Supreme Court

JK Jute Mill Mazdoor Morcha Vs. Juggilal Kamlapat Jute Mills Company Ltd. and Ors.

MANU/SC/0626/2019

30.04.2019

Labour and Industrial

A registered trade union can maintain a petition as an operational creditor on behalf of its members

The present appeal raises an important question as to whether a trade union could be said to be an operational creditor for the purpose of the Insolvency and Bankruptcy Code, 2016. The facts of the present case reveal a long-drawn saga of a jute mill being closed and reopened several times until finally, it has been closed for good on 7th March, 2014. Proceedings were pending under the Sick Industrial Companies (Special Provisions) Act, 1985. On 14th March, 2017, the Appellant issued a demand notice on behalf of roughly 3000 workers under Section 8 of the Code for outstanding dues of workers. This was replied to by Respondent No. 1.

The National Company Law Tribunal [NCLT] held that, a trade union not being covered as an operational creditor, the petition would have to be dismissed. By the impugned order, the National Company Law Appellate Tribunal [NCLAT] did likewise and dismissed the appeal filed by the Appellant, stating that each worker may file an individual application before the NCLT.

A trade union is certainly an entity established under a statute-namely, the Trade Unions Act, and would therefore fall within the definition of "person" Under Sections 3(23) of the Code. This being so, it is clear that an "operational debt", meaning a claim in respect of employment, could certainly be made by a person duly authorised to make such claim on behalf of a workman.

Rule 6, Form 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 also recognises the fact that claims may be made not only in an individual capacity, but also conjointly. Further, a registered trade union recognised by Section 8 of the Trade Unions Act, makes it clear that it can sue and be sued as a body corporate Under Section 13 of that Act.

Equally, the general fund of the trade union, which inter alia is from collections from workmen who are its members, can certainly be spent on the conduct of disputes involving a member or members thereof or for the prosecution of a legal proceeding to which the trade union is a party, and which is undertaken for the purpose of protecting the rights arising out of the relation of its members with their employer, which would include wages and other sums due from the employer to workmen.

A registered trade union which is formed for the purpose of regulating the relations between workmen and their employer can maintain a petition as an operational creditor on behalf of its members.

The NCLAT, by the impugned judgment, is not correct in refusing to go into whether the trade union would come within the definition of "person" under Section 3(23) of the Code. Equally, the NCLAT is not correct in stating that a trade union would not be an operational creditor as no services are rendered by the trade union to the corporate debtor.

The trade union represents its members who are workers, to whom dues may be owed by the employer, which are certainly debts owed for services rendered by each individual workman, who are collectively represented by the trade union. Equally, to state that for each workman there will be a separate cause of action, a separate claim, and a separate date of default would ignore the fact that, a joint petition could be filed under Rule 6 read with Form 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, with authority from several workmen to one of them to file such petition on behalf of all.

The appeal is allowed and the judgment of the NCLAT is set aside. The matter is now remanded to the NCLAT who will decide the appeal on merits expeditiously as this matter has been pending for quite some time.

Tags : Operational creditor Trade union Representation

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Supreme Court

Rajbir Surajbhan Singh Vs. The Chairman, Institute of Banking Personnel Selection, Mumbai

MANU/SC/0619/2019

29.04.2019

Service

Writ Petition is not maintainable as Respondent is not a creature of a statute and there are no statutory duties or obligations imposed on the Respondent

In facts of present case, an advertisement was issued by the Respondent inviting applications for appointment to posts of clerical cadre (Clerk-III) in Public Sector Banks. The Appellant participated in a Common Written Examination (CWE) and secured 110 marks out of 200. He was called for an interview by the Respondent. During the interview, he submitted a caste certificate dated 28th October, 2010, issued by the Naib Tehsildar, which shows that he belongs to Ahir community, which is recognized as Other Backward Class (OBC) as per the Resolutions of the Ministry of Welfare, Government of India. Another caste certificate was issued in the prescribed format to the Appellant by the Naib Tehsildar, declaring him as an OBC candidate belonging to Ahir community and that he does not belong to the 'creamy layer'.

The results were announced and the Appellant was informed that, his candidature for the examination has been cancelled as he could not produce the required certificate at the time of the interview. As per the advertisement, the candidates belonging to OBC category were required to produce a certificate issued during the period 1st April, 2013 and 31st March, 2015.

The Appellant filed a Writ Petition challenging the proceeding by which he was disqualified from the selection process, for appointment to the post of Clerk, which was dismissed by the High Court as not maintainable. The High Court was of the view that, the Respondent was not a State within the meaning of Article 12 of the Constitution of India and there was no public function that was discharged by the Respondent. On said grounds, the High Court opined that, the Respondent is not amenable to writ jurisdiction of the High Court under Article 226 of the Constitution of India.

It is true that, the Governor of the Reserve Bank of India and the Chairmen of certain Public Sector Banks along with the Joint Secretary, Banking Division, Ministry of Finance are members of the governing body of the Respondent-Institute. There is no dispute that, the Respondent is not constituted under a statute. It is also not disputed that, the Respondent does not receive any funds from the Government. The Respondent is not controlled by the Government. A control which is merely regulatory under the statute or otherwise would not make the body 'State' under Article 12. As there is no control by the Government over the Respondent, the Respondent cannot be said to be falling within the expression 'State' under Article 12 of the Constitution of India.

In K.K. Saksena, present Court observed that, the Respondent therein would not be amenable to Writ jurisdiction under Article 226 of the Constitution of India, as the activities were voluntarily undertaken by the Respondents and there was no obligation to discharge certain activities which were statutory or of public character.

The Respondent-Institute has been set up for the purpose of conducting recruitment for appointment to various posts in Public Sector Banks and other financial institutions. The High Court is right in holding that, the Writ Petition is not maintainable against the Respondent. Conducting recruitment tests for appointment in banking and other financial institutions, is not a public duty. The Respondent is not a creature of a statute and there are no statutory duties or obligations imposed on the Respondent.

As the activity of the Respondent of conducting the selection process for appointment to the banks is voluntary in nature, it cannot be said that there is any public function discharged by the Respondent. There is no positive obligation, either statutory or otherwise on the Respondent to conduct the recruitment tests. The Respondent is not amenable to the Writ Jurisdiction under Article 32 or Article 226 of the Constitution of India. The appeal is dismissed.

Relevant

K.K. Saksena v. International Commission on Irrigation & Drainage MANU/SC/1213/2014

Tags : Selection process Disqualification Legality

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High Court of Delhi

State (NCT of Delhi) Vs. Jitender Sharma

MANU/DE/1458/2019

29.04.2019

Criminal

When two views are possible, the Appellate Court should not reverse a judgment of acquittal, merely because another view was possible

The State has instituted the present petition seeking grant of leave to assail the judgment in Session Case arising out of FIR under Sections 376 of Indian Penal Code, 1860, read with sections 4 of Protection of Children from Sexual Offences Act, 2012 (POCSO) registered at Police Station, whereby the Respondent was acquitted of the charges. The gravamen of the charge, for which the Appellant has been convicted, is for having committed rape upon his own daughter/the prosecutrix, a girl aged about 13 years, at the time of commission of the offence.

The first issue that needs determination is, as to whether the prosecution has been able to establish the date of birth of the victim, so as to bring home the guilt of the accused under the ambit of the provisions of the POCSO Act. The second issue is as to whether the testimony of the victim can be said to be creditworthy and reliable.

It is an admitted position that, the IO (PW-15) has proved on record the date of birth certificate issued by Municipal Corporation of Delhi qua victim M. As per the certificate, the date of birth of victim M is 27th December, 1999. The prosecution has therefore proved that, the victim was a minor at the time of commission of the alleged sexual assault, by the accused.

The learned Trial Court, after examining the material evidence on record and in particular the testimony of the victim found that, there were substantial material improvements in the statement of victim M, i.e. PW-4, which have the effect of rendering her testimony highly unreliable.

Further, the Forensic Science Laboratory (FSL) result is not conclusive. In the instant case, the statement of the prosecutrix is shaky, inconsistent and cannot be relied upon in addition to the incident itself being reported 6 months after the alleged commission of the crime. In the present case, on a cumulative reading and appreciation of the entire evidence on record, the evidence of the prosecution is unworthy of acceptance, since the same is found to be replete with infirmities and not supported by the medical evidence on record.

When two views are possible, the appellate Court should not reverse a judgment of acquittal, merely because another view was possible. Where two views are reasonably possible from the very same evidence, the prosecution cannot said to have prove its case beyond reasonable doubt. If the High Court on reappraisal of the evidence considers the possibility of another view being reasonably be plausible, then the view which favours the accused should be adopted unless the High Court returns a definite conclusion that the findings recorded by the trial court are perverse and against the weight of the evidence on record.

There are no substantial and compelling reasons to differ with the findings arrived at by the learned trial Court, based upon just appreciation of the material evidence available on record in the case. There is no ground to interfere with the impugned judgment. The leave petition is accordingly dismissed.

Tags : Acquittal Evidence Credibility

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Supreme Court

Sadayappan Vs. State

MANU/SC/0611/2019

26.04.2019

Criminal

Witness cannot be said to be an "interested" witness merely by virtue of being a relative of victim

Present appeal is directed against the judgment passed by the High Court whereby the Division Bench of the High Court dismissed the appeal preferred by the Appellant herein and upheld his conviction and sentence passed by the Trial Court for the offence punishable under Section 302 read with Section 34 of Indian Penal Code, 1860 (IPC).

After an elaborate trial, the Trial Judge opined that, the circumstantial evidence correlates with the Accused and clearly proves that owing to prior enmity, A1 and A2, in furtherance of their common intention, committed the murder of the deceased with a gun shot from the unauthorized gun owned by Accused-Appellant. The Trial Court thereby found both the Accused guilty and accordingly convicted the Appellant herein under Section 302 read with Section 34 of IPC. Both the Accused preferred an appeal before the High Court which was dismissed vide order. The appeal of the A1 stood abated owing to his death during its pendency. Thus, present Court is concerned with appeal preferred by A2.

Criminal law jurisprudence makes a clear distinction between a related and interested witness. A witness cannot be said to be an "interested" witness merely by virtue of being a relative of the victim. The witness may be called "interested" only when he or she derives some benefit from the result of a litigation in the decree in a civil case, or in seeing an Accused person punished.

In the case at hand, witnesses maybe related but they cannot be labelled as interested witnesses. A scrutiny of their testimonies which has stood the rigour of cross-examination corroborates the prosecution story.

From corroborative statements of witnesses, it is discernible that though they are related to each other and to the deceased as well, their evidence cannot be discarded by simply labelling them as "interested" witnesses. There is no direct or indirect interest of these witnesses to get the Accused punished by falsely implicating him so as to meet out any vested interest. The evidences of PWs 1, 2, 3, 4 and 6 are quite reliable and we see no reason to disbelieve them.

With respect to forensic evidence, PW12, who conducted post mortem on the body of the deceased, found prominent injures on the body of the deceased. The post mortem report and chemical analysis report confirms the gun shot and proves that the gun powder discovered on the body and clothes of the deceased was the residue of the gun. The ownership of this gun (MO1), which was discovered on the basis of his extra-judicial confession, has not been disputed by the Appellant in his statement.

Thus, the High Court was justified in upholding the conviction of the Appellant and did not commit any illegality in passing the impugned judgment which merits interference. Therefore, the appeal being devoid of merit stands dismissed.

Tags : Conviction Evidence Credibility

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High Court of Jammu and Kashmir

Mohd. Riaz Vs. Zubir Ahmed and Ors.

MANU/JK/0233/2019

26.04.2019

Property

Matter which essentially involves disputes of civil nature should not be allowed to be subject matter of a criminal offence

Through the instant petition filed under Section 561-A of Code of Criminal Procedure, 1973 (CrPC), Petitioner seeks quashment of complaint filed by Respondent No. 1 under Sections 166, 167, 467, 468 and 471 of Ranbir Penal Code (RPC) before the learned Judicial Magistrate 1st Class and also quashment of the order passed by the learned Judicial Magistrate 1st Class, by virtue of which process has been issued against the Petitioner and Respondent Nos. 2 to 6, herein.

According to facts and circumstances of the case, it is evident that, a civil suit regarding land under dispute and other lands was pending between private parties before Sub Judge Rajouri, where Respondent no. 1/complainant was also a party; in that suit already compromise was effected which has been attested by Notary and decree was passed.

The allegations made in the present complaint, even if taken as it is, do not make out ingredients of the criminal offence. At the most, they may attract civil dispute; case is thus predominantly of civil nature and which has been given the robe of criminal offence that too, after availing civil remedies. If the matter, which is essentially of a civil nature, has been given a cloak of criminal offence, the JMIC should be very careful in issuance of process.

Criminal proceedings are not a short cut of other remedies available in law. Before issuing process, a criminal Court has to exercise a great deal of caution, because calling a person to stand trial in criminal proceeding is a serious matter. When the disputes are of civil nature and finally adjudicated by the competent authority, as in the present case, by civil Court then, it is apparent that, complainant wants to manipulate and misuse the process of Court.

Section 561-A of CrPC serves a salutary purpose that a person should not undergo harassment litigation, even though, no case has been made out against him. A matter which essentially involves disputes of civil nature, should not be allowed to be subject matter of a criminal offence, the latter being a shortcut of putting pressure for settling the civil dispute. The power under Section 561-A of CrPC entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed.

In the case of G. Sagar Suri Vs. State of U.P., it is observed that, ''It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process, a criminal court has to exercise a great deal of caution. For the accused, it is a serious matter."

Admittedly, a civil suit was filed and a decree was obtained by parties on the basis of compromise duly executed between them. Viewed from any angle, one cannot escape the conclusion that, the dispute is of civil nature and the ingredients of Sections 166, 167, 467, 468 and 471 of RPC are not made out. Accordingly, this petition is allowed. Consequently, complaint filed by Respondent No. 1 are quashed.

Relevant

G. Sagar Suri & Anr. vs. State of U.P. & Ors. MANU/SC/0045/2000

Tags : Proceedings Quashment Civil dispute

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Supreme Court

Shree Shree Ram Janki Ji Asthan Tapovan Mandir and Ors. Vs. The State of Jharkhand and Ors.

MANU/SC/0642/2019

01.05.2019

Trusts and Societies

Court can exercise its constitutional powers for transferring an investigation from State investigating agency to any other independent investigating agency only in exceptional circumstances

The present appeal is directed against an order passed by the High Court directing the Central Bureau of Investigation to investigate and to take appropriate action at the earliest and conclude the investigations preferably within six months. The High Court held that, land of the deity could not have been transferred in any case. This large scale illegality needs to be enquired into.

The said directions were issued finding that, the property of Deity Shree Shree Ram Janki Ji Asthan Tapowan Mandir at Ranchi has been transferred against the mandate of the Trust Deed created by the author of the Trust to establish. The said Trust was reconstituted on 12th May, 1987 by virtue of registered deed. Still further, by another deed dated 20th September, 2005, there was again reconstitution of the Trust. The question as to whether the High Court could direct CBI to take over investigation in the facts of the present case needs to be examined.

The vesting of the property in Deity is a religious endowment but has no public element in it, the grievance of which can be made in a writ petition filed in the public interest. The High Court should have refrained from entertaining such Public Interest Litigation in respect of alleged wrongful sale of property of the religious bodies.

Section 44 of the Bihar Hindu Religious Trusts Act, 1950 gives power of transfer of immovable property of a religious trust after taking previous sanction from the Board. Such permission is to convert any property of the Trust after approval of the District Judge as provided by Section 28 (j) of the Act. The stand of the Appellants is that, they have obtained approval as contemplated by the Act and such approval has been sought as an act of prudent management. Therefore, the High Court was not justified in creating a suspicion on an act of transferring the land of the Deity.

The Constitution Bench in its judgment reported as State of West Bengal and Ors. v. Committee for Protection of Democratic Rights, West Bengal and Ors., has examined the question as to the rights of CBI to investigate a criminal offence in a State without its consent. This Court examined Entry 2 of List II of VII Schedule of the Constitution. The legislative power of the Union to provide for the regular police force of one State to exercise power and jurisdiction in any area outside the State can only be exercised with the consent of the Government of that particular State in which such area is situated. The Court held that, though the Court had wide powers conferred by Articles 32 and 226 of the Constitution, but it must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations.

In case of K.V. Rajendran v. Superintendent of Police, CBCID South Zone, Chennai and Ors., it was held that, the Court could exercise its constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency only in rare and exceptional circumstances.

The finding recorded by the High Court that the Deity could not transfer its land in any case is not tenable. The functioning in the Government is by different Officers and the working of the Executive has inbuilt checks and balances. Therefore, merely because, permission has been granted by a functionary of the State Government will not disclose a criminal offence. The High Court has thus travelled much beyond its jurisdiction in directing investigations by CBI in a matter of sale of property of the Deity. Still further, the High Court has issued directions without their being any complaint to the local police in respect of the property of the religious Trust.

The High Court has completely misdirected itself in directing the Central Bureau of Investigation to take over investigation in a matter which relates to the rights of the trustees to sell property of a religious Trust or Deity, giving rise to civil dispute. The appeal is allowed. The order of the High Court is set aside.

Relevant

K.V. Rajendran v. Superintendent of Police, CBCID South Zone, Chennai and Ors. MANU/SC/0842/2013
, State of West Bengal and Ors. v. Committee for Protection of Democratic Rights, West Bengal and Ors. MANU/SC/0121/1990

Tags : Investigations CBI Direction

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