Supreme Court

Ambi Ram Vs. State of Uttarakhand

MANU/SC/0138/2019

05.02.2019

Criminal

Court is empowered to impose imprisonment of less than one year, if some special reasons in favour of Accused are made out

The Appellant was working as "Kanoongo/Patwari" was prosecuted for commission of the offences punishable under Section 5(2) of the Prevention of Corruption Act, 1947 read with Section 161 of the Indian Penal Code, 1860 (IPC). The charge against the Appellant was that, he assured one Gopal Singh that he would not arrest him nor would implicate him in one pending criminal case, if he pays him Rs. 1200. It was the case of the prosecution that, the Appellant while accepting the illegal gratification of Rs. 1200 from Gopal Singh was caught by S.P. (Vigilance) in a trap arranged for this purpose at the behest of Gopal Singh.

Appellant felt aggrieved by his conviction and sentence and filed an appeal in the High Court. By impugned order, the High Court partly allowed the appeal. The High Court maintained the conviction insofar as it pertains to the offence punishable under Section 5(2) of the PC Act but interfered in quantum of sentence awarded and accordingly reduced the jail sentence from four years to one year and in default of payment of fine to further undergo rigorous imprisonment for three months. So far as the offence punishable Under Section 161 Indian Penal Code is concerned, the High Court upheld the conviction but reduced the sentence from three years to one year. Both the sentences were to run concurrently.

Reading of Section 5(2) of the PC Act shows that, it provides that any public servant, who commits criminal misconduct, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine. The proviso then empowers the Court to impose sentence of imprisonment of less than one year provided any special reasons are recorded in writing in support of imposing such reduce sentence of less than one year.

The Court is empowered to impose a sentence, which may vary from 1 year to 7 years with fine. However, in a particular case, the Court finds that, there are some special reasons in favour of the Accused then the Court is empowered to impose imprisonment of less than one year provided those special reasons are set out in writing in support of imposing sentence less than one year.

The incident is of the year 1985 and case is pending for the last 34 years. The Appellant has now reached to the age of 78 years and was suffering from heart ailment. The Appellant has so far, during the trial and after suffering conviction, undergone total jail sentence of one month and 10 days; he has been on bail throughout for the last 34 years and did not indulge in any criminal activities nor breached any conditions of the bail granted to him. The bribe amount was Rs. 1200 and in the last 34 years, he has suffered immense trauma, mental agony and anguish. These are the special reasons which satisfy the requirements of proviso to Section 5(2) the PC Act.

Present Court, therefore, invoke the powers under proviso to Section 5(2) of the PC Act and accordingly alter the jail sentence imposed on the Appellant by the two Courts below and reduce it to "what is already undergone by the Appellant", i.e., 1 month and 10 days. Present Court alter the jail sentence of the Appellant and award him "what is already undergone by him" and at the same time enhances the fine amount to meet the ends of justice.

Tags : Sentence Modification Special reasons

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Supreme Court

Ritu Bhatia Vs. Ministry of Civil Supplies Consumer Affairs & Public Distribution and Ors.

MANU/SC/0143/2019

05.02.2019

Service

Words used in advertisement should be given a literal meaning and same is to be considered strictly

Present appeal was filed against the impugned judgment and order passed by the High Court by which the Division Bench has dismissed the said appeal and has confirmed the judgment and order passed by the learned Single Judge passed in Writ Petition dismissing the said writ petition by not interfering with the order terminating the services of the Appellant, the original writ Petitioner has preferred the present appeal.

The question which is posed for consideration before present Court is, whether in the facts and circumstances of the case can it be said that the Appellant fulfilled the eligibility criteria mentioned in the advertisement of having experience of five years 'as' a Company Secretary and/or, can it be said that the period during which the Appellant worked as 'Management Trainee' and/or 'Assistant Company Secretary' be considered for treating the Appellant having been appointed 'as' a Company Secretary so as to become eligible for the post of Company Secretary which was advertised.

It can be seen from the relevant appointment orders, and even as per the case of the Appellant that, she was working as Assistant Company Secretary for the period between June 2008 to May 2010 in Utkal Investments Limited and that she was working as Management Trainee in the Delhi Stock Exchange Association Limited for the period between April 2005 to June 2006, and as the Management Trainee in ONGC for the period between May 2003 to June 2004. Her appointment as Management Trainee cannot be equated and/or considered as appointment 'as' a Company Secretary.

The word 'as' used in the advertisement should be given a literal meaning. The Respondent is the author of the advertisement and they are the best person to consider what they meant by using the word 'as'. It is the specific case on behalf of the Respondents that the intention behind the advertisement was that the applicant must have been appointed 'as' a Company Secretary in PSU/Company of repute and functioned as such for five years to be eligible for appointment. When the word 'as' is specifically used, the same is to be considered strictly and therefore the experience of the Appellant, while working as a 'Management Trainee' cannot be considered as an experience of working 'as' a Company Secretary and/or it cannot be said that she was appointed 'as' a Company Secretary.

In the advertisement, it has been specifically and categorically stated that, a candidate shall have post qualification experience of five years 'as' Company Secretary. The word used "experience as Company Secretary" has to be given meaning that a candidate must have been appointed 'as' a Company Secretary and shall have actually worked 'as' a Company Secretary for five years. Giving other meaning would be changing the eligibility criteria as mentioned in the advertisement. The Appellant has no experience of five years 'as' Company Secretary, as she was appointed and/or worked as 'Management Trainee' or 'Assistant Company Secretary'.

In the present case, the word 'as' and the words 'experience as Company Secretary' used in the advertisement are very clear and as observed, it means the candidate ought to be appointed and worked as such 'as' a Company Secretary. As Appellant did not fulfil the eligibility criteria of having five years post qualification experience 'as' Company Secretary as on 30th November, 2013, the services of the Appellant have rightly been terminated. Present appeal is accordingly dismissed.

Tags : Termination Eligibility criteria Validity

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Supreme Court

Bihar State Beverages Corporation Ltd. and Ors. Vs. Naresh Kumar Mishra and Ors.

MANU/SC/0142/2019

05.02.2019

Service

Employee sent on deputation to a foreign service is to be paid higher pay scale then what the employees were getting in parent department

The Appellant Corporation has preferred the present Appeals against judgment passed by the High Court by which the Division Bench has allowed the said Letters Patent Appeals and has set aside the order passed by the learned Single Judge dismissing the said writ petitions and, consequently, allowing the petitions by holding that the respective original Writ Petitioners - Respondents herein, the employees of the Appellant - Bihar State Beverages Corporation Limited are entitled to the 6th Pay Revision, the Appellant Corporation has preferred the present Appeals.

By impugned judgment, the Division Bench of the High Court has directed the Appellant Corporation to grant the benefit of pay scale to the Respondents herein - original Writ Petitioners as per the 6th PRC, as per the decision of the Corporation itself in 2010. By the impugned judgment, the High Court has also quashed and set aside the resolution of the Corporation dated 27th March, 2012, by which it was resolved to pay the salary to the employees of the Corporation as is being paid to the employees working in the parent organizations.

With regard to quashing and setting aside the resolution dated 27th March, 2012 by which the Corporation resolved to pay salary to the employees of the Corporation as is being paid in the parent Board/parent organization is concerned, it is required to be noted that, it is not in dispute that the respective original Writ Petitioners are on deputation from different Boards/Organizations. Therefore, if the resolution dated 27th March, 2012 is permitted to be implemented, in that case, there shall be disparity in the pay scale/salary of the employees of the Corporation doing the same/similar work. There may be different pay scales/salaries in the respective parent organizations. However, when they are working with the Corporation and doing the similar work, they have to be paid the salary which is paid to other employees doing the same/similar work. It is not in dispute that, the employees working on different posts in the Corporation are doing the same/similar work. Therefore, the High Court has rightly applied the 'Principle of Equal Pay for Equal Work' and has rightly quashed the resolution dated 27th March, 2012.

Further, on fair reading of Rule 283(c) and Rule 283(e) of Bihar Travelling Allowance Rules, it can be seen that it is permissible for the foreign service to pay something more than what the employees were getting in the parent department. Therefore, the interpretation on behalf of the Corporation on reading Rule 283 that, the employee sent on deputation to a foreign service has to be paid the same salary/pay scale which he was getting in the parent department, cannot be accepted.

The Division Bench of the High Court has rightly directed the Appellant Corporation to grant the pay scale to the Respondents - original Writ Petitioners as per the 6th PRC. The original Writ Petitioners shall be entitled to the pay scale as recommended by the 6th PRC so long as they work in the Appellant Corporation and as and when and in case they are repatriated to their parent Board/Organization they shall be governed by the pay scales paid to the employees of the concerned parent Board/Organization. Appeal dismissed.

Tags : Resolution Payscale Parity

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High Court of Bombay

Kiranlata Vs. The Divisional Caste Certificate Scrutiny, Committee No. 3, Nagpur Division and Ors.

MANU/MH/0140/2019

04.02.2019

Service

Caste is acquired by birth and the caste does not undergo a change by virtue of marriage and adoption

The Petitioner claims to be belonging to "Mahar" caste, which is included in Scheduled Caste Category. The Petitioner has been appointed as Staff Nurse, at Medical College. Then the Petitioner started working on the same post. Petitioners' caste certificate issued by Executive Magistrate, relating to "Mahar" Caste was referred to the Scrutiny Committee for scrutiny and verification. The Scrutiny Committee after obtaining Vigilance Cell report, observed that, the Petitioner is keeping faith and following traits, and customs of Christian community. Accordingly Committee has invalidated Petitioners' caste claim vide impugned order.

The pre-constitutional document of the year 1943 showing Petitioners grandfather's caste as Mahar (Scheduled Caste), has not been properly appreciated by the Committee. The Committee was influenced by the sole ground that, the petitioner married with Christian and attending Church. There is no evidence that the petitioner embraced Christianity by undergoing Baptism ceremony. Merely because husband of Petitioner belongs to Christian community, that by itself is not sufficient to infer that the Petitioner has abandoned Hindu faith and converted into Christianity.

It is apparent that, the Petitioner's grandfather namely Nago, belongs to "Mahar" Caste which is evident from pre-constitutional entry. It is not in dispute that, Petitioner married to a persons belonging to Christian community. In case of Rajendra Shrivastava .vrs. State of Maharashtra and others MANU/MH/0036/2010
ruled that, a woman who is born into a scheduled caste or scheduled tribe, on marriage with a person belonging to a forward caste, is not automatically transplanted into the caste of husband by virtue of her marriage. The Constitution Bench of the Hon'ble Apex Court in the case of V.V. Giri .vrs. D. Suri Dora ruled that the caste is acquired by birth and the caste does not undergo a change by virtue of marriage and adoption. In view of the said settled position of law, the conclusion drawn by the Committee is totally erroneous.

Petitioner's marriage with a Christian or visiting church or keeping the photograph of Lord Yeshu in house, would not denude her from the original caste to which she belongs. In terms of undisputed pre-constitutional document, the Petitioners original caste is Mahar, therefore, onus lies on the vigilance cell to establish conversion is Christianity, which was not discharged. There is no material to show that, the community has treated Petitioner as Christian or she has undergone the ceremony of baptism. The Scrutiny Committee has overlooked the vital documents of the year 1943. The vigilance cell has not conducted thorough inquiry by recording statement and verifying the things.

The order passed by Respondent no. 1 District Caste Certificate Scrutiny Committee, impugned in present petition was set aside. Petitioner has established her claim for "Mahar" in the List of Scheduled Caste in the State of Maharashtra. Respondent Scrutiny Committee is accordingly, directed to issue validity certificate in her name, within a period of three months from the date of receipt of this order. Petitioner would be entitled to all the benefits of Scheduled Caste.

Relevant

Rajendra Shrivastava v. State of Maharashtra and others MANU/MH/0036/2010
, V.V. Giri v. D. Suri Dora

Tags : Caste claim Certificate Validity

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High Court of Allahabad

Rajesh Kumar Gupta Vs. State of U.P.

MANU/UP/0331/2019

01.02.2019

Criminal

Sole testimony of victim is sufficient to record conviction in offence of rape

Present appeal is preferred against the judgment passed by Additional Sessions Judge, by which learned Trial Judge has convicted and sentenced the accused-appellant under Section 376 of Indian Penal Code, 1860 (IPC) for life imprisonment with a fine and in default of payment of fine, to further undergo two year rigorous imprisonment.

In State of Punjab Vs. Ramdev Singh, Court has expressed grave concern in respect to rape victim and has observed that, sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self esteem and dignity. It degrades and humiliates the victim and where the victim is a helpless innocent minor girl. It leaves behind a traumatic experience, a rapist not only because physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and her chastity.

Further, Court in State of Rajasthan Vs. Om Prakash, has held that sole testimony of victim is sufficient to record conviction. On over all scrutiny of the evidence, it is unimaginable that a minor girl would subject herself to the ignominy and embarrassment in the society by making an allegation of rape on her. A bare reading of the statement of the victim unequivocally indicate that the minor girl has narrated the entire incident truthfully, and if at all, minor discrepancies are here and there, that cannot be held to be any material contradiction in her statement.

Further, no circumstance whatsoever, or otherwise any peculiar situation is pressed or presented before the Court for consideration by the Court for reducing the sentence of the appellant in the present case, where rape has been committed with a minor girl of 11 years of age. The offence is of heinous nature. It is not a crime only against a girl, but it is also an offence against civil society and therefore, our conscious does not permit us to show any sympathy in the matter.

Apart from the trustworthy evidence of the victim herself, there are several circumstances as found by the Trial Court which corroborate the victim's statement and thus it can safely be held that her statement is wholly reliable. The appeal having no substance, is accordingly dismissed. The conviction and sentence awarded to the appellant by learned Trial Judge is affirmed.

Relevant

State of Rajasthan Vs. Om Prakash, MANU/SC/0416/2002
, Punjab Vs. Ramdev Singh MANU/SC/1063/2003

Tags : Conviction Victim Testimony

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High Court of Bombay

Parubai Vithal Kamble and Ors. Vs. Girdharilal Agarwal

MANU/MH/0142/2019

01.02.2019

Tenancy

Payment of rent or monetary consideration are not required to be proved by affirmative evidence as same may have been made secretly in case of sub-tenancy

The Plaintiff instituted suit against the Defendants for recovery of possession, alleging that Defendant No. 1 remained in arrears of rent and other charges from 1st June, 1980. The Plaintiff issued demand notice terminating tenancy of Defendant No. 1 and called upon Defendant No. 1 to comply with the demands made therein. Defendant No. 1 gave reply on 29th January, 1989 and denied the contents of the notice. The Plaintiff instituted the suit alleging that, Defendant No. 1 is a defaulter; Defendant No. 1 had sublet the suit premises to Defendants No. 2 and 3; Defendant No. 1 has made permanent construction in front of the suit premises; Defendant No. 1 has been causing nuisance and annoyance to the Plaintiff and other occupiers and that the Plaintiff requires the suit premises reasonably and bona fide.

The Plaintiff had instituted the suit invoking grounds under Section 12, 13 (1) (e), 13 (1) (b), 13 (1) (c) and 13 (1) (g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. By order, the learned trial Judge dismissed the suit. Aggrieved by that decision, the Plaintiff preferred appeal. By the impugned order, the learned District Judge has allowed the appeal. Question that requires to be examined is whether the Plaintiff has established that, Defendant No. 1 has unlawfully sublet the suit premises to Defendants No. 2 and 3.

In the case of Shama Prashant Raje Vs. Ganpatrao, it was held that two ingredients namely parting with possession and monetary consideration thereof have to be established. The Apex Court also referred decision of Bharat Sales Ltd. Vs. LIC of India, where it was observed that subletting comes into existence when the tenant gives possession of the tenanted accommodation, wholly or in part and puts another person in exclusive possession thereof. In the case of Joginder Singh Sodhi Vs. Amar Kaur, the Apex Court also observed that, since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sublet.

A perusal of the impugned order does not show that the learned District Judge recorded any finding as regards satisfaction of one of the ingredients of unlawful subletting. Before passing decree on the ground of subletting, it is necessary to record a finding to the effect that, third party was found to be in exclusive possession of the rented premises. In the present case, no such finding is recorded by the learned District Judge. In view thereof, the impugned order cannot be sustained and as such is liable to be set aside. The appeal will have to be restored to the file of the learned District Judge. The learned District Judge will consider the evidence on record and record finding on the question of unlawful subletting keeping in mind the principles laid down in the above case. The impugned order is set aside. Civil Appeal is restored to the file of the learned District Judge. Petition allowed.

Relevant

Shama Prashant Raje Vs. Ganpatrao, MANU/SC/0609/2000
, Bharat Sales Ltd. Vs. LIC of India, Joginder Singh Sodhi Vs. Amar Kaur, MANU/SC/0874/2004

Tags : Eviction Suit premises Subletting

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