High Court of Himachal Pradesh

Vijay Singh Machhan Vs. State of Himachal Pradesh and Ors.

MANU/HP/1968/2018

18.12.2018

Civil

Unless act done by previous Government found to be contrary to provisions or against policy, State should not change its stand merely because other political party has come into power

By way of present writ petition, the Petitioner has prayed for quashing of Communication dated 12th March, 2018 (Annexure P-7), vide which, the office of Additional Chief Secretary (Public Works Department), has informed the office of Engineer-in-Chief (Public Works Department) that, the matter regarding construction of new PWD Rest House was reviewed by the Council of Ministers in its meeting held on 26th February, 2018 and the same has been cancelled.

The decision to cancel the construction of Rest House at village Kutara was taken by the Cabinet upon consideration of a Memorandum, which was placed before it specifically for the said purpose. Not only this, the justification for cancellation of Rest House given in the Memorandum is reasonable and not arbitrary, as alleged by the Petitioner. Thus, here it is not a case where the earlier proposal was rejected by the Cabinet without there being any cogent material placed before it. The factum of there being one Circuit House and two Rest Houses in close vicinity is prudent and plausible reason to have had reviewed the proposal of construction of new Rest House.

In State of Tamil Nadu and others Vs. K. Shyam Sunder and others, Hon'ble Supreme Court has held that, unless it is found that act done by the authority earlier in existence is either contrary to statutory provisions, is unreasonable, or is against public interest, the State should not change its stand merely because the other political party has come into power. In Andhra Pradesh Dairy Development Corporation Federation Vs. B. Narasimha Reddy and others, Hon'ble Supreme Court has held that in the matter of the Government of a State, the succeeding Government is duty bound to continue and carry on the unfinished job of the previous Government, for the reason that the action is that of the "State". Hon'ble Court has further held that "Political agenda of an individual or a political party should not be subversive of rule of law" and the Government has to rise above the nexus of vested interest and nepotism, etc. as the principles of governance have to be tested on the touchstone of justice, equity and fair play. The decision must be taken in good faith and must be legitimate.

The Governments are in continuity and simply because there is a Change of Guard, the decisions earlier taken by the Government can be or should be allowed to be undone subsequently in a mechanical manner. The impugned decision of the Government is prudent and reasonable and further it cannot be said that the Government per se does not has any right to review an earlier decision taken by it, simply because there is a Change in Guard. The reasoning, as it emerges from the record, cannot be said to be so unreasonable so as to call for any interference in exercise of its writ jurisdiction by this Court. Present Court, thus, finds no infirmity with the decision taken by the State to review and cancel the construction of proposed Rest House at Kutara. There is no merit in this petition, the same is accordingly dismissed.

Relevant

A.P. Dairy Development Corporation Federation vs. B. Narasimha Reddy and Ors. MANU/SC/1020/2011
; State of Tamil Nadu and Ors. vs. K. Shyam Sunder and Ors. MANU/SC/0911/2011

Tags : Rest House Construction Cancellation

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High Court of Allahabad

Kailash Chandra Gupta Vs. Vinod Kumar Bhatia and Ors.

MANU/UP/4810/2018

17.12.2018

Labour and Industrial

Loss of earning capacity must be determined at 100 percent for entitlement to compensation

Present appeal has been filed challenging the award of the Commissioner. The contention of the Appellant is that, the loss of employment suffered by him should have been treated to be a 100% and not 55% since he was the Driver of the truck and by losing his one arm below the elbow he had suffered a permanent disability. The question in present case is whether the Appellant is entitled to his claim in accordance with the finding not recorded that the injured person has loss his earning capacity upto the extent of 100% because he is no more capable of doing his job which he was performing upto the date of accident.

The Appellant (injured employee) was discharged from service which fact has also been noted by the Claims Commissioner referring to the statement of the truck owner that because the left hand of the driver had been amputated, there was no further requirement of his services. That being so, on these facts the Appellant had completely lost his job since the owner of the vehicle himself declared that there was no further requirement of his services as a result of the injuries suffered by him and that his services had in fact been dispensed with. Therefore, in the case of the present Appellant, there was no question of him being adjusted against an alternative employment.

The Supreme Court in Raj Kumar Vs. Ajay Kumar & Another held that, if the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions and in that event the loss of earning capacity will not be 100 % as in the case of a driver or carpenter.

The judgment of the Supreme Court in the case of Raj Kumar would be squarely applicable to the facts of the present case as in the present case the Appellant has not only suffered amputation of his left hand but his services as driver have been dispensed with and the loss of employment is complete, therefore, in the facts of the present case, the loss of earning capacity of the appellant must be determined at 100%.The impugned award is quashed. The matter is remitted to the Commissioner, Workmen's Compensation Act, Kanpur to re-determine the compensation payable to the appellant. Appeal allowed.

Relevant

Raj Kumar Vs. Ajay Kumar & Another MANU/SC/1018/2010

Tags : Disability Compensation Grant

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High Court of Calcutta

Raghu Hari Dalmia Vs. Reserve Bank of India and Ors.

MANU/WB/1187/2018

17.12.2018

Banking

Writ court cannot sit as an appellate authority over decision taken by competent authority

The present writ petition has been preferred primarily praying for issuance of a writ of or in the nature of Mandamus directing the Respondents to forthwith recall, rescind, withdraw and/or cancel the order dated 20th November, 2018 passed by the Review Committee of the Respondent No. 2 bank declaring the petitioner to be a willful defaulter under the Master Circular published by the Reserve Bank of India on 1st July, 2015.

Indisputably, on the basis of a sanction letter loan was disbursed on 21st May, 2012 and such facility was required to be utilized for setting up of Captive Power Plant (CPP). The said fund had not been utilized for such purpose. The charge quoted in the notice prior to declaration as willful defaulter runs as follows: 'A part of the sanctioned limit was sanctioned for setting up a Captive Power Plant, you availed the disbursement of the said loan, however, subsequently decided not to go ahead with the Captive Power Plant. After insistence by the Consortium members to refund the amount of such availed loan, you stated that the loan was used to fund the cost escalation in other areas of the pellet project, however you have agreed to refund around Rs. 38.50 Crs to the lenders, which has not been paid till date. Hence this is a case of Fund Diversion'

In reply to the said notice it has been stated that, the amount saved on CPP was used to fund the cost escalation towards mechanised raw material handling system and there was a commitment on the part of PMPL towards refund of an amount of Rs. 38 crores. The said amount has not been refunded. A letter dated 20th July, 2015, as referred to in the review committee order, has been produced by Mr. Mitra which clearly shows that the total outstanding was of an amount of Rs. 38.49 crores.

The contents of the decision is to be considered together and not in isolation. A particular clause cannot be taken up and highlighted. For the purpose of setting up CPP, loan was sanctioned in the year 2012. In the replies submitted by the Petitioners, there had been a commitment towards refund of the amount of Rs. 38 crores but the same has been withheld.

It is well settled that, the writ Court cannot sit as an appellate authority over the decision taken by the competent authority. The order impugned does not suffer from any violation of the principles of natural justice. The replies submitted by the Petitioners, were duly considered and a reasoned order has been passed by the Review Committee and it is also not a case that the impugned order has been passed on extraneous consideration. In view thereof, present Court is reluctant to exercise any discretion in favour of the Petitioner and the writ petition is, accordingly, dismissed.

Tags : Willful defaulter Declaration Validity

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High Court of Calcutta

Meghdoot Ghosh Vs. The State of West Bengal and Ors.

MANU/WB/1185/2018

17.12.2018

Commercial

A decision which is merely faulty or erroneous or incorrect should not be a ground for a Court to interfere

The Petitioner has assailed the rejection of his technical bid. The Petitioner has submitted that, not only the rejection of the technical bid of the petitioner was incorrect, but also, the tender evaluation process was not in accordance with the terms and conditions of the tender.

In Afcons Infrastructure Ltd. vs. Nagpur Metro Rail Corporation Ltd. and Ors. it is held that, the decision making process in accepting or rejecting a bid should not be interfered with unless, it is substantiated that, the decision making process suffers from mala fides or is intended to favour someone or is arbitrary or irrational or such that no reasonable authority acting reasonably in accordance with law could have reached such decision. A perversity of the decision making process can be enquired into. A decision which is merely faulty or erroneous or incorrect should not be a ground for a Court to interfere. A Constitutional Court is expected the exercise restraint in interfering with administrative decision and ought not to substitute its view for that of the administrative authority.

The fact that, a different view can be taken on the selfsame material, is not a valid ground for interference for a Constitutional Court with an administrative decision, unless, it is substantiated that, the decision is tainted with fraud or mala fide or the decision is so erroneous that, no reasonable authority could have arrived at such a conclusion.

In the facts of the present case, the Tender Evaluation Committee evaluated the tender documents and did not take into consideration three of the bill of quantity items in one of the works executed by the petitioner and two bill of quantity items in the other. At best, the Tender Evaluation Committee can be said to have erred in not taking into consideration such bill of quantities. There is no material placed on record to suggest that, the impugned decision was taken in order to favour someone or suffers from mala fides. It is the contention of the Petitioner that, the petitioner had quoted the rate which was 20% less than the initial quote of the private Respondent. Moreover, the authorities accepted the bid of the private respondent after a discount of 2%. Ultimately, the exchequer suffered 18% less for not having accepted the bid of the petitioner. That by itself, will not attribute mala fides in the decision making process nor can the decision arrived at by the Technical Evaluation Committee be said to be taken for the purpose of benefitting the private respondent.

The fact that, the financial bid of the Petitioner was less than 20% of the rate quoted by the private respondent was not known to the Technical Evaluation Committee as the financial bid of the Petitioner was not opened while considering the financial bid of the private respondent. Moreover, the Petitioner had time since January 5, 2018 when, the technical bid opening summary was uploaded till January 11, 2018 when the financial bid was opened, for the petitioner to question the decision of the Technical Evaluation Committee in not considering the petitioner as technically qualified. Nothing is placed on record to suggest that, the Petitioner attempted to do so within such time period. In such circumstances, there is no reason to interfere.

Relevant

Afcons Infrastructure Ltd. vs. Nagpur Metro Rail Corporation Ltd. and Ors. MANU/SC/1003/2016

Tags : Technical bid Rejection Validity

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High Court of Patna

Lakshmi Kant Patel Vs. The State of Bihar and Ors.

MANU/BH/2428/2018

17.12.2018

Service

When no order of punishment had been imposed, gratuity by way of punishment cannot be withheld

The present appeal has been preferred against the order, whereby the learned single Judge has declined to pass an order for payment of full gratuity with interest to the Appellant only on the ground of pendency of a criminal case involving disproportionate assets, though in the departmental proceeding the allegation against the Petitioner has not been substantially proved and an order to deduct 10% of pension amount payable to the petitioner has already been passed.

The Petitioner has already been given the punishment of withholding of 10% of pension in the departmental enquiry, which was concluded against the petitioner, vide departmental Enquiry. In the departmental enquiry, charges against the Petitioner of disproportionate income was not established, barring the possession of a Mahindra SUV vehicle, which was omitted to be shown in the return filed by the Petitioner. Thus, even though the charges were not fully established against the Petitioner, he was given the punishment of withholding of 10% of pension under Rule 139 of the Bihar Pension Rules, vide notification contained in Memo No. 9638(S) dated 29th November, 2016 and against such punishment order, the Petitioner has already represented. The learned single Judge has clearly erred in declining the prayer of the Petitioner for payment of gratuity.

Moreover, since there is no question of defalcation of any amount or expected recovery of any amount from the Petitioner, in such circumstances, in the considered opinion of this Court, no amount against the gratuity payable to the Petitioner can be withheld. Furthermore, the criminal proceeding without any charge sheet cannot raise any presumption at this stage that there was enough material against the Petitioner for taking cognizance of the offence, as alleged. Moreover, there is no finding in the departmental proceedings against the Petitioner of having defalcated any amount from the State exchequer or having caused any pecuniary loss to the State.

In view of Rules, particularly Rule 43(b) of the Bihar Pension Rules, Court find that the crux of the Government circular is that whenever there is an expected recovery, those amounts can be withheld awaiting the outcome of the criminal proceedings or the departmental proceedings. In the instant case, there is no finding of guilt by the departmental enquiry officer against the Petitioner, save and except that he had purchased a vehicle on getting loan, which he had failed to disclose in his assets for which the petitioner has suffered withholding of 10% of the pension amount and thus, in the above background, there appears to be no justification to withhold gratuity as well.

The order of the learned single Judge, so far as it relates to the withholding of the gratuity, cannot be upheld and is, accordingly, set aside to the said extent. The amount of gratuity payable to the Petitioner is directed to be released forthwith along with interest payable on the same from the date the said amount became payable to the date of payment. The appeal is accordingly allowed.

Tags : Gratuity Payment Direction

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High Court of Jammu and Kashmir

Shafiq Ahmad Shah Vs. State of J&K and Ors.

MANU/JK/1200/2018

14.12.2018

Property

No allotment of evacuee property shall be made unless applications by public notifications are invited from general public

Petitioner is aggrieved of and seeks quashment of Order passed by Custodian General, J & K, Srinagar (Respondent No. 2), leasing out evacuee land measuring in favour of Shabir Ahmad Itoo and Abdul Basit Dar (Respondents 9 & 10). He also seeks quashment of lease agreement dated 28th November 2016, lease deed as also NOCs. A direction is also sought in the name of Respondents to issue public notice for making fresh allotment of the land in question and to allot the same to highest bidder in public auction and Respondents 5 & 6 not to allow Respondents 7 to 10 to make any construction on land in question.

Allotment of government property is akin to distribution of largesse and the same cannot be allotted/distributed otherwise than by following the procedure, which is in consonance with provisions of Article 14. Custodian, Evacuee Property, is a statutory authority created under the Act of 2006 and is enjoined to preserve, protect and better utilise evacuee property and therefore is enjoined a public duty. It cannot act arbitrarily and deal with property of evacuee as if he is himself an owner of said property, having all rights of disposition/alienation.

It is true that, there is no specific provision in the Act or Rules framed thereunder, providing for mode and manner in which the evacuee property, having commercial potential, is to be allotted. Order No. LB/7-C of 1958 dated 5th June 1958, however, lays down elaborate procedure for allotment of the evacuee agriculture land in favour of certain persons. A careful perusal of LB/7-C of 1958 would make it manifest that allotment to be made under said Rules cannot be done arbitrarily and provides a detailed procedure for such allotment, which is in consonance with Article 14 of the Constitution of India.

Instant case is not an isolated case of arbitrary and illegal allotment made by Custodian/Custodian General, but the department of Custodian/Custodian General has been indulging in such arbitrary allotments of evacuee property in the same manner with impunity. In the absence of specific Rules framed by the Government, regulating such allotments, the department of Custodian General has free run and is indulging in the practices, which are not countenanced by law. The property of evacuees, worth crores of rupees, has been squandered in this manner.

Till a legislation/rules are framed by the Government pertaining to allotment of urban immovable evacuee properties including residential house(s) of evacuees, it would be incumbent upon Custodian to allot available properties/urban properties of evacuee(s) by adopting a fair and rational procedure, which is in consonance with Article 14 of the Constitution. No allotment of evacuee property shall be made unless applications by public notifications are invited from general public and applications, so received, dealt with in rational manner by adopting fair criteria/yardstick for selecting a person for allotment of such properties.

Impugned order cannot sustain. Consequently, order impugned, which is passed by Custodian General in violation of provisions of the Act of 2006 and Rules thereunder and is otherwise abhorrent to Article 14 of the Constitution of India, is quashed. Impugned order quashed; as a consequence, lease agreement dated 28th November 2016, between Respondents 9 & 10 and Custodian Evacuee Property, Kashmir, shall stand quashed;

Tags : Evacuee land Allotment Validity

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