Judgments
Supreme Court
West Bengal Central School Service Commission and Ors. Vs. Abdul Halim and Ors.
MANU/SC/0960/2019
24.07.2019
Service
Decision would not be open to interference by Writ Court, if provision of a statutory Rule is capable of two or more constructions and one construction has been adopted
In present case, the Respondent No. 1 filed Writ Petition in Calcutta High Court, challenging the impugned communication on the basis that, he was eligible for the post, since he had successfully completed the Certificate Course in Bengali from the Delhi University. The Division Bench, by its order under appeal, directed Appellant No. 2 to recommend Respondent No. 1 for appointment as Assistant Teacher of Arabic (pass) in Bengali to the school. The question in present appeal is whether Commission had wrongfully cancelled Respondent’s selection for the post of Assistant Teacher of Arabic in the school.
The Division Bench and the Single Bench have erred in arriving at the finding that the Respondent No. 1 had fulfilled the requirements of Paragraph 2 of the Advertisement and/or Rule 5(c) of West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Teachers) Rules, 2007.
It is well settled that, the High Court in exercise of jurisdiction under Article 226 of the Constitution of India, 1950 does not sit in appeal over an administrative decision. The Court might only examine the decision making process to ascertain whether there was such infirmity in the decision making process, which vitiates the decision and calls for intervention under Article 226 of the Constitution. To pass orders in a writ petition, the High Court would necessarily have to address to itself the question of whether there has been breach of any fundamental or legal right of the Petitioner, or whether there has been lapse in performance by the Respondents of a legal duty.
If the provision of a statutory Rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. The sweep of power under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ Court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse.
In present case, it is not in dispute that, the Respondent No. 1 who had been educated outside the State of West Bengal, did not have Bengali as a subject at the Secondary, Higher Secondary, graduation or post graduation level. The last Clause of Paragraph 2 of the advertisement and/or Rule 5 (c) of the Rules provides that, the candidate must have succeeded in higher level of education in that language paper.
Present court cannot but take judicial notice of the fact that universities do not usually allow students to opt for a language subject at the graduation level, if the subject was not cleared at the Higher Secondary level. The Respondent No. 1 has not produced any document or certificate of the Delhi University certifying that the certificate course in Bengali is of a standard equivalent to Bengali language at the post Higher Secondary level. The judgment and order under appeal cannot be sustained and the same is set aside. Accordingly, the appeal is allowed.
Tags : Appointment Direction Legality
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Supreme Court
The Officer In-charge, Sub-Regional Provident Fund Office and Ors. Vs. Godavari Garments Limited
MANU/SC/0961/2019
24.07.2019
Labour and Industrial
Definition of "employee" includes workers engaged either directly or indirectly in connection with work of establishment and are paid wages
In facts of present case, the Respondent Company engaged women workers who were provided with cut fabric, thread, buttons, etc. to be made into garments at their own homes. The sewing machines used by the women workers were owned by them, and not provided by the Respondent Company.
The Appellant No. 1 - Officer In-Charge, Sub-Regional Provident Fund Office, issued a Show Cause Notice to the Respondent Company calling upon it to pay the Provident Fund contributions for the women workers. The Balance Sheet of the Respondent Company for the year 1988 - 89, revealed large debits towards salary and wages for direct and indirect workers, but the Respondent Company made a false statement that, it had only 41 employees.
The Provident Fund Officer - Appellant No. 1 vide Order held that, the women workers engaged for stitching garments were covered by the definition of "employee" under Section 2(f) of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (EPF Act). An amount of Rs. 15,97, 087 was assessed towards Provident Fund dues of the Respondent Company for the period from November, 1979 to February, 1991. The Respondent Company was directed to pay the said amount within 7 days.
The Respondent Company challenged the aforesaid Order. The Bombay High Court, vide Final Judgment allowed the Writ Petition filed by the Respondent Company, and set aside the Order passed by the Appellant No. 1. It was held that, the Respondent Company had no direct or indirect control over the women workers. The conversion of cloth into garment could be done by any person on behalf of the women workers. Hence, the Respondent Company did not exercise any supervisory control over the women workers. Aggrieved by the aforesaid Judgment, the present Civil Appeal has been filed by the Provident Fund Office.
The short issue which arises for consideration is whether the women workers employed by the Respondent Company are covered by the definition of "employee" under Section 2(f) of the EPF Act or not.
The definition of "employee" under Section 2(f) of the EPF Act is an inclusive definition, and is widely worded to include any person engaged either directly or indirectly in connection with the work of an establishment.
In the present case, the women workers employed by the Respondent Company were provided all the raw materials, such as the fabric, thread, buttons, etc. from the Respondent - Employer. With this material, the women workers were required to stitch the garments as per the specifications given by the Respondent Company. The women workers could stitch the garments at their homes, and provide them to the Respondent Company. The Respondent Company had the absolute right to reject the finished product i.e. the garments, in case of any defects.
The mere fact that the women workers stitched the garments at home, would make no difference. It is the admitted position that, the women workers were paid wages directly by the Respondent Company on a per-piece basis for every garment stitched. The issue in the present case is squarely covered by the decision of this Court in Silver Jubilee Tailoring House and Ors. v. Chief Inspector of Shops and Establishments and Ors. The EPF Act is a beneficial social welfare legislation which was enacted by the Legislature for the benefit of the workmen.
In the present case, the women workers were certainly employed for wages in connection with the work of the Respondent Company. The definition of "employee" under Section 2(f) is an inclusive definition, and includes workers who are engaged either directly or indirectly in connection with the work of the establishment, and are paid wages.
In the present case, the women workers were directly engaged by the Management in connection with the work of the Respondent Company, which was set up as a ready-made garments industry in Marathwada. The women workers were paid wages on per-piece basis for the services rendered. Merely because the women workers were permitted to do the work off site, would not take away their status as employees of the Respondent Company. The judgment passed by the Bombay High Court vide the Impugned Order being contrary to settled law, is set aside. Civil Appeal is allowed.
Tags : Employees Status Wages
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Supreme Court
Manjit Singh Vs. The State of Punjab and Ors.
MANU/SC/0948/2019
22.07.2019
Criminal
In a non-compoundable offence, compromise entered into between parties is a relevant circumstance for Court to consider quantum of sentence
Present appeal arises out of judgment passed by the High Court by which the High Court has acquitted Accused-Ranjit Singh from the charges by giving him benefit of doubt but affirmed the conviction of the Appellant-Manjit Singh by the Trial Court and the sentence of imprisonment imposed upon him. The High Court has also enhanced the fine amount with a direction to pay the same to the complainant-Hardip Singh as compensation.
During pendency of the appeal, parties are said to have compromised the matter. Learned Counsel for the Appellant-Accused and the complainant have filed affidavit stating therein that, the parties have compromised the matter. The Appellant-Accused has also filed the compromise deed dated 29th May, 2019 entered into between the parties.
Section 307 of Indian Penal Code, 1860 (IPC) is a non-compoundable offence. No permission can be granted to record the compromise between the parties. In Ishwar Singh v. State of Madhya Pradesh, the Supreme Court of India has held that. in a non-compoundable offence the compromise entered into between the parties is indeed a relevant circumstance which the Court may keep in mind for considering the quantum of sentence.
In the present case, the Appellant-Accused, Manjit Singh, has been sentenced to undergo imprisonment for five years. The Appellant is said to have served seventeen months of imprisonment. Taking note of the compromise entered into between the parties and considering the relationship of the parties and the facts and circumstances of the case and also the sentence undergone by the Appellant-Accused, the sentence of imprisonment imposed upon the Appellant under Sections 307 and 324 of IPC is reduced from five years/two years to the period already undergone by him.
In view of the compromise entered into between the parties, the fine amount imposed upon the Appellant is set aside. The appeal is partly allowed.
Relevant
Ishwar Singh v. State of Madhya Pradesh, MANU/SC/8126/2008
Tags : Offence Compromise Imprisonment Reduction
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High Court of Himachal Pradesh
Naseeb Deen and Ors. Vs. Harnek Singh
MANU/HP/0795/2019
19.07.2019
Civil
Satisfaction of the Court is pre-requisite for appointment of a Revenue Officer as a Local Commissioner
By way of present petition filed under Article 227 of the Constitution of India, 1950, the Petitioners have challenged order, passed by the Court of learned Civil Judge, vide which an application filed by the Respondent under Order XXVI, Rule 9 of the Code of Civil Procedure, 1908 (CPC) for appointment of a Revenue Officer as a Local Commissioner stands allowed.
It is not in dispute that, the application under Order XXVI, Rule 9 of the CPC was filed by the Plaintiff before the learned trial Court even before the issues stood framed by the learned Court below. It is the allegation of the Plaintiff that, the Defendants are encroaching/have encroached upon the suit land.
It is settled preposition of law that he who alleges, has to prove. Meaning thereby, because it is the contention of the Plaintiff that, the Defendants have encroached upon the suit land or are encroaching upon the same, onus is upon him to prove his case. There is no material on record to demonstrate that, the Plaintiff, at any stage, has approached the Revenue Authorities, for demarcation of the land in issue.
Order XXVI, Rule 9 of CPC, provides that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court.
It has to be the satisfaction of the Court that a local investigation is necessary or proper for the purpose of elucidating any matter in dispute. This provision is not a tool which is to be permitted to be used by the parties concerned to create evidence in their favour. This important aspect of the matter has also been lost sight of by the learned Trial Court while passing the impugned order. Impugned order passed by the Court of learned Civil Judge is set aside. Petition allowed.
Tags : Appointment Revenue Officer Legality
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High Court of Bombay
Mohammed Kader Hassan Vs. Sree Gokulam Chit & Finance Co. (P) Ltd.
MANU/MH/1910/2019
18.07.2019
Arbitration
When self-contained machinery for settlement of disputes by means of arbitration is prescribed under provisions of Chit Funds Act, then it could not be varied by a private agreement between parties
By present petitions filed under Section 34 of the Arbitration and Conciliation Act, 1996, the Petitioner has impugned the arbitral awards, thereby allowing claims made by the Respondent. It is the case of the Petitioner that, without giving any opportunity to the Petitioner to cross examine the witness and also to lead evidence, the learned Arbitrator made an award, directing the Petitioner to pay a sum of Rs. 13,38,838 along with interest at the rate of Rs. 18 per cent per annum.
A perusal of the award indicates that, the learned Arbitrator has not even dealt with the issue of jurisdiction raised by the Petitioner in the application filed under Section 16 of Act, 1996 and has taken a casual approach in passing the award.
The Statement of Objects and Reasons of the Chit Funds Act, 1982 indicates that, the said Act has been enacted as a Central legislation, as a step, besides ensuring uniformity in the provisions applicable to chit fund institutions throughout the country to prevent such institutions from taking advantage either of the absence of any law governing chit funds in any State or exploit the benefit of any lacuna or relaxation in any State Law by extending their activities in such States.
The legislative intent is clear that self-contained machinery for the settlement of the disputes between a foreman and the subscribers by means of arbitration is prescribed under the provisions of the said Act, 1982 and thus could not be varied by a private agreement between the parties.
The impugned awards are set aside. Applications filed by the Petitioner under Section 16 of Act, 1996 are allowed. It is declared that, the learned Arbitrator did not have jurisdiction to entertain, try and adjudicate upon the disputes filed by the Respondent.
Tags : Dispute Adjudication Jurisdiction
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High Court of Madras
V. Stanislaus Vs. The District Educational Officer, Kanyakumari District and Ors.
MANU/TN/3696/2019
17.07.2019
Service
Any grievance by the employees is to be redressed within the time limit prescribed
The relief sought for in the present writ petition is for a direction to the Respondents to regularize the services of the writ petitioner from 1st March, 2002 and to disburse the arrears of salary from 1th March, 2002 to 6th February, 2006, according to the existing pay structure.
The writ Petitioner accepted the order of approval of appointment with effect from 7th February, 2006 and attained the age of superannuation and retired from service on 31st October, 2013. After retirement, the present writ petition is filed in the year 2014 for a writ of mandamus to direct the Respondents to regularize the services of the writ petitioner with effect from 1st March, 2002.
Present Court is of the considered opinion that, any grievance, more specifically by the employees, is to be redressed within the time limit prescribed or in the event of no time limit, within a reasonable period of time. The writ petitions filed belatedly, after a lapse of many years, for the redressal of such grievances, cannot be entertained under Article 226 of the Constitution of India.
In the present case, though the writ petitioner was appointed on 1st March, 2002, the approval of appointment was granted only with effect from 7th February, 2006. During the relevant point of time, the writ Petitioner has accepted the approval and served in the Institution till his date of retirement. After the settlement of the benefits, he approached the Court in the year 2014 by filing a writ petition seeking a direction to the Respondents to regularize the services with effect from 1st March, 2002 with all monetary benefits. Such an attitude of the employee can never be appreciated nor be entertained. Any person aggrieved must establish his rights at the first instance by approaching the Court of law, within a reasonable period of time.
In the present case, there is an enormous delay in approaching the Court and this apart, the writ Petitioner has not even challenged the order of approval of appointment granted with effect from 7th February, 2006 onwards. This being the factum, the relief as such sought for in the present writ petition cannot be granted and the writ petition is dismissed both on merits and on the ground of laches.
Tags : Rights Redressal Time Limit
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