Supreme Court

Abdul Hamid and Ors. v. Union of India (UOI) and Ors.

MANU/SC/1190/2017

20.09.2017

Service

Once appeal is dismissed, employee cannot be permitted to continue in employment on basis of earlier interim orders

The original applications were filed before the Jodhpur Bench of the Central Administrative Tribunal. The dispute raised in present original applications was that, in the Bikaner Division of the Railways, the Divisional Manager, while issuing advertisement for filling up the posts of 'fresh face substitutes' in Group-D in Bikaner Division, had directed that, only those candidates who had done their apprenticeship training with the Railways would be eligible for appointment. The contention of the original applicants was that, this was violative of the directions given by the Railways and while making similar recruitments in all other parts of the country, though preference was given to those who had done there apprenticeship with the Railways, the selection was not exclusively limited to such candidates and all persons who were otherwise qualified, were entitled to apply for being selected. These original applications were filed before selection was made and after the selection process had been initiated. The first ground raised on behalf of the Appellants is that, since the fresh face substitutes/apprentices are appointed temporarily against short term vacancies, the Railways was well within its jurisdiction to limit the field of choice to those candidates who had undergone apprenticeship training with the Railways. It is submitted that, the Appellants who have been working for more than 10 years, they should now be permitted to continue and, in this regard, he has relied upon a large number of circulars issued from time to time by the railway administration whereby fresh face substitutes have been regularized.

Admittedly, the 14 original applicants were course completed act apprentices, i.e. they fulfilled the eligibility criteria. However, their applications were not considered since they had not undergone apprenticeship training under the Railways. The Tribunal found that the Railways had issued instructions from time to time and the term "fresh face substitutes" referred to "engagement of persons in railway establishment against posts falling vacant because of regular employee being absent or otherwise and the post could not be kept vacant". However, instructions had been issued that these engagements should be made by way of exception purely on temporary basis limited to the posts which cannot be kept vacant until regular posts are filled. The fact, however, remains that thousands of persons were given appointment as fresh face substitutes.

The Circular dated 21st June, 2004 provides that, fresh face substitutes can be engaged from course completed act apprentices. These instructions do not envisage that the course completed act apprentices should have done their apprenticeship only under the Railways establishments. No Rule or instructions of the Railways have been brought on record to show that the Railways had taken a decision to limit the field of choice to those course completed act apprentices who had done their apprenticeship training with the Railway establishments only. It was only in the Bikaner Division that the General Manager issued a memo on 30th August, 2004 that only those candidates would be considered who had completed the apprenticeship training with the Railways. The Tribunal vide common order dated 24th February, 2005 held that, this memo violates Articles 14 and 16 of the Constitution of India in so far as it discriminates against those qualified persons who had not done their apprenticeship training with the Railways and denies them the right of equal opportunity of employment. The Tribunal quashed the memo dated 30th August, 2004 and all subsequent actions thereto. Perusal of order leaves no manner of doubt that the appointment of the Appellants herein was subject to the final decision of the writ petitions.

It is thus apparent that, the appointment of the Appellants was subject to the final result of the writ petitions. The writ petitions were finally dismissed on 5th December, 2007 but the persons appointed were allowed to continue for four months. The Railway administration filed a review petition but the same appears to have been rejected. The Railways accepted the order and judgment of the High Court and did not pursue the matter further. Thereafter, the Railways vide order dated 25th August, 2008 discontinued/terminated the services of the fresh face substitutes/Appellants. It is only then that the Appellants filed the special leave petitions, which they were permitted to do. Leave was granted to file these appeals. Applications for intervention have also been filed by more than 300 other course completed qualified persons who have undergone apprenticeship training under the Railways.

It is apparent that, there is a policy of the Railways to grant regularization to these fresh face substitutes. This is a clear indicator that while making appointment of fresh face substitutes, the field of choice should be wide and all citizens who are qualified and eligible should be given a chance to take part in the selection process. Though these appointments may be termed as short term appointments, the facts placed on record reveal that, thousands of fresh face substitutes have been regularized and have become employees of the Railways because of the policy of the Railways. It is, therefore, imperative that while appointing fresh face substitutes, a transparent system of appointment is followed. It would be much better if the Railways follow the regular system of appointment rather than making appointments on ad hoc basis of fresh face substitutes. However, as and when exigencies of service require that fresh face substitutes have to be appointed, then also the field of choice cannot be limited only to those who have undergone their apprenticeship training with the Railways since that would patently violate Articles 14 and 16 of the Constitution of India depriving those who have not undergone apprenticeship training with the Railways of an equal opportunity for applying for these posts.

The Courts below held that, they have been employed in violation of the general directions issued by the Railways from time to time wherein there is no restriction of limiting the field of choice to Railways trained apprenticeship. It is only in Bikaner Division of the Railways that, this limitation was placed.

The Appellants were well aware that their appointments made, when the original applications were pending before the Tribunal or when the writ petitions were pending before the High Court were subject to the result of the litigation. They did not choose to file any application for intervention before the High Court. After the Railways lost in the High Court and did not carry the matter further, they approached this Court. They were granted stay and have been continuing on the basis of the stay order. They knew that, their fate depended upon the result of the litigation. Once their appeal is dismissed they cannot be permitted to be continued in employment only because they have been permitted to continue due to the interim orders. Appeals dismissed.

Tags : Appointment Continuity Grant

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Supreme Court

Ganpat Singh Vs. The State of Madhya Pradesh

MANU/SC/1187/2017

19.09.2017

Criminal

Mere circumstance of Accused being last seen with the deceased is an unsafe hypothesis for conviction under Section 302 of IPC

Present appeal arises from a judgment of a Division Bench of High Court. The High Court affirmed the conviction of the Appellant under Section 302 of the Indian Penal Code, 1860 (IPC). Additional Sessions Judge by a judgment found the Appellant guilty of an offence under Section 302 of the IPC and sentenced him to imprisonment for life. The case rested entirely on circumstantial evidence. The circumstances which weighed with the trial Court were that, deceased was last seen accompanying the Appellant; deceased had taken with her the jewellery of PW1 and PW2 which was recovered from the Appellant; and the Appellant had no explanation of how the articles were found in his possession.

There are no eye-witnesses to the crime. In a case, which rests on circumstantial evidence, the law postulates a two-fold requirement. First, every link in the chain of circumstances necessary to establish the guilt of the Accused must be established by the prosecution beyond reasonable doubt. Second, all the circumstances must be consistent only with the guilt of the Accused.

The normal principle in a case based on circumstantial evidence is that, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the Accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the Accused and inconsistent with his innocence.

Evidence that, the Accused was last seen in the company of the deceased assumes significance when the lapse of time between the point, when the Accused and the deceased were seen together and when the deceased is found dead is so minimal as to exclude the possibility of a supervening event involving the death at the hands of another. It would be difficult in some cases to positively establish that, the deceased was last seen with the Accused, when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that Accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.

The case of the prosecution is riddled with unexplained contradictions, PW1 and PW2 were crucial to the case of the prosecution for establishing that, the deceased had visited them and that they had lent her silver ornaments ostensibly because she intended to arrange the engagement of her son PW4. Admittedly, neither PW1 nor PW2 were called upon to identify the jewellery alleged to have been recovered from the house of the Appellant. PW1 stated that, the jewellery which she had lent weighed more than half a kg. PW2 deposed that, the ornaments which she had lent weighed about 1.25 kgs. In the course of her cross-examination, PW1 stated that, it was true that the ornaments which she had lent were commonly worn by women in the villages. PW2 also admitted that, there were no identification marks on the ornaments and they were of a nature that is commonly used. PW5, the daughter of the deceased, had (as the High Court observed) no opportunity to observe the ornaments on the person of the deceased. The ornaments had no special marks of identification. PW5 materially improved upon her version during the course of the examination. On this state of the evidence, the recovery of the silver ornaments (which was an important link in the chain of circumstances relied upon by the Additional Sessions Judge) has been correctly disbelieved by the High Court.

An important circumstance which weighed with the High Court was that, the body of the deceased was recovered at the behest of the Appellant. There is a manifest error on the part of the High Court in arriving at this conclusion since the record would indicate that, the body of the deceased was recovered several months before the arrest of the Appellant. The mere circumstance that the Appellant was last seen with the deceased is an unsafe hypothesis to found a conviction on a charge of murder in this case. The lapse of time between the point when the Appellant was last seen with the deceased and the time of death is not minimal. The time of death was estimated to be between two to four weeks prior to the recovery of the body.

A strong suspicion in itself is not sufficient to lead to the conclusion that the guilt of the Appellant stands established beyond reasonable doubt. There are material contradictions in the case of the prosecution. The prosecution failed to establish a complete chain of circumstances and to exclude every hypothesis other than the guilt of the Appellant. Supreme Court allowed the appeal and set aside the conviction of the Appellant under Section 302 of IPC.

Tags : Conviction Legality Circumstantial evidence

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High Court of Bombay

Taluka Co-operative Education Society Ltd. Vs. State of Maharashtra and Ors.

MANU/MH/2106/2017

15.09.2017

Trusts and Societies

In case of a Society, the will of majority of the members of Society is supreme

By present writ petition, the Petitioner-Educational Institution seeks quashing of communication dated 19th August, 2016, sent by Divisional Joint Registrar, Co-operative Societies, Nashik and directions to Commissioner for Co-operation, Co-operative Societies, Pune and Divisional Joint Registrar, Co-operative Societies, Nashik Division, Nashik, the Respondents No. 2 and 3 herein, to expeditiously decide the proposal for de-registration of society under the provisions of Maharashtra Co-operative Societies Act, 1960. The Petitioner also seeks declaration that, its proposal for de-registration is maintainable and seeks directions to Respondents No. 2 and 3 to decide it on its own merits within a stipulated time.

Section 21A of the Act was introduced by Maharashtra 20 of 1986 amendment in order to provide right to the societies to get themselves de-registered or even for the Registrar to de-register the societies for the reasons stated therein. It cannot be disputed that, the Petitioner-society is presently governed by two different enactments namely; Maharashtra Cooperative Societies Act and Maharashtra Public Trust Act. The object to form the society is to provide education to the persons in the vicinity and the said object is no way going to be affected by de-registration of the society under MCS Act. The Petitioner is required to fulfill the obligations and perform the duties under Maharashtra Cooperative Societies Act as well as under the Maharashtra Public Trust Act, when the institution is one and the same. If the members of the society take a decision to de-register the society and opt to be governed by only Maharashtra Public Trust Act and authorities therein, the decision cannot be said to be contrary to the object of the formation of Cooperative Societies. In fact, the provisions of Maharashtra Public Trust Act can take care of the activities of the trustees and the management to see that the object of the public trust is achieved and there is proper control over the management to prevent any mismanagement.

In case of a Society, the will of majority of the members of Society is supreme. If they decide to get themselves not to be governed by the Maharashtra Cooperative Societies Act and to be governed only by provisions of Maharashtra Public Trust Act, there is nothing wrong. The decision deserves to be respected subject to verification of the facts and following the due procedure.

High Court is of the view that, the present case certainly falls under Section 21A of Act in general and under the words "where the work of Society is completed or exhausted" in particular as the Institute is now governed by Maharashtra Public Trust Act. View taken by Respondent No. 3-Divisional Joint Registrar, Cooperative Societies, in its order dated 19th August, 2016 cannot be accepted. It is held that, the Respondents were bound to consider the proposal of the Petitioner for de-registration of the Society under Section 21A of the Act, subject to necessary procedure and verification of the facts.

It is for the Respondent to take appropriate decision in the light of Section 21A of Act on the proposal submitted by the Petitioner. While taking such decision, the Respondents shall follow the procedure contemplated under the Act and shall also verify the factual aspects if there are any doubts about the correctness thereof. If necessary, the Respondents can send their representative for verifying the wishes of the members by attending Annual or Special General Body Meeting.

It is also to be noted that, the Petitioner will have to pass appropriate resolution for transferring the reserve funds of the Society to the public trust and also to transfer the personal interest of the members of the society to the public trust. They will have to seek permission of the Registrar in this regard. These are all points which can be taken care of by the Registrar while considering the proposal of the petitioner for de-registration under Section 21A of Act.

The order passed by Respondent No. 3, holding that, the proposal of the Petitioner for de-registration of the society is not covered under Section 21 or 21A of Act, is set aside and it is declared that the proposal of the Petitioner for de-registration of the Society squarely falls under Section 21 and 21A of Act. Petition allowed.

Tags : De-registration Proposal Maintainability

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High Court of Delhi

Hyacinth Estate Pvt. Ltd. Vs. Gaon Sabha Raghopur

MANU/DE/2788/2017

15.09.2017

Civil

An appeal shall lie only from the final order passed by a Court

The present writ petition has been filed challenging the order passed by the learned Financial Commissioner in Revision Petition whereby the learned Financial Commissioner has dismissed the Revision Petition upholding the order passed by the Deputy Commissioner/Collector. The only issue, which arises for consideration is, whether the Deputy Commissioner was justified in holding the appeal filed by the Petitioner under Section 185 (3) of Delhi Land Reforms Act, 1954, is not maintainable as the order dated May 27, 2015 was a conditional order and not a final order, which is only appealable.

As per impugned order dated May 27, 2015, it is clear that the RA/SDM, on a finding that the land is being used for non-agricultural purpose by the Petitioner and thereby contravened Section 81 of the DLR Act, had called upon the Petitioner to convert the said land into agricultural use/purpose within three months. Section 81 of the DLR Act, relates to (i) a suit filed by Gaon Sabha or a land owner for ejectment of a bhumidhar or an asami if the land is being used for non agricultural purpose and for damages equivalent to the cost of works, which may be required to render the land capable of use for agricultural purpose; (ii) the action of the Revenue Assistant for ejectment and damages on information received or on his own motion.

The proceedings under Section 81 of Act, are for both ejectment and damages. The Revenue Assistant/SDM has not passed an order for damages. He by passing a conditional order, has given time to the Petitioner to convert the land back to agricultural use without determining the damages. It is on failure on the part of the Petitioner to put the land in agricultural use, an order of damages is passed, which is a final order, which can be challenged by a party under Section 185(3) read with Entry 17 in Schedule I. Section 185 (3) of the DLR Act, stipulates that an appeal shall lie from the final order passed by a Court mentioned in Column 3 to the Court or authority mentioned in column 8. Column 3 of Entry 17 of Schedule I of the DLR Act contemplates the description of suit application and other proceedings to mean (i) a suit for ejectment of bhumidhar or asami and for damages under sub section (1); (ii) proceedings under sub section (2). It necessarily means that, order must relate to both ejectment and damages (cost).

Rule 24 of the Delhi Land Reforms Rules, 1954, stipulates that, unless an order is expressly made final by the Revenue law for the time being in force, an appeal shall lie to the Court authorized under paragraph 23 to hear the same from every original order passed in any proceedings held under the provisions of the Act." It is the final order from which an appeal shall lie to the Court authorized under paragraph 23, in this case the Deputy Commissioner.

Similarly, under Section 81(2), the Revenue Assistant on receiving information or on his own motion, eject the bhumidhar and also recover damages. The suit under Section 81 of Act, is not exclusively for ejectment. The appeal filed by Petitioner before the Deputy Commissioner was not maintainable under Section 185(3) of the DLR Act. There is no infirmity in the orders of Financial Commissioner and also the learned Deputy Commissioner. The writ petition is dismissed.

Tags : Proceedings Appeal Maintainability

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National Consumer Disputes Redressal Commission

Vinod Kumar Kataria Vs. Arufa

MANU/CF/0579/2017

14.09.2017

Consumer

The period of delay is to be counted from the knowledge of the deficiency

Instant first appeal has been filed by the Appellant against the order passed by the State Commission. Appellant/complainant had purchased the first floor of the property from the opposite party and sale deed was executed in his favour. The possession of the flat in question was handed over to the complainant in October 2012. It was alleged that, after shifting in the aforesaid premises, the complainant realized that, the OP had used inferior quality material in the construction of the flat and noticed major defects. Based on this fact, the complainant filed complaint before the State Commission for refund of the total amount of purchase price amounting to Rs. 25,00,000/- alongwith Rs. 1,50,000/- as expense of sale deed. The State Commission, however, dismissed the complaint at the admission stage on the ground of limitation and on the ground that other occupants have filed a civil suit for illegal construction and the complainant may also join the same.

From the facts of the case, it is clear that sale deed was executed on 22nd August, 2012 and the possession was handed over in October, 2012. The complaint has been filed on 14th June, 2016. The State Commission has relied upon the judgment of this Commission in Dr. Gopal and Another Vs. Deorao Ganpat Kaore and others, wherein, it has been held that, the period of limitation in respect of patent defects will commence from a date later on the date on which the said patent defects comes to the notice of the complainant. No doubt, a builder is under an obligation to rectify the defects, if any, found in the house constructed by him, but if he fails to do so, the complainant is required to approach a consumer forum within two years from the date on which the said defect is noticed by him for the first time. In case he was prevented by sufficient cause from filing a complaint within the prescribed period of limitation, he must file an application seeking condonation of delay in filing the complaint.

In the present case also, the Appellant has not produced any acknowledgment by the builder that, he admits the defects and that he promised to rectify the same within a particular period. Thus, from the above observation of this Commission, it is clear that the cause of action could not be treated as continuing one. The period of delay is to be counted from the knowledge of the deficiency. In fact, the cause of action has arisen on the date when the possession was taken by the appellant/complainant and it cannot be treated as extended by way of any correspondence between the parties.

Special periods of limitation have been prescribed under the Consumer Protection Act, 1986 for speedy disposal of consumer disputes. Supreme Court in State Bank of India Vs. M/s. B.S. Agricultural Industries has held that, as a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. It is the duty of the consumer forum to take notice of Section 24A of Act and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.

By placing reliance on judgments of Supreme Court and in facts of the present case, Commission is of the view that, the complaint was highly time barred and no application for condonation of delay was moved before the State Commission, therefore, the State Commission was totally justified in dismissing the complaint on the ground of limitation. Moreover, the State Commission has also noted that, a civil case has been filed by the other occupants for the alleged illegal construction in the parking space by the opposite party and the complainant has been given liberty to join the same. If a matter is already pending adjudication in a civil Court, the same cannot be considered by the consumer forum simultaneously. Hence, this part of the order of the State Commission is also justified. There is no merit in the appeal filed by the Appellant and the appeal is accordingly dismissed at admission stage.

Relevant

State Bank of India vs. B.S. Agricultural Industries (I) MANU/SC/0420/2009

Tags : Complaint Delay Maintainability

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Railway Claims Tribunal

Amar Bai and Ors. Vs. Union of India

MANU/RL/0394/2017

14.09.2017

Civil

A mere plea without supported by any corroborative evidence, has no gravity in the eye of law

Case has been preferred before this Tribunal by the wife and sons of the deceased being sole dependants under Section 16 of the Railway Claims Tribunal Act, 1987 read with Section 125 of the Railways Act, 1989 seeking compensation of Rs. 16,55,000/- together with interest on account of death of Shri Kaluram in an alleged untoward incident. It has been deposed by Applicant No. 1 that, on 13th February, 2013 her deceased husband was travelling from Delhi Cantt. to Narnaul by a passenger train named Delhi Udaipur Chetak Express holding a valid second class railway journey ticket bearing No. 95214044 and was a bona fide passenger of the said train at the time of occurrence of incident.

The Police have very specifically shown the recovery of ticket from the person of the dead body along with other articles. Besides, the Investigation Officer while submitting his Report to the competent authority, has also very specifically mentioned that, railway journey ticket was found with the deceased and the same was also got verified by the Booking Office, Delhi Cantt and found to be correct. It is held that, deceased was a bona fide passenger of the alleged train as defined under Section 2(29) read with Section 124A of the Railways Act, 1989

To prove the death of the deceased as a result of an untoward incident, it has been deposed by Applicant No. 1 that, her deceased husband was travelling from Delhi Cantt. to Narnaul and during journey, when the said train reached near Narnaul railway station, her deceased husband due to a sudden jerk by the train and resultant loss of balance, accidentally fell down from the running train, suffered multiple grievous injuries and died subsequently. To establish their case that, death of the deceased occasioned due to an untoward incident as a result of an accidental fall from the running train, copies of certain documents prepared by the Police and Post-mortem Report have been placed on record by the applicants. Although, it has been argued on behalf of Respondent railway administration that, deceased did not become a victim of an untoward incident as a result of an accidental fall from the running train but no evidence whatsoever has been adduced to substantial the same. A mere plea without supported by any corroborative evidence, has no gravity in the eye of law.

With regard to the liability of Respondent railway administration in such cases, Supreme Court in Union of India versus Prabhakaran Vijaya Kumar, has observed that, It is well settled that if the words used in a beneficial or welfare statute are capable of two constructions, the one which is more in consonance with the object of the Act and for the benefit of the person for whom the Act was made should be preferred. Beneficial or welfare statutes should be given a liberal and not literal or string interpretation. The expression 'accidental falling of a passenger from a train carrying passenger' includes accidents when a bona fide passenger, i.e. a passenger travelling with a valid ticket or pass is trying to enter into a railway train and falls down during the process. A purposive, and not literal, interpretation should be given to the expression.

Present claim application has been preferred before this Tribunal by the wife and sons of the deceased being the sole dependants. Applicant No. 1 has deposed that present applicants are the sole dependants of the deceased. Applicant No. 2 has also deposed the same fact by way of his examination-in-chief on affidavit. To prove their sole dependence, true copy of Family Ration Card has been filed on behalf of applicants. On the contrary, no evidence has been adduced on behalf of Respondent to rebut the case of the Applicants on the point of their sole dependence. Moreover, during pendency of the claim application, none else appeared before the Tribunal claiming himself/herself as one of the dependants or the sole dependant of the deceased.

Present applicants are the sole dependants of the deceased as defined under Section 123(b) of the Railways Act, 1989 and in view of findings above, they are entitled to get compensation of Rs. 8,00,000/- as prescribed under Part-I of the Schedule appended to Rule 3 of the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 as amended on 22nd December, 2016.

As regard interest, there is no provision under the Railways Act, 1989 or the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 as amended on 22nd December, 2016. However, in view of Supreme Court of India's decision in the case of Tahazhathe Purayil Sarabi and Ors. Vs. Union of India and others and Mohammadi and others versus Union of India, the Tribunal has the jurisdiction to award pendente lite interest on the amount of compensation determined by it under the provisions of the Railway Claims Tribunal Act, 1987 and the Railways Act, 1989. Therefore, it would be just and reasonable to allow simple interest @ 6% per annum from the date of registration of the claim application to the date of this order.

Relevant

Union of India versus Prabhakaran Vijaya Kumar MANU/SC/7608/2008
: (2008) 9 SCC 527, Tahazhathe Purayil Sarabi and Ors. Vs. Union of India and others MANU/SC/1108/2009
: AIR 2009 SC 3098, Mohammadi and others versus Union of India III (2010) ACC 933 (SC)

Tags : Untoward accident Compensation Grant

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