7 January 2019


Judgments

Supreme Court

Management of the Barara Cooperative Marketing-cum-Processing Society Ltd. Vs. Pratap Singh

MANU/SC/0001/2019

02.01.2019

Labour and Industrial

Regularization by management gives no right to retrenched employee to claim re-employment

Present appeal is directed against the final judgment passed by the High Court whereby the Division Bench of 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 Respondent herein was ordered to be reinstated into service with back wages.

There was no case made out by the Respondent (workman) seeking re-employment in the Appellant's services on the basis of Section 25(H) of the Industrial Disputes Act, 1947 (ID Act). In the first place, the Respondent having accepted the compensation awarded to him in lieu of his right of reinstatement in service, the said issue had finally come to an end; and Second, Section 25(H) of the ID Act had no application to the case at hand.

In order to attract the provisions of Section 25(H) of the ID Act, it must be proved by the workman that firstly, he was the "retrenched employee" and secondly, his ex-employer has decided to fill up the vacancies in their set up and, therefore, he is entitled to claim preference over those persons, who have applied against such vacancies for a job while seeking re-employment in the services.

The case at hand is a case where the Respondent's termination was held illegal and, in consequence thereof, he was awarded lump sum compensation of Rs. 12,500 in full and final satisfaction. The Respondent also accepted the compensation. This was, therefore, not a case of a retrenchment of the Respondent from service as contemplated under Section 25(H) of the ID Act. The Respondent was not entitled to invoke the provisions of Section 25(H) of the ID Act and seek re-employment by citing the case of another employee (Peon) who was already in employment and whose services were only regularized by the Appellant on the basis of his service record in terms of the Rules.

The regularization of an employee already in service does not give any right to retrenched employee so as to enable him to invoke Section 25(H) of the ID Act for claiming re-employment in the services. The reason is that, by such act the employer does not offer any fresh employment to any person to fill any vacancy in their set up but they simply regularize the services of an employee already in service. Such act does not amount to filling any vacancy.

There lies a distinction between the expression 'employment' and 'regularization of the service". The expression 'employment' signifies a fresh employment to fill the vacancies whereas the expression 'regularization of the service' signifies that the employee, who is already in service, his services are regularized as per service Regulations. The Labour Court was, therefore, justified in answering the reference in Appellant's favour and against the Respondent. The appeal is accordingly allowed. Impugned order is set aside and the award of the Labour Court is restored.

Tags : Reinstatement Back wages Validity

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High Court of Himachal Pradesh

Mahesh Kumar Vs. Rai Singh and Ors.

MANU/HP/0001/2019

01.01.2019

Banking

If cheque amount with assessed cost and interest has been paid, proceedings can be closed even in absence of complainant

The complainant/Respondent No. 1 instituted a complaint under Section 138 of the Negotiable Instruments Act, 1881 ('Act') against the Petitioner on the allegations that, a cheque of Rs. 65,000 handed over by the Petitioner to Respondent No. 1 in order to discharge his liability had been dishonoured. The complaint was decided in favour of Respondent No. 1 by the learned trial Magistrate and the Petitioner was sentenced to undergo simple imprisonment for one month and also directed to pay compensation of Rs. 70,000 to the complainant/Respondent No. 1.

Aggrieved by the judgment of conviction and sentence passed by the learned trial Magistrate, though the Petitioner preferred an appeal before the learned Additional Sessions Judge-, the same came to be dismissed vide judgment constraining the Petitioner to file the instant revision petition. The moot question is whether a compromise, at this stage, can be permitted to be effected between the parties where the Petitioner has been charged under Section 138 of the Act.

Present Court is not powerless in such situation and adequate powers have been conferred upon it not only under sections 397 read with Section 401 or Section 482 of Code of Criminal Procedure, 1973 (CrPC) but also under Section 147 of the Act for accepting the settlement entered into between the parties and to quash the proceedings arising out of the proceedings, which have consequently culminated into a settlement. This power has been conferred to subserve the ends of justice or/and to prevent abuse of the process of any Court. Though, such power is required to be exercised with circumspection and in cases which do not involve heinous and serious offence of mental depravity or offences like murder, rape, dacoity etc.

In a recent judgment of the Hon'ble Supreme Court in Meters and Instruments Private Limited and another versus Kanchan Mehta wherein after taking into consideration the object of introducing Section 138 and other provisions of Chapter XVII in the Act in the year 1988, it was observed that, Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof is "preponderance of probabilities". The same has to be normally tried summarily as per provisions of summary trial under the CrPC but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 of CrPC will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect.

It is evident from the aforesaid judgment of Supreme Court in Meters and Instruments Private Limited and another versus Kanchan Mehta, this Court after being satisfied that the cheque amount with the assessed cost and interest has been paid, can close the proceedings even in absence of the complainant.

Since, the Petitioner has not only deposited the entire compensation amount, but has also deposited an additional amount of Rs. 20,000 therefore, quashing of the complaint initiated at the instance of complainant/Respondent No. 1 would be a step towards securing the ends of justice and to prevent abuse of process of the Court, especially, when the Petitioner is facing pangs and suffered agony of protracted trial and thereafter appeal/revision for the last more than 5 years and has paid the entire compensation amount.

The impugned substantive sentence of simple imprisonment imposed in this case shall stand modified and substituted in lieu of the compensation amount of Rs. 70,000 and an additional amount of Rs. 20,000 that stands already deposited by the Petitioner before this Court and learned Trial Court. Petition disposed off.

Relevant

Meters and Instruments Private Limited and another versus Kanchan Mehta MANU/SC/1256/2017

Tags : Proceedings Cheque Dishonour Compounding thereof

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High Court of Himachal Pradesh

Bharat Singh Vs. Union of India and Ors.

MANU/HP/2028/2018

27.12.2018

Service

Transfer is an incidence of service. Petitioner, being a member of para-military forces, cannot be permitted to agitate against his posting

The Petitioner is an Assistant Sub Inspector in Sashatra Seema Bal. He was posted at TTC Kasumpti (Shimla). Vide order dated 26th October, 2018, the Petitioner has been ordered to be transferred to 8th Battalion Sashatra Seema Bal at Khaprail (West Bengal).

The Petitioner had submitted a representation to the Deputy Inspector General (Personnel), Force Headquarters SSB, New Delhi (Annexure P-10) requesting for deferment of transfer order for six months on the ground that his wife is suffering from Chronic Mental Disorder for the last thirteen years and is under treatment in Ram Manohar Lohia Hospital, New Delhi and Indira Gandhi Medical College & Hospital at Shimla but the said representation has been turned down by the Authority and the Petitioner has been directed to be relieved by 31st December, 2018. The aggrieved Petitioner has approached this Court.

Transfer is an incidence of service and the Petitioner, being a member of the disciplined Para Military Forces, can hardly be permitted to agitate against his posting anywhere throughout the country. At the same time, it appears expedient if the Authorities can sympathetically consider the mitigating circumstances highlighted by the petitioner, namely, the serious ailment of his wife, for the limited purpose of the place of posting, may be near to Delhi or Shimla, where his wife is stated to be undergoing treatment.

While it is for the Authorities to take a final call, the writ petition is disposed of with liberty to the petitioner to submit a fresh representation within two days to the Director General, Sashatra Seema Bal, Head Office New Delhi, which may be put up before the said Authority for sympathetic consideration within one week.

Tags : Transfer Deferment Denial

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High Court of Himachal Pradesh

Narain Tiwari Vs. State of H.P.

MANU/HP/2024/2018

26.12.2018

Criminal

Standard of proof requires proof that it was accused alone who had committed offence

In instant matter, the learned Trial Court after recording evidence and evaluating the same convicted the Petitioner under Sections 279, 337 and 338 of the Indian Penal Code, 1860 (IPC) and Section 181 of the Motor Vehicle Act. Aggrieved by the aforesaid judgment of conviction and sentence, the Petitioner filed an appeal before the learned Sessions Judge, however, the same was dismissed constraining the Petitioner to file the instant revision petition.

The revisionary jurisdiction of this Court under Section 397 of Code of Criminal Procedure, 1973 (CrPC) is extremely limited and this Court would only interfere in case the Petitioners have been convicted and sentenced without examining the material placed on record with a view to ascertain that, the judgments so rendered by the learned Courts below are not perverse and are based on the correct appreciation of evidence on record. This Court would definitely interfere in case it comes to the conclusion that there is a failure of justice and misuse of judicial mechanism or procedure or where the sentence awarded is not correct.

However, it was on the basis of the statement of the accused under Section 313 of CrPC that, he has been ordered to be convicted whereas it is more than settled that, the statement of accused under Section 313 of CrPC cannot be the sole basis for convicting the accused. Though, said statement can be used to lend assurance to the other evidence adduced by the prosecution.

Evidently, from the testimonies of witnesses especially that of the complainant while appearing as P.W. 1 and that of P.W. 2 Faruq Khan, it is absolutely clear that not only they did not support the case of the prosecution but they further did not even identify the vehicle or its driver.

Thus, it is evident that the prosecution has failed to prove its case beyond reasonable doubt. The Court has to keep in mind that the standard of proof required in a criminal case is that it has to be proved beyond reasonable doubt that it was the accused alone who had committed the offence. Therefore, in the given circumstances and on the basis of the aforesaid discussion, it can conveniently be held that the findings recorded by the learned Sessions Judge are also perverse and, therefore, cannot be upheld. The judgments of conviction and sentence as passed by the learned Courts below are ordered to be set aside and the Petitioner is honourably acquitted. Petition allowed.

Tags : Conviction Legality Standard of proof

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High Court of Jammu and Kashmir

Aadil Qayoom Najar Vs. State of J&K and Ors.

MANU/JK/1244/2018

26.12.2018

Criminal

Failure on part of detaining authority to supply the material renders detention order illegal

Challenge in present petition is to the order passed by District Magistrate, Srinagar-Respondent No. 2 herein in exercise of vested in him under Section 8 of the J&K Public Safety Act, whereby Shri Aadil Qayoom Najar (detenue), has been taken into preventive custody so as to prevent him from acting in any manner prejudicial to the maintenance of security of the State.

Learned counsel for the Petitioner projected various grounds while seeking quashment of the order impugned but the star ground is that the detenue has been disabled from making an effective representation by not supplying the material forming base of the grounds of detention and the consequent order of detention and further added that the detenue has also been disabled from making an effective representation by not supplying him the translated copies of the ground of detention which are in English language besides being in a hyper technical language which the detenue is not in a position to understand.

Involvement of the detenue in the criminal cases, appears to have heavily weighed with the detaining authority while passing the detention order. Nothing has been brought on record to indicate that the copies of aforementioned FIRs, statements recorded under Section 161 of Code of Criminal Procedure, 1973(CrPC) and other material collected during investigation has been provided to the detenue. Rather the record produced by the respondents corroborates the fact that the material relied on by the detaining authority and transmitted to him by the concerned sponsoring agency has not been furnished to the detenue. The detenue cannot be expected to make an effective and purposeful representation which is his constitutional and statutory right guaranteed under Article 22(5) of the Constitution of India, unless and until the material on which detention is based, is supplied to the detenue. The failure on the part of detaining authority to supply the material renders detention order illegal and unsustainable.

The Hon'ble Apex Court in "Sophia Ghulam Mohd. Bham V. State of Maharashtra and others” observed that, the right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenue to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenue and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language.

In view of the law laid down by the Hon'ble Apex Court, the impugned order does not sustain. The petition is allowed. Impugned order is quashed. Further, custody of the detenue shall be governed in accordance with the orders as shall be passed by the Court of competent jurisdiction in the criminal cases registered against him.

Tags : Detention Quashment Grant

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High Court of Himachal Pradesh

Maja Personal Care Vs. Commissioner of Central Excise, Chandigarh

MANU/HP/2033/2018

21.12.2018

Excise

Assessee seeking benefit of exemption must always prove its admissibility

The facts as revealed from the order passed by the Tribunal, are that with a view to avail exemption from payment of Central Excise under the Notification No. 50/03-CE, : MANU/EXCT/0046/2003
dated 10th June, 2003 as a new Manufacturing Unit set up after 7th January, 2003, the Assessee in its Declaration had mentioned the goods falling under 'Sub-Head 3004', namely, 'beauty or make-up preparations and preparations for the care of skin', which are non-specific. The Adjudicating Authority declined the benefit of exemption under the aforesaid Notification, but on appeal, the Commissioner (Appeals) held that it was a case of eligibility for exemption under the Notification dated 10th June, 2003 of the goods manufactured and removed from the factory. The Commissioner (Appeals), however, declined exemption on 'After-Shave Lotion' which fell under 'Sub-Head 3307'.

Aggrieved by the order of Commissioner (Appeals) granting relief in part, both sides went in appeal before the Tribunal, which vide its order held that, in its Declaration, the Assessee had given description(s) of goods specified under 'Sub-Head 3004' which were to be manufactured by the assessee and thus, the Commissioner (Appeals) rightly allowed the exemption, for those goods were not mentioned in the 'Negative List' of the Notification.

As regard to the appellant's claim to declare that they are also manufacturing exempted goods like 'Creams' under heading 3304.10.00, 'After-Shave Lotion' under Heading 3307.10.90, 'Paste' under heading 3306.10.20, 'Shaving Cream' under Heading 3307.10.10 and 'Kali Mehandi' under Heading 3305.10.90, the Tribunal found as a matter of fact that neither any Declaration was received from the assessee in the Office of Assistant Commissioner, Shimla in respect thereto nor any evidence of receiving such Declaration was produced. The Appellant thereafter filed Review Application. The Tribunal nonetheless was not convinced with the aforesaid factual plea and dismissed the appellant's Review Application. Issue raised in present case is whether the instant appeal raises a substantial question of law for adjudication by this Court.

Whether the Appellant filed the 2nd Declaration on '13th April, 2005' or on '13th May, 2005', is purely a question of fact. An Exemption Notification ought to be construed strictly and the burden of proving its applicability lies on the assessee so as to establish that its case falls within the parameters of the exemption clause. Whosoever therefore seeks the benefit of exemption must always prove its admissibility. The Appellant was obliged to establish that it had actually applied for the benefit of exemption under the Notification dated 10.th June, 2003 through 2nd Declaration filed on 13th April, 2005 or that such a Declaration was available in the office of Assistant Commissioner, Central Excise. The appellant has miserably failed to discharge such onus.

Such like disputes are essentially questions of fact and cannot be treated as substantial question of law for the purpose of maintainability of this appeal. It is well settled that "substantial question of law" would mean--of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with---technical, of no substance or consequence, or academic merely. In any view of the matter, whether a party fairly disclosed the facts or suppressed or gave selective information, too are surely questions of fact and per se does not give rise to substantial question of law. The appeal is accordingly dismissed.

Tags : Exemption Denial Validity

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