Supreme Court

Arun Kumar Gupta Vs. State of Jharkhand and Ors.

MANU/SC/0231/2020

27.02.2020

Service

Integrity of judicial officer must be of a higher order and even a single aberration is not permitted

Present writ petitions have been filed by two erstwhile judicial officers who were members of the judicial service in the State of Jharkhand and are directed against the orders whereby they have been compulsorily retired.

Challenge is laid in both writ petitions to the orders of compulsory retirement and especially to the reasons assigned or the material ignored by the Screening Committee. The orders of compulsory retirement have been passed in terms of the Rule 74(b)(ii) of the Jharkhand Service Code, 2001. The main contentions raised on behalf of the Petitioners are that their retirement is not in the public interest: their entire service record especially the contemporaneous record has not been taken into consideration.

The standard of integrity and probity expected from judicial officers is much higher than that expected from other officers. In Chandra Singh v. State of Rajasthan, though this Court came to the conclusion that the compulsory retirement awarded to the applicant was not in consonance with the law, it did not give relief to the Petitioner on the ground that even under Article 235 of the Constitution of India, 1950 the High Court can assess the performance of any judicial officer at any time with a view to discipline the black sheep or weed out the dead wood.

An order directing compulsory retirement of a judicial officer is not punitive in nature. An order directing compulsory retirement of a judicial officer has no civil consequences. While considering the case of a judicial officer for compulsory retirement the entire record of the judicial officer should be taken into consideration, though the latter and more contemporaneous record must be given more weightage. Subsequent promotions do not mean that earlier adverse record cannot be looked into while deciding whether a judicial officer should be compulsorily retired. The 'washed off' theory does not apply in case of judicial officers specially in respect of adverse entries relating to integrity.

The Courts should exercise their power of judicial review with great circumspection and restraint keeping in view the fact that compulsory retirement of a judicial officer is normally directed on the recommendation of a high-powered committee(s) of the High Court. A judicial officer's integrity must be of a higher order and even a single aberration is not permitted. As far as the present cases are concerned, the matter has been considered by the Screening Committee on two occasions and the recommendations of the Screening Committee have been accepted by the Standing Committee on both occasions. The action taken is not by one officer or Judge, it is a collective decision, first by the Screening Committee and then approved by the Standing Committee.

Senior judges of the High Court who were the members of the Screening Committee and Standing Committee have taken a considered and well-reasoned decision. Unless there are allegations of mala fides or the facts are so glaring that the decision of compulsory retirement is unsupportable this Court would not exercise its power of judicial review. In such matters, the court on the judicial side must exercise restraint before setting aside the decision of such collective bodies comprising of senior High Court Judges. Both the writ petitions are dismissed.

Relevant

Chandra Singh v. State of Rajasthan MANU/SC/0479/2003

Tags : Compulsory retirement Public interest Legality

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Supreme Court

Narayan Yadav (D) thr. L.Rs. Vs. The State of Bihar and Ors.

MANU/SC/0222/2020

25.02.2020

Property

Application for setting aside the sale can be made only after deposit of purchase money

Present civil appeal is filed by the Appellants, aggrieved by the judgment and order passed in Letters Patent Appeal by the High Court. It is contended by the learned Counsel appearing for the Appellants, that the Respondent-writ Petitioners did not make any deposit along with their application filed on 15th July, 1983 as required under Section 28 of the Bihar And Orissa Public Demands Recovery Act, 1914. It is submitted that, when there is a mandatory requirement of deposit for making an application to set-aside the sale, no application could have been entertained for setting aside the sale in absence of such deposit within the time stipulated under law.

Further, it is submitted, that in absence of any power conferred on the Certificate Officer, the Certificate Officer had no authority to either extend the time for deposit, or to entertain the application for setting aside the sale, which was not supported by deposit. It is contended that as the Certificate Officer had committed an error in allowing the application of the writ-Petitioners for setting aside the sale, the same was rightly interfered with by the Collector in revision petition, and the same was confirmed by the Board of Revenue.

It is not in dispute that the mortgaged land was sold in auction, in the initiated certificate proceedings by the competent authority on 15th June, 1983. From a reading of Section 28 of the Act, it is clear that the certificate-debtor, or any person whose interests are affected by the sale, may, at any time within thirty days from the date of the sale, can make an application to the Certificate Officer to set aside the sale by depositing the amount specified in the proclamation of sale, along with interest @ six and a quarter per centum per annum, and with penalty, a sum equal to ten percent of the purchase money. It is clear from the language of the aforesaid Section, that the application is to be filed at any time within thirty days from the date of sale by depositing the amount. If the application filed under Section 28 of the Act is to be treated as valid, it must be along with the deposit as contemplated under Section 28(1) of the Act.

In present case, admittedly the deposit of purchase money along with penalty was not deposited within a period of thirty days from the date of sale. A reading of the order passed by the Certificate Officer itself indicates that the auction amount was not deposited and the Respondent-objector-writ Petitioners were permitted to deposit the same by 22nd September, 1983. Section 28 of Act is intended to safeguard the interests of persons who are affected by the sale, to approach the competent authority within the prescribed time by depositing the purchase amount along with ten percent thereof as penalty which is payable to auction purchaser for retaining the land.

The learned Single Judge of the High Court has allowed the writ petition by recording a finding that the Certificate Officer is satisfied with the claim of the objector-writ Petitioners, and has allowed the application. Even in the Letters Patent Appeal filed by the Appellants, the High Court has rejected the appeal by recording a finding that whether or not it was a fit case for extension of time, is basically judicial discretion, and no case is made out to show that such discretion was exercised erroneously or capriciously. When the Section mandates for filing an application by making a deposit within a particular time, present Court is of the view that, there is no discretion left to the authority to extend the time.

Consequently, the order passed by the learned Single Judge is set-aside confirming the order of the Board of Revenue. In effect, the application filed by the Respondent-writ Petitioners under Section 28 of Act, 1914 stands rejected. The Respondent-writ Petitioners are entitled for refund of money deposited by them before the Certificate Officer. Appeal allowed.

Tags : Purchase money Deposit Time period

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Supreme Court

Life Insurance Corporation of India Vs. Mukesh Poonamchand Shah

MANU/SC/0221/2020

25.02.2020

Service

Where a penalty is imposed on employee for a conduct which led to conviction on criminal charges, the employer can independently take disciplinary action against employee

The present appeal arises from a judgment of a Division Bench of the High Court of Gujarat. The Division Bench, in a Letters Patent Appeal arising from an order of a learned Single Judge, allowed the Respondent, who had instituted proceedings under Article 226 of the Constitution of India, 1950 to respond to a notice to show cause issued by the Appellant under Regulation 39(4) of the Life Insurance Corporation of India (Staff) Regulations 1960. However, the Appellant was directed not to issue final orders during the pendency of the appeal filed by the Respondent against his conviction for offences under the Prevention of Corruption Act, 1988 and the Indian Penal Code, 1860 (IPC).

The Respondent has been convicted and sentenced to two years of rigorous imprisonment by the Special Judge, CBI for offences under Sections 420, 467, 468, and 471 read with Section 120B of the IPC, and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act. By the order of the learned Single Judge, the conviction of the Respondent has not been stayed and it is only the sentence which has been suspended.

While the court hearing a criminal appeal does have the power to suspend the conviction in appropriate cases, this is an exceptional power which can be exercised only when the attention of the court is drawn to the consequences which may ensue if the conviction is not stayed. A criminal miscellaneous application was filed by the Respondent for the grant of bail pending disposal of the criminal appeal. Significantly, in the special civil application which was instituted before the High Court, the Respondent himself understood the order of the Single Judge as having only suspended his sentence and not as having stayed the conviction.

The Appellant exercised its disciplinary jurisdiction while proceeding against the Respondent and after a disciplinary enquiry imposed a penalty of a reduction of his basic pay to the minimum of the scale. The 1960 Regulations determine the terms and conditions of service of the employees of the Life Insurance Corporation of India. Chapter III of the 1960 Regulations provides for conduct, discipline and appeals.

Regulation 39(1) of the 1960 Regulations deals with the penalties which can be imposed upon an employee who is found guilty of misconduct. Regulation 39(2) mandates compliance with the principles of natural justice in terms of providing a reasonable opportunity to the employee to defend the charges. In terms of Regulation 39(4)(i), "where a penalty is imposed on an employee on the grounds of conduct which had led to a conviction on a criminal charge", the Appellant is independently entitled to take steps against the employee. It is in pursuance of the above provision that a notice to show cause was issued to the Respondent. The penalty which was imposed on the disciplinary enquiry was for an act of misconduct. The notice which has been issued under Regulation 39(4) is for the conviction on a criminal charge. The former does not foreclose the latter.

In the present case, following the conviction of the Respondent by the Special Judge CBI, the Appellant was acting within jurisdiction in issuing a notice to show cause under Regulation 39(4) of the 1960 Regulations. The learned single judge was correct in dismissing the special civil application filed by the Respondent challenging the notice to show cause issued by the Appellant. The judgment of the Division Bench restraining the Appellant from taking a final decision on the show cause notice pending the disposal of the criminal appeal has no valid basis in law. The impugned judgment and order of the Division Bench is set aside. Appeal allowed.

Tags : Final orders Passing of Restrain

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High Court of Delhi

Satish Kumar & Anr. v. Kanwar Raj Singh

MANU/DE/0615/2020

25.02.2020

Tenancy

Supervisory jurisdiction is not available to correct errors of facts or of law unless errors are manifest and apparent on face of proceedings

Present petition challenges the order passed by the Trial Court in Eviction Petition under Section 14 (1) (e) and 25(B) of the Delhi Rent Control Act, 1958 ( ‘DRC Act’) whereby an application for leave to defend was dismissed and an eviction order was passed in favour of the Respondent. The Respondent has filed an eviction petition in respect of a tenanted shop.

It is a settled law, in revision, this Court can interfere only if the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it has or exercised the same in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby. The supervisory jurisdiction is not available to correct mere errors of facts or of law unless the errors are manifest and apparent on the face of proceedings. It is also a trite law while exercising the supervisory jurisdiction, this Court will not go beyond what is pleaded in the leave to defend application as the same would be permitting additional grounds and thus extending the period of limitation.

In R.K.Bhatnagar vs Sushila Bhargav it was held that, if a tenant does not file any site plan then the site plan filed by the owner along with petition would be deemed to be correct. Even otherwise, the imperfectness of title of premises can neither stand in way of eviction petition nor can a tenant be allowed to raise plea of imperfect title or title not vesting in landlord and that too when tenant has been paying rent to landlord as held in Puran Chand Aggarwal vs Lekh Raj. In the present case, there is sufficient material to show the Petitioners had attorned to the Respondent.

Admittedly, eviction petition has been filed by the Respondent for his need as also for the need of his six other family members. It is settled law a landlord can choose the property from where he intends to carry on his business. A bare perusal of the impugned order does show the learned Trial Court has also considered the issues raised and it needs no interference. Even otherwise in revision, the powers of this Court are limited and it is not open to revisit or relook the findings returned by the learned Trial Court. There is no illegality in the impugned order. The petition is thus dismissed, being devoid of merits.

Tags : Bonafide need Eviction Legality

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High Court of Allahabad

M/S Ashu Traders Madar Gate v. Union Of India And Others

MANU/UP/0441/2020

24.02.2020

Goods and Services Tax

Petitioner cannot get any relief, when there is non-disclosure of godowns and non-payment of tax which ultimately demonstrated misconduct

The subject matter of challenge in the instant writ proceeding is in respect of a seizure order dated 10th May, 2018, issued by the Respondent no. 4, namely, the Deputy Commissioner, whereby the goods of the writ Petitioner were seized. The writ Petitioner is not only challenging the seizure order dated 10th May, 2018, it is also praying for release of the seized goods.

As per Section 67 (2) of the Uttar Pradesh Goods And Service Tax Act, 2017, where the proper officer, not below the rank of Joint Commissioner, either pursuant to an inspection carried out under sub-section (1) or otherwise, has reasons to believe that any goods liable to confiscation or any documents or books or things, which in his opinion shall be useful for or relevant to any proceedings under this Act, are secreted in any place, he may authorize in writing any other officer of central tax to search and seize or may himself search and seize such goods, documents or books or things.

As per Rule 139 (1) of CGST, where the proper officer not below the rank of a Joint Commissioner has reasons to believe that a place of business or any other place is to be visited for the purposes of inspection or search or, as the case may be, seizure in accordance with the provisions of Section 67, he shall issue an authorization in FORM GST INS-01 authorizing any other officer subordinate to him to conduct the inspection or search or, as the case may be, seizure of goods, documents, books or things liable to confiscation.

The facts, as revealed in the counter affidavit, clearly reflect upon the conduct of the writ petitioner post seizure of its goods. Till date, no TRAN-1 has been submitted by the writ Petitioner. The enquiry preceding seizure has revealed that the Petitioner has one declared godown and three undeclared godowns and stocks were also found at the undeclared godowns during seizure. As such, proceedings have been initiated under Section 67 (2) of the UPGST Act, 2017, read with Rule 139 (1) of the Rules, 2017.

It is noticed that consequent upon proceedings initiated by the concerned respondent authority, the writ petitioner never deposited any tax or penalty or bond or security, as required under Section 67 (6) of UPGST, 2017. Notices / summonses have been issued but no one appeared on behalf of the writ Petitioner on the date fixed. The stand of writ Petitioner in rejoinder affidavit is evasive and vague.

Present Court is unable to afford any relief to the writ petitioner by exercising discretionary jurisdiction under Article 226 of the Constitution of India, 1950. The writ petition is liable to be dismissed and stands accordingly dismissed.

Tags : Seized goods Release Entitlement

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High Court of Madhya Pradesh

M.P. Road Development Corporation Ltd. Vs. M.S.P. Infrastructure Ltd.

MANU/MP/0407/2020

20.02.2020

Arbitration

Arbitral Tribunal is under a statutory duty to state reasons for its conclusion

In facts of present case, a tender was issued by Appellant for the work of detailed Design, Engineering, Financing, Procurement, Construction, Operation and Maintenance of Raisen-Rahatgarh road of about 100 kms. A Letter of Acceptance (LOA) was issued. After submission of performance bank guarantee, consortium agreement was entered into between the parties. The stipulated completion period of work was 18 months as per the Concessionaire Agreement. The extended date of completion on failure of achieving milestone and showing progress of work was 3rd February, 2004. The agreement was terminated on alleged violation of terms of contract and on the allegation of snail progress by the contractor.

Indisputably, a civil suit was filed by the Respondents at Kolkata in which, the parties decided to refer the dispute to arbitration in view of Arbitration Act. In turn, a Three Member Arbitral Tribunal (Tribunal) was constituted. The Respondent/contractor filed statement of claim for Rs. 89,67,00,000. After completion of pleadings and filing of documents, etc., the Arbitrator passed the award and awarded total amount with interest i.e. Rs. 6,90,34,743.

The Appellant feeling aggrieved with above award, assailed it before the Court below by filing an application under Section 34 of the Arbitration and Conciliation Act, 1996. The Court below after hearing the parties, passed the impugned order and dismissed the application.

Section 34 of the Arbitration Act makes it obligatory on the part of the Court to interfere with the arbitral award, if it is in conflict with the public policy of India. Audi alteram partem or principles of natural justice makes it obligatory for the courts to assign adequate reasons. The reasons are held to be heartbeats of conclusion. Recording of reasons also operates a valid restraint on any possible arbitrary exercise of judicial/quasi-judicial or even administrative power. The reasons re-assure that, discretion has been exercised by the decision maker on relevant grounds and by disregarding the extraneous and irrelevant consideration.

In the application filed under Section 34 of the Arbitration Act, the Appellant has categorically pleaded that the contract was terminated by following the 'due process'. The amount awarded by the Tribunal does not have any basis. The Appellant averred before the Court below that there is no formula or basis on the strength of which the Tribunal has reached to a magic figure and appellant was directed to pay the same.

Arbitral Tribunal is under a statutory duty to state the reasons upon which its conclusion is drawn or in other words, award is passed. The only exception is when it is agreed between the parties that assigning of reason is unnecessary. It is nobody's case that in the instant matter, parties have reached to any understanding that reasons are not required to be assigned.

In the impugned order, the court below opined that interference can be made if order is passed malafidely or is against the public policy. The expression 'public policy of India' was given very wide interpretation and it makes it obligatory for the courts to adopt judicial approach, assign adequate reasons in support of decision. It needs to follow the principles of 'audi alteram partem. In absence of assigning reasons, impugned order of court below has become vulnerable.

In the instant case, the decision making process which has a direct nexus with the principles of natural justice was called in question by the Appellant. If decision making process is vitiated, it cannot be said that audi alteram partem principle is satisfied. In absence of assigning reasons, impugned order cannot be countenanced.

Court below has not considered various points raised by the Appellant in his application filed under Section 34 of the Arbitration Act. The decision making process adopted by the court below cannot sustain judicial scrutiny. In the result, impugned order is set aside. The matter is remitted back before the Commercial Court, with the direction to re-hear the parties and pass a fresh order in accordance with law. Appeal is allowed.

Tags : Award Payment Direction Legality

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