Supreme Court

Director of Elementary Education, Odisha & Ors. Vs. Pramod Kumar Sahoo

MANU/SC/1329/2019

26.09.2019

Service

Concession given by State Counsel before Tribunal contrary to statutory rules is not binding as there cannot be any estoppel against law

The challenge in the present appeal is to an order passed by the High Court whereby, the writ petition filed by the Appellant challenging the order passed by the Odisha Administrative Tribunal remained unsuccessful. The Tribunal has directed the Appellant to grant pay scale of Trained Intermediate Arts Teacher i.e. Rs.1080- Rs.1800.

The Respondent claimed that he is entitled to pay scale of Rs.840 - Rs.1240 from the very day of his appointment and pay scale of Rs. 1080-1800 after Orissa Revised Scales of Pay Rules, 1989 as amended in the year 1990. Since the said pay scale was not granted to him, he invoked the jurisdiction of the Tribunal when he filed Original Application. The basis of argument is that, he is intermediate and, thus, he is to be treated as a Trained Teacher which will entitle him to the pay scale of Rs.1080 - Rs.1800. Before the learned Tribunal, the counsel for the appellant conceded that the Teachers having intermediate qualification are entitled to the scale of pay as is available to Trained Matric Teachers. On the basis of such concession, the learned Tribunal allowed the Original Application.

The Appellant submitted that the separate pay scales are provided for Untrained Matric Teachers and for Trained Matric Teachers. Merely because the Respondent is intermediate, that is higher qualification than the Matric, does not make him a Trained Teacher. Therefore, the concession given by the State counsel is erroneous concession in law and, does not bind the appellant.

The concession given by the learned State Counsel before the Tribunal was a concession in law and contrary to the statutory rules. Such concession is not binding on the State for the reason that there cannot be any estoppel against law. The rules provide for a specific Grade of Pay, therefore, the concession given by the learned State Counsel before the Tribunal is not binding on the Appellant.

The Trained Matric Teacher is the one who has been trained for the purposes of teaching. In the absence training, the Respondent cannot be said to be a Trained Matric Teacher entitled to the pay scale meant for such teachers. The classification based upon educational qualification for grant of higher pay scale to a trained person or a person possessing higher qualification is a valid classification. Therefore, the order passed by the Tribunal as affirmed by the High Court is not sustainable in law. Consequently, the appeal is allowed.

Tags : Pay-scale Grant Direction

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Supreme Court

Dina Nath (D) by L.Rs. and Ors. Vs. Subhash Chand Saini and Ors.

MANU/SC/1310/2019

24.09.2019

Tenancy

Power to strike out the defence vested in the Rent Controller is discretionary and not essential

The instant appeal has been filed against the judgment and order passed by the High Court at the instance of the Appellants (tenants) under Article 227 of the Constitution of India upholding orders of the Rent Controller striking out defence of the Appellants on account of alleged failure to pay the rent.

The moot question arises for consideration is whether the power vested with the Rent Controller under Section 15(7) of the Delhi Rent Control Act, 1958 is discretionary and has been judiciously exercised in the facts of the instant case in striking out the defence of the Appellants (tenants) in the eviction proceedings.

The inevitable result on comparison of Section 13(5) of the Delhi And Ajmer Rent Control Act, 1952 and Section 15(7) of Act, 1958 be that the Court would not be bound to strike out the defence against ejectment in case of default in payment of rent in compliance to the order passed Under Section 15(1) of the Act, 1958 and it is always open to the Controller to examine the facts of each case while exercising its discretion which obviously has to be judicious in approach and with circumspection.

In Smt. Kamla Devi v. Shri Vasudev, this Court reiterated that the power to strike out the defence simply vested the Rent Controller with the discretion to do so. It was not mandatory for the Rent Controller to strike out the defence simply because a default had occurred. It is imperative that exercise of discretion vested with the authority obviously depends upon the facts and circumstances of each case and is not open to be exercised under the Rule of thumb.

It clearly emerges from the exposition of law that power vested under Section 15(7) of the Act, 1958 is discretionary and not mandatory and depends on contumacious or deliberate default and must be construed harmoniously so as to balance the rights and obligations of the tenant and the landlord and the power under Section 15(7) of Act, 1958 being an exception to be exercised with due care and circumspection.

It clearly manifests from record that on the date of the order passed by the Rent Controller dated 21st April, 2008 itself, the entire arrears as directed to be deposited by the Appellants stood paid. The facts and circumstances of the case on hand, do not suggest any negligence, defiance or contumacious non-payment of the amount payable to the landlord to warrant the taking of that "exceptional step" which is bound to render the tenant defenceless in his contest against the Respondents-landlord. The decision of the Rent Controller and confirmed by the Single Judge of the High Court is set aside. The appeal is allowed.

Relevant

Smt. Kamla Devi v. Shri Vasudev MANU/SC/0192/1995

Tags : Defence Striking off Legality

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Supreme Court

The Authorised Officer, Indian Bank V. D. Visalakshi and Anr.

MANU/SC/1303/2019

23.09.2019

Banking

A Chief Judicial Magistrate is equally competent to deal with application moved by the secured creditor under Section 14 of SARFAESI

The seminal question involved in present appeals is whether the Chief Judicial Magistrate (“CJM”) is competent to process the request of the secured creditor to take possession of the secured asset under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“2002 Act”). There are conflicting views of different High Courts on this question. The High Courts of Bombay, Calcutta, Madras, Madhya Pradesh and Uttarakhand have interpreted the said provision to mean that, only the Chief Metropolitan Magistrate (“CMM”) in metropolitan areas and the District Magistrate (“DM”) in non¬-metropolitan areas are competent to deal with such request. On the other hand, the High Courts of Kerala, Karnataka, Allahabad and Andhra Pradesh have taken a contrary view of the same provision, to mean that it does not debar or preclude the CJM in the non¬metropolitan areas to exercise power under Section 14 of the 2002 Act.

The earliest decision is of the Division Bench of the High Court of Kerala in Muhammed Ashraf and Anr. Vs. Union of India (UOI) and Others. The Court noted that, Section 14 of the 2002 Act expressly refers to CMM in relation to metropolitan areas and DM for non¬metropolitan areas. It then went on to observe that as the powers and functions of CJM in non¬metropolitan areas and CMM in metropolitan areas are one and the same (with only difference that CMM exercises powers in metropolitan areas and CJM in non¬metropolitan areas); and the expression CJM and CMM are interchangeably used namely, one is synonymous for the other depending on the area under its jurisdiction, by interpretative process, it concluded that in non¬ metropolitan areas, apart from DM, the CJM is also competent to exercise powers under Section 14 of the 2002 Act.

An inquiry conducted by the stated authority under Section 14 of the 2002 Act, is a sui generis inquiry. It is an administrative or executive function regarding verification of the affidavit and the relied upon documents filed by the parties. The inquiry is required to be concluded within the stipulated time frame. While undertaking such an inquiry, as is observed by this Court, the authority must display judicious approach, in considering the relevant factual position asserted by the parties. The inquiry does not result in adjudication of inter se rights of the parties in respect of the subject property or of the fact that the transaction is a fraudulent one or otherwise.

The powers and functions of the CMM and the CJM are equivalent and similar, in relation to matters specified in the Code of Criminal Procedure, 1973 (CrPC). These expressions (CMM and CJM) are interchangeable and synonymous to each other. Moreover, Section 14 of the 2002, Act does not explicitly exclude the CJM from dealing with the request of the secured creditor made thereunder. The power to be exercised under Section 14 of the 2002 Act by the concerned authority is, by its very nature, non-judicial or State's coercive power. Furthermore, the borrower or the persons claiming through borrower or for that matter likely to be affected by the proposed action being in possession of the subject property, have statutory remedy under Section 17 of the 2002 Act and/or judicial review Under Article 226 of the Constitution of India. No prejudice is likely to be caused to the borrower/lessee; nor is it possible to suggest that they are rendered remediless in law.

There is nothing wrong in giving expansive meaning to the expression "CMM", as inclusive of CJM concerning non-metropolitan area, who is otherwise competent to discharge administrative as well as judicial functions as delineated in the CrPC on the same terms as CMM. The CJM is equally competent to deal with the application moved by the secured creditor under Section 14 of the 2002 Act. Accordingly, view taken by the High Courts of Kerala, Karnataka, Allahabad and Andhra Pradesh is upheld and decisions of the High Courts of Bombay, Calcutta, Madras, Madhya Pradesh and Uttarakhand in that regard is reversed.

Relevant

Muhammed Ashraf and Anr. Vs. Union of India (UOI) and Others, MANU/KE/0456/2008

Tags : Inquiry CJM Competency

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Supreme Court

Radhika Devi Vs. Union of India (UOI) and Ors.

MANU/SC/1324/2019

23.09.2019

Service

Liberalised Family Pension is payable only to family members of Armed Forces personnel who have died in action

In present matter, Naib Subedar Umed Singh was enrolled in the Army. On 19th December, 2001, he was posted at the International Border in Operation Parakram. While taking part in the fire fighting drill activities, he collapsed and was declared dead. According to the death certificate, he died due to Ischemic heart disease leading to cardiac arrhythmia (ventricular fibrillation).

The Respondents granted Special Family Pension to the Appellant. Unsatisfied with the grant of Special Family Pension instead of the Liberalised Family Pension, the Appellant filed Original Application (OA) before the Armed Forces Tribunal. The Tribunal dismissed the OA holding that, the Appellant was not entitled to either Liberalised Family Pension or ex-gratia payment.

Aggrieved by the order of the Tribunal, the Appellant filed a Writ Petition in the High Court of Delhi, which was allowed. The High Court found that, the Appellant was entitled to Liberalised Family Pension and ex-gratia payment of Rs. 5 lakhs. The Appellant challenged the judgment of the High Court to the extent that, ex-gratia payment of Rs. 7.5 lakhs was not awarded in her favour. The Respondent, Union of India has also filed an appeal questioning the judgment of the High Court in so far as it relates to the declaration that, the Appellant is entitled to the Liberalised Family Pension and the award of Rs. 5 lakhs as ex-gratia amount.

The claim of Liberalised Family Pension by the Appellant is on the basis of the Instructions issued by the Government of India on 31st January, 2001. As per the said Instructions, a member of the family of a deceased Armed Forces Personnel whilst employed in an operation notified by the Government of India would be entitled to Liberalised Family Pension. In Kanchan Dua v. Union of India and Anr., present Court held that, Liberalised Family Pension in accordance with the Instructions issued by the Government of India is payable only to the family members of Armed Forces personnel who have died in action.

In view of the death of the Appellant due to cardiac failure, the Appellant is not entitled to Liberalised Family Pension. In so far as the payment of ex-gratia amount/compensation is concerned, the Appellant is entitled to Rs. 5 lakhs as ex-gratia compensation in accordance with the Instructions dated 22th September, 1998. The special benefits that were granted by the Government of India for ex-gratia payment is payable in all cases of death and disability in service to the family members of the Armed Forces Personnel who died in harness. As the death of the Appellant's husband was not during enemy action in international war or border skirmishes and action against militants, terrorists, extremists etc., the Appellant is not entitled to Rs. 7.5 Lakhs as claimed by her. The judgment of the High Court declaring that the Appellant is entitled for Liberalised Family Pension is set aside. She is entitled only for the Special Family Pension.

Tags : Family members Pension Entitlement

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Supreme Court

Canara Nidhi Limited Vs. M. Shashikala and Ors.

MANU/SC/1304/2019

23.09.2019

Arbitration

Cross-examination of persons swearing into the affidavits should not be allowed unless absolutely necessary

The question falling for consideration in present appeals is in an application under Section 34 of the Arbitration and Conciliation Act, 1996 (the Act) seeking to set aside the award, whether the parties can adduce evidence to prove the specified grounds in Sub-section (2) to Section 34 of the Act. Present appeals arise out of the judgment passed by the High Court by which the High Court set aside the order passed by the District Judge and directed the District Judge to "recast the issues" and permit Respondent Nos. 1 and 2 to file affidavits of their witnesses and also permitting cross-examination of the witnesses.

Though present Court held that, the applications under Section 34 of the Act are summary proceedings, an opportunity to the aggrieved party has to be afforded to prove existence of any of the grounds under Section 34(2) of the Act. This Court thus permitted the applicant thereon to file affidavits of his witnesses in proof thereof. The legal position is thus clarified that, Section 34 application will not ordinarily require anything beyond the record that was before the arbitrator and that cross-examination of persons swearing in to the affidavits should not be allowed unless absolutely necessary.

The question falling for consideration is whether the present case is such an exceptional circumstance that it was necessary to grant opportunity to Respondent Nos. 1 and 2 to file affidavits and to cross-examine the witnesses is made out. The affidavit filed by the Respondents along with application filed under Section 151 Code of Civil Procedure, 1908 (CPC) does not indicate as to what point the first Respondent intends to adduce except stating that, the first Respondent intends to adduce additional evidence relating to the subject of dispute. The affidavit does not disclose specific documents or evidence required to be produced except stating that, the first Respondent intends to adduce additional evidence or otherwise the first Respondent will be subjected to hardship in the arbitration suit filed by her under Section 34 of the Act. There are no specific averments in the affidavit as to the necessity and relevance of the additional evidence sought to be adduced.

The High Court did not keep in view that, Respondent Nos. 1 and 2 have not made out grounds that, it is an exceptional case to permit them to adduce evidence in the application under Section 34 of the Act. The said directions of the High Court amount to retrial on the merits of the issues decided by the arbitrator. When the order of the District Judge dismissing the application filed by Respondent Nos. 1 and 2 does not suffer from perversity, the High Court, in exercise of its supervisory jurisdiction under Articles 226 and 227 of the Constitution of India, ought not to have interfered with the order passed by the District Judge and the impugned judgment cannot be sustained. In the result, the impugned judgment passed by the High Court is set aside. Appeals allowed.

Tags : Re-cast issues Direction Legality

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High Court of Calcutta

Sonali Cooperative Housing Society Ltd. and Ors. Vs. State of West Bengal and Ors.

MANU/WB/2413/2019

19.09.2019

Trusts and Societies

Registrar is competent to hold an inquiry into the affairs of any Society

The Petitioner No. 1 is a registered Cooperative Society. The Petitioners are aggrieved by the issuance of memo being Nos. 2555/1(2)/1-1212/76 dated 10th June 2019 issued by the Joint Registrar of Co-operative Societies. By the memo dated 10th June 2019 the Joint Registrar requested the Deputy Registrar to cause an enquiry into the affairs of the Society, in general, as per Section 100 of the Co-operative Societies Act, 2006. By the memo dated 30th July 2019, the Deputy Registrar has invoked the provision of Section 100(1) of the Act and entrusted the Cooperative Development Officer to cause an inquiry into the affairs of the Society with special emphasis on the complaint lodged by the private respondent.

The primary allegation of the Petitioner is that, according to Section 100(1) of the Act, the Registrar may, at any time, of his own motion, hold by himself or by any person authorized by him an inquiry into the affairs of any cooperative society. The Petitioners submit that according to the aforesaid provision the Registrar could have held an inquiry on his own motion and not on the basis of any complaint lodged by an applicant not specified in the said Section.

Prima facie, it appears that the Registrar is competent to hold an inquiry into the affairs of any Society. The same may be on the basis of an application or on his own motion. Section 100(2) of the Act, contains a list of applicants who can apply before the Registrar for an inquiry. The proviso to the said Section mentions that, the Registrar may, before initiating any action for inquiry satisfy himself whether the signatures of the applicants are genuine and whether the claim of the applicants is supported by proper documents.

The power to conduct an inquiry remains vested with the Registrar is not in dispute. The Statute provides the power to the Registrar to hold inquiry into the affairs of any co-operative society at any time. The idea is to ensure proper administration and management of a co-operative Society. None of the parties is likely to be prejudiced, if the inquiry is held in accordance with law.

As the Registrar has applied his mind on the application filed by the private respondent and have opined that, the issues raised therein are of serious nature relating to mismanagement of the Society, accordingly, present Court is not inclined to pass any order staying the operation of the impugned memos dated 6th June, 2019 and 30th July, 2019. The inquiry officer will be at liberty to proceed with the inquiry strictly in accordance with law and prepare the inquiry report.

Tags : Mismanagement Enquiry Competency

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