High Court of Delhi

Jammu & Kashmir State Power Development Corporation v. K J M C Global Market (India) Limited

MANU/DE/0603/2017

09.03.2017

Limitation

When a decree or order is of High Court and an appeal is to be filled in same court, period of limitation is of 30 days from date of decree or order

Appeal has been filed challenging judgment passed by a Single Judge whereby the arbitral award passed by sole arbitrator was upheld. Along with said appeal, an application for condonation of delay of 35 days for re-filing the appeal was filed.

Affidavit as well as application for condonation filed on behalf of Appellant clearly showed a lax approach on part of Appellants which in fact militates against bonafides of Petitioner entitling it for condonation of delay. Even the appeal filed on 8th July, 2016 was filed belatedly when no agitation was ongoing. If Appellant was serious in proceeding with the matter, Appeal should have been filed on the date of re-opening of the Court. However, same was not done and no sufficient reasons also have been provided for the same. Additionally, it was apparent that, Appellant was not pursuing matter diligently with its counsel, since first draft of appeal was prepared only on 30th June, 2016, when limitation itself expired on 8th June, 2016.

It is now well settled that provisions of the Limitation Act, 1963/1963 Act apply to all proceedings under Arbitration and Conciliation Act, 1996/1996 Act including both in court and arbitration proceedings except to the extent expressly excluded by the provisions of 1996 Act. Supreme Court in Consolidated Engineering Enterprises vs. Principal Secretary, Irrigation Department, observed that, Section 37 of 1996 Act does not prescribe any period of limitation for filing appeals.

Limitation period for appeals under Section 37 of the 1996 Act shall be computed in terms of Article 117 of 1963 Act which provides that when a decree or order is of the High Court and an appeal is to be filled in the same court, period of limitation is of 30 days from date of decree or order. Present appeal was filed on 2nd September, 2016 and therefore there is delay of 86 days. No sufficient cause for such delay is forthcoming. Appeal is dismissed being barred by limitation.

Tags : Delay Condonation Sufficient cause

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Supreme Court

Suman Singh v. Sanjay Singh

MANU/SC/0251/2017

08.03.2017

Family

Few isolated incidents of long past; that too condoned due to compromising behavior of parties cannot constitute act of cruelty

Instant appeals are filed by Appellant (wife) against judgment passed by High Court of Delhi by which the High Court dismissed appeals filed by Appellant and confirmed judgment of Principal Judge, which had granted decree for dissolution of marriage in favour of Respondent (husband) and, in consequence, also affirmed order dismissing the petition filed by Appellant (wife) for restitution of conjugal rights.

Word "cruelty” used in Section 13(1)(ia) of Hindu Marriage Act,1955/Act is not defined under the Act. However, this expression was subject matter of interpretation in several cases of this Court. What amounts to “mental cruelty” was succinctly explained by this Court in Samar Ghosh vs. Jaya Ghosh. It was observed that no uniform standard can ever be laid down for guidance, yet it is appropriate to enumerate some instances of human behaviour which may be considered relevant in dealing with the cases of “mental cruelty”.

In facts of present case, almost all grounds taken by Respondent in his petition were stale or/and isolated and did not subsist to enable Respondent to seek a decree for dissolution of marriage. Incidents of cruelty alleged had taken place even, according to Respondent, immediately after marriage. They were solitary incidents relating to behavior of Appellant. Assuming that one or more grounds constituted an act of cruelty, yet it was found that, acts complained of were condoned by parties due to their subsequent conduct as admittedly both lived together till 2006 and Appellant gave birth to their second daughter in 2006. Most of incidents of alleged cruelty pertained to the period prior to 2006 and some were alleged to have occurred after 2006. Those pertained to period after 2006 were founded on general allegations with no details pleaded.

A petition seeking divorce on some isolated incidents alleged to have occurred 8-10 years prior to filing of the date of petition cannot furnish a subsisting cause of action to seek divorce after 10 years or so of occurrence of such incidents. Incidents alleged should be of recurring nature or continuing one and should be in near proximity with filing of the petition. Few isolated incidents of long past and that too found to have been condoned due to compromising behavior of the parties cannot constitute an act of cruelty within meaning of Section 13 (1)(ia)of Act. Courts below failed to take note of this material aspect of case and thus committed jurisdictional error in passing a decree for dissolution of marriage.

An incident which occurred somewhere in 2010 when the Appellant visited the office of the Respondent and alleged to have misbehaved with the Respondent in front of other officers would constitute an act of cruelty on the part of the Appellant so as to enable Respondent to claim divorce. In the first place, no decree for divorce on one isolated incident can be passed. Secondly, there could be myriad reasons for causing such isolated incident. Merely because both exchanged some verbal conversation in presence of others would not be enough to constitute an act of cruelty unless it is further supported by some incidents of alike nature.

Appellant is entitled for a decree for restitution of conjugal rights against Respondent. It appeared from perusal of the evidence that it is the Respondent who withdrew from Appellant's company without there being any reasonable cause to do so. It is held on facts that, Respondent failed to make out any case of cruelty against Appellant.

Tags : Divorce Grant Validity

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High Court of Bombay

Shri Vijay Machindra Markad And Anr. v. The State of Maharashtra and Anr.

MANU/MH/0337/2017

08.03.2017

Civil

For attracting the provisions of offence punishable Section 7 of Essential Commodities Act,1955/Act the order under Section 3 of Act is essential.

By way of filing these applications, Applicants have prayed to quash and set aside respective first information reports, registered against them for the offence punishable under Sections 3 and 7 of Essential Commodities Act,1955/Act. Informant Naib Tahasildar alleged that, 3 licensees of the fair price shop of village Banwas, have not distributed the food grains to the card holders in September 2015 and committed misappropriation. It is the case of Applicant that, he has no nexus with the alleged offence.

Admittedly, in all cases, there is no mention of contravention of any order made under Section 3 of Act, and therefore, in absence of any order made under Section 3 of which the contravention is claimed, the offence under Section 7 could not be made out. Supreme Court in case of Prakash Babu Raghuvanshi has taken a view that for attracting provisions of offence punishable Section 7 of said Act, order under Section 3 of said Act is essential. Division Bench of Bombay High Court at Nagpur in cases of Rakesh Mahendrakumar Jain and Dhanraj Anandrao Mohod has also taken a view that, for bringing an application under Section 7 of the said Act, it is necessary to make reference in first information reports to any order having been made under Section 3 of Act being violated. In absence of it being shown that there was any order made under Section 3 that had been contravened, proceedings for the offence punishable under Section 7 would not be tenable and continuation of such proceedings, therefore, would amount to abuse of process of law.

In facts of the present cases also, there is no reference whatsoever in the first information reports to any order having made under Section 3 of the Act being violated and therefore, the proceedings for offence punishable under Section 7 would not be tenable. Therefore, continuation of the proceedings based upon the said first information reports would amount to abuse of process of law. In the circumstances, applications allowed.

Relevant

Prakash Babu Raghuvanshi V/s State of M.P., Rakesh S/o Mahendrakumar Jain V/s The State of Maharashtra, Dhanraj Anandrao Mohod and another V/s State of Maharashtra and another, Section 3 of the Essential Commodities Act, 1955

Tags : FIR Proceedings Quashing

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Supreme Court

Secretary To Government Commercial Taxes And Registration Department, Secretariat AND Anr. v. A. Singamuthu

MANU/SC/0235/2017

07.03.2017

Service

Continuance in service for long period on part-time or temporary basis confers no right to seek regularisation in service

Present Civil Appeal arises out of judgment of High Court of Judicature at Madras dismissing Writ Appeal thereby affirming order of Single Judge directing to grant regularization to Respondent from date of completion of ten years of service with salary and other benefits. Single Judge directed Inspector General of Registration to extend benefits of G.O. Ms. No. 22 dated 28th February, 2006 and grant regularization to Respondent from date of completion of ten years of service with salary and other benefits. Being aggrieved, Appellant-Department filed writ appeal contending that G.O.Ms. No.22 dated 28th February, 2006 is applicable only to daily wage full-time employees and not applicable to Respondent as Respondent was only a part-time Masalchi. Writ Appeal filed by Department was dismissed by High Court affirming order of Single Judge.

Part-time or casual employment is meant to serve exigencies of administration. It is a settled principle of law that continuance in service for long period on part-time or temporary basis confers no right to seek regularisation in service. The person who is engaged on temporary or casual basis is well aware of the nature of his employment and he consciously accepted the same at the time of seeking employment. Generally, while directing that temporary or part-time appointments be regularised or made permanent, Courts are swayed by the long period of service rendered by the employees. However, this may not be always a correct approach to adopt especially when the scheme of regularisation is missing from rule book and regularisation casts huge financial implications on public exchequer.

In present case, it is available on record that, State Government vide G.O. Ms. No.22 dated 28th February, 2006, issued by Personnel and Administrative Reforms Department, directed the services of daily wage employees working in all Departments of Government, who have rendered ten years of service as on 1st January, 2006 to be regularised by appointing them in time scale of pay of the post concerned subject to they being otherwise qualified for the post. In G.O. Ms. No.74, it was thus, made clear that part-time employees are not entitled for regularization and that full-time daily wage employees, who had completed ten years of service as on 1st January, 2006 shall be regularized against regular vacancies in sanctioned post. Services of daily wage employees who have completed ten years of service after 1st January, 2006 are not entitled for regularization. In present case, Respondent was engaged to fetch water, to sweep and other connected menial works for one or two hours in a day as part-time Masalchi. Post of part-time Masalchi is not included in Class IV or V of the Tamil Nadu Basic Service. Further, a part-time Masalchi cannot be treated as equivalent to post of Masalchi (full-time) basis because the post of part-time Masalchi does not come under purview of service rules. Respondent herein was only a part-time Masalchi and hence, question of applying G.O.Ms.No. 22 P &AR Dept. dated 28th February, 2006, which is applicable only to the daily wage full-time employees, does not arise.

G.O.(Rt.)No.84 Commercial Taxes and Registration (M2) Department dated 18th June, 2012 was issued, by which 172 part-time Masalchis, who were working for more than ten years as part-time Masalchis in Registration Department were regularized from date of issuance of G.O. providing the grant of monetary benefits from the date of issuance of Government Order. In G.O.(Rt) No.84 dated 18th June, 2012, it was clearly stated that G.O.Ms.No.22 P &A R Dept. dated 28th February, 2006 was applicable only to full-time daily wage employees and that the same was not applicable to part-time Masalchis. In said G.O.(Rt.)No.84 dated 18.06.2012, it was made clear that monetary benefits are only from date of issuance of order of regularization.

In State of Rajasthan and Others Vs. Daya Lal and Others, this Court has considered the scope of regularisation of irregular or part-time appointments in all possible eventualities and clearly laid down that part-time employees are not entitled to seek regularisation as they do not work against any sanctioned posts. Part-time employees in government-run institutions can in no case claim parity in salary with regular employees of the government on the principle of equal pay for equal work.

Even regularisation of services of part-time employees vide G.O.(Rt.) No.505 Finance (AA-2) Department dated 14th October, 2009 and G.O.(2D) No.32 Finance (T.A.2)Department dated 26th March, 2010 was effected by extending benefit of G.O. dated 28th February, 2006 only from date of Government Orders and not from date of completion of their ten years of service. As per G.O.(Rt.) No.84 dated 18th June, 2012, Respondent is entitled to monetary benefits only from date of issuance of Government Order regularizing his service that is 18th June, 2012. Impugned order of Division Bench affirming the order of Single Judge granting benefits to the Respondent from the date of completion of ten years of service is erroneous and Supreme Court set aside the same.

Relevant

State of Rajasthan and Others Vs. Daya Lal and Others(2011) 2 SCC 429

Tags : Regularization Direction Validity

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High Court of Delhi

Dr. Sumit Mehta v. Governing Body, Kalindi College And Anr.

MANU/DE/0620/2017

07.03.2017

Service

Lien of a person on a post lapses on a person acquiring lien on another post

By instant writ petition, Petitioner seeks the relief of quashing of letter dated 18th January, 2016 whereby Respondent No.1/erstwhile employer/Kalindi College informed Petitioner that since Petitioner has been absorbed on permanent basis by present employer being the University of Rajasthan, hence lien of Petitioner on his post as Lecturer with Respondent No.1 has ceased to exist w.e.f. 25th November, 2015 being date of the permanent absorption of the petitioner with the present employer. Petitioner has been since 25th November, 2015 working as Lecturer, Department of History in Government College in Jaipur, Rajasthan.

As per FR-12-A, lien of a person on a post lapses on a person acquiring lien on another post. Lien is acquired once appointment is on permanent basis and admittedly petitioner stands appointed on permanent basis with the present employer in terms of the office order dated 26th November, 2015 of the present employer.

In view of the fact that, Petitioner has been permanently employed and absorbed with present employer in post of Lecturer, History pursuant to the order dated 26th November, 2015 of present employer, FR-12-A will straight way come into play whereby Petitioner no longer can continue his lien with Respondent no.1. In view of FR-12-A, once Petitioner has got permanent absorption and appointment with the Rajasthan Government for teaching in the State Government College at Sikar, Rajasthan pursuant to the order dated 26th November, 2015 of Rajasthan Government reproduced above, Petitioner acquired lien on the post of Lecturer with the Rajasthan Government and consequently, because of FR-12-A lien of the Petitioner on his post of Lecturer, History with the Respondent no.1 will stand terminated.

FR-12-A is very clear that once there is a permanent absorption in another post of a particular government department, employee’s lien on earlier post will stand extinguished. Therefore, even if there is inaction on behalf of Respondent no.1, this Court cannot violate the law being FR-12-A and which specifically provides termination of a lien of an employee on his acquiring lien on another post and which lien is acquired by Petitioner in present case on account of his permanent absorption as a lecturer with Government of Rajasthan.

Tags : Termination. Lien Absorption

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High Court of Bombay

Dadarao S/o Hausaji Dakor v. The State of Maharashtra

MANU/MH/0308/2017

06.03.2017

Criminal

Conviction under Section 306 of Indian Penal Code, 1860 can be sustained only on positive act on part of accused to instigate or aid in committing suicide

In facts of present case, Applicant submits that, even reading of suicide note as it is, it does not disclose any grudge and grievance against present Applicant nor it discloses any cognizable offence, more particularly, offence under Section 306 of Indian Penal Code, 1860/IPC. Further, invites attention to provisions of Sections 107 and 306 of IPC and submits that, ingredients of said offences are not attracted, and therefore, no offence is disclosed against present applicant.

Contents of suicide note, reveals that, deceased committed suicide on 22nd August, 2016. Present Applicant was transferred on 31st July, 2015, from Nanded to Yavatmal as Executive Engineer, Zilla Parishad, Yavatmal. Therefore, in view of time gap between alleged incident and transfer of the Applicant from Nanded to Yavatmal, it was not possible to hold that, Applicant instigated, abetted or intentionally aided in commission of suicide by deceased.

In case of Madan Mohan Singh V. State of Gujarat and anr. Supreme Court, while explaining scope of Sections 306 and 294 vis-à-vis, the facts of that case held thus:" It is absurd to even think that a superior officer like the Appellant would intend to bring about suicide of his driver and, therefore, abet the offence. In fact, there is no nexus between so-called suicide and any of the alleged acts on the part of the Appellant. There is no proximity either. In prosecution under Section 306, IPC, much more material is required. There is no proximity either. Even if allegations in suicide note are read in its entirety, same would not even remotely suggest that, Applicant abetted, intentionally aided or instigated in an alleged suicide by deceased.

Supreme Court in case of S.S. Chheena V/s Vijay Kumar Mahajan and Another observed that, abetment involves mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. Intention of legislature and ratio of cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit offence. It also requires an active act or direct act which led deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.

In light of settled legal position, High Court opined that, further continuation of investigation/proceedings on basis of F.I.R. under Section 306 of the IPC qua the Applicant would be abuse of process of law. Hence, same is quashed and set aside.

Relevant

Madan Mohan Singh V. State of Gujarat and anr., .S. Chheena V/s Vijay Kumar Mahajan and Another

Tags : Mens rea Proceedings Validity

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