Supreme Court

Uttar Pradesh State Road Transport Corporation vs. Gajadhar Nath

MANU/SC/1200/2021

08.12.2021

Service

Where the inquiry is found to be defective, the employer can lead evidence before the authority to prove misconduct

The order passed by the High Court is the subject matter of challenge in the present appeal at the instance of the employer whereby the order passed by the Industrial Tribunal was not interfered with. The Tribunal directed that, the Respondent be reinstated in service and ordered 50% of the salary to be paid for the period when he was not in employment.

The domestic inquiry conducted can be permitted to be disputed before the Tribunal in terms of Section 11A of the Industrial Disputes Act, 1947. This Court in case of The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v. The Management and Ors. held that, in terms of Section 11A of the Act, if a domestic inquiry has been held and finding of misconduct is recorded, the authorities under the Act have full power and jurisdiction to reappraise the evidence and to satisfy themselves whether the evidence justifies the finding of misconduct. But where the inquiry is found to be defective, the employer can lead evidence to prove misconduct before the authority.

The Tribunal or the High Court could not reject the evidence led by the employer in respect of misconduct of the workman before the adjudicator. Still further non lodging of FIR cannot be the circumstance against the witness examined by the employer. The initiation of criminal proceedings against an employee or not initiating the proceedings has no bearing to prove misconduct in departmental proceedings.

Therefore, the order of removal from service cannot be said to be unfair and unjust in any manner which would warrant an interference at the hands of the Tribunal and the High Court. The reasons recorded by the Tribunal are absolutely perverse and not supported by any evidence. The Tribunal had misapplied the basic principles of law and the High Court has thereafter wrongly confirmed the order. The orders of the High Court and of the Tribunal are set aside. Appeal allowed.

Tags : Reinstatement Direction Legality

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Supreme Court

Manohar Infrastructure and Constructions Private Limited and Ors. vs. Sanjeev Kumar Sharma and Ors.

MANU/SC/1191/2021

07.12.2021

Consumer

National Commission can direct deposit of entire or more than 50% of amount determined by State Commission for stay

The original Appellant – builder has preferred the present Appeal against impugned order passed by the National Consumer Disputes Redressal Commission, New Delhi (“National Commission”) by which, the National Commission, while staying the order passed by the State Commission has directed the Appellant to deposit the entire decretal amount with the State Commission.

The short question which is posed for consideration of this Court is “Whether in an appeal under Section 51 of the Consumer Protection Act, 2019 and while considering the stay application to stay the order passed by the State Commission, the National Commission can pass an order to deposit the entire amount and/or any amount higher than 50 per cent of the amount in terms of the order of the State Commission while entertaining the appeal under Section 51 of the Act, 2019?”

On a fair reading of Section 51 of the Act, 2019, more particularly, second proviso to Section 51, it appears that the Appellant(s) in an appeal against the order passed by the State Commission may prefer an appeal, however, before the appeal is entertained by the National Commission, the Appellant(s) has to deposit 50 per cent of the amount. So, it is the pre-condition to deposit 50 per cent of the amount as ordered by the State Commission before his appeal is entertained by the National Commission. Therefore, it is a condition precedent to deposit 50% of the amount before his appeal is entertained by the National Commission. However, that does not take away the jurisdiction of the National Commission to order to deposit the entire amount and or any amount higher than 50 per cent of the amount while considering the stay application to stay the order passed by the State Commission.

Pre-deposit of 50 per cent of amount as ordered by the State Commission under second proviso to Section 51 of the Consumer Protection Act, 2019 is mandatory for entertainment of an appeal by the National Commission. The object of the said pre-deposit condition is to avoid frivolous appeals. The said pre-deposit condition has no nexus with the grant of stay by the National Commission. While considering the stay application in staying the order passed by the State Commission, the National Commission can grant a conditional stay directing the Appellant(s) to deposit the entire amount and/or any amount higher than 50 per cent of the amount in terms of the order of the State Commission.

However, at the same time, the National Commission has to assign some cogent reasons and/or pass a speaking order, when the conditional stay of the order passed by the State Commission is passed subject to deposit of the entire amount and/or any amount higher than 50 per cent of the amount either as an ex parte order or after hearing both sides and considering the facts and circumstances of the case. Thus, the National Commission can grant a conditional stay of the order passed by the State Commission on deposit of the entire amount and/or any amount higher than 50 per cent of the amount as ordered by the State Commission in the aforesaid manner.

The impugned order(s) passed by the National Commission, directing the Appellant(s) to deposit the entire decretal amount while staying the respective order(s) passed by the State Commission have been passed mechanically and without assigning any reason and no speaking order is passed. Therefore, the matters are remanded to the National Commission to decide the said applications afresh and pass an appropriate order on the said application.

Tags : Pre-deposit Condition Jurisdiction

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Supreme Court

Parveen vs. The State of Haryana

MANU/SC/1190/2021

07.12.2021

Criminal

In absence of any evidence to show meeting of minds, it is not safe to hold a person guilty under Section 120-B of IPC

Present Appeal is directed against the judgment passed by the High Court whereby, the High Court has dismissed the Appeal filed by the Appellant / accused and upheld the conviction and order of sentence passed by the Additional Sessions Judge, Rewari.

In present Appeal, it is contended by learned Counsel for the Appellant that, though there was no concrete proof to establish the participation of the Appellant in the alleged crime, the Trial Court as well as the High Court believed the prosecution story in absence of any supporting evidence and convicted him. It is submitted that, except the alleged confessional statements of co– accused, there was no other acceptable evidence to connect the Appellant herein to the crime.

It is fairly well settled, to prove the charge of conspiracy, within the ambit of Section 120-B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. At the same time, it is to be noted that it is difficult to establish conspiracy by direct evidence at all, but at the same time, in absence of any evidence to show meeting of minds between the conspirators for the intended object of committing an illegal act, it is not safe to hold a person guilty for offences under Section 120-B of IPC. A few bits here and a few bits there on which prosecution relies, cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy. Even the alleged confessional statements of the co-accused, in absence of other acceptable corroborative evidence, is not safe to convict the accused.

Further, in the case of Uppa alias Manjunatha v. State of Karnataka, this Court has held that when an accused is held guilty and sentenced to imprisonment, confirmation of sentence by the High Court is justifiable only in the event of giving sound reasons upon analysis of material evidence. In the case on hand, a perusal of the judgment of the High Court reveals that except referring to depositions, High Court has not considered the evidence and confirmed the conviction and sentence as ordered by the Trial Court.

Prosecution has failed to prove its case, that the Appellant herein, has conspired with other accused for the offences for which he was charged. Except the alleged confessional statements of the co-accused and in absence of any other corroborative evidence, it is not safe to maintain the conviction and sentence imposed upon the Appellant.

The findings recorded by the Trial Court in convicting the appellant mainly on the ground that he was one of the conspirators for the crime in question, is erroneous and illegal. The High Court has not considered the evidence on record in proper perspective and erroneously confirmed the conviction and sentence imposed on the appellant. Conviction recorded and sentence imposed on the Appellant is, hereby, set aside and he is acquitted of the charges levelled against him. Appeal allowed.

Tags : Conviction Evidence Credibility

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Supreme Court

Bangalore Development Authority Vs. N. Nanjappa and Ors.

MANU/SC/1186/2021

06.12.2021

Civil

Claims raised by an obstructer including questions relating to right, title or interest in the property has to be adjudicated upon by the Executing Court

The BDA has preferred the present appeals feeling aggrieved and dissatisfied with the impugned judgment passed by the High Court, by which the High Court has dismissed the said writ petitions preferred by the original applicant – Bangalore Development Authority ( ‘BDA’) and has confirmed the order passed by the Executing Court dismissing the applications filed by BDA under Order XXI Rule 97 CPC in Execution Case filed by Respondent No.1 herein (decree holder) against Respondent No.2 herein (judgment debtor).

As per Order XXI Rule 101 CPC, all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Order XXI rule 97 or rule 99 CPC and relevant to the adjudication of the application shall have to be determined by the Court dealing with the application. For that, a separate suit is not required to be filed.

In the instant case, it is the specific case of the Appellant – BDA that pursuant to the acquisition of the land in question, the BDA has become the absolute owner and the said land is vested in the BDA and possession was already taken over by the BDA and the land was handed over to the Engineering Section. Therefore, the applications submitted by BDA for impleadment in the execution proceedings and the obstruction against handing over the possession to the decree holder were required to be adjudicated upon by the Executing Court by impleading the BDA as a party to the execution proceedings.

Though, in the present case, a substantive suit being filed by the BDA against the decree holder and the judgment debtor to declare the lease agreement as null and void is pending, irrespective of the same, considering Order XXI Rule 101 CPC, the question relating to right, title or interest of the BDA in the suit property was required to be adjudicated upon by the Executing Court. The order passed by the Executing Court dismissing the applications filed by the BDA for impleadment in the execution proceedings and/or dismissing the obstruction application, and the impugned order passed by the High Court, are unsustainable and the same deserve to be quashed and set aside.

The impugned judgment and order passed by the High Court dismissing the writ petitions filed by the Appellant herein – BDA and order passed by the Executing Court dismissing the application filed by BDA for impleadment as well as dismissing obstruction application are quashed and set aside. The Appellant is permitted to be impleaded in the execution proceedings. Appeals allowed.

Tags : Execution proceedings obstructer Adjudication

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High Court of Bombay

United India Insurance Company Ltd. Vs. Meera Gopal Nangare and Ors.

MANU/MH/4017/2021

06.12.2021

Insurance

When the policy of insurance was in force on the day the vehicle met with the accident, the Insurance Company is bound to pay the amount of compensation

Present is Insurance Company's appeal, taking exception to the judgment and award, passed by Chairman, Motor Accident Claims Tribunal, in Motor Accident Claim Petition whereunder a sum of Rs. 2,00,000 has been awarded as compensation on account of death in vehicular accident and directed to be paid jointly and severally by the Appellant Insurance Company and the owner of the vehicle involved in the accident. The challenge is mainly on the ground of dishonour of cheque issued by the insured towards payment of premium of the insurance cover.

Learned counsel for the Appellant - Insurance Company would submit that, the premium was paid by cheque. The cheque was dishonoured on its presentation for encashment. The Appellant Insurance Company, therefore, cancelled the contract of insurance. It has, therefore, no liability to pay any compensation. He would further submit that, if the Court holds the Appellant Insurance Company to be liable to pay the compensation to a third party, it be held to be entitled to recover the amount of compensation to be paid by it from the insured.

The policy of insurance covered the period from 13th February, 1999 to 12th February, 2000. The cheque towards the premium was issued on 12th February, 1999. The accident took place on 14th May, 1999 i.e. during the period of insurance cover. The cheque was dishonoured on 17th February, 1999. Intimation regarding the dishonour of cheque and cancellation of the policy of insurance was issued thereafter. On the date the accident took place, the policy of insurance was in force.

Since the policy of insurance was in force on the day the vehicle met with the accident, the Appellant Insurance Company is bound to pay the amount of compensation granted under the impugned award. The fact is, however, that, post accident, the cheque issued towards payment of premium was dishonoured. The Appellant Insurance Company, therefore, cancelled the policy of insurance and gave its intimation to the insured. Necessarily, the Appellant Insurance Company would be entitled to recover the amount of compensation that it will be required to pay under the award. For recovery of the said amount, it cannot be driven to a fresh round of litigation.

The amount of compensation granted under the impugned award and deposited by the Appellant Insurance Company with this Court be paid to the Respondents No. 1 to 5 - claimants with interest accrued thereon, immediately. The amount that has been paid by the Appellant Insurance Company towards satisfaction of the impugned award shall be recoverable by it from the Respondent No. 6 - owner of the offending vehicle, with interest thereon @ 6% p.a. from the date of this order to the date of actual payment to the appellant Insurance Company, in an execution proceeding.

Tags : Award Compensation Validity

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High Court of Madras

Bharathi Vs. The Secretary to the Government, Home Prohibition and Excise Department and Ors.

MANU/TN/8896/2021

06.12.2021

Criminal

Any inordinate and unexplained delay on the part of the Government in considering the representation renders the very detention illegal

The Petitioner is the wife of the detenu. The detenu has been detained by the 2nd Respondent by his order, holding him to be a "BOOTLEGGER", as contemplated under Section 3(1) of Tamil Nadu Prevention Of Dangerous Activities Of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders, Forest Offenders And Slum-grabbers Act, 1982. The said order is under challenge in this Habeas Corpus Petition. The Petitioner submitted that, there is gross violation of procedural safeguards, which would vitiate the detention.

It is the submission of the Petitioner that, there was a delay of 20 days in submitting the remarks by the Detaining Authority, of which 7 days were Government Holidays and hence, there was an inordinate delay of 13 days in submitting the remarks. It is the further contention of the Petitioner that, the remarks were received on 9th August, 2021 and there was inordinate delay of 9 days in considering the representation.

In Rekha Vs. State of Tamil Nadu, the Hon'ble Supreme Court has held that, the procedural safeguards are required to be zealously watched and enforced by the Courts of law and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities undertaken by the detenu. In Sumaiya Vs. The Secretary to Government, a Division Bench of this Court has held that the unexplained delay of three days in disposal of the representation made on behalf of the detenu would be sufficient to set aside the order of detention.

In Tara Chand Vs. State of Rajasthan and others, the Supreme Court has held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the very detention illegal.

In the present case, admittedly, there is an inordinate and unexplained delay of 13 days in submitting the remarks by the Detaining Authority and unexplained delay of 9 days in considering the representation by the Minister for Home, Prohibition and Excise Department. The impugned detention order is, therefore, liable to be quashed. The order of detention passed by the 2nd respondent is set aside. Petition allowed.

Tags : Delay Representation Detention

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Customs, Excise and Service Tax Appellate Tribunal

D.K. Shrivastva and Ors. vs. C.C.E. and S.T., Daman

MANU/CS/0152/2021

06.12.2021

Excise

Assessee is duty bound to record stock of finished goods

In facts of present case, the officers have visited the factory of the appellant and carried out the physical stock taking wherein, they found the excess stock of 34.16 M.T of M.S. Ingot. A panchnama proceeding was carried out and the excess found goods were seized. The panchnama proceeding was carried out in the presence of Authorized Signatory. Subsequently a Show Cause Notice was issued proposing confiscation of the excess stock and consequential penalty upon the appellant factory as well as co-Appellant D K Shrivastava.

The adjudicating authority while adjudicating the show cause notice confiscated the excess found stock and imposed redemption fine of Rs.2 Lacs and penalty of Rs.35,000 on the appellant factory and penalty of Rs.50,000 was also imposed on the Authorized Signatory D K Shrivastava. Being aggrieved by this Order-In-Original, both the Appellants have filed appeal before the learned Commissioner (Appeals). The learned Commissioner (Appeals) has upheld the confiscation, redemption fine but reduced the penalties on both the appellants therefore, the present appeals filed by the Appellants.

The excess stock found during the physical stock taking for which a panchnama was drawn in the presence of authorised signatory. There is no dispute about the excess stock found. However, no mala fide intention can be attributed to the appellant but in terms of Rule 10 of Central Excise Rules, 2002, it is the bounden duty of the assessee to record stock of finished goods. In the present case, it is admitted fact that the excess stock was not accounted for by the Appellant therefore, the goods are liable for confiscation. However, since there is no attempt to clear the goods clandestinely and the offence at the most is only of non accounting of finished goods, present Tribunal is of the view that the lenient view can be taken.

Accordingly, the redemption fine of Rs.2 Lacs is reduced to Rs.1 Lacs. However, the penalty imposed on the appellant factory i.e. Rs.10,000 is reasonable hence the same is upheld. There is no mala fide intention or there is no attempt to clear the excess stock clandestinely, the co-appellant cannot be imposed with any penalty accordingly, the penalty imposed on D K Shrivastava is set aside. Appeal partly allowed.

Tags : Excess stock Penalty Legality

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