eviction order passed by the Rent Control Appellate Authority. Aggrieved by the order the landlady has preferred the present appeal.

It was held that:

Where a tenant becomes a partner of a partnership firm and allows the firm to carry on business in the premises while he himself retains the legal possession thereof, the act of the tenant does not amount to subletting. However, inducting the partner in his business or profession by the tenant is permitted so long as such partnership is genuine. If the purpose of such partnership is ostensible in carrying on business or profession in a partnership but the real purpose in subletting such premises to such other person who is inducted ostensibly as a partner then the same shall be deemed to be an act of subletting.

the Hon’ble Supreme Court allowed the present appeal and set aside High Court order. The judgment and decree passed by the Rent Control Appellate Authority was restored.

Grievous injury causing death of a person caused due to grave and sudden provocation falls within the ambit of Exception 4 to Sec. 300 of IPC: SC

From the perusal of the record and even the findings recorded by the learned Trial Court and the High Court, it appears that the incident has taken place on the spur of the moment. It has also come on record that when the accused came to the place of the incident, he did not carry any lathi and/or any other weapon. It was only after some altercation and on the spur of the moment, the accused gave a lathi blow on the head of the deceased and the deceased sustained the injury and there was a fracture on his head. Despite fracture injury on his head, the deceased was conscious. The deceased was first taken to the police station. Thereafter, he was taken to Patashpur Public Health Center; thereafter he was taken to another hospital – Egra Hospital for better treatment; thereafter he was transferred to Midnapur (Paschim) Hospital; thereafter he was shifted to P.G. Hospital, Kolkata. After a few days, he was removed to Ramchandra Bhanja Medical College, Cuttack, Orissa and thereafter he died. The aforesaid shows the gravity of injury. It is true that the deceased died because of the injuries caused by the accused.

However, there does not appear any intention on the part of the accused to cause the very injury which ultimately led to the death of the deceased. Therefore, the case would fall under Exception 4 to Section 300 IPC.

It was held that:

“Grievous injury causing the death of a person caused in the spur of a moment in an altercation falls within the ambit of Exception 4 of Sec. 300 of Indian Penal Code.”

Therefore the Court partly allowed the appeal.

There is no power conferred on the Tribunal to direct the matter to be remanded to a stage prior to the Court Martial proceedings: SC

The Respondent was enrolled as a Soldier in 20 Jat Firing Team which was attached to the Jat Regimental Centre, Bareilly on 25.02.1999. A firing incident took place at around 8.45 a.m. on 02.10.2004 when the team was practicing firing at the Jat Regimental Centre Havildar Harpal and the Respondent sustained gunshot injuries. Havildar Harpal succumbed to the bullet injuries and the Respondent was admitted at the hospital due to injuries. A First Information Report was lodged.

The General Court Martial convicted the Respondent under Section 302 IPC for the murder of Havildar Harpal and for attempting to commit suicide. The appeal was raised in the Armed Forces Tribunal, Regional Bench, Lucknow, set aside the order of the Court Martial.

The question of law is whether Rule 180 of the Army Rule was violated?

The Tribunal can direct for re-trail by the Court Martial only on the grounds of Section16(2) they don’t have jurisdiction to do re-trail on the basis of the provision in Rule 180 and further, the Tribunal has power only to order for re-trail. They can’t direct the matter to remand before the prior stage of proceedings.

the court said that the order passed by the tribunal is to be set aside and the application is remanded back to the Tribunal itself to consider the case on the merits without being influenced by the judgment passed in the Supreme Court. The appeal made was allowed.

Dying declaration of a victim satisfying all judicial procedural conditions cannot be rejected on the sole ground that it was not recorded in the presence of a Magistrate: SC

The appellants are accused of causing the death of one Sher Singh by putting him on fire. The Trial Court as also the High Court has accepted these statements as being his dying declarations wherein the appellants were named as the assailants. Therefore, the appellants stand convicted essentially on the basis of the dying declarations of the victim. The reliability of such dying declarations has been assailed in these appeals apart from other contentions concerning the surrounding factors.

The issue considered by the Court is on the reliability of dying declaration recorded not in the presence of a Magistrate.

The Court held that the mere reasons that the dying declaration was not recorded in the presence of a magistrate or was not attested by the independent witnesses present during the taking of the dying declaration does not invalidate the veracity of a dying declaration that satisfies all the other essential procedural conditions of dying declaration. The Court refuted all the other contentions of the appellants as unfounded and baseless.

The Hon’ble Court accordingly found the appellants guilty of offences under Section 302/34 of the Indian Penal Code and thereby dismissed the appeal

MCOP ACT – The insurance company is not liable to pay compensation if the vehicle is driven by the deceased himself: SC

In a vehicular accident that occurred on 02.10.2006, one Chotelal alias Shivram died. The deceased was traveling on a motorcycle bearing registration No. RJ 02 SA 7811. Stated in the FIR,  the accident had occurred on account of rash and negligent driving by the driver of motorcycle bearing registration No. RJ 29 2M 9223.

The question of law and question of fact are whether the deceased being in the shoes of the owner of the vehicle driven by himself, whether the insurance company of the vehicle driven by the deceased himself would be liable to pay the compensation under Section 163A of the Act?

Whether the deceased not being a third party to the vehicle No. RJ 02 SA 7811 being in the shoes of the owner can maintain the claim under Section 163A of the Act from the owner of the said vehicle?

The SC held that

The claim petition under Section 163A of the Act against the owner and insurance company of the vehicle bearing registration No. RJ 02 SA 7811 shall not be maintainable

The liability under Section 163A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient and, therefore, the heirs of the owner could not have maintained the claim in terms of Section 163A of the Act. It is further observed that, for the said purpose, only the terms of the contract of insurance could be taken recourse to.

The Supreme Court has allowed the appeal partly.

Authorities are directed to publish all orders in force and any future orders under Section 144, Cr.P.C and for suspension of telecom services: SC

Non recognition of technology within the sphere of law is only a disservice to the inevitable. In this light, the importance of internet cannot be underestimated, as from morning to night we are encapsulated within the cyberspace and our most basic activities are enabled by the use of internet.”

We need to distinguish between the internet as a tool and the freedom of expression through the internet. There is no dispute that freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible. The wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial.

The issues in this matter were: I. Whether   the   Government can claim exemption from producing all the orders passed under Section 144, Cr.P.C. and other orders under the Suspension Rules?

II. Whether   the   freedom of speech and   expression and freedom to  practise any   profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights under Part III of the Constitution?

III. Whether the Government’s action of prohibiting internet access is valid?

IV. Whether the imposition of restrictions under Section 144, Cr.P.C. were valid?

V. Whether the freedom of press was violated due to the restrictions?

The Bench held that An order suspending internet services   indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017.

The natural guardian cannot dispose of the share of the minor in the joint family property: SC

One Moola Gounder died intestate on 28.12.1971 leaving behind his wife (D5), two sons (D1- Palanisamy and D2- Arumugam) and 3 daughters (Plaintiff, D3, and D4). The 1/3rd share of the coparcenary property was given to the sons D1 and D2. The remaining share was shared by the Plaintiff and the other 5 defendants. A suit was filed by the youngest daughter claiming that the property is not properly divided and should be divided according to the law. A written statement was filed by D1 and D2 stating that the mother along with all the daughters has jointly executed the release deed relinquishing their rights in the property in favour of the sons. The plaintiff who was at that time minor was represented by her mother. D1 acted as the guardian for D2 who was a minor at that time. After D2 attained the majority, a registered partition deed was executed between the 2 brothers.

Issue: Whether mother could act as the natural guardian of the minor daughters in respect of the property ?

The Court stated that Section 6 of the Act provides is that the natural guardian of a minor Hindu shall be his guardian for all intents and purposes except so far as the undivided interest of the minor in the joint family property is concerned.  This would mean that the natural guardian cannot dispose of the share of the minor in the joint family property.  However, this principle would not apply when a family settlement is taking place between the members of the joint family.   When such dissolution takes place and some of the members relinquish their share in favour of  the Karta,  it   is  obvious   that   the   Karta   cannot   act  as   the guardian   of  that  minor  whose  share is  being  relinquished  in favour of the Karta.   There would be a conflict of interest.  In such an eventuality it would be the mother alone who would be the natural guardian and, therefore, the document executed by her cannot be said to be a void document.

Therefore, the Supreme Court allowed the appeal

In the absence of relevant and contemporaneous medical records, the High Court cannot interfere the disciplinary action: SC

The appeal has been filed to challenge the judgment and order in Writ Petition where the High Court of Orissa has substituted the punishment of discharge for the respondent, to compulsory retirement and to this extent modified the order where under, the Orissa Administrative Tribunal had dismissed the O.A.No.1459(C)/2003 filed by the discharged Orderly.

The High Court should not have granted relief to the respondent solely on the basis of the medical certificate of the specialist Doctor who may not have personally treated the patient. In the absence of relevant and contemporaneous medical records, the High Court should not have interfered with the disciplinary action and ordered for a lesser penalty. The gravity of the misconduct of the respondent was overlooked and unmerited intervention was made with the Tribunal’s rightful decision to decline relief in the O.A. filed by the respondent.

Therefore the Supreme Court allowed the appeal and set aside the impugned judgment and order of the High Court.

Service Law – Reinstatement after wrongful termination must be made according to the pay fixation at the time of reinstatement: SC

The petitioner who was a teacher and the Assistant General Secretary of Kendriya Vidyalaya Sangathan, Devas, Madhya Pradesh was transferred to Kendriya Vidyalaya, Kargil. The petitioner refused to take up the position on the date of effective transfer. The disciplinary committee of the Kendriya Vidyalaya Sangathan initiated disciplinary action against him and terminated his service. The petitioner approached the CAT, Jabalpur Bench against the impugned order of the disciplinary committee. The CAT ordered that the appeal of the petitioner be disposed of by the president. The HRD ministry failed to comply with the order. The petitioner approached the High Court of Madhya Pradesh which was dismissed by the High Court. The petitioner has approached the Hon’ble Supreme Court through a writ petition under Article 32.

The court held that

The petitioner did not join the place KV Kargil, nor did he approach the court at the relevant time or even after his removal contemporaneously. The interest of justice lies in suitably modifying the order proposed by the Central Government. Although the petitioner would not be entitled to the payment of arrears of salary for the period he was out of service, the KVS should issue a separate order fixing his salary having regard to notional increments effective from the date he would have been entitled to the increment in the year 2009 after taking into consideration the relevant increments which accrue thereafter. In other words, the petitioner should be reinstated, and at the same time, the pay fixation order should ensure that the period of absence which would otherwise be treated as dies non is ignored for the purpose of fixation and fitment of salary alone. The order can also expressly state that the benefit of arrears of salary would not accrue to the petitioner.

Suspension of Sentence – Non-compliance of the condition of suspension of sentence is sufficient to declare suspension of sentence as having been vacated: SC

The appellants who were partners of GLM Infratech Private Limited issued 63 checks for payments due against the respondents. The checks were dishonoured and the respondents issued a demand notice for the payment which had no response from the appellants.

The Sessions Court apparently vacated the suspension of sentence due to the non-compliance by the appellants with its order to deposit 25% of the claim amount. The appellants appealed against the vacation of suspension of sentence.  The appeal was dismissed by the High Court and the appellants appealed under Section 482 of Cr. P. C. to the Supreme Court.

The Court held that, “It is for the Appellate Court who has granted suspension of sentence to take call on non-compliance and take appropriate decision. What order is to be passed by the Appellate Court in such circumstances is for the Appellate Court to consider and decide. However, non-compliance of the condition of suspension of sentence is sufficient to declare suspension of sentence as having been vacated.”

The Supreme Court dismissed the appeal.

SC dismissed the appeal of centre against TDSAT order to refund ₹104.34 crores lying unadjusted to Reliance communication Ltd

Sistema Shyam Teleservices Ltd. was merged with Sistema Shyam Teleservices Ltd. Union the Union invited bids for auction .This was also successfully auctioned by the respondents RCL and RTL. In terms of NIA 2013, Rs  281.45 crores were due from RCL which couldn’t be paid. Occurring at the same time the due payable for NIA 2015 was Rs 492.79  by the respondents. They couldn’t make these charges. The respondents approached TDSAT complaining of acute financial crunch as well as interim orders made in the course of litigation with lenders, to seek relief by way of extension of time towards payment of deferred spectrum charges. The reliefs claimed were declined by TDSAT.

The court held that, The order of the TDSAT does not call for any interference was held by the SC because the entire claim of refund by the respondents was not allowed only the part was allowed. Therefore the appeal was dismissed by the Supreme Court.

The Disciplinary Authority or any other authority higher than it may impose any penalties on any officer employee: SC

The respondent was working as the Scale I officer in the applleant’s bank. He was suspended by the Deputy General Manager of the Bank in contemplation of departmental proceedings. The respondent denied the misconduct placed on him but the bank was not satisfied. So the departmental proceedings were initiated against the respondent, One Shri L.N. Jha, the Senior Manager of the Bank was appointed as Inquiring Authority and one Shri S.K. Sinha, the Manager of the Bank was appointed as the Presenting Officer. The respondent nominated one Shri B.K. Sinha as defence representative to participate in the departmental inquiry. The inquiry officer held that the respondent is guilty.  The General Manager and Disciplinary Authority have imposed the punishment of compulsory retirement upon the respondent according to Regulation 4(h) of the Canara Bank Officers and Employees (Discipline and Appeal) Regulations, 1976.

The SC going through Regulation 5 of the Discipline and Appeal Regulations, 1976, held that the any authority higher than the Disciplinary Authority can order penalties against the person who is the guilt of his conduct. In this case, the General Manager is higher in the position than the Disciplinary Authority.

Juvenile Justice Act – Heinous offence – defined – An offence which does not provide a minimum sentence of 7 years cannot be treated to be an heinous offence under the Juvenile Justice Act, 2015: SC

Juvenile ‘X’ has committed an offence under section 304 of the Indian Penal Code. The offence is punishable with a maximum punishment of imprisonment for life or up to 10 years and fine in the first part and imprisonment upto 10 years or fine, or both in the second part. No sentence is prescribed. The appellant’s brother died in the motor vehicle accident caused by the juvenile. The juvenile at the time of committing the offence is 16 years. The Court has directed the Legislature to bring in changes in the Juvenile Justice Act so that the 4th category of crimes which include counterfeiting of coins, homicide not amounting to murder, abetment to suicide etc., are categorized into either serious crimes or heinous crimes.

Issue: Whether an offence prescribing a maximum sentence of more than 7 years imprisonment but not providing any minimum sentence, or providing a minimum sentence of less than 7 years, can be considered to be a ‘heinous offence’ within the meaning of Section 2(33) of the Juvenile Justice(Care and Protection of Children) Act, 2015?

The Court held that;

” an offence which does not provide a minimum sentence of 7 years cannot be treated to be an heinous offence. The Act does not deal with the 4th category of offences viz., offence where the maximum sentence is more than 7 years imprisonment, but no minimum sentence or minimum sentence of less than 7 years is provided, shall be treated as ‘serious offences’ within the meaning of the Act and dealt with accordingly till the Parliament takes the call on the matter.”

The court finally took in view of Article 142 of the Constitution, and directed the legislation to take a call in this matter and deal all the offences after the commencement of the Act of 2015 in the same manner as dealt with serious offences and also that the offence which does not provide a minimum punishment of 7 years cannot be treated as an heinous offence.

Adverse Possession – The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens: SC

The appellant  was the owner of the land which was acquired by the State in 1967–68 for the construction of a major District Road being the Nadaun – Sujanpur Road. The work of constructing a road was completely done in the year 1975.

The issue here is the construction was done without taking recourse to acquisition proceedings, or following due process of law.

The Court stated that since it has been in continuous possession of the land for over 42 years, it would tantamount to “adverse” possession. The State being a welfare State, cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens, as has been done in the present case.

The compensation should be paid within 8 weeks. If the compensation is not paid within the said the appeal should be filed within limitation, the delay should not be entertained.

The appeals are allowed.

Service Laws – If the dependents opted for payment of gratuity for the term of service of the employee who died while in service, no compassionate appointment could be granted: SC

One Jagdish Raj, husband of respondent No.1 and father of respondent No.2 died on 15.1.2004 during the course of his work. His salary was Rs.16,486.60. after his death, there was a certain benefit available to his family. The deceased has a wife and three minor children. His wife was working and earning while her husband died, which came to the knowledge of the appellant ie., the bank later

The issue in the present case whether the respondent 2 ie., minor son of the deceased can seek compassionate employment ?

For the application filed by the respondent seeking compassionate employment, the appellant responded by asking them to submit the new application under the scheme said above they also intent only the payment of cash as compensation is available. The respondents did not apply for the cash compensation as they were only interested in compassionate employment.

The court held that the wife of the deceased is working for a salary more than the salary fixed by the scheme. Therefore the order passed by the High court out of sympathy has been set aside and the writ petition filed by the respondents is dismissed. The appeal was allowed.

Arbitration & Conciliation Act – Even statute arbitration under other acts would be governed by Part I of Arbitration and Conciliation Act: SC

The respondent was a contractor who was engaged in the contract for strengthening a section of National Highway. According to him, he completed the work and the bill was also paid. He also says that in the contract he was liable to remove the defects for a period of three years. After the expiry of the said year, the contractor wrote a letter to the state asking to release the security amount. The state in response issued a letter to the contractor saying to pay a sum of Rs.1,09,00,092 as the repair work had not been conducted in accordance with the contract made.

A writ petition was filed by the contractor in the High Court of Gujarat claiming that the State does not have the power to withhold the amount payable to the contractor under other contracts or recover the amount from payments made under other contracts until the liability of the contractor were determined and quantified by a Court jurisdiction. The HC allowed the petition by saying that the state cannot recover the payment dues and they are payable to the contractor. Further, it was held that the state has the permission or right to look for recovery from any other means other than the contractor. Aggrieved by this judgment the state ha applied for appeal in the Supreme Court.

The issue of law is whether the High court of Gujarat or the Gujarat Public Works Contract Disputes Arbitration Tribunal has the jurisdiction to pass an order in respect to  the worker contract

The court held that, “In terms of the Section 17 of the A&C Act are concerned, such powers can be exercised by the Tribunal constituted under the Gujarat Act because there is no inconsistency in these two Acts as far as the grant of interim relief is concerned.”

The SC held that the contractor is with the rights of approaching the Gujarat Public Works Contract Disputes Arbitration Tribunal within 2 months from the date of order. The appeal has been allowed by setting aside the judgment of the High Court.

Power of Extraordinary writ Jurisdiction – The High Court may and can exercise its extraordinary writ jurisdiction even against the orders of the High Court: SC

The appellant could not clear the aptitude test but should have been considered for any other post before discharging from the service. The appeal is made for not considering him for any other alternative service. As the appellant was not fit for the height criteria he was not appointed.

But the issue here is, Whether an appeal against an order passed by a single judge of a High Court deciding a case relating to the Armed Forces personnel pending before the High Court is required to be transformed to the Armed Forces Tribunal or should be heard by the High Court?

Appeals that are made against the order of a single judge bench are called special appeals. After the establishment of the Armed Forces Tribunal in 2007, all the cases relating to armed forces must be dealt by the tribunal. The cases which are pending or in due course in any of the courts should be immediately transferred to the Tribunal. All the documents relating to the case should also be sent as soon as possible according to section 14 and 15 of the Act.

Based on the facts of the case, the appeal was dismissed.

Discharge – defence materials – It is not open to the accused to rely on material by way of defence and persuade the court to discharge him: SC

The appellant was Director of Mines and Geology in the State of Karnataka. There was a partnership firm by the name M/s Associated Mineral Company, the first and the second accused are the partners of the said firm. An undated letter from one Shri K.M. Vishwanath, the Ex-Partner, which is after his retirement with effect from 01.08.2009 from the firm, which was addressed to the appellant, seeking directions to the Deputy Director of Mines and Geology, Hospet in Karnataka to issue the Mineral Dispatch Permit to the new partners.The appellant knowingly made a false note in the file that he had discussed this matter with the Deputy Director (Legal) and directed Deputy Director, Mines, and Geology, Hospet for the issue of MDPs to the new partners. The appellant has been accused of his acts under the following provisions, Indian Penal Code, 1860 Sections 120B, 420, 379, 409, 447, 468, 471 and 477A – Criminal Procedure Code, Section 227 – Prevention of Corruption Act, 1988 Sections 13(2) and 13(1)(c) and 13(1)(d) Mines and Minerals (Development and Regulation) Act, 1957 – Mineral Concession Rules, 1960.

The court held that, As per Section 227 of the Cr.PC , the materials produced by the prosecution to be taken. Through the evidence and the witness if no offence can be proved against the accused it would benefit the accused.

“No doubt, the accused may appeal to the broad probabilities to the case to persuade the court to discharge him.”

The SC dismissed the appeal by going through Section 227 of the CrPc and the appellant was discharged.

Opinion of the hand writing experts – cannot be relied upon to base the conviction: SC

The appellant-Padum Kumar was then working as Postman in Indira Nagar Post Office, Lucknow.  On 09.04.1992, PW-3-Dr. M.L. Varshney, Professor, Agriculture Institute, Naini, Allahabad had sent a registered envelope No.0095 to the Complainant-Dr. K.B. Varshney (PW-1) from the Sub-Post Office of the said Institute. The said envelope contained four Indira Vikas Patra of value of each Rs.5,000/- totalling Rs.20,000/-.  The envelope did not reach PW-1 Dr. K.B. Varshney;  On 14.05.1992, information was received from Senior Superintendent, Post and Telegraph, Lucknow that a person named “Mohan” has received the aforesaid registry on 13.04.1992.  Then, PW-1 and his son Devesh Mohan-PW-2 went to Indira Nagar Post Office and saw the signature where it has been written as “D. Mohan”.  Complainant’s son is also named Devesh Mohan (PW-2). On being shown the signature, PW-2 denied that the signature in question belongs to him.

The conviction of the appellant-accused under Sections 467 and 468 IPC is confirmed and the sentence of imprisonment imposed on him is reduced to the period already undergone. The impugned judgment dated 19.02.2018 passed by the High Court of Judicature at Allahabad in Criminal Revision No.511 of 2006 is accordingly modified and the appeal is partly allowed. The appellant-accused is ordered to be released forthwith unless his presence is required in any other case.

Compensation – There is distinction between “right to apply for compensation” and “entitlement to compensation”: SC

The respondents 1 and 2 are the legal heirs of the deceased. The deceased was a government employee (Peon to Tahsildar) and died in a motor vehicle accident while going to the office. The offending vehicle(dumper) was rash and negligent and hit the vehicle of the deceased. The respondents claimed Rs. 50,00,000 along with an annual interest of 12% per annum on the assertion that the deceased earned Rs. 28,000 and pension of her husband Rs. 7,000 as she was the sold bread winner of the family.

The major issues in the present case are

Whether the major sons of a deceased who are gainfully employed and married are entitled to get compensation from the insurer  under the Motor Vehicles Act, 1988?

Whether legal representatives are entitled for compensation only under the conventional heads?

Whether the amount receivable by the legal representatives of the deceased under the 2006 rules is required to be deducted as a whole or only a portion thereof?

The Supreme Court observed that the fact that under Rule 5(2) of the 2006 Rules, the family pension receivable by the family would be payable, however, only after the period, during which the financial assistance is received, is completed.

According to the Act, any person who is legal representative of the deceased is entitled for compensation when a proper application is made.

the respondents are entitled to get compensation on the basis of loss of dependency, loss of gross salary, and future prospects and deduction of only 1/3 amount towards personal expenses of the deceased. The total compensation calculated in this basis is Rs. 31,96,230/- is payable to the claimants. However, along with this amount interest rate of 9% per annum from the date of petition is payable. Hence, the Court partly allowed the appeals