Supreme Court

Harita Sunil Parab Vs. State of NCT of Delhi and Ors.

MANU/SC/0305/2018

28.03.2018

Criminal

Apprehension of not getting a fair and impartial enquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises

The present application seeks transfer of FIR registered under Sections 354, 354A, 323, 506 and 509 of the Indian Penal Code, 1860 (IPC) and another FIR under Sections 379, 323, 376, 354, 506 and 420 of IPC registered on complaints lodged by the Petitioner against Respondent Nos. 2 to 4, to the Court of competent jurisdiction at Mumbai, Maharashtra. The Petitioner, who appears in person, submits that, she is a permanent resident of Mumbai and is a practicing Advocate before the Mumbai High Court. Her case was not being investigated by any police officer of New Delhi despite her written complaint to the Joint Commissioner of Police and meeting with the Commissioner of Police, Deputy Commissioner of Police and the Assistant Commissioner of Police. She fears that, investigation may not be done fairly. She has been receiving threats from the Accused persons and was finding it difficult to pursue matters in Delhi as her professional engagements in Mumbai were also suffering because of the same. The investigation in the FIRs is thus sought to the transferred to the Court of competent jurisdiction at Mumbai.

The rejoinder by the Petitioner does not dispute the institution of other FIRs by her at Delhi. The records reveal that, investigation has been completed in both the present FIRs which are the subject matter of transfer, and separate charge sheets have been filed before the Court of competent jurisdiction. If the Petitioner has any grievance with regard to the investigation, the remedy lies in filing an appropriate application under the Code of Criminal Procedure before the Court concerned, and any such application, if filed, has to be considered on its own merits by the concerned Court in accordance with law. Likewise, if the Petitioner faces or is apprehensive for her safety in pursuing her complaints at Delhi, sufficient remedies are available to her under the law. Any such application, if filed, before the concerned Court or the police, has to be dealt with on its own merits in accordance with law.

In Gurcharan Das Chadha v. State of Rajasthan, it was observed that, a case is transferred, if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A Petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer, if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that, justice should not only be done but it should be seen to be done. However, a mere allegation that, there is apprehension that justice will not be done in a given case does not office. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the State of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension.

The apprehension of not getting a fair and impartial enquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. No universal or hard and fast Rule can be prescribed for deciding a transfer petition, which will always have to be decided on the facts of each case. Convenience of a party may be one of the relevant considerations but cannot override all other considerations such as the availability of witnesses exclusively at the original place, making it virtually impossible to continue with the trial at the place of transfer, and progress of which would naturally be impeded for that reason at the transferred place of trial. The convenience of the parties does not mean the convenience of the Petitioner alone who approaches the Court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society. The charge sheet in FIR No. 351 of 2016 reveals that, of the 40 witnesses, the Petitioner alone is from Mumbai, two are from Ghaziabad, and one is from NOIDA. The charge sheet of FIR No. 1742 of 2016 is not on record. A reasonable presumption can be drawn that, the position would be similar in the same also. At this stage, the apprehensions voiced by the Petitioner of possible harm to her at Delhi are too nebulous. On her own pleadings, the Petitioner has been travelling from Mumbai to Delhi since long for professional reasons. The Apex Court is not satisfied that, the two cases are required to be transferred to the court of competent jurisdiction at Mumbai. The Transfer petitions are, therefore, rejected.

Relevant

Gurcharan Das Chadha v. State of Rajasthan, MANU/SC/0093/1966
: (1966) 2 SCR 678

Tags : Investigation Fair trial Transfer

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Supreme Court

Sita Ram Bhama Vs. Ramvatar Bhama

MANU/SC/0284/2018

23.03.2018

Civil

An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded

In present suit, Plaintiff has filed the document dated 9th September, 1994 evidencing family settlement which was claimed by the Plaintiff as memorandum of settlement. An application under Order XIII Rule 3 of Code of Civil Procedure, 1908 (CPC) and Article 45 and Section 35 of the Indian Stamp Act and Sections 17 and 49 of the Indian Registration Act, was filed by the Defendant claiming that document dated 9th September, 1994 being not a registered document and being not properly stamped is not admissible in evidence, same may be rejected. The application was replied by the Plaintiff. The trial Court vide its order allowed the application of the Defendant holding that, the document is a family settlement deed and a relinquishment document which is not admissible as evidence being inadequately stamped and not being registered. Against the said order writ petition was filed by the Plaintiff which was dismissed by the High Court upholding the order of the trial Court. The High Court also took the view that, so called family settlement takes away the share of the sisters and mother, therefore, the same was compulsorily registrable. Aggrieved by the said order, the Plaintiff has filed present appeal.

The Plaintiff claimed the document dated 9th September, 1994 as memorandum of family settlement. Plaintiff's case is that earlier partition took place in the life time of the father of the parties on 25th October, 1992 which was recorded as memorandum of family settlement on 9th September, 1994. There are reasons due to which Court is of view that, the document dated 9th September, 1994 was not mere memorandum of family settlement rather a family settlement itself. Firstly, on 25th October, 1992, the father of the parties was himself owner of both, the residence and shop being self-acquired properties of Devi Dutt Verma. The High Court has rightly held that, the said document cannot be said to be a Will, so that father could have made Will in favour of his two sons, Plaintiff and Defendant. Neither the Plaintiff nor Defendant had any share in the property on the day when it is said to have been partitioned by Devi Dutt Verma. Devi Dutt Verma died on 10th September, 1993. After his death Plaintiff, Defendant and their mother as well as sisters become the legal heirs under Hindu Succession Act, 1955 inheriting the property being a class I heir. The document dated 9th September, 1994 divided the entire property between Plaintiff and Defendant which document is also claimed to be signed by their mother as well as the sisters. There is relinquishment of the rights of other heirs of the properties, hence, Courts below are right in their conclusion that there being relinquishment, the document dated 9th September, 1994 was compulsorily registrable under Section 17 of the Registration Act.

The document was compulsorily registrable. The document also being not stamped could not have been accepted in evidence and order of trial Court allowing the application under Order XII Rule 3 of CPC and the reasons given by the trial court in allowing the application of the Defendant holding the document as inadmissible cannot be faulted.

In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. Further, an unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. A two-Judge Bench judgment of present Court in Yellapu Uma Maheswari and Anr. v. Buddha Jagadheeswararao and Ors., is appropriate. In that case also this Court held that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents.

Document dated 9th September, 1994 may be admissible in evidence for collateral purpose provided the Appellant get the document impounded and to pay the stamp duty together with penalty as has been directed. Appeal is partly allowed. The order of the trial Court as well as the High Court holding that, the document required compulsory registration is upheld. Appeal is partly allowed holding that deed dated 9th September, 1994 is admissible in evidence for collateral purpose subject to payment of stamp duty and penalty.

Relevant

Yellapu Uma Maheswari and Anr. v. Buddha Jagadheeswararao and Ors. MANU/SC/1141/2015
: (2015) 16 SCC 787

Tags : Partition Document Admissibility

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Supreme Court

Netram Sahu Vs. State of Chhattisgarh and Ors.

MANU/SC/0282/2018

23.03.2018

Service

Duty of state is to voluntarily pay gratuity amount to employee rather than to force him to approach court to get his genuine claim

Present appeal is against the final judgment passed by the High Court of whereby the High Court dismissed the appeal filed by the Appellant herein and affirmed the judgment passed by the Single Judge of the High Court by which the Single Judge allowed the petition preferred by the Respondents herein and set aside the orders of the Controlling Authority and Appellate Authority by which the claim of the Appellant herein of gratuity for the period from 1st April, 1986 to 23rd May, 2008 was allowed.

The short question, which arises for consideration in this appeal, is whether the High Court (Single Judge/Division Bench) was justified in holding that, the Appellant (employee) was not entitled to claim gratuity from the State for the services rendered by him or in other words, the question arises for consideration is whether the Appellant can be held to have rendered qualified service, i.e., continuous service as specified in Section 2(e) read with Section 2A of the Payment of Gratuity Act, 1972 so as to make him eligible to claim gratuity, as provided under the Act, from the State.

The Appellant has actually rendered the service for a period of 25 years. The State actually regularized his services by passing the order dated 6th May, 2008. Having regularized the services, the Appellant became entitled to claim its benefit for counting the period of 22 years regardless of the post and the capacity on which he worked for 22 years. No provision under the Act was brought to notice which disentitled the Appellant from claiming the gratuity and nor any provision was brought to notice which prohibits the Appellant from taking benefit of his long and continuous period of 22 years of service, which he rendered prior to his regularization for calculating his continuous service of five years.

Once the State regularized the services of the Appellant while he was in State services, the Appellant became entitled to count his total period of service for claiming the gratuity amount subject to his proving continuous service of 5 years as specified under Section 2A of the Act which, in this case, the Appellant has duly proved.

It was indeed the State who took 22 years to regularize the service of the Appellant and went on taking work from the Appellant on payment of a meagre salary of Rs. 2776 per month for 22 long years uninterruptedly and only in the last three years, the State started paying a salary of Rs. 11,107/- per month to the Appellant. Having regularized the services of the Appellant, the State had no justifiable reason to deny the benefit of gratuity to the Appellant which was his statutory right under the Act. It being a welfare legislation meant for the benefit of the employees, who serve their employer for a long time, it is the duty of the State to voluntarily pay the gratuity amount to the Appellant rather than to force the employee to approach the Court to get his genuine claim.

In the case of Firm Kaluram Sitaram v. The Dominion of India, the learned Chief Justice observed that, when the State deals with a citizen it should not ordinarily reply on technicalities, and if the State is satisfied that, the case of the citizen is a just one, even though legal defences may be open to it, it must act, as has been said by eminent Judges, as an honest person.

These observations apply in full force against the State in present case because just case of the Appellant was being opposed by the State on technical grounds. Impugned judgment/order passed by the High Court are set aside and the orders of the Controlling Authority and Appellate Authority are restored with cost of Rs. 25,000 payable by the State to the Appellant. The Respondent-State is directed to release/pay the gratuity amount as determined by the Controlling Authority within three months to the Appellant.

Relevant

Firm Kaluram Sitaram v. The Dominion of India (MANU/MH/0008/1954
): AIR 1954 Bombay 50

Tags : Gratuity Payment Direction

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Customs, Excise and Service Tax Appellate Tribunal

Fast Cargo Movers and Ors. Vs. Commissioner of Customs, Jodhpur

MANU/CE/0141/2018

21.03.2018

Customs

When statute specifically provides for a code of conduct and penalty for infringement thereof, it is not proper to bring such violation within the realm or scope of another statutory provision

Instant appeals are against common impugned order, involving the issue of imposition of penalties for illegal export of Red Sanders, instead of the declared goods as Polished Marble Slabs. The DRI officers gathered intelligence that, the exporter Ritu Corporation, Proprietor exported two containers from ICD, Thar Dry Port, Jodhpur under two shipping bills, both dated 3rd September, 2012, by declaring the goods as Polished Marble Slabs and the said consignments had sailed to the destined Port from Mundra Port. On identification of the said containers, the same were called back to the Mundra Port. On examination, it was found to be sealed with customs seal and shipping line seal. It was further found that, the right side doors in both the containers were tampered with and they were re-fixed with chemicals from inside. The officers found that, the containers were stuffed with huge quantity of Red Sander Logs, which is a prohibited item under the EXIM Policy for export outside the country.

After investigation and recording of statements of different persons, a show cause notice was issued to various persons, including the Appellants herein. By the impugned order, the Adjudicating Authority confiscated the logs of Red Sanders of the seized consignment along with past four exports of Ritu Corporation and also imposed penalties on the proprietor of the exporter, amongst others. In the instant appeals, the adjudicating authority imposed the penalties on the Appellants under Section 114 of the Customs Act, 1962. In addition to the said penalties, further penalty under Section 114AA of the Act was also imposed on the Appellant. Feeling aggrieved with the impugned order, the Appellants have preferred these appeals before the Tribunal.

Section 114 of the Customs Act, 1962 mandates imposition of penalty, in cases, when any person, who in relation to any goods, does or omits to do any act, which renders the goods liable for confiscation. From the observations of the adjudicating authority, it is found that, the charges leveled against the Appellants are basically confined to the fact that, as the custodian, clearing & forwarding agents, shipping line agents and customs house agents in context with the export of alleged goods, the Appellants have grossly neglected their duties and responsibilities cast on them under the Regulations, namely, Handling of Cargo in Customs Area Regulations, 2009 and Customs House Agents Licensing Regulations, 2004. The said regulations provide the procedure for suspension or revocation of license and for imposition of penalty for contravention of the laid down provisions contained therein. In exercise of the powers conferred by the Customs Act, 1962, the CBEC has formulated the said Regulations. When the statute specifically provides for a code of conduct and penalty for infringement thereof, it is not proper and appropriate to bring such violation within the realm or scope of another statutory provision i.e. Section 114 of the Act for punishing the person, by way of imposing penalty, with the allegation of intention to smuggle or attempt to smuggle the goods or abetting such act of smuggling. In other words, anybody can be penalized under Section 114 of the Act, but the authorities are under the statutory obligation to prove that because of the wrong doing, omission or commission on part of such person, the goods became liable for confiscation.

In the present appeals, it is seen that, the allegations against the Appellants are mainly concerned with failure to discharge their duties and responsibilities mandated under various Regulations for dealing with goods in legalized manner. Apparently, there is no material evidence available in records to prove that, the Appellants were either involved in smuggling of the goods, or encouraged and supported the wrong doer in doing the wrongful act in attempting to export the goods. These penal provisions call for prior knowledge of wrong doing or existence of deliberate intend (mala fide). Section 114A of the Act, also provides for imposition of penalty for furnishing incorrect or false declarations. Here also such declaration should be intentional with prior knowledge. Thus, as per the settled principles, penal provisions cannot be invoked for imposition of penalties under Section 114 and 114AA of the Act. There is no substance in the impugned order, in support of imposition of penalties on the Appellants. Accordingly, the appeals are allowed in favour of the Appellants.

Tags : Penalty Imposition Validity

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Central Administrative Tribunal

Prabhakar Kasana Vs. General Manager, Northern Railway and Ors.

MANU/CA/0108/2018

20.03.2018

Service

A process of selection and appointment to a public office should be absolutely transparent and there should be no deviation from terms and conditions

Present Original Application under Section 19 of the Administrative Tribunals Act, 1985, was filed by the Applicant seeking to call for the Records of the case from the Respondents and present Hon'ble Tribunal may graciously be pleased to direct the Respondents to evaluate the answer sheet of the Applicant and if secures marks more than the cut off marks for the OBC category, he should be considered for appointment to any of Group D posts advertised in the said selection. The Applicant made a representation requesting the Respondents to rectify the mistake/anomaly in the result of the written examination and to consider his candidature for selection and appointment on the basis of marks scored by him in the written examination. The Applicant also made another representation in the matter. Thereafter, the present O.A. was filed seeking the reliefs.

It is trite law that, Courts/Tribunals are not invested with the power, authority and jurisdiction to sit in appeal over the decisions taken by the departmental authorities. The Courts/Tribunals, in exercise of power of judicial review, can only examine whether the decision taken by the departmental authorities is vitiated on account of any legal flaw in the decision making process warranting their interference. The Courts/Tribunals can interfere with the decision of the departmental authorities, if it is found that, the authorities have failed to take all relevant factors into consideration, or have taken irrelevant factors into consideration while making the decision, and that the conclusion arrived at by the departmental authorities is perverse, or irrational, or in contravention of any rules.

Admittedly, in the instant case, the candidature of the Applicant has been rejected by the Respondents strictly in accordance with the terms and conditions contained in the employment notice, and his answer sheet has not been evaluated by the Respondents. The terms and conditions contained in the employment notice are sacrosanct and binding on all the candidates as well as the Respondents. The compliance of the terms and conditions contained in the employment notice not only by the candidates but also by the Respondents is mandatory. There is no provision in the employment notice for relaxation of any of the terms and conditions contained in the employment notice. Therefore, the omission and commission on the part of the Applicant could not have legally been ignored by the Respondents.

In terms of paragraph 8.6 of the employment notice, the admission of the Applicant at all stages of recruitment is purely provisional, subject to his satisfying the prescribed conditions. Allowing the Applicant to take the written examination would neither debar the Respondents from rejecting his candidature at a later stage in accordance with the terms and conditions of the employment notice, nor would the same confer any right, much less any enforceable right, to have his answer sheet evaluated by the respondents ignoring the terms and conditions contained in the employment notice.

A process of selection and appointment to a public office should be absolutely transparent, and there should be no deviation from the terms and conditions contained in the Advertisement issued by the recruiting agency during the recruitment process and the rules applicable to the recruitment process in any manner whatsoever, for a deviation in the case of a particular candidate amounts to gross injustice to the other candidates not knowing the fact of deviation benefitting only one or a few. The procedure should be same for all the candidates. Thus, there is no infirmity or illegality in the decision taken by the Respondents rejecting the Applicant's candidature for violation of the terms and conditions contained in the employment notice.

In Bedanga Talukdar vs. Saifuddullah Khan, the Hon'ble Supreme Court has observed that, the selection process has to be conducted strictly in accordance with stipulated selection procedure which needs to be scrupulously maintained. There cannot be any relaxation in terms and conditions of advertisement unless such power is specifically reserved in relevant rules and/or in advertisement. Even where power of relaxation is or is not provided in relevant rules, it must be mentioned in the advertisement. Such power, if exercised, should be given due publicity to ensure that those candidates who become eligible due to relaxation are afforded equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication is contrary to the mandate of equality in Articles 14 and 16 of the Constitution.

In Indu Gupta vs. Director, Sports, Punjab, Chandigarh, the Full Bench of the Hon'ble High Court of Punjab & Haryana has observed that the terms and conditions of the brochure where they use peremptory language cannot be held to be merely declaratory. They have to be and must necessarily to be treated as mandatory. Their compliance would be essential otherwise the basic principle of fairness in competitive examinations would stand frustrated. Vesting of discretion in an individual in such matters to waive or dilute the stipulated conditions would per se introduce the element of discrimination, arbitrariness and unfairness. Such unrestricted discretion in contravention of the terms and conditions would decimate the very intent behind such terms and conditions. The brochure has the force of law and has to be strictly complied with.

Furthermore, in the instant case, as per the scheme of the recruitment examination, the candidates shortlisted on the basis of their performance in the written examination were called to appear for PET. After the PET was conducted, the final result of selection was declared and select list was published. Accordingly, the selected candidates were appointed against the vacancies notified in the employment notice, and the recruitment process was closed. Therefore, the Respondents cannot be faulted for not entertaining the Applicant's representations dated 6th August, 2016 and 15th November, 2016 for evaluation of his answer sheet by reviewing their decision rejecting the applicant's candidature for violation of the terms and conditions of the employment notice. Any intervention by the Tribunal in the matter at this belated stage would not only upset the entire select list, on the basis of which the selected candidates have already been appointed against the vacancies notified in the employment notice, but also adversely affect the rights of those selected candidates, none of whom is a party in the present proceedings. Accordingly, the application is dismissed.

Relevant

Bedanga Talukdar vs. Saifuddullah Khan, MANU/SC/1143/2011
: (2011) 12 SCC 85, Indu Gupta vs. Director, Sports Punjab and Anr. MANU/PH/0225/1999

Tags : Candidature Rejection Validity

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National Consumer Disputes Redressal Commission

Girishchandra V. Bhatt and Ors. Vs. Sterling Hospital

MANU/CF/0224/2018

19.03.2018

Consumer

Onus to prove medical negligence lies largely on the complainant and that this onus can be discharged by leading cogent evidence

In facts of present case, the Complainants' (Nos. 1 & 2) son, met with bike accident. Immediately he was admitted in Sterling Hospital (OP) at Rajkot. He was normal on admission with the exception of fractures. He was fully conscious for first two days without any major problems. All the reports were normal but thereafter his condition worsened and he expired during treatment. Since, the death of deceased had taken place solely due to negligence and carelessness in providing the treatment, the OP is solely responsible for the death of deceased. Therefore, alleging case of medical negligence complaint was filed before the State Commission.

The OP filed a written version and denied all the allegations regarding negligence during the treatment. The injured had suffered multiple bone fractures. The treatment was proper with due care but the death was due to cardio respiratory arrest. The doctors at OP hospital tried every effort to save the injured. On the basis of pleadings and arguments the State Commission dismissed the complaint at admission stage under Section 12(3) read with Section 18 of the Consumer Protection Act, 1986. Being aggrieved the complainant filed the instant appeal before present Commission.

The x-rays showed that, the patient had suffered fracture in the right Knee joint, bilateral superior and inferior Pubic rami. Also, there was a fracture involving bilateral iliac posteriorly and left sacral ala, fracture of right lower margin of the sacrum with displaced fracture segment. The x-ray of Lumbo Sacral spine revealed fracture of right transverse process of L2-L3 vertebrae. As per USG abdomen and pelvis showed there was a clot and mild perivesical hematoma. Therefore, the gravity of injuries can be ascertained on the day of admission. Thus, the submission of the Appellants that, only one fracture injury was there is unsustainable. The OP hospital took reasonable care, which was a standard of care during the emergency. During hospitalisation the patient was administered higher antibiotics also but despite all efforts the patient's condition deteriorated and there was bleeding. The CPK and D-Diamer abnormal values clearly indicative of extensive muscle damage and DIC. Therefore, it was not the negligence on the part of the treating doctor.

The expert witness plays an essential role in determining medical negligence and the Courts by and large rely on expert witness testimony to establish the standards of care germane to a medical negligence case. Generally, the purpose of expert witness is to describe standards of care relevant to a given case, identify any breaches in those standards, and if so noted, render an opinion as to whether those breaches are the most likely cause of injury. The expert witness is given more latitude. The expert witness is allowed to compare the applicable standards of care with the facts of the case and interpret whether the evidence indicates a deviation from the standards of care. The medical expert also provides an opinion (within a reasonable degree of medical certainty) as to whether that breach in care is the most likely cause of the patient's injury. The expert opinion will not carry any value, if it is without the expert's explanation of the range of acceptable treatment modalities within the standard of care and interpretation of medical facts.

The expert opinion in the instant case has failed to explain the elements of medical negligence. It is just a vague. It appears that, the expert is trying to favour the complainant and repeatedly making recommendation to the State Commission "To admit the complaint and decide in the interest of justice"; which is not a duty of an expert. Therefore, the expert opinion is not acceptable one as it has no evidentiary value.

In view if sequence of events and on perusal of the medical record, it is clear that the deceased had suffered multiple fractures and was properly treated on emergency basis at OP hospital. The discharge summary clearly shows the details. The active bleeding and haematoma was treated by transfusion of blood and blood products as needed. The patient was monitored in the ICU during hospitalisation but unfortunately suffered respiratory arrest. The doctors immediately performed intubation and the patient was put on ventilator. The ionotropic drugs were also started but later on the patient suffered cardiac arrest and CPR was given as per ACLS protocol but the patient was dead.

It is settled law that the onus to prove medical negligence lies largely on the complainant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia. The present the Consumer Complaint completely lacks facta probantia and ought to be dismissed on that ground alone. There is no illegality or perversity in the well-reasoned order of the State Commission. Hence, the appeal is dismissed.

Tags : Complaint Medical negligence Proof

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