Judgments
Central Administrative Tribunal
Anil Kumar Tiwari Vs. Union of India and Ors.
MANU/CA/0220/2019
10.05.2019
Service
Mere show-cause notice or charge-sheet does not infringe the right of anyone, a writ petition lies when some right of any party is infringed
Present Original Application has been filed challenging the legality, validity and propriety of charge-sheet. The Applicant is also aggrieved by an order whereby he was placed under suspension. The order of suspension challenged in present Original Application has already been revoked by the Respondents during the pendency of this Original Application. Now, the question which remains for determination in this Original Application is whether at this stage, the charge sheet can be quashed.
In the matters of Union of India Vs. Kunisetty Satyanarayana, Supreme Court has held that, a mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is well settled that, a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
In the instant case, the Applicant had already submitted his reply to the charge sheet and after holding full-fledged enquiry the disciplinary authority has already passed the penalty order. The Applicant had also preferred an appeal against the said punishment order, which was also rejected vide order. The Applicant has also filed a separate Original Application against the aforesaid order of punishment and the appellate order, which is pending for consideration. The applicant has failed to point out any infirmity in issuing the charge sheet. Therefore, there is no ground to quash the impugned charge sheet.
The order of suspension has already been revoked by the Respondents and the Applicant has been reinstated in service vide order dated 16th December, 2014. Therefore, the relief sought for by the applicant for revocation of suspension has already been granted by the Respondents. Original Application dismissed.
Relevant
Union of India (UOI) and Anr. vs. Kunisetty Satyanarayana MANU/SC/5137/2006
Tags : Chargesheet Quashing of Entitlement
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Competition Commission of India
Anil Rathi Vs.Oriental Insurance Company Limited
MANU/CO/0015/2019
10.05.2019
MRTP/ Competition Laws
When Opposite Party is not dominant in relevant market, there is no need to examine allegations of unfair trade practice
The present information has been filed by Mr. Anil Rathi (Informant) under Section 19(1)(a) of the Competition Act, 2002 alleging abuse of dominant position by Oriental Insurance Company Limited (OP) under Section 4 of the Act. The Informant has alleged that, the conduct of the functionaries of OP is not only deficiency in service but also the manner in which the claim of the Informant was repudiated, is a case of unfair trade practice. Furthermore, the Informant has alleged that acts of the OP reflect abuse of dominant position, under the provisions of Section 4 of the Act.
The Commission observes that, the present matter pertains to non-life/general insurance sector, wherein non-life insurance products are sold by general insurance companies, which are approved by the Insurance Regulatory and Development Authority, to sell such products.
The Commission notes that the Informant is primarily aggrieved by the manner and ground on which the insurance claim was repudiated by the OP. The Commission also notes that, the Informant has alleged that, the conduct of the OP falls foul of the provisions of Section 4 of the Act. Under the scheme of the Act, the Commission, only after having found an enterprise or a group, as the case may be, to be dominant in a relevant market, would, then, examine the impugned conduct of the entity against which allegations have been levied as to whether the same results in abuse of dominant position.
The Commission notes that the OP is engaged in selling non-life insurance products, which is a commercial activity covered under provision of services. Thus, the OP squarely falls within the definition of enterprise. The relevant market in the instant matter is the 'market for provision of fire insurance services in India'. The Commission notes that in terms of explanation (a) to Section 4 of the Act, dominant position means "a position of strength, enjoyed by an enterprise, in the relevant market, in India, which enables it to: (i) operate independently of competitive forces prevailing in the relevant market; or (ii) affect its competitors or consumers or the relevant market in its favour".
From information available in the public domain, the Commission notes that, the market for general insurance/non-life insurance is competitive with presence of about 25 general insurers and that, all these non-life insurance companies offer fire insurance policies. Furthermore, the Commission also notes that, in terms of gross premium income for non-life insurers (public sector and private sector), OP had a market share of about 9.5% in the year 2016-17, which declined to about 8.6% in 2017-18. In terms of gross premium earned from fire segment of non-life insurance, the OP enjoyed a market share of about 10.1% during 2016-17, which declined to about 8.6% during 2017-18. Thus, on the basis of market share, it can be concluded that the OP is not in a position of dominance in the relevant market delineated.
There is no material on record to show that, the OP operates independently of competitive forces prevailing in the relevant market or that it affects its competitors or consumers or the relevant market in its favour. The Commission is of the opinion that, there exists no case of contravention of the provision of Section 4 of the Act and accordingly, the matter is ordered to be closed forthwith in terms of the provisions of Section 26(2) of the Act.
Tags : Dominant position Contravention Provisions
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Supreme Court
Lal Bahadur Gautam Vs. State of U.P. and Ors.
MANU/SC/0755/2019
08.05.2019
Service
Termination shall not take effect unless approved by Vice-Chancellor
In facts of present case, the Appellant, a lecturer in a private unaided college affiliated to the Chaudhary Charan Singh University (CCS University), Meerut under the Uttar Pradesh State Universities Act, 1973 assails his termination as being contrary to the provisions of the Act. Learned Counsel for the Appellant submits that the termination was in violation of Section 35(2) of the Act as no prior approval had been taken.
The High Court held that, merely because of affiliation to the CCS University, the writ petition was not maintainable against a private unaided college. The order is cryptic, non-speaking and devoid of any consideration of the statutory provisions of the Act. The effect and consequences of the order of the Vice-Chancellor has also not been considered.
The Respondent College terminated the services of the Appellant by a non-speaking order with immediate effect. The Appellant approached the Vice-Chancellor who after hearing the college, held that prior approval not having been obtained under Section 35(2) of the Act read with Rule No. 16.06 of the University Regulations, the termination was bad and set it aside. But, because there were serious allegations of financial misappropriation, liberty was granted to the management to hold departmental proceedings. The management accepted the order and initiated departmental proceedings culminating in a fresh order of termination. The fresh order of termination was again in violation of the provisions of the Act and the Regulations of the CCS University.
Section 35(2) of the Act provides that, every teacher in an affiliated or associated college (other than a college maintained exclusively by the State Government) shall be appointed under a written contract which shall contain such terms and conditions as may be prescribed. The contract shall be lodged with the University and a copy thereof shall be given to the teacher concerned, and another copy thereof shall be retained by the college concerned. Every decision of the Management of such college to dismiss or remove a teacher or to reduce him in rank or to punish him in any other manner shall before it is communicated to him, be reported to the Vice-Chancellor and shall not take effect unless it has been approved by the Vice-Chancellor.
The College being affiliated to the University was bound by the provisions of the Act with its attendant consequences for noncompliance. The college having accepted the order of the Vice-Chancellor and acted upon the same by holding departmental proceedings cannot urge that, it is bound by one part of the order and not the other. It cannot have the benefit of the order without complying with its obligations under the order.
A bare reading of the statutory provision makes it manifest that, prior approval of the Vice-Chancellor was mandatory before termination of the Appellant. The order of termination dated 24.04.2017 being in teeth of Section 35(2) of the Act is patently unsustainable.
The termination is in teeth of the provisions of the Act, it is set aside. The Appellant is held entitled to reinstatement. The Respondent management is not precluded from proceeding afresh in accordance with law from the stage of irregularity. The appeal stands disposed of.
Tags : Termination Prior approval Vice-chancellor
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State Consumer Disputes Redressal Commission
Sunita Kumar and Ors. Vs. St. Stephen's Hospital
MANU/QI/0004/2019
08.05.2019
Consumer
Onus of proving medical negligence and resultant deficiency in service is on complainant
Present complaint has been filed before this Commission under Section 17 of the Consumer Protection Act 1986 by Smt. Sunita Kumar and another, resident of Delhi, complainant, alleging deficiency of service in the matter of administering treatment to them. The Appellant prayed that, Respondent hospital be directed to pay the complainants Rs. 15 lacs for the treatment of the child and Rs. 72 lacs. for keeping two trained maids/nurses to take care of the child. Further, to direct the Respondents to pay the compensation to the tune of Rs. 10 lacs against their negligence unfair trade practice and deficiency which caused mental and physically harassment/agony/wastage of time/financial loss.
Short question for adjudication in this complaint is whether the allegation of negligence as against the OPs in the matter of treating the patient during the delivery, made out as argued by the ld. Counsel for the complainant and if so whether the complainant is entitled for the relief claimed.
The expert opinion has found the course of action by the OP Hospital and doctors in order which means no infirmity. It is trite law that, in the matter of negligence as is the case, the only point of consideration would be to examine if the treating doctor was sufficiently qualified to administer the treatment and, secondly, when the doctor was sufficiently competent whether while administering the treatment he has observed due and necessary and precaution and thirdly whether timely steps for treating the patient were taken. On these accounts, the OP Hospital, keeping in view the facts and circumstances cannot be faulted with since in the given case as per records immediate course of action was taken by the OP Hospital.
The National Commission in the case of Calcutta Medicare Research Institute v. Bimalesh Chatterjee and Ors. ruled that "the onus of proving medical negligence and resultant deficiency in service was clearly on the complainant which in the given case remains unsubstantiated.
No averment in substance has been made by the complainant that the action of the OPs in administering the treatment suffers from any infirmity or their decision to this effect is coupled with any mala fide. If that be the case the allegation of negligence as against the OPs in this behalf cannot be substantiated. The Hon'ble Apex Court in the matter of Achutrao Haribhan Khodwa and Ors. vs. State of Maharastra and Ors. is pleased to observe that, in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action on torts would be maintainable. If the doctor has taken proper precaution and despite that if the patient does not survive then the Court should be very slow in attributing negligence on the part of the doctor.
The National Commission in the case of Calcutta Medicare Research Institute v. Bimalesh Chatterjee and Ors. ruled that "the onus of proving medical negligence and resultant deficiency in service was clearly on the complainant which in the given case remains unsubstantiated. The negligence as alleged against the treating doctor or OP hospital could not be substantiated and thus, the complaint cannot be allowed.
Relevant
Achutrao Haribhan Khodwa and Ors. vs. State of Maharastra and Ors. as reported in MANU/SC/0060/1996
, Calcutta Medicare Research Institute v. Bimalesh Chatterjee and Ors.
Tags : Compensation Negligence Proof
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High Court of Delhi
Kuldeep Raj Arora Vs. Rohtash Kumar Seewal and Ors.
MANU/DE/1601/2019
07.05.2019
Tenancy
Revisional power cannot be equated with a power of re-consideration of all questions of facts as a Court of first appeal
Present petition challenges the order passed in eviction petition under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (DRC Act) whereby the leave to defend application was dismissed and eviction was allowed. The Respondents have filed an eviction petition in respect of the tenanted shop. The said shop is required by Respondent no. 1 for his professional purposes viz. he being a lawyer, has been practicing since 2005 and has no suitable accommodation in Delhi to be used as his office for practicing as a lawyer.
The learned Trial Court has duly considered that, property is an ancestral property where on the first floor, Respondents No. 4 is residing alongwith his wife and a college going son; the second floor is occupied by Respondent No. 5, who is residing alongwith his wife and two college going daughters. The third floor is used by Respondents No. 1, 2 & 6 as and when they come to stay on family ceremonies and festivals. Nevertheless, Respondents have categorically stated even if the third floor is lying vacant, it cannot be used for running an office of an Advocate since the foot fall of his clients shall be very less on the third floor and it shall be highly inconvenient for senior citizens to climb the stairs till third floor. This view is accepted by the learned trial Court.
In A.K. Woolen Industries & Others vs. Narain Gupta, the Coordinate Bench of this Court held that, ground floor is more suitable for commercial purposes and further in Praveen Kumar Arora vs. Akshay wherein it was held that, needs of the shop on the ground floor needs to be viewed from the different perspective than the availability of the business space on the upper floors, hence there is no ground to interfere with the view of the learned trial Court.
There is no cogent reason shown by the Petitioner to interfere with a reasoned order passed by the learned Trial Court. A bare perusal of the reasoning given by the learned trial Court do show that, it does not suffer from any error of law and is not perverse or arrived at without consideration of the material evidence filed before it. The revisional power, even otherwise, cannot be equated with a power of reconsideration of all questions of facts as a Court of first appeal. Petition dismissed.
Relevant
A.K. Woolen Industries & Others vs. Narain Gupta MANU/DE/3454/2017
Tags : Eviction Bonafide Legality
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Customs, Excise and Service Tax Appellate Tribunal
P.N. Shipping Agency Vs. CC, Nhava Sheva-I
MANU/CM/0129/2019
07.05.2019
Customs
Lack of due diligence and failure to take more precautions cannot by itself bring in penal consequences for imposition of penalty, a positive act or omission is to be established
Present Appeal has been filed from the order passed by the Commissioner of Customs (Appeals) by which the Commissioner (Appeals) disposed of the Appeal filed by the Appellant and reduced the penalty under Section 112(a) of the Customs Act, 1962 to Rs. 5 lacs. The issue for determination is whether the Appellant, who is a CHA, is liable for penalty under Section 112(a). Present is a case of smuggling of cigarettes in the guise of trolley bags which were seized by the investigating agency.
For failure of fulfilling certain obligations, penalty under Section 112(a) has been imposed on the Appellant. Imposition of penalty on the Appellant i.e. CHA under Section 112(a) of the Customs Act, 1982 is the issue in the instant Appeal. The Section deals with the cases of confiscatory goods where abetment goes to the root of the matter. It stipulates that a person shall be liable to penalty, who, in relation to any goods does or omits to do any act, which act or omission would render such goods liable to confiscation under Section 111 or abets the doing or omission of such an act. There should be clear evidence to the conclusion that, the Appellants by their specific act or omission of any act, abetted the illegal importation of the offending goods. Cogent, tangible and reliable evidence is required for such penal actions.
As per the evidence on record, import of cigarettes under the guise of trolley bags was not within knowledge of the Appellant and this establishes that the CHA was not aware about the violations beforehand. No evidence has been brought out about the prior knowledge of the appellant regarding violation of the provisions of Customs Act. As per evidence brought on record, it is not a case that the Appellant had wrong intent. It is also not a case that, the Appellant worked as an accomplice.
It is settled principle that lack of due diligence and failure to take more precautions cannot, by itself bring in penal consequences under Section 112(a). For imposition of penalty under Section 112(a), a positive act or omission is to be established. Admittedly, negligence is there on the part of the Appellant and the Appellant admitted violation of CHA Regulations on his part. Such negligence/omission on the part of the Appellant may attract proceedings that are already pending against the Appellant.
When there is no evidence to establish that, the Appellant had prior knowledge of the illegal import of cigarettes and also when there is no evidence to establish any wrongful intent on the part of the appellant then, there is no justification to impose penalty under Section 112(a). The impugned order upholding imposition of penalty on the Appellant is set aside and the appeal filed by the Appellant is allowed.
Tags : Penalty Imposition Legality
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