High Court of Jammu and Kashmir

Gugli Kumari Vs. State of J&K and Ors.

MANU/JK/0693/2019

20.12.2019

Service

Fact of family’s sustenance for long-time is sufficient to deny compassionate appointment

In present case, Petitioner seeks quashing of order passed by Respondent No. 2 vide which her case for compassionate appointment was rejected. The husband of the Petitioner who was working as a Work Charge Employee in the office of Respondent No. 2 since 19th December, 1981, died on 2nd January, 1996. As her husband's services were not regularized therefore, the Petitioner sought regularization of his services.

Superintending Engineer, J&K PDC vide his letter requested Commissioner Secretary to Government, Power Development Department, J&K for regularization of services of the deceased w.e.f. 1st April, 1994 so that family of the deceased could receive pensionary benefits. Petitioner applied for appointment on compassionate ground on 27th December, 2000, and she is aggrieved of the order dated 26th April, 2002.

As per the Jammu and Kashmir compassionate appointment Rules, 1994 which came into force w.e.f. 24 day of September, 1991, Rule 3 of the said rules specially provides that, the applicant may be appointed against vacancy in the lowest rank of non-gazetted service provided that, the applicant is eligible and qualified or acquires eligibility and qualification within the period of six months from the date of death of deceased."

Thus, from the perusal of the order, it is clear that the services of the husband of the Petitioner were regularized after his death. The Petitioner applied for compassionate appointment on 27th December, 2000, after the regularization of the service of her husband, when she was already overage. The sole intention of framing Compassionate Appointment Rules was to provide immediate relief and sustenance to the dependents of the deceased and to ameliorate the economic distrust of the family of the deceased. The Apex Court in Umesh Kumar Nagpal v. State of Haryana and others, has held that, the very fact is that family had survive for longtime would be sufficient to deny such appointment.

This Hon'ble Court in 'State of J&K and others v. Ashiq Hussain Khan and others', while relying upon judgment 'Sanjay Kumar v. State of Bihar and others', has held that, compassionate appointment in is intended to enable the family of the deceased employee to tide over sudden crises resulting due to death of the bread earner who had left the family in penury and without any means of livelihood. The very fact that the family has survived for a long time would itself be sufficient to deny such appointment."

Since, the Petitioner was not eligible in terms of Rule 3 of the Compassionate Appointment Rules, therefore, upper age was not relaxed in her favour. This apart the Petitioner, has then also been able to sustain herself and her family for over 20 years, as such, order does not suffer from any infirmity. There is no merit in this writ petition, as such, the same is dismissed.

Relevant

Umesh Kumar Nagpal vs. State of Haryana and Ors. MANU/SC/0701/1994
; State of J&K and Ors. vs. Ashiq Hussain Khan & Ors. MANU/JK/0079/2012
; Sanjay Kumar vs. The State of Bihar & Ors. MANU/SC/0541/2000

Tags : Compassionate Appointment Eligibility Time period

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Customs, Excise and Service Tax Appellate Tribunal

Eastern Silk Industries Ltd. and Ors. Vs. Commissioner of Customs

MANU/CB/0282/2019

20.12.2019

Customs

Any change in law is to be applied prospectively only and cannot be applied retrospectively to detriment of Appellants

In facts of present case, Department has conducted stock taking of the unit of the Appellants, Eastern Silk Industries, an EOU unit. The Department alleged that, there was a shortage to be 2140.03 Kg in the stock of raw material. A show cause Notice was issued. Commissioner, vide impugned order confirmed the duty demand and imposed a penalty on the Appellant-company and penalty was imposed on Managing Director of the appellant-company. Hence, present appeals.

Learned counsel for the Appellants submits that, the stock taking was conducted on actual as well as estimated basis; stock of some sections was taken by Excise officers and some by CSTRI officers; report was given after a month; CSTRI officials have confirmed during cross examination that, they have taken stock of preparatory and weaving sections only and stock of other sections was taken by excise officers; the report cannot be termed to be by experts. He submits that, shortage cannot be alleged on presumptions and assumptions; department did not produce any evidence for diversion of goods found short.

The shortage has been arrived at on the basis of assumption or presumption or on the basis of calculations. Finding of shortage cannot in itself be a conclusive proof of raw material being sold clandestinely or being used for manufacture of fabric which has been sold clandestinely. There is neither any allegation nor evidence regarding the clandestine clearance of such short-found material in the domestic market. Demanding of duty on mere shortages cannot be acceptable. The apex Court in the case of Oudh Sugar Mills Ltd. vs. Union of India has held that, allegations based only on calculation of raw material fed into the process or on working of the machinery is not a basis for demanding duty.

With regards to the alleged import and clearance of fabrics in DTA, the Department alleges that the appellants have imported fabrics whereas as per the license they were entitled to import only raw silk and that, they have cleared the imported fabrics under the guise of defects/waste. There is force in the Appellant's contention that, they have not mis-declared and the imports have been permitted by the customs officers after due examination at the time of import and they were also warehoused in the presence of customs officers. That being the position, it cannot be said that the Appellant is at fault. It was incumbent on the officers to verify whether the import of fabric was permissible in view of the license issued to them.

The Department alleges that, the Appellants have used the excess waste formula due to an error in the EXIM Policy. EXIM Policy as on 1st April, 2001, admittedly allowed wastage of 53% and therefore, there was nothing wrong in the Appellant's utilising the same. It was not for the Appellants to guess that there was a mistake in the policy. With effect from 19th October, 2001, with the issuance of public notice, permissible wastage was taken back to 35% and it is not the charge of the department that even after 19th October, 2001, the appellants continued to avail excess percentage of wastage than the permissible limit. Any change in the law is to be applied prospectively only and cannot, in any case, be applied retrospectively to the detriment of the Appellants. In view of the same, we find that demand of duty on this count is not sustainable.

The show-cause notice and the impugned order are not sustainable. Therefore, the duty demand is not sustainable. Once the duty demand itself becomes non-sustainable, the levy of penalties, on the appellant-company and the Managing Director, does not arise. The impugned order is set aside and the appeals are allowed.

Relevant

Oudh Sugar Mills Ltd. vs. Union of India

Tags : Demand Penalty Legality

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL

Thermax Limited Vs. Viswa Infrastructures Services Private Limited and Ors.

MANU/NL/0647/2019

20.12.2019

Insolvency

Beneficiary is entitled to realize a Bank Guarantee in terms thereof irrespective of any pending dispute relating to the terms of the contract

In the 'Corporate Insolvency Resolution Process' of Vishwa Infrastructures and Services Private Limited, the Appellant - 'Thermax Limited' (Operational Creditor) moved an application under Section 60(5)(c) of the Insolvency and Bankruptcy Code, 2016('I&B Code') read with Rule 11 of the National Company Law Tribunal, 2016 to direct the 'Resolution Professional' not to proceed with encashment of the Bank Guarantee. The Adjudicating Authority (National Company Law Tribunal), Hyderabad Bench, by impugned order dismissed the application.

The case of the Appellant (Operational Creditor) is that, the Appellant had given Bank Guarantee dated 27th February, 2013 for a value of Rs. 33,28,147 which was valid till March 31, 2019. It was so granted for execution of one 'Sewage Treatment Plant' to the 'Corporate Debtor' at Gacchibowli, Hyderabad for metropolitan water supply and 'Sewage Board Project'. The plant was commissioned and handed over to the 'Corporate Debtor' for operation and maintenance more than one and a half year back. However, the Resolution Professional on baseless ground invoked the Bank Guarantee aforesaid.

Admittedly, the 'corporate insolvency resolution process' was initiated on 31st August, 2018 and the order was passed under Section 14 of the 'I&B Code' declaring 'Moratorium'. The Appellant is entitled to claim the past dues. The fact that the Appellant demobilize the worksite on 21st September, 2018 is on record. If 'Corporate Debtor' invoked the Bank Guarantee, fault cannot be found. The claim of the Appellant has been admitted by the Resolution Professional, who can derive the benefit of the 'Operational Creditor' after the process is completed. The Appellant has claimed Rs. 60.65 Lacs which is much higher than the Bank Guarantee.

In the case of 'Himadri Chemicals Industries Ltd. vs. Coal Tar Refining Company', the Hon'ble Supreme Court held that, the beneficiary is entitled to realize a Bank Guarantee in terms thereof irrespective of any pending dispute relating to the terms of the contract.

In the present case, as the 'corporate insolvency resolution process' was continuing since 31st August, 2018 till the date of the impugned order was passed, the question of grant of any relief as sought for does not arise and the Adjudicating Authority has rightly rejected the application. The appeal is dismissed.

Relevant

'Himadri Chemicals Industries Ltd. vs. Coal Tar Refining Company' MANU/SC/3256/2007

Tags : Bank Guarantee Encashment

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High Court of Himachal Pradesh

Rajneesh Kanwar Vs. State of H.P. and Ors.

MANU/HP/2320/2019

19.12.2019

Service

No person can be sent on deputation without his consent

The Petitioner joined the Respondent department as TGT (NM) in the year, 2006 and thereafter served in various places in the State. On 8th April, 2019, he was deputed as BRCC and posted at Block Bijhar, District Hamirpur, and he was required to join within a period of 15 days but he did not do so and rather made a representation to Respondent No. 2 informing him that, he was not in a position to join the deputation as BRCC due to his adverse family circumstances. In the meanwhile, vide order, Respondent No. 4 came to be transferred to GSSS Sohari, District Hamirpur, however, the transfer order was conditional to the extent that his joining would be only subject to the relieving of the Petitioner on appointment as BRCC.

On 29th May, 2019, Respondent No. 4 was relieved from the place he was serving I.e. GHS, Shahdhar, District Shimla and directed to join at GSSS, Sohari, District Hamirpur, in place of the Petitioner. The Principal of GSSS, Sohari appeared to have relieved the Petitioner on 30.05.2019 and thereafter permitted Respondent No. 4 to join at his place, constraining the Petitioner to file the instant petition.

It is more than settled that, no person can be sent on deputation without his consent and, therefore, the Petitioner under no circumstance can be compelled to join as BRCC, at Block Bijhar, District Hamirpur.

The concept of "deputation" is well understood in service law and has a recognised meaning. "Deputation" has a different connotation in service law and the dictionary meaning of the word "deputation" is of no help. In simple words "deputation" means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per the Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post.

Record reveals that even though the order of transfer of Respondent No. 4 was effected on 20.03.2019, however, the same was conditional and subject to relieving of the present incumbent on appointment as BRCC at Block Bijhar, District Hamipur. Additionally, it was also borne out from the record that, the Petitioner himself has made a request on 14.05.2019 whereby he had expressed his inability to join on deputation as BRCC at Block Bijhar, District Hamirpur due to his adverse family circumstances.

Once that be so, then the Principal of GSSS, Sohari could not have relieved the Petitioner and thereafter accept the joining report of Respondent No. 4. More importantly, even in terms of the policy of deputation, the incumbent is/was required to report for duty at the place of deputation within a period of 15 days.

Consequently, the petition is allowed and the impugned order passed by the learned Tribunal whereby the petition filed by the Petitioner for the same relief came to be dismissed, is set aside. Resultantly, the relieving order is also quashed and the Petitioner is permitted to continue at GSSS, Sohari, District Hamirpur. The petition is disposed of.

Tags : Deputation Relieving order Legality

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Supreme Court

State of Uttar Pradesh Vs. Ravindra and Ors.

MANU/SC/1770/2019

18.12.2019

Criminal

Minor variations between medical evidence and ocular evidence do not take away primacy of the latter

The State as Appellant assails the acquittal of the three Respondents by the High Court, reversing their conviction under Sections 302/149, 307/149, 147, 148 and 452 of the Indian Penal Code, 1860 (IPC) ordered by the Trial Court. Learned Counsel appearing for the Appellant, submitted that, the High Court erred in setting aside a well-considered order of conviction. PW-1 was injured in the same incident. The presence of PW-3 as an eye witness has also not been doubted. The number of injuries found on the injured and the two deceased cumulatively corroborates the number of assailants. The allegations of assault by the Respondents are specific. Acquittal of the Respondents, in view of the nature of ocular evidence available, is unsustainable.

The manner of occurrence, the fact that all the Accused were well armed, they chased the deceased coupled with the assault on those who tried to come to the rescue of the deceased, the number of injuries on the two deceased and the injured leaves no doubt that, the assailants were most definitely more than two persons. In the nature and number of injuries, there can be no doubt that, the assailants may well have been five in number. Likewise, the fact that there may not be any firearm injury on the deceased is considered irrelevant for fixing vicarious liability as member of an unlawful assembly once the presence of the Accused possessed of a weapon of assault chasing the deceased along with others stands established by reliable ocular evidence.

The determinative factor is the assembly consisting of five or more persons fully armed and who entertained one or more of the common objects, as specified in Section 141 of IPC. It cannot be laid down as a general proposition of law that, unless an overt act is proved against a person, who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The Respondents well understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141 of IPC. The word "object" means the purpose or design and, in order to make it "common", it must be shared by all.

The "common object" of an assembly is to be ascertained from the acts and language of the members comprising it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. Sharing of common object is a mental attitude which is to be gathered from the act of a person and result thereof. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful.

Present Court is unable to hold that, there is such gross variation between the ocular evidence and the medical evidence so as to discredit an injured witness and an eye witness to order acquittal. In Kamaljit Singh v. State of Punjab, it was observed that, it is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely Rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out. When the acquittal by the trial court was found to be on the basis of unwarranted assumptions and manifestly erroneous appreciation of evidence by ignoring valuable and credible evidence resulting in serious and substantial miscarriage of justice, the High Court cannot in this case be found fault with for its well-merited interference. The order of the acquittal of the Respondents is set aside and they are directed to surrender within four weeks for serving out the remaining period of their sentence. The appeal is allowed.

Relevant

Kamaljit Singh v. State of Punjab, MANU/SC/0824/2018

Tags : Unlawful assembly Acquittal Legality

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High Court of Delhi

Niharika Yadav Vs. Manish Kumar Yadav

MANU/DE/4334/2019

18.12.2019

Family

Merely because the wife is capable of earning is not a sufficient reason to deny her the maintenance

The present revision petition assails the order passed by Family Court in Complaint Case. Vide the aforesaid order passed in the petition filed under Section 125 of Code of Criminal Procedure, 1973 (CrPC) on behalf of the Petitioner/wife for grant of interim maintenance, the Family Court dismissed the same on account of the fact that, the Petitioner was capable of maintaining herself. It was also held that, Petitioner was getting maintenance of Rs. 10,000 per month in an application under Section 24 of Hindu Marriage Act, 1955 (HMA) which was offered voluntarily by the Respondent and that the petitioner cannot get maintenance in two different proceedings simultaneously for the same period.

The issue whether the Petitioner/wife is to be denied the maintenance only on account of the fact that she was capable of earning came before present Court in Arun Vats vs. Pallavi Sharma, wherein while relying on decision rendered in the case of Shalija v. Khobbana, it was held that 'capable of earning' and 'actual earning' are two different requirements. Merely because the wife is capable of earning is not a sufficient reason to deny her the maintenance.

As per Section 20(d) of the Domestic Violence Act, 2005 (DV Act), the maintenance provided under the Act shall be in addition to an order of maintenance under Section 125 of the CrPC or any other law for the time being in force. Similarly, Section 26 of the DV Act provides that, any relief available under Sections 18 to 22 can also be sought in any proceeding before Civil Court or Family Court or a Criminal Court. A conjoint reading of the above sections shows that, grant of maintenance pendente lite under Section 24 of HMA does not bar the award of maintenance under any other proceedings subject to the condition that the grant of maintenance in one shall be kept in mind while awarding the maintenance in the other.

Accordingly, impugned order passed by the Family Court is set aside and the matter is remanded back for fresh consideration in the light of the fact that, the amount of interim maintenance awarded under Section 24 of HMA was voluntarily and not judicially determined. The Family Court shall be at liberty to grant adjustment of the maintenance awarded under Section 24 of HMA while considering the application under Section 125 of CrPC. Consequently, the present criminal revision petition is allowed.

Relevant

Shailja and Ors. vs. Khobbanna MANU/SC/0537/2017

Tags : Interim maintenance Award Entitlement

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