Supreme Court

E. Sivakumar Vs. Union of India (UOI) and Ors.

MANU/SC/0591/2018

18.05.2018

Criminal

Petition, if genuine and raises a reasonable apprehension of likelihood of bias in dispensation of criminal justice system, cannot be brushed aside on allegation of political vendetta

Present special leave petition takes exception to the judgment of the High Court, whereby the High Court has issued a writ of mandamus to transfer the investigation of a criminal case concerning the illegal manufacture and sale of Gutkha and Pan Masala, containing Tobacco and/or Nicotine, to the Central Bureau of Investigation ("CBI"). The Petitioner has been named as an Accused in the FIR because of his alleged involvement in the crime under investigation. The Petitioner at the relevant time was posted on deputation as Food Safety Officer in the Food Safety and Drug Administration Department, Ministry of Health. The stated crime was being investigated by the State Vigilance Commission, constituted by the State of Tamil Nadu, headed by a Vigilance Commissioner.

For instilling confidence in the minds of the victims as well as public at large, the High Court predicated that it was but necessary to entrust the investigation of such a crime to CBI. There is no infirmity in the conclusion reached by the High Court in the impugned judgment, for having entrusted the investigation to CBI. A person who is named as an Accused in the FIR, who otherwise has no right to be heard at the stage of investigation or to have an opportunity of hearing as a matter of course, cannot be heard to say that the direction issued to transfer the investigation to CBI is a nullity.

In the peculiar facts of the present case, the High Court has justly transferred the investigation to CBI after due consideration of all the relevant aspects, which approach is consistent with the settled legal position expounded in the decisions adverted to in the impugned judgment, including the decision in Subrata Chattoraj v. Union of India and Ors., which predicates that, transfer of investigation to CBI does not depend on the inadequacy of inquiry/investigation carried out by the State police.

Submission that, the High Court should have been loath to entertain a public interest litigation at instance of Respondent No. 14, who happens to be a member of the Legislative Assembly in the State of Tamil Nadu or that he had pro-actively participated in raising the issue in the Assembly, has also been answered in the impugned judgment. The Court, while entertaining public interest litigation at the instance of Respondent No. 14, has relied upon the dictum in K. Anbazhagan v. Superintendent of Police and Ors., wherein it is observed that, the political opponents play an important role both inside and outside the House and are the watchdogs of the Government in power. They are the mouthpiece to ventilate the grievances of the public at large, if genuinely and unbiasedly projected. A petition filed by such persons (such as Respondent No. 14) cannot be brushed aside on the allegation of political vendetta, if otherwise, it is genuine and raises a reasonable apprehension of likelihood of bias in the dispensation of criminal justice system. Petition dismissed.

Relevant

Subrata Chattoraj v. Union of India and Ors., MANU/SC/0453/2014
: (2014) 8 SCC 768, K. Anbazhagan v. Superintendent of Police and Ors., MANU/SC/0930/2003
: (2004) 3 SCC 767

Tags : Investigation Transfer Validity

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High Court of Calcutta

The Kolkata Municipal Corporation and Ors. Vs. The Union of India and Ors.

MANU/WB/0350/2018

18.05.2018

Labour and Industrial

Pure question of law can be urged at any point of time before any forum provided it does not require any further adjudication of any disputed fact

The Petitioners have primarily challenged the Notification, dated January 8, 2011, issued by the Ministry of Labour and Employment applying the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 to the municipal councils and municipal corporations constituted under Article 243Q (1)(b) and (c) of the Constitution of India and employing 20 or more persons. The principal thrust of the petitioners is that, till the publication of the notification the Act was not applicable to Kolkata Municipal Corporation (Corporation) in view of Section 16 of the Act. The Corporation maintains a schedule of posts which includes the designation and number of posts under each designation of officers and employees constituting the establishment of the Corporation. The Corporation mainly discharges civic services to the municipal area of Kolkata including supply of water, sewerage and drainage, solid waste management, construction and maintenance of streets, so on and so forth. It also discharges other duties as provided in the Kolkata Municipal Corporation Act.

In order to claim exclusion for an establishment from the operation of the Act under Section 16(1)(c) of Employees Provident Funds And Miscellaneous Provisions Act, 1952, two conditions have to be fulfilled, viz., i) it must be set up under any Central, Provincial or State Act and ii) whose employees are entitled to the benefits of contributory provident fund or old age pension in accordance with any Scheme or Rule framed under that Act governing such benefits. The Corporation does not fulfill the first requirement. It cannot be said that, it is an establishment which has been set up under any Central, Provincial or State Act. It has certainly been constituted by a State Act, namely, Kolkata Municipal Corporation Act, but not set up under the same.

There is always a subtle difference between an establishment being constituted by an Act and set up under an Act. In the present case the earlier Kolkata Municipal Act or the present Kolkata Municipal Corporation Act constituted the Corporation, but it is not an establishment which has been set up under the Act. The legal meaning attached to the word "under" is either 'pursuant to' or 'in terms of'. It can never be said that, the Corporation was either set up pursuant to or in terms of the Kolkata Municipal Corporation Act. The Corporation has been constituted by that Act. There is no scope for granting exclusion to the Corporation under Section 16(1)(c) of the Act as it does not satisfy the criteria for such exclusion.

However, the second point taken by the Petitioners merits a favourable consideration. The impugned notification by which the Act has been sought to be applied to the Corporation specifically says that, in exercise of the powers conferred by Section 1(3)(b) of the Act, the Central Government has specified the municipal councils and municipal corporations constituted under Article 243Q (1)(b) &(c) of the Constitution of India as the class of establishments to which said Act shall apply with effect from the date of publication of the notification in the official gazette. Thus, the class of establishments to which the Act shall apply in terms of the said notification are those which have been or shall be constituted by Article 243Q (1)(b)&(c) of the Constitution of India, and not otherwise.

The present notification seeking to apply the provision of the Act to the municipal councils and municipal corporations constituted under Article 243Q of the Constitution of India, as mentioned in the notification, has no manner of application to the present Corporation. Thus, it cannot be said that, by the impugned notification, the Act has been made applicable to the Corporation.

A Court can also take into cognizance legal issues arising out of the factual conspectus of the case without necessarily requiring the parties to plead the same separately. Even without a formal pleading, a point of law can be taken into cognizance and adjudicated upon by a Court if no denial on fact is necessary. A party is not only entitled to rely on a point of law, he can also take it even before the highest court for the first time. A pure question of law can be urged at any point of time before any forum provided it does not require any further adjudication of any disputed fact.

The Court is satisfied that the Notification cannot be made applicable to the Corporation for the same not being constituted under Article 243Q of the Constitution of India. Refusal to consider this point of law on the technical ground of pleading would have the undesirable effect of driving the Petitioners to a separate litigation which can never be the object of any adjudication. Consequently, all the steps taken by the provident fund authorities pursuant to the Notification are declared to be not sustainable in law and are set aside. The provident fund authorities are directed not to take any further step in connection with the proceeding initiated against the Corporation. The writ petition is allowed.

Tags : Publication Notification Applicability

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Supreme Court

Amrit Paul Singh and Ors. Vs. TATA AIG General Insurance Co. Ltd. and Ors.

MANU/SC/0582/2018

17.05.2018

Motor Vehicles

Use of a vehicle in a public place without a permit is a fundamental statutory infraction

The legal representatives of the deceased, preferred a claim petition before the Tribunal claiming compensation to the tune of Rs. 36,00,000. The claim petition was filed on basis that, on 19th February, 2013, deceased was travelling to Pathankot on his motor cycle and at that juncture, the offending truck bearing temporary registration belonging to the Appellant No. 2 driven in a rash and negligent manner hit the motor cycle of the deceased as a result of which he sustained multiple injuries, and eventually, succumbed to the same when being taken to the hospital.

The tribunal noted that, the vehicle was purchased in September 2012 and insured on 20th December, 2012. It was registered on 26th December, 2013. The accident occurred on 19th February, 2013. The Tribunal, placing reliance on the decision rendered by present Court in National Insurance Co. Ltd. v. Challa Bharathamma and Ors., held that, the insurer was not liable and proceeded to quantify the amount of compensation and determined the same at Rs. 15,63,120. The tribunal directed the amount to be paid by the insurer along with interest at the rate of 9% from the date of award till its realisation and recover the same from the owner and driver of the vehicle. A further direction was given for attachment of the truck in question till the award was satisfied. The award passed by the tribunal was confirmed by the High Court.

In present case, the findings would show that, the Appellant No. 2 did not have a permit for the vehicle. There is no dispute that, the vehicle initially had a temporary registration and eventually the permanent registration. A distinction has to be made between "route permit" and "permit" in the context of Section 149 of the Motor Vehicles Act, 1988. Section 149(2) of the Act, provides the grounds that can be taken as defence by the insurer. It enables the insurer to defend on the ground that, there has been breach of a specific condition of the policy, namely, (i) a condition that excludes the use of the vehicle,-(a) for hire or reward, where the vehicle is, on the date of the contract of insurance, a vehicle not covered by a permit to ply for hire or reward, or (b) for organized racing and speed testing, or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or (d) without side-car being attached where the vehicle is a motor cycle. That apart, it also entitles the insurer to raise the issue pertaining to a condition that excludes driving by a named person or persons or by any person who is not duly licensed or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification or that excludes liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion. A further defence that can be availed of by the insurer is that the policy is void on the ground that, it has been obtained by non-disclosure of the material fact or by representation of act which is false in the material particular.

From the written statement filed by the owner and the driver, it is evident that, the factum of accident having been caused by the vehicle in question had been denied. That apart, there is also a denial of liability that, relates to the manner in which the accident had occurred as alleged in the claim petition. It was the specific assertion of the insurer before the Tribunal that, the vehicle was running in contravention of the provisions of the Act, for it did not possess a route permit.

In present case, it is clearly demonstrable from the materials brought on record that, the vehicle at the time of the accident did not have a permit. The insurer had taken the plea that, the vehicle in question had no permit. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that, he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that, the insurer shall be entitled to recover the same from the owner and the driver. Appeal dismissed.

Tags : Award Compensation Liability

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Supreme Court

The Kerala Assistant Public Prosecutors Association Vs. The State of Kerala and Ors.

MANU/SC/0578/2018

17.05.2018

Service

Same nature of duties and functions of Assistant Public Prosecutors and Public Prosecutors per se, cannot be the basis to claim parity

The Appellant Association has assailed the judgment passed by the High Court, whereby the High Court rejected the claim for grant of parity to Assistant Public Prosecutors, in the matter of retirement age, with Public Prosecutors in the State. According to the Appellant, Assistant Public Prosecutors are appointed to the Magistrate Court to conduct prosecutions as per Section 25 of the Code of Criminal Procedure, 1973 (CrPC). The Public Prosecutors are also appointed to conduct prosecutions in the Sessions Court under Section 24 of the CrPC. The nature of duties, functions and powers of both Assistant Public Prosecutors and Public Prosecutors are similar. The Public Prosecutors as well as the Assistant Public Prosecutors act as officers of the Court, when appearing in Court and both have an important role in the criminal justice system. The Appellant claims that, Assistant Public Prosecutors are also entitled to be treated at par with Public Prosecutors and other officers whose age of superannuation is specified at 60 years.

The High Court rightly opined that, the method of appointment and conditions of service of Assistant Public Prosecutors and Public Prosecutors are qualitatively different. Assistant Public Prosecutors are appointed through a competitive selection process conducted by the Kerala Public Service Commission as per the Rules in vogue. After appointment, Assistant Public Prosecutors are entitled to all service benefits as are enjoyed by the other government employees without any exception. Public Prosecutors, however, are appointed from a panel of advocates furnished by the Advocate General and the term of appointment of Public Prosecutors is for a period of 3 years only. They are not considered as government employees and do not derive any service benefits as in the case of government employees. They can even be terminated by the Government at any time before the expiry of normal term of appointment, without assigning any reason. The Government is also free to re-appoint any person appointed as Public Prosecutor for a further period subject to eligibility. The fact that the nature of duties and functions of Assistant Public Prosecutors and Public Prosecutors are similar, per se, cannot be the basis to claim parity with Public Prosecutors in respect of age of superannuation.

The fact that Assistant Public Prosecutors are considered as officers of the Court as in the case of Public Prosecutors, can be no basis to equate them with the judicial officers whose method of appointment and conditions of service are distinct. The issue on hand cannot be decided merely on the basis of comparison of the nature of duties and functions of Public Prosecutors and Assistant Public Prosecutors.

As regards the disparity in the age of superannuation of the Assistant Public Prosecutors appointed on or before 31st March, 2013 and those who joined on or after 1st April, 2013, the said contention is also devoid of merits as the conditions of service of the concerned set of Assistant Public Prosecutors is distinct. In that, those appointed on or before 31st March, 2013 are governed by the statutory pension scheme under the Service Rules as in the case of other government employees; and those appointed on or after 1st April, 2013 are governed by the new Contributory Pension Scheme made applicable to all the government employees and not limited to Assistant Public Prosecutors. Assistant Public Prosecutors are only a small Section of the genre of State Government employees-be it appointed prior to 31st March, 2013 or on or after 1st April, 2013, either governed by statutory Pension Scheme or the new Contributory Pension Scheme, as the case may be. The cut-off date of 1st April, 2013 for introducing the new Contributory Pension Scheme by the State Government is not the subject matter of challenge in the present case. Appeal dismissed.

Tags : Retirement age Parity Grant

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Supreme Court

The Authorised Officer, State Bank of India Vs. Allwyn Alloys Pvt. Ltd. and Ors.

MANU/SC/0581/2018

17.05.2018

Banking

No Civil Court can exercise jurisdiction to entertain any suit or proceeding in respect of any matter which a DRT or DRAT is empowered

The judgment of the High Court is assailed in instant appeal, whereby the High Court without formally setting aside the order passed by the Debts Recovery Appellate Tribunal, disposed of the writ petition with liberty to Respondent Nos. 5 & 6 (writ Petitioners) to approach the competent forum for adjudication of their right, title and interest in respect of a flat/apartment, on the Second Floor of Blue Heaven Apartment, which was mortgaged to the Appellant Bank by the directors of Respondent No. 1 Company by way of an equitable mortgage.

Bank has assailed the aforesaid decision of the High Court primarily on the ground that, all issues concerning the mortgaged/secured property are required to be decided only by the DRT; and not in any civil proceedings as has been observed by the High Court in the impugned judgment. For, filing of a civil suit in respect of secured assets is barred by law. Secondly, the DRT as well as DRAT have examined the merits of the controversy and justly answered the same against the writ Petitioners. The concurrent finding of fact recorded by the said Tribunals is that, the writ Petitioners have failed to establish any right, title or interest in the subject flat. That finding has neither been disturbed nor is it assailable. According to the Bank, the High Court judgment under appeal is untenable and deserves to be set aside.

The mandate of Section 13 and, in particular, Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, clearly bars filing of a civil suit. For, no civil Court can exercise jurisdiction to entertain any suit or proceeding in respect of any matter which a DRT or DRAT is empowered by or under this Act to determine and no injunction can be granted by any Court or authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act.

The fact that the stated flat is the subject matter of a registered sale deed executed by the Respondent Nos. 5 and 6 (Writ Petitioners) in favour of Respondent Nos. 2 to 4 and which sale deed has been deposited with the Bank along with the share certificate and other documents for creating an equitable mortgage and the Bank has initiated action in that behalf under the 2002 Act, is indisputable. If so, the question of permitting the Respondent Nos. 5 and 6 (writ Petitioners) to approach any other forum for adjudication of issues raised by them concerning the right, title and interest in relation to the said property, cannot be countenanced. The High Court has not analysed the efficacy of the concurrent finding of fact recorded by the DRT and DRAT but opined that the same involved factual issues warranting production of evidence and a full-fledged trial. The approach of the High Court is completely fallacious and untenable in law. Present Court deemed it appropriate to relegate the parties before the High Court by setting aside the impugned judgment and leaving all questions open, to be decided by the High Court on its own merits and in accordance with law. Appeal allowed.

Tags : Civil court Jurisdiction Bar

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Central Administrative Tribunal

Brahmprakash Sharma Vs. Union of India and Ors.

MANU/CA/0208/2018

16.05.2018

Service

Selection process has to be conducted strictly in accordance with stipulated selection procedure which needs to be scrupulously maintained

In facts of present case, the notice of Combined Graduate Level Examination, 2014 ('CGLE-2014'), issued by the Respondent-Staff Selection Commission ('SSC'), was published in the Employment News/Rozgar Samachar, inviting applications from eligible persons for recruitment to different posts in various Ministries/Departments/Organizations. The Applicant responded to the notice of CGLE-2014 and applied as an UR candidate for selection and recruitment. Based on the final result of CGLE-2014, the Respondent-SSC selected the applicant for the post of Inspector (Examiner) under Post Code M and nominated him to the Central Board of Excise & Customs, New Delhi. Physical Test, Medical Test, and Document Verification were conducted by the office of Principal Commissioner of Customs (General). Thereafter, he came to know over phone from the office of Principal Commissioner of Customs (General), Mumbai, that he did not acquire the essential qualification on or before 1st January, 2014 as per the notice of CGLE-2014 issued by the Respondent-SSC.

Thereafter, the Applicant made various representations requesting the Respondents and other authorities to reckon '1st August, 2014', instead of 1st January, 2014, as the cut-off date for reckoning the essential qualification prescribed for the CGLE-2014 and, accordingly, to give him appointment on the post of Inspector (Examiner), for which he was duly selected and nominated by the respondent-SSC. There being no response, the Applicant filed the present application seeking the reliefs.

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 employment notice/Advertisement issued by the recruiting agency, as well as from 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. In Bedanga Talukdar vs. Saifuddullah Khan, the Supreme Court has observed that, the selection process has to be conducted strictly in accordance with the stipulated selection procedure which needs to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the employment notice/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 of the conditions stipulated in the employment notice/advertisement without due publication is contrary to the mandate of equality in Articles 14 and 16 of the Constitution of India. In the instant case, acceptation of the applicant's plea for changing the crucial date for reckoning the essential qualification in his case would amount to directing the Respondents to act contrary to the terms and conditions contained in the notice of CGLE-2014. The Tribunal is required to enforce the rule of law, and not to issue a direction which is contrary to what has been injected by law. Therefore, the Respondents cannot be said to have acted arbitrarily and unreasonably in not acceding to the Applicant's claim to change the crucial date for reckoning his essential qualification.

The Applicant was fully aware about the crucial date '1st January, 2014' for reckoning the essential qualifications stipulated in the notice of CGLE-2014, when he applied for selection and recruitment. He admittedly acquired the essential qualification (B.A. degree) only on 5th March, 2014, i.e., subsequent to the crucial date stipulated in the notice of CGLE-2014. Therefore, he was wholly ineligible to apply for selection. The selection and nomination made by the Respondent-SSC in favour of the Applicant for appointment to the post of Inspector (Examiner) under CBEC on the basis of wrong particulars furnished by the Applicant at all stages of selection process about his possessing the essential qualification as on the crucial date, would not confer on the Applicant any right, much less an enforceable right, to claim change in the crucial date stipulated in the notice of CGLE 2014 or to claim appointment on the basis of the said selection and nomination.

If the Applicant felt that the fixation of crucial date '1st January, 2014' for reckoning the essential qualification was bad and illegal, he could have challenged the notice of CGLE-2014 before competent forum at the appropriate time. The applicant not having done so, and having applied for selection in response to the notice of CGLE-2014 by misrepresenting the fact of his having possessed the essential qualification as on the cut-off date '1st January, 2014', is estopped from questioning any of the terms and conditions stipulated in the notice of CGLE-2014 after it was detected by the Respondent-CBEC during verification of documents that, he was ineligible to apply for selection and recruitment pursuant to the notice of CGLE-2014 due to his not possessing the essential qualification as on the crucial date, i.e., 1st January, 2014. Application dismissed.

Relevant

Bedanga Talukdar vs. Saifuddullah Khan, MANU/SC/1143/2011
: (2011) 12 SCC 85

Tags : Recruitment Selection Grant

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