High Court of Bombay

Sachin Ganpati Davande Vs. The Chairman & Managing Director, Maharashtra State Electricity Distribution Company Limited and Ors.

MANU/MH/2641/2017

13.11.2017

Service

Executive Directors are authorized to extend validity of waiting lists of candidates for further period of one year

The Petitioner, working as Junior Engineer with Respondent No. 1-the Maharashtra State Electricity Distribution Limited ("the MSEDCL") has approached this Court, being aggrieved by non consideration of his candidature for the post of Deputy Executive Engineer (now termed as Additional Executive Engineer). It is the case of the Petitioner that, he was appointed as Junior Engineer in the Respondent-Company which is a Government Undertaking with effect from 6th June, 2006. Further according to the Petitioner, he was falsely implicated in a criminal case which was registered by the Anti Corruption Bureau (ACB) on the basis of complaint made by one consumer on, alleging that, Petitioner had demanded some amount for providing an electric meter and based on which criminal case was registered against him.

The Petitioner prayed for directions to the Respondents to implement the decision of Competent Selection Committee with regard to his selection in pursuance to advertisement No. 10/12 and issue an order of appointment in his favour with retrospective effect when the candidates from the selection list prepared by the Selection Committee were issued with orders of appointment together with all consequential benefits of seniority, arrears of pay scale etc.

Rule 29(a) of Employees Service Regulations 2005 provides that, when a selection committee recommend the name of a suitable candidate selected after due advertisement for direct recruitment and the candidates are kept on waiting list against the post for direct recruitment, such list may be deemed valid for period of 12 months and the Executive Director and the concerned Executive Directors are authorized to extend the validity of the waiting lists of candidates for further period of one year, whenever it is considered necessary. The said rules also provide for "Sealed Cover Procedure" to be adopted in respect of candidates who are in zone of consideration for promotion and against whom disciplinary action/vigilance report/criminal proceedings are pending or whose conduct is under investigation. The said rule prescribes that, the competent selection committee shall assess the suitability of the employees without taking into consideration the pendency of disciplinary action case/vigilance investigation/criminal prosecution and the grading awarded will be kept in a sealed cover which is not to be opened till termination of the disciplinary case/criminal prosecution etc.

The Petitioner was implicated in a criminal case by the ACB, on the basis of a complaint alleging demand of illegal gratification from one of the consumer and criminal prosecution was launched against the Petitioner. Simultaneously, he was charge-sheeted by the Department for misconduct on demand of illegal gratification. Pending the disciplinary proceedings and the criminal prosecution under Section 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988, the Petitioner was placed under suspension.

Pending the proceedings, Petitioner participated in the selection process initiated for the post of Deputy Executive Engineer by way of direct recruitment and was selected in the said process to find place in the wait list candidates and the Respondents permitted participation of the Petitioner in the selection process by following "Sealed Cover Procedure" as per the Service Regulations, 2005. As per said procedure, sealed cover is to be opened only on culmination of the disciplinary proceedings and in the case of the Petitioner the disciplinary proceedings resulted into final order only on 15th November, 2016. As per the Service Regulations, 2005 the selection list is to remain valid only for a period of one year and on the date on which the disciplinary proceedings against the Petitioner culminated into finality and were finally concluded on 15th November, 2016, the waiting list which included the name of the Petitioner which was prepared in pursuance of Advertisement No. 10/2012 had already expired and therefore, the case of the Petitioner did not deserve consideration for appointment to the post of Deputy Executive Engineer.

When as per the Respondent's validity of the select list expired on 31st December, 2014 and the conduct of the Petitioners was still under investigation as the disciplinary proceedings had not concluded. It cannot be said that, it was the deliberate attempt on the part of the Respondent to deprive the Petitioner of the said benefit since the life of this select list is already determined by the MSEDCL Employees Service Regulations 2005 and the vigilance investigation against the Petitioner had not been concluded. In the present case, the life of select list is determined by the Service Regulations of 2005 and the Respondents have been consistently following said period mentioned in the Regulation and it is not that only to deprive the Petitioner the fruits of selection, the stand is taken by the Respondent that, the select list has expired. There is no merit in the writ petition and same dismissed.

Tags : Disciplinary proceedings Pendency Selection

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Supreme Court

State of Uttarakhand Vs. Jairnail Singh

MANU/SC/1416/2017

13.11.2017

Criminal

Unless there is any kind of illegality in the impugned judgment of acquittal, Supreme Court cannot interfere in such judgment

Present appeal is filed by the State against the final judgment and order passed by the High Court of whereby the High Court allowed the appeal filed by the Respondent (Accused) and set aside the order of conviction and sentence passed by the trial Court by which the Respondent (Accused) was convicted under Section 307 of the Indian Penal Code, 1860 ("IPC") and Section 25(1-A) of the Arms Act, 1959. Felt aggrieved, the State has filed this appeal by way of special leave before this Court.

The reasoning and the conclusion of the High Court in acquitting the Respondent of the charges under Section 307of Indian Penal Code and Section 25(1-A) appears to be just and proper. The parties involved in the case namely, the victim, his brother, who was one of the eye-witnesses with other two eye-witnesses and the Accused were known to each other then why the Complainant-brother of victim in his application made immediately after the incident to the Chief Medical Superintendent, did not mention the name of the Accused and instead mentioned therein "some sardars". According to the prosecution, the weapon used in commission of offence was recovered from the pocket of the Accused the next day, it looked improbable as to why would the Accused keep the pistol all along in his pocket after the incident for such a long time and roam all over.

The weapon (pistol) alleged to have been used in the commission of the offence was not sent for forensic examination with a view to find out as to whether it was capable of being used to open fire and, if so, whether the bullet/palate used could be fired from such gun. Similarly, other seized articles such as blood-stained shirt and soil were also not sent for forensic examination. Weapon (Pistol) was not produced before the concerned Magistrate, as was admitted by the Investigating Officer. If, according to the prosecution case, the shot was hit from a very short distance as the Accused and the victim were standing very near to each other, then as per the medical evidence of the Doctor a particular type of mark where the bullet was hit should have been there but no such mark was noticed on the body. This also raised some doubt in the prosecution case.

The aforesaid infirmities were, therefore, rightly noticed and relied on by the High Court for reversing judgment of the Session Court after appreciating the evidence, which the High Court was entitled to do in its appellate jurisdiction. It cannot be said that, infirmities were either irrelevant or in any way insignificant or technical in nature as compared only to the ocular version of the witnesses. The prosecution, should have taken care of some of the infirmities noticed by the High Court and appropriate steps should have been taken before filing of the charge-sheet to overcome them. It was, however, not done. The benefit of such infirmities was, accordingly, rightly given to the Respondent by the High Court.

Since the State has challenged the order of acquittal in instant appeal, unless there is kind of illegality in the impugned judgment, Supreme Court cannot interfere in such judgment. It is only when impugned judgment is based on no evidence or/and it contains no reasoning or when it is noticed that the reasoning given are wholly perverse, this Court may consider it proper in appropriate case to interfere and reverse the decision of the High Court.

But, when the High Court while reversing the decision of the Session Court acquits the Accused and assigns the reasons by appreciating the entire evidence in support of the acquittal, then this Court would not be inclined to interfere in the order of acquittal. It is necessary for the High Court while hearing the appeal arising out of the order of conviction to appreciate the entire evidence and then come to its conclusion to affirm or reverse the order. In a case of later, which results in reversal, it is necessary for the High Court to assign cogent reasons as to why it does not consider it proper to agree with the reasoning of the Sessions Judge by pointing out material contradiction in evidence and infirmities in the prosecution case. There is no merit in the appeal. The appeal fails and is accordingly dismissed.

Tags : Acquittal Validity Evidence Contradiction

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Supreme Court

Uttarakhand Transport Corporation and Ors. Vs. Sukhveer Singh

MANU/SC/1404/2017

10.11.2017

Civil

Mere non-supply of the inquiry report does not automatically warrant reinstatement of the delinquent employee

The Respondent was appointed as a driver with the Appellants-Road Transport Corporation. On 27th October, 1995 while driving a vehicle on Karnal-Haridwar route, the Respondent did not stop the vehicle, when the inspection team signalled. Inquiry officer found that, the charges against the Respondent were proved. It was held that, the Respondent was duty bound to stop the vehicle when a signal was given by the inspecting team. The inquiry officer further held that, the Respondent colluded with the conductor and did not stop the vehicle as there were a number of ticketless passengers in the bus. The disciplinary authority issued a show cause notice along with which the inquiry report was supplied to the Respondent. Not satisfied with the explanation submitted by the Respondent to the show cause notice, the disciplinary authority dismissed him from service by an order. The appellate authority dismissed the appeal filed by the Respondent.

A reference was made to the labour Court which was answered in favour of the Respondent on 15th November, 2007. The writ petition filed by the Respondent challenging the award of the labour Court was allowed by the High Court and the labour Court was directed to reconsider the matter. After remand, the labour court by an award upheld the order of dismissal of the Respondent from service. The Respondent challenged the award of the labour Court by fling a writ petition in the High Court. Present Appeal is filed by the employer against the judgment of the High Court by which the order of dismissal of the Respondent-driver from service was set aside by the High Court. The High Court directed that, the Respondent should be deemed to be in service with all consequential benefits.

Mere non-supply of the inquiry report does not automatically warrant re-instatement of the delinquent employee. It is incumbent upon on the delinquent employee to plead and prove that, he suffered a serious prejudice due to the non-supply of the inquiry report. The writ petition filed by the Respondent has been examined and there is no pleading regarding any prejudice caused to the Respondent by the non-supply of the inquiry report prior to the issuance of the show cause notice. The Respondent had ample opportunity to submit his version after perusing the report of the inquiry officer. The Respondent utilised the opportunity of placing his response to the inquiry report before the disciplinary authority. The High Court committed an error in allowing the writ petition filed by the Respondent without examining whether any prejudice was caused to the delinquent employee by the supply of the inquiry officer's report along with the show cause notice. There was no prejudice caused to the Respondent by the supply of the report of the inquiry officer along with the show cause notice. Hence, no useful purpose will be served by a remand to the Court below to examine the point of prejudice.

The Respondent contended that, the punishment of dismissal is disproportionate to the delinquency. It is submitted that, he was working as a driver and the irregularity in issuance of tickets was committed by the conductor. Respondent had committed the misconduct in collusion with the conductor. It is no more res integra that, acts of corruption/misappropriation cannot be condoned, even in cases where the amount involved is meagre. Supreme Court allowed the appeal and set aside Judgment of the High Court.

Relevant

U.P.S.R.T.C. v. Suresh Chand Sharma MANU/SC/0403/2010
: (2010) 6 SCC 555

Tags : Reinstatement Direction Validity

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Supreme Court

Union of India (UOI) and Ors. Vs. Manomoy Ganguly

MANU/SC/1405/2017

10.11.2017

Service

Board Members are empowered to assess and award the marks

In facts of present case, Respondent belongs to the Army Medical Corps. He is the Major General and aspires to become Lieutenant General (Lt. Gen.), which is next higher rank in his cadre. First Special Promotion Board (SPB), for this purpose was held on 20th January, 2016 but he was not empanelled to the rank of Lt. Gen. by the said Board. His statutory complaint there against was partially redressed whereby an assessment of the Technical Officer (TO) in his Annual Confidential Report (ACR) of 2014 was expunged. This entitled him to fresh screening by Review SPB which held its meeting on 21st March, 2017. However, even Review SPB did not empanel him for the promotional rank. After exhausting departmental remedies in the form of statutory complaint etc., the Respondent approached the Armed Forces Tribunal ( 'AFT') and has finally succeeded as vide orders, the AFT has quashed the proceedings of Review SPB on the ground that, it had allotted wrong board marks to the Respondent. Directions are given to convene fresh Review SPB to consider him for promotion to the rank of Lt. Gen. in consonance with the parameters of relevant policies and his changed profile after allotting entitled board marks as stated in the said judgment, and to also restore his seniority. This appeal aims at questioning the correctness of the said judgment of the AFT.

As per the Promotion Policy, the Board Members are empowered to assess and award the marks. Award of these marks, not exceeding two, is based on the overall profile of the officer, exceptional achievements, appointments held, medical category, disciplinary background, field area-difficult area posting. Average of the marks awarded by all the Board Members present, out of two, is used to calculate the overall marks. The procedure for selection and promotion which is communicated vide Circular dated 14th January, 2004 issued by the Ministry of Defence (MoD), Government of India and as amended vide letter dated 17th May, 2006 enumerates basis for awarding two marks keeping the following criteria in mind.

From the facts, it is clear that insofar as award of 93 marks, out of 95 marks, is concerned that can be calculated arithmetically on the basis of ACR, academic qualifications as well as military awards and decorations. Discretion is given to the Board to give weightage out of 2 marks and while exercising these discretions the Members of the Board are supposed to keep in mind the overall profile of the concerned officer, exceptional achievements, appointments held, medical category, disciplinary background, field area--difficult area posting.

The Members of the Board are empowered to award marks out of the two marks which are reserved for them. For this purpose, it is not the ACR alone but the entire profile of an officer which is to be looked into. Insofar as, marks for ACR are concerned, these have already been awarded under the head 'average marks of ACR extrapolated out of 90'. It shows that, significant importance is attached to the ACRs as 90 marks out of 95 marks are to be assigned on the basis of ACRs. Therefore, it cannot be disputed that while awarding marks out of the two marks reserved for the Members of the Board, they can examine the overall profile of the officer and are not supposed to restrict it to the ACR alone. Board Members are the three Chiefs of Services and it can very well be presumed that, they would assess an officer in an objective manner. Indubitably, higher degree of trust can be reposed in them and their assessment is not to be interdicted unless very weighty and overwhelming material is produced warranting interference while undertaking judicial review of such an exercise.

The provision for assessment for promotion to Lt. General is same whether it is Army per se or Armed Medical Corps. The AFT is right in observing that in the meeting held on 20th January, 2016 Board Marks to all officers who are considered commensurate with the quantified marks of the candidates. Thus, the Board Members adopted the criteria of looking into the quantified marks as the yardstick for assessing overall profile. There is no reason to interfere with the directions given by the AFT. In any future selections, it would always be open to the Members of the Board to award the marks (out of 2 marks assigned for this purpose) keeping in view the overall profile of the officers as per Promotion Policy dated 14th January, 2004 and as amended vide letter dated 17th May, 2006. Instant appeal is, accordingly, dismissed.

Tags : Direction Promotion Validity

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High Court of Gauhati

Shankar Narayan Ghosh and Ors. Vs. Oil & Natural Gas Corporation Ltd. and Ors.

MANU/GH/0599/2017

09.11.2017

Labour and Industrial

Dispute of regularization/absorption once settled and having been acted upon cannot be allowed to be raised or reopened

Instant intra Court appeal is against the order passed by the learned Single Judge whereby he has allowed writ petitions. These writ petitions were filed by the Oil & Natural Gas Corporation Limited (ONGC) - Respondent No. 1 challenging the references of identical industrial dispute. The references were made pursuant to industrial dispute raised by the respective Appellants. Challenge was also made by Respondent No. 1 to the consequential notices issued by the Central Government Industrial Tribunal-cum-Labour Court, ("Tribunal"). By the impugned judgment, all the references and also the consequential notices have been quashed on the ground that, in fact, no industrial dispute existed which required adjudication.

The Supreme Court in National Engineering Industries Ltd. v. State of Rajasthan, held that a settlement arrived at in the course of conciliation proceedings with a recognized majority union will be binding on all workmen of the establishment and that it is based on the principle of collective bargaining for resolving industrial disputes and for maintaining industrial peace.

In the case at hand, the dispute regarding regularization and absorption of contingent workers was settled in the course of conciliation proceedings after lot of deliberations. The management of Respondent No. 1 and two recognized Trade Unions, namely, ONGC Din Mazdoor Union (CITU) and Tripura ONGC Shramik Union (INTUC) had participated in the conciliation proceedings. The terms of settlement were reduced in writing and thereafter also acted upon by the parties. The settlement is based on the principle of collective bargaining for resolving industrial disputes and is at par with the award of Labour Court, or Tribunal, or National Tribunal or an arbitration award. Therefore, the dispute of regularization/absorption once settled and having been acted upon cannot be allowed to be raised or reopened by the Appellants. The State Government also cannot be permitted to make a reference in respect to a dispute which has already been settled in the presence of Conciliation Officer as provided under Section 12 of the Act. Even otherwise, it is not the contention of the Appellants that the settlement was arrived at on account of fraud, corruption or other inducements or is in any way mala fide. This being the situation, it cannot be said that, settlement is either arbitrary or unreasonable or that their claim for absorption was rejected because of superior bargaining power of Respondent No. 1.

A learned Single Judge in Review Petition vide order has already held that the terms of settlement are in conformity and consistent with the fair labour practice and not opposed to any statutory provision or public policy of the Government. This order was never challenged before any higher forum and as such it attained finality. The Appellants, therefore, cannot be given any benefit of the liberty given, more particularly, when the terms of settlement are not challenged on the grounds of mala fide, fraud, corruption or other inducements etc. Lastly, as the terms of settlement have become final, Present Court is not inclined to increase/enhance the amount mentioned in the Memorandum of Settlement either. There is no merit in present appeal.

Relevant

National Engineering Industries Ltd. vs. State of Rajasthan & Ors. MANU/SC/0755/1999

Tags : Regularization Notices Quashing Validity

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High Court of Delhi

Emaar MGF Land Ltd. and Ors. Vs. Aftab Singh

MANU/DE/3567/2017

07.11.2017

Arbitration

Orders passed by NCDRC in exercise of its jurisdiction are subject to appeal before the Supreme Court

Present appeals have been brought before this Court invoking Section 37(1)(a) of the Arbitration and Conciliation Act, 1996, as amended by Arbitration & Conciliation (Amendment) Act, 2015, to assail two orders of the National Consumer Disputes Redressal Commission (NCDRC), thereby dismissing the identical applications of the Appellants seeking a reference under Section 8 of Arbitration and Conciliation Act, 1996 of the disputes which are the subject matter of consumer complaints of the Respondents against the Appellants, presently pending consideration.

The consumer complaints were instituted by the respective Respondents before the NCDRC with reference, to similar buyer's agreements that had been entered upon by the parties wherein said complainants have raised consumer disputes primarily on the ground of failure on the part of the Appellants to deliver timely possession of the residential villas (flats/plots, etc.) being developed by it in Mohali (and other places) seeking directions either for immediate delivery and possession or, in the alternative, for other reliefs including compensation. The foremost issue that needs to be considered at the threshold is as to whether these appeals can be maintained before this Court.

NCDRC is a forum established by the Central Government under Section 9(c) of the Consumer Protection Act, 1986. It exercises jurisdiction envisaged in Section 21 wherein it may, entertain complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees one crore. The orders passed by NCDRC in exercise of such jurisdiction are subject to appeal before the Supreme Court.

Section 8 of the Arbitration and Conciliation Act, 1996, provides that, a judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists. While conferring the jurisdiction to refer the parties to a dispute to arbitration, the law refers to the forum as a "judicial authority", and not a "Court". It is trite that the expression "judicial authority", also used in Section 5, may encompass within its fold not only a court but also a tribunal.

After 2015 amendment, when the reference or refusal to make over to arbitration has been additionally made subject to appeal, the words "the court passing the order" appearing in Section 37(1) acquire new dimension and need to be properly construed so as to harmonise them with Section 8 which confers the jurisdiction to pass the order that may be challenged in appeal. Since Section 8 does not restrict such a power to a "court" but extends it to every "judicial authority", the forum conceived by the expression "the court passing the order" under the amended law - Section 37(1)(a) - has to be read contextually and understood to connote "the judicial authority" which passed the order making or refusing the reference. The reference to "original decrees" in the opinion of this Court, is meant to convey a decision taken by a court of first instance in exercise of its original jurisdiction.

Appeal against the order of NCDRC (making or) refusing the reference of the dispute to arbitration cannot be brought before this Court since, appeals against orders of said forum lie before the Supreme Court. NCDRC is a tribunal and not a Court. This Court is not authorised by the law to hear appeals from the orders passed by NCDRC in exercise of its original jurisdiction. By virtue of Section 23 of the Consumer Protection Act, 1986, such appeal is available under the said law, only before the Supreme Court. Therefore, the words "the Court authorised by law to hear appeals" in present cases essentially mean "the Supreme Court". Present appeals under Section 37(1) of the Arbitration and Conciliation Act, 1996 have been wrongly brought before this Court. The same, therefore, cannot be entertained here and are consequently returned to be presented before the appropriate appellate Court.

Tags : Disputes Redressal Appeals Maintainability

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