Supreme Court

Ashish Kumar Vs. The State of Uttar Pradesh and Ors.

MANU/SC/0059/2018

31.01.2018

Service

When there is variance in advertisement and in statutory Rules, it is statutory Rules which take precedence

In facts of present case, the Appellant belongs to other backward caste who has passed graduation (B.A.) with Psychology and has also done post-graduation in Psychology from Kanpur University. Appellant has also obtained master degree in Human Resource Management and Industrial Relations from Lucknow University in the year 1997. An advertisement was issued advertising various posts under Director, Social Welfare Department and other department of State. Advertisement also contained recruitment for post of Psychologist.

The Appellant submitted the application for the post of 'Psychologist'. The Appellant appeared in the written examination and was declared successful and included in the merit list. A letter was issued to the Appellant asking the Appellant to appear along with original certificates for verification of documents. The Appellant appeared along with all the documents. When Appellant appeared, he was informed that, he is not eligible and his appointment for the post of 'Psychologist' cannot be made. The Appellant having not been given appointment; hence, filed a writ petition. High Court accepted the case taken up by the Respondent that, Appellant is not qualified for the post since he does not have training qualification i.e. L.T./B.T.B. Ed. The Appellant filed special appeal which too was dismissed. Review application filed thereafter was also rejected.

The qualifications clearly indicated that stroke (/) was used regarding qualifications, in alternative, i.e., one or either. The use of stroke (/) between Graduate/L.T./B.T.B. Ed. were in the same line meaning thereby one or either. Before the aforesaid qualifications, the words "in Psychology subject" has been used as prefix, which clearly means that, all the alternative qualifications were required to have with Psychology subject i.e. Graduation with Psychology/L.T./B.T.B. Ed. in the subject of Psychology. Hence, all the three i.e. Graduation, L.T., B.T.B. Ed. has to be in Psychology subject. Those persons who have done L.T./B.T.B. Ed. with Psychology subject are eligible like person graduated with Psychology, which is the plain and simple meaning of the advertisement which has been missed by the State as well as the High Court. There is no question of there being different set of candidates. All candidates, who have Psychology as their subject of Graduation/L.T./B.T.B. Ed. were eligible for the post and they all form one class, i.e. those, who have studied Psychology.

Janjatiya Vikas Shikshan Aur Kermchariverg Sewa Niyamawali, 1991,(1991 Rules) clearly indicate that, qualification for Psychologist is M.A. in Psychology. There is no other column in which Psychologist can be read in the entire rule. The B. Ed. is a preferential qualification and essential qualification is only M.A. in Psychology according to 1991 Rules. In the counter affidavit filed in this Court by the State, 1991 Rules have been accepted to be the relevant Rules regulating the recruitment. The qualification prescribed in the Rules does not provide for L.T./B.T.B. Ed. as essential qualification. Thus, non-possession of L.T./B.T.B. Ed. does not make him disqualified for the post as per Statutory Rules of 1991. Appellant is post-graduate in psychology and thus, also fulfill the qualification prescribed in the 1991 Rules. The Respondent in counter affidavit had themselves come with the case that the appointment has to be made in accordance with the statutory rules. When under the statutory rules, 1991, Appellant fulfill the qualification; there is no occasion to deny appointment to him.

Any part of the advertisement which is contrary to the statutory Rules has to give way to the statutory prescription. Thus, looking to the qualification prescribed in the statutory rules, Appellant fulfills the qualification and after being selected for the post denying appointment to him is arbitrary and illegal. It is well settled that, when there is variance in the advertisement and in the statutory rules, it is statutory Rules which take precedence.

It has also come on the record that, although the post of Psychologist was declared as dead cadre by the Government Order dated 9th May, 2008, but the posts were subsequently revived by another Government Order dated 17th August, 2010. The Appellant after being selected for the post of Psychologist was illegally denied issuance of appointment letter on wrong interpretation of the advertisement and the rules, hence, the Appellant has made out a case for issuing a direction to appoint him on the post of Psychologist. Respondents are directed to issue an appointment order to the Appellant in pursuance of his selection against the advertisement on the post of Psychologist within a period of two months. The judgments of the High Court are set aside and the appeals are allowed accordingly.

Tags : Selection Appointment Denial

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Supreme Court

Shafhi Mohammad Vs. The State of Himachal Pradesh

MANU/SC/0058/2018

30.01.2018

Law of Evidence

Applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies

In instant Special Leave Petition (SLP), question which arose in the course of consideration of the matter was whether videography of the scene of crime or scene of recovery during investigation should be necessary to inspire confidence in the evidence collected. In Order dated 25th April, 2017 statement of learned Additional Solicitor General is recorded to the effect that videography will help the investigation and was being successfully used in other countries. He referred to the perceived benefits of "Body-Worn Cameras" in the United States of America and the United Kingdom. Body-worn cameras act as deterrent against anti-social behaviour and is also a tool to collect the evidence. It was submitted that new technological device for collection of evidence are order of the day.

Further, In another SLP, an apprehension was expressed on the question of applicability of conditions under Section 65B(4) of the Evidence Act, 1872 to the effect that, if a statement was given in evidence, a certificate was required in terms of the said provision from a person occupying a responsible position in relation to operation of the relevant device or the management of relevant activities. It was submitted that, if the electronic evidence was relevant and produced by a person who was not in custody of the device from which the electronic document was generated, requirement of such certificate could not be mandatory. It was submitted that Section 65B of the Evidence Act was a procedural provision to prove relevant admissible evidence and was intended to supplement the law on the point by declaring that any information in an electronic record, covered by the said provision, was to be deemed to be a document and admissible in any proceedings without further proof of the original. This provision could not be read in derogation of the existing law on admissibility of electronic evidence.

Though in view of Three-Judge Bench judgments in Tomaso Bruno and Anr. v. State of Uttar Pradesh, it can be safely held that, electronic evidence is admissible and provisions under Sections 65A and 65B of the Evidence Act are by way of a clarification and are procedural provisions. If the electronic evidence is authentic and relevant the same can certainly be admitted subject to the Court being satisfied about its authenticity and procedure for its admissibility may depend on fact situation such as whether the person producing such evidence is in a position to furnish certificate under Section 65B(h) of Evidence Act.

Sections 65A and 65B of the Evidence Act, cannot be held to be a complete code on the subject. In Anvar P.V. v. P.K. Basheer and Ors., present Court clarified that, primary evidence of electronic record was not covered under Sections 65A and 65B of the Evidence Act. Primary evidence is the document produced before Court and the expression "document" is defined in Section 3 of the Evidence Act to mean any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the Court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) is not always mandatory.

Accordingly, Supreme Court clarified the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.

Relevant

Anvar P.V. v. P.K. Basheer and Ors. MANU/SC/0834/2014
, Tomaso Bruno and Anr. v. State of Uttar Pradesh MANU/SC/0057/2015
: (2015) 7 SCC 178

Tags : Crime scene Videography Investigation Evidence

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National Consumer Disputes Redressal Commission

Kaustubh Gajanan Dixit Vs. Oriental Insurance Co. Ltd. and Ors.

MANU/CF/0084/2018

29.01.2018

Consumer

Interference in exercise of revisional jurisdiction is to be made only if there is a material defect or jurisdictional error in concurrent findings recorded by consumer fora below

Present revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order, passed by the State Commission in First Appeal, vide which, while dismissing the appeal, the order passed by the District Forum in consumer complaint filed by the present Petitioner, dismissing the said complaint, was upheld. The State Commission observed that, the complainant had suppressed material facts from the Insurance Company by making false and misleading statements before them and hence, he was not entitled to the insurance claim.

In the order made by this Commission in "Vijay Kumar Digambarappa Khanpure vs. Manager, Bajaj Allianz General Insurance Company Ltd. & Anr.", it has been brought out that if a private vehicle is given on hire, it may not constitute a fundamental breach of the terms and conditions of the Policy. In the present case, it has been established that the vehicle had been given on hire to Mr. Panda and his wife for travelling to Pune. There are affidavits on record in support of this contention as brought out in the report of the investigator. However, in addition to the issue of hire, there is another aspect of the case that the complainant made a false and misleading statement before the OP Insurance Company, while submitting his claim that he was himself driving the vehicle at the time of the accident. This version is admitted by the complainant in the body of the consumer complaint as well. The State Commission as well as the District Forum have rightly observed that, the complainant tried to suppress material facts from the OP Insurance Company by making false and misleading statements before them.

In the light of these facts, it is held that the consumer fora rightly came to the conclusion that, the complainant was not entitled to be granted any compensation in terms of the insurance policy in question. There is, therefore, no illegality, irregularity or jurisdictional error in the orders passed by the consumer fora below. Further, it is a settled legal proposition that interference in the exercise of the revisional jurisdiction is to be made only if there is a material defect or jurisdictional error in the concurrent findings recorded by the consumer fora below. There is no merit in this revision petition and the same is ordered to be dismissed and the orders passed by the Consumer Fora below are upheld.

Tags : Compensation Grant Insurance claim

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High Court of Bombay

Dinkar Vs. The State of Maharashtra

MANU/MH/0126/2018

25.01.2018

Criminal

Benefit of any alternate hypothesis which is reasonably discernible from record must necessarily be given to the accused

The Appellant seeks to assail the judgment rendered by the learned Ad-hoc Additional Sessions Judge, by and under which, the Appellant is convicted for offence punishable under Section 498-A of the Indian Penal Code, 1860 ('IPC') and is sentenced to suffer rigorous imprisonment for one year and to payment of fine of Rs. 500 and is further convicted for offence punishable under Section 306 of the IPC and is sentenced to suffer rigorous imprisonment for five years and to payment of fine of Rs. 1500. The Appellant faced trial along with his mother, who is acquitted and his father who is convicted and sentenced to suffer imprisonment till rising of the Court.

The possibility of accidental death could not have been brushed aside by the learned Sessions Judge in a perfunctory manner. The prosecution failed to establish that, the death was the suicidal and not accidental. It is trite law that, the benefit of any alternate hypothesis which is reasonably discernible from record must necessarily be given to the accused.

The cruelty which is envisaged under Section 498-A of IPC may not be cruelty contemplated by other statutory provisions. Conduct which may constitute matrimonial cruelty or offence may not necessarily constitute cruelty within the meaning of explanation (a) or (b) of Section 498-A of IPC. Explanation (b) is concededly not attracted since it is not even the case of the prosecution that, deceased was subjected to ill-treatment or harassment in order to coerce her or her family to fulfill any illegal demand. In order to demonstrate that the conduct of the accused constitute cruelty within the meaning of explanation (a) the prosecution was obligated to prove (i) the conduct was willful (ii) the wilful conduct was of such a nature as was likely to drive deceased to commit suicide or (iii) the wilful conduct was of such a nature as is likely to cause grave injury or danger to life, limb or health (whether mental or physical) of deceased.

In order to prove cruelty, the prosecution has examined P.W.1 who is the informant and the brother of the deceased, P.W.3, the mother of the deceased and P.W.4 the cousin brother of the deceased. The evidence of the prosecution witnesses is absolutely vague and bereft of particulars. Neither P.W.1 nor P.W.3 nor P.W.4 have disclosed the month or the year in which the accused transferred two acres land to the deceased. The prosecution witnesses have not disclosed as to in which month or even year was the deceased subjected to cruelty. The evidence of the prosecution witnesses is sketchy and other than use of stereotyped expression like ill-treatment, torture and harassment no specific instance of cruelty or the nature and extent of cruelty is spoken by any of the prosecution witnesses.

The time line of the events and instances is not forthcoming from the prosecution. When was the land was transferred is left to imagination. When was the deceased subjected to cruelty is again in the realm of conjectures and surmises and in order to ascertain the nature and extent of the ill-treatment or harassment, all that is available on record are vague statements bereft of details that the deceased was harassed and ill-treated. In the teeth of evidence on record, the judgment and order impugned is manifestly erroneous. The judgment and order impugned is set aside. The accused are acquitted of offence punishable under Section 498-A, 306 read with Section 34 of IPC. The appeal is allowed.

Tags : Conviction Evidence Credibility

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High Court of Bombay

Sai Wardha Power Generation Limited Vs. Western Coalfields Limited and Ors.

MANU/MH/0110/2018

25.01.2018

Contract

Fraud should be of an egregious nature, vitiating the entire underlying transaction and bank should have knowledge of such a fraud

The Appellant is a company engaged in the business of generation and sale of electricity and for that purpose, it had entered into agreements with the Respondent No. 1- Western Coalfields Ltd. (WCL) for purchase of coal to be utilised in its power plants for generation of electricity. The Respondent No. 1-WCL is a subsidiary of Respondent No. 2-Coal India Limited and it is engaged in the business of mining and sale of coal. The entire coal available in the county is under the control and dispensation of Respondent No. 2 and as per the policy of the Government of India, supply and sale of coal is done via coal linkages granted in two categories i.e. coal linkages at notified price and coal linkages at cost plus price.

By instant appeal, the Appellant claims that, the trial Court has committed an error in refusing to grant temporary injunction claimed by it for restraining encashment of unconditional bank guarantees, despite the fact that, it had made out a case for such injunction on the well established twin grounds of fraud committed by Respondent No. 1 on the Appellant and irretrievable damage that, the Appellant would suffer in the absence of such injunction.

The Bank should have knowledge of such fraud claimed by the Plaintiff and that it's obligation to honour the demand of encashment has nothing to do with any dispute between the seller and buyer with regard to any alleged breach of contract between them. The position of law is that, not only should the fraud be of an egregious nature, it should be held to be vitiating the entire underlying transaction and the Bank should have knowledge of such a fraud. In the instant case, the allegations levelled by the Appellant (Plaintiff) against the Respondents (Defendants) are such that a full dress trial would be required to prove such allegations. The dispute whether the supply of coal was from cost plus mine and whether Scheme area of the mine includes a cost plus area or not, are disputes that would have to be resolved upon further evidence and trial before the Court below. The allegations of fraud made by the Appellant in the present case are based on its interpretation about the manner in which the fuel supply agreements should have been operated. The material on record does not prima facie, make out a case of fraud of egregious nature on the part of the Respondents and the said material does not demonstrate that the entire underlying transaction, i.e. the fuel supply agreements, stood vitiated by fraud on the part of the respondents. Ultimately, at the completion of the trial, the Appellant may be able to prove that the interpretation of clauses of the agreement by the Respondent No. 1- WCL was not correct or that the agreements were not operated in the manner in which they ought to have been operated. But, this alone would not lead to the conclusion that, there is enough material on record to show that prima facie a fraud of egregious nature has been committed by the Respondents in the present case to vitiate the agreements in question.

As regards the aspect of irretrievable damage, there is insufficient material on record to show that any exceptional or irretrievable loss will be suffered by the Appellant, if the Respondent No. 1- WCL is not restrained by temporary injunction from encashing the unconditional bank guarantees. In the facts of the present case, it would not be impossible for the Appellant whatsoever to recover the amount from the Respondent No. 1 by way of restitution if the Appellant ultimately succeeds in the suit. In fact, in respect of unfair price structure under the fuel supply agreements, the Appellant has already succeeded before the authorities under the Competition Act, 2002 and before the Supreme Court, an arrangement of price fixation and supply of coal has been worked out, during pendency of the appeal. Therefore, even the case on the aspect of irretrievable damage is not made out by the appellant.

In the plaint before the trial Court, the Appellant has specifically pleaded that, the scope and width of proceedings initiated by it under the provisions of the Competition Act, 2002 and the grievances made in the suit filed before the trial Court are totally different. Therefore, any grievance in respect of alleged unfair price fixation under the said agreements by the Respondents abusing their dominant position, cannot be made a factor for considering the contentions raised on behalf of the Appellant on the question of irretrievable damage that might be suffered by the appellant on account of refusal to restrain the Respondent No. 1-WCL from encashing the bank guarantees.

It is significant in the present case that, the fact of short lifting of coal has not been denied by the Appellant and encashment of unconditional bank guarantees is sought by the Respondent No. 1- W.C.L., towards compensation for such short lifting. Therefore, as per the settled law, since the prayer for temporary injunction restraining a Bank from encashing unconditional bank guarantee can be granted in very narrow set of circumstances wherein fraud and irretrievable damage is proved, High Court found that, the Appellant in the present case has failed to prove that, it is entitled for grant of temporary injunction. Hence, there is no error committed by the trial Court in rejecting the application for temporary injunction by the impugned order. The appeal is dismissed.

Tags : Injunction Denial Validity

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High Court of Calcutta

Ashadullah Biswas Vs. State of West Bengal

MANU/WB/0044/2018

24.01.2018

Criminal

Submission of valid report of Public Prosecutor indicating progress of investigation and disclosing specific reasons for extension of period of detention is sine-qua-non for such extension

Challenge in instant application under Section 482 of the Code of Criminal Procedure, 1973 (Cr. PC) is the order passed by learned Chief Judicial Magistrate, in connection with case registered under Section 489B/489C of the Indian Penal Code, 1860 (IPC) corresponding to case 4062 of 2016 with added Section 15(1)(4)(iii)/16 of Unlawful Activities Prevention Act, 1967 (UAPA Act) whereby and where under learned Chief Judicial Magistrate has rejected the prayer for statutory bail of the Petitioner. Petitioner contended that, the investigating agency acted in material illegality in filing such successive applications before the learned Chief Judicial Magistrate, only in order to keep the Petitioner behind the bar to feed fat their grudge against the Petitioner who is a reputed businessman of the locality.

The order of learned Chief Judicial Magistrate palpably appears to be illegal for non compliance with the mandatory provision of Section 43-D(b) of the UAPA Act. The statutory period of detention of the present Petitioner expired on 22nd March, 2017 but the learned Chief Judicial Magistrate rejected the bail prayer without assigning any reason. It is well settled principle of law that, the accused enjoyed an indefeasible right to grant of bail, if such an application was made before the filing of the charge sheet. Sanction is an enabling provision of prosecution which is totally separate from the concept of investigation, which is concluded by filing of the charge sheet.

The UAPA Act has been enacted with the object of dealing with terrorist activities and prevention of some unlawful activities of individuals and the associations. Rule 3 of the said Act has provided a specific time limit to submit its recommendation to the concerned government within 7 days by an independent authority scrutinizing and evaluating the materials collected during investigation, which culminated in filing of charge sheet. This special act provides a special procedure for according sanction. A specific authority has been assigned with the task of according such sanction, which is neither associated with the prosecution nor has had any connection with the investigating authority. The sanction in a UAPA Act is a sine-qua-non for submission of charge sheet under UAPA Act. Therefore, the alleged report in final form in the form of charge sheet filed by the investigating authority before learned Chief Judicial Magistrate cannot be accepted to be a charge sheet or report in final form for want of necessary sanction from the appropriate authority in terms of UAPA Act.

Learned Chief Judicial Magistrate did not comply with the provision of Section 43-D(b) of the UAPA Act while extending the period of detention from 90 days to 180 days. From the scheme of UAPA Act, it is clear that submission of a valid report of the Public Prosecutor not only indicating progress of investigation but also disclosing specific reasons for extension of period of detention is a sine-qua-non for extension of the period of detention under Section 167 (2) of the CrPC from three months to six months. The order impugned does not reveal any reasons for rejection of bail prayer of the Petitioner. The order also does not reveal as to what happened to that charge sheet said to have been filed by the Investigating Officer without any sanction as stipulated under UAPA Act. Unfortunately, learned Chief Judicial Magistrate did not even apply his mind with regard to the contents of that report in final form in terms of UAPA Act and has failed to take cognizance of the fact that the statutory detention of the petitioner was over on the date of his filing such application.

In the decision reported in Sayed Mohd. Ahmed Kazmi v. State, GNCTD and Ors, it was observed by the Apex Court that, further detention of the accused would be deemed to be illegal for not having appropriate report of the Public Prosecutor for extension of the period of detention and subsequent filing of such report cannot legalize the further detention of the accused giving retrospective effect to such report. It has also been observed in Uday Mohanlal Acharya v. State of Maharashtra that, unjustified denial for right to statutory bail to an accused would not result in extinguishment in such right by subsequent filing of police report. Accordingly, the order impugned passed by learned Chief Judicial Magistrate is set aside and the Petitioner is directed to be released on statutory bail upon furnishing bond.

Relevant

Sayed Mohd. Ahmed Kazmi v. State, GNCTD and OrsMANU/SC/0900/2012
: AIR 2012 SC 660, Uday Mohanlal Acharya v. State of MaharashtraMANU/SC/0222/2001
: (2001) 5 SCC 453

Tags : Bail Rejection Validity

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