Supreme Court

Jagdamba Devi v. Union of India And Ors.

MANU/SC/0086/2017

31.01.2017

Service

It is not possible for Supreme Court to scrutinize documents as to its sufficiency or otherwise

Present appeal by way of special leave impugns final judgment passed by High Court whereby High Court allowed the Appeal filed by Respondents and thereby declined Appellant’s claim of dependent family pension under Swatantrata Sainik Samman Pension Scheme, 1980. It was the case of Appellant that, Respondent authorities adopted a hyper-technical approach while dealing with case of freedom fighter and ignored basic objectives of scheme, which is to honour and benefit the kith and kin of freedom fighters.

Swatantrata Sainik Samman Pension Scheme, 1980 is a Central Government Scheme for the grant of pension to freedom fighters and their families from Central Revenues which was introduced by the Government of India to extend the benefit of pension to all the freedom fighters as a token of respect to them. Clause 7(b) of the Scheme explicitly lays down that, claim of being “underground” can be proved either by documentary evidence by way of Court’s/Government’s orders proclaiming the applicant as an offender, announcing an award on his head, or for his arrest or ordering his detention; or, Certificates from veteran freedom fighters who had themselves undergone imprisonment for five years or more if the official records are not forthcoming due to their non-availability.

Appellant had laid his claim only on ground that Hari Kant Jha had remained underground for more than six months. From Clause 7(b), there are two modes of providing evidence for same. First one is by producing official records and second, where official records were not forthcoming due to their non-availability, as per Clause 7 (b)(ii), by producing certificate from freedom fighters who have themselves undergone imprisonment for five years or more. In case of Appellant, since official records were not traceable due to non-availability, Appellant submitted a certificate from Jagdish Singh who was a veteran freedom fighter. Central Government vide its order dated 15.11.2006 clearly pointed out that none of eligibility criteria were met in case of the appellant. Hari Kant Jha was arrested on 14th October, 1944 and remained in jail till he was released on bail on 27th October, 1944. He was thereafter discharged from case on 25th January, 1945. Word “underground” is not synonymous to being “an absconder”. Based on verification of documents, in its order, Central Government stated that jail suffering of Shri Hari Kant Jha was only for thirteen days whereas the minimum jail suffering required to become eligible for pension is six months. There was neither any document nor any report that Hari Kant Jha was absconding for more than six months. That being “underground” is not synonymous to being an “absconder”.

Where primary evidence viz. records of relevant period are not available, ‘Non-availability of Record Certificate (NARC)’ from concerned authority, in form of secondary evidence becomes a pre-requisite for claiming “underground suffering”. Instructions require State Government to issue NARC only after due verification from concerned sources. In case of Appellant, Central Government stated that, Appellant has not produced any acceptable record-based evidence duly verified by State Government to establish the claimed ‘jail’ or ‘underground sufferings’ of Late Shri Hari Kant Jha. She has also not produced NARC from competent authority as required and that thus, eligibility criteria is not met.

Swatantrata Sainik Samman Pension Scheme, 1980 is a document based Scheme and documents required for eligibility for Samman Pension as mentioned in the Scheme are to be produced by applicant in support of his claimed suffering, duly verified and recommended by the concerned State Government. Due to discrepancies and ambiguities relating to the documents and also due to non-production of NARC, benefit of Scheme could not be extended to Appellant. As held in Raghunath Gajanan’s Case, it is not possible for this Court to scrutinize documents as to its sufficiency or otherwise.

Single Judge has made certain observations to the effect that “Hari Kant Jha was absconding” and that the same was sufficient under provisions of Scheme to declare him “as remaining underground for more than six months”, thereby making him entitled for pension. As rightly observed by Division Bench of High Court, said observation was without reference to Scheme. Single Judge only remanded matter to Central Government for reconsideration, giving liberty to Central Government to reappraise the documents. Upon reappraisal of matter, Government has clearly pointed out that Shri Hari Kant Jha did not meet eligibility criteria of either being an underground within meaning of the Scheme for more than six months or undergoing sentence for more than six months and as such he was ineligible. High Court has rightly held that Central Government was well within its power to hold that Hari Kant Jha was ineligible to seek pension under Swatantrata Sainik Samman Pension Scheme, 1980.

Relevant

State of Maharashtra and Ors. v. Raghunath Gajanan Waingankar: (2004) 6 SCC 584; MANU/SC/0584/2004

Tags : Scheme Benefit Eligibility

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High Court of Delhi

Mrs. Aradhna Goel v. Balwantray Mehta Vidya Bhawan & Anr.

MANU/DE/0248/2017

31.01.2017

Service

Employer has to judge suitability of services of probationer; Court cannot substitute its decision for that of employer

By this writ petition, Petitioner impugns order of the Delhi School Tribunal, by which Delhi School Tribunal dismissed appeal filed by Petitioner against the termination of her services by Respondent no.1/school’s letter dated 4th May, 2007. Petitioner was appointed as a probationer with Respondent no.1/school by letter of Respondent no.1 dated 15th July, 2006.

Termination of employment of Petitioner was during probationary period, and dehors any other aspect which is in issue, it is settled law that it is employer who has to judge suitability of services of a probationer and this Court cannot substitute its decision for that of the employer, and if employer for any reason does not find probationer to be suitable for services, such services of a probationer can be terminated in accordance with the appointment letter. Appointment letter dated 15th July, 2006 entitled Respondent no.1/school to terminate services on giving one month’s notice/one month’s salary and which has been done by impugned letter dated 4th May, 2007.

In instant case, Respondent no.1/school/employer found that, conduct of Petitioner was not satisfactory in not giving her medical certificate within originally prescribed time, and Petitioner was pregnant at date of employment resulting in her being granted long maternity leave from, and these reasons according to the school/employer were such which disentitled Petitioner who was a probationer from continuing in service with Respondent no.1/school by school/employer exercising right of one month’s notice as per appointment letter dated 15th July, 2006. Therefore, since Petitioner was only a probationer and not a regular/confirmed employee of Respondent no.1/school, and law with respect to entitlement of employer to terminate services of probationer is clear. Court cannot interfere in decision of employer to not continue probationary services.

Tags : Service Termination Validity

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Customs, Excise and Service Tax Appellate Tribunal

Apotex Research Pvt. Limited v. Commissioner of Central Excise, Customs and Service Tax, Bangalore

MANU/CB/0027/2017

30.01.2017

Excise

For every kind of refund, time limit as prescribed under Section 11B of Central Excise Act, 1944 is applicable

In facts of present case, Appellant is a 100% EOU engaged in manufacture and export of pharmaceutical products issued with private bonded warehouse and IBM sanction order. Appellants availed CENVAT credit of excise duty paid on their input and service tax paid on their input services. Appellant availed CENVAT credit of service tax paid on input services viz., general insurance, canteen service and group medical and health insurance service. Appellant filed a refund application for Rs. 21,06,241/- based on Orders-in-Appeal No. 380-381/2012 CE for period April 2007 to September 2008. Adjudicating authority rejected refund on some input services in original adjudicating proceedings. Appellant preferred an appeal before Commissioner (A) passed order giving partial relief and remanded case back to original adjudicating authority. Adjudicating authority passed order granting partial relief against which Appellant filed appeal once again before first appellate authority i.e. for second time and Commissioner (A) concurred with views of adjudicating authority and rejected appeal of Appellant by holding that, refund claim for Rs. 1,29,612/- availed on input services for period April 2007 to September 2008 is inadmissible pertaining to insurance service and catering services and also rejected refund for Rs. 6,97,971/- pertaining to employees health insurance services and is not related to manufacturing activity. Aggrieved by said order, Appellant has filed present appeal.

Disputed services fall in the definition of input services and the same has been held in number of decisions rendered by the higher judicial fora. He further submitted that in the case of canteen services (outdoor catering services), the food is provided to the employees. He also submitted that it is a statutory requirement under the labour laws to maintain canteen facilities and it is indirectly related with the manufacturing of the final products. By various decisions of the Tribunal and the High Court has held that there is no necessity of having 250 employees for claiming CENVAT credit on canteen services. Canteen services fall in definition of input service and Appellant is entitled to claim refund of CENVAT credit in respect of outdoor catering services. Further, Appellant is situated at a remote area in industrial estate and therefore, it is all the more important to provide canteen facilities to employees.

Supreme Court in case of Mafatlal Industries Ltd. and subsequently clarified by Supreme Court in Anam Electricals Manufacturing Co. and also by High Court of Karnataka in the case of MCI Leasing (P) Ltd., Mysore: 2012-TIOL-54-HC-KAR-ST, have held that for every kind of refund, time limit as prescribed under Section 11B is applicable. Refund of Rs. 5,66,916/- is time bared as held in impugned order and with regard to remaining refund of Rs. 2,60,487/-, Appellant is entitled to the refund of the same being refund rejected on input services with regard to outdoor catering service, general insurance and employees health insurance.

Relevant

Mafatlal Industries Ltd.: MANU/SC/1203/1997
: 1997 (89) ELT 247 (SC), Anam Electricals Manufacturing Co.: MANU/SC/1205/1997
1997 (20) ELT 260 (SC), MCI Leasing (P) Ltd., Mysore: 2012-TIOL-54-HC-KAR-ST

Tags : Refund Eligibility Time bar

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Supreme Court

Ganga Ram Sah and Ors. v. State of Bihar

MANU/SC/0077/2017

27.01.2017

Criminal

Intention of members of unlawful assembly can be gathered by nature, number and location of injuries inflicted

In facts of present case, Appellant was sentenced to undergo rigorous imprisonment for life for offence punishable under Section 302 of Indian Penal Code,1860 (IPC) and rest of accused persons were also sentenced to undergo rigorous imprisonment for life for offence punishable under Section 302/109 of IPC. Against conviction, these accused persons had preferred two criminal appeals heard together by the High Court and have resulted in dismissal, since High Court has affirmed the conviction and sentence recorded by the trial court.

FIR was registered on basis of fardbayan given by informant immediately after the incident. There is no time lag between incident and FIR. In said FIR, both Appellant Nos. 1 and 3 are specifically named. Insofar as Appellant No. 1 is concerned, specific allegation is made in FIR that it was the exhortation of Appellant No. 1 which led to the said assault. Accused fired two gun shots hitting brother of the informant which caused instant death. Two other eye-witnesses, have also specifically given statement to this effect, thereby supporting the version of the prosecution. These witnesses were cross-examined at length but their testimony could not be shaken. Presence of Appellant at the scene of occurrence has not been denied. Role attributed to him, therefore, stands proved, as rightly held by trial court as well as High Court.

All these persons are convicted under Section 149 of IPC as well. It has also to be borne in mind that Appellant Nos. 1 to 4 are closely related. A dispute had arisen between two groups three days before date of incident in question, which incident was brought to the knowledge of villagers by informant and Panches had advised both groups not to involve in any altercation. Appellants had come with clear motive in mind to bodily harm the members of informant's family and with common objective. A calculated action was spearheaded. All accused persons were very well aware of the consequence of this action. The Courts below, therefore, rightly held that ingredients for the offence under Section 149 of IPC also stood proved. In that event, both Appellants are also equally liable for consequence of causing murder and attempt to murder other victims. Acts and events taken together proved beyond doubt that the common object of the unlawful assembly was not only to cause grievous hurt but to kill the members of the opposite camp.

It is trite law that, common object of unlawful assembly has to be inferred from the membership, the weapons used and the nature of the injuries as well as other surrounding circumstances. Intention of members of unlawful assembly can be gathered by nature, number and location of injuries inflicted. In instant case, repeated gun shots fired by Accused on the person of deceased, and injuries caused by lathis by other accused persons on complainant and his second brother on their heads, clearly demonstrate the objective to cause murder of these persons. Court dismissed the appeal.

Tags : Conviction Validity Unlawful assembly

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High Court of Delhi

B.B. Dash v. Central Information Commission and Anr.

MANU/DE/0190/2017

24.01.2017

Right to Information

CPIO is to give sufficient reasons for denying supply of information on account of it being exempt

Petitioner impugns order dated 22th November, 2016, whereby, CIC has held Petitioner – CPIO liable for not providing information to Respondents. It has been held that, Petitioner has failed to provide information without any cogent reasons. Maximum penalty, as prescribed, of Rs.25,000/- has been imposed on Petitioner. In facts of present case, Respondent No.2 had filed an application under Right to Information Act, 2005 dated 25th August, 2015 seeking certain information. Reply to said information was given. Since Respondent No.2 was not satisfied with reply given, a complaint under Section 18 of Right to Information Act, 2005 was filed with CIC. Said complaint under Section 18 of Act culminated in proceedings under Section 20 of Act leading to impugned order dated 22nd November, 2016.

CIC concluded that, Petitioner failed to provide information without any cogent reason. CIC came to conclusion that, nature of his replies, to various queries showed that these were meant to circumvent the queries raised by Complainant in her application, which amounted to wilful denial of information.

From reply, it is apparent that Petitioner has not responded to queries raised by Respondents. Response given by Petitioner “it is an institute matter” does not convey any meaning to Applicant. In response to an application, seeking information under Act, the CPIO is to provide information sought and in case information is not liable to be provided on account of it being exempt, give sufficient reasons for denying the supply of information. Denial of information can only be in terms of Act.

Response to the various queries “it is an institute matter”, neither answers the queries nor renders an explanation claiming exemption from providing information. Perusal of impugned order shows that, CIC has not erred in returning a finding that information sought has not been provided to Respondent No.2. No cogent explanation has been rendered for non-supply of the information. Thus, Delhi High Court while dismissing the Petition held that, order of CIC cannot be faulted.

Relevant

Right to information Act, 2005

Tags : Query Application Explanation

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High Court of Bombay

Zumbar v. State of Maharashtra and Ors.

MANU/MH/0104/2017

02.02.2017

Criminal

Designated officer dealing externment proceedings has to record opinion that, witnesses not willing to give evidence in public

Instant Petition filed for quashing and setting aside of impugned orders passed by Ld. Divisional Commissioner, Aurangabad and Sub Divisional Officer, Osmanabad. Petitioner submitted that Sub Divisional Officer ought to have considered that offences registered against present petitioner are not serious one or against the society or dangerous to the public at large. It ought to have been considered by authorities that only three offences are registered against present petitioner and same are registered only to pressurize present Petitioner.

As per Section56(1)(a) and (b) of Maharashtra Police Act, 1951, an order of externment can be passed against a person whose movements or acts are causing or calculated to cause alarm, danger or harm to person or property as provided in clause (a).Order of externment can also be passed against a person, if there are reasonable grounds for believing that such a person is engaged or is about to be engaged in commission of an offence involving force or violence as provided in clause (b). An order of externment can also be passed against a person if that person is engaged or about to be engaged in commission of an offence punishable under Chapter XII, or Chapter XVI, or Chapter XVII of Indian Penal Code. But in addition to the above, concerned Officer, who is dealing with externment proceedings, should be of opinion that witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property.

Authority has not recorded subjective satisfaction and formed opinion that , witnesses are not willing to come forward to give evidence in public against Petitioner by reason of apprehension on their part as regards the safety of their person or property. Division Bench of the Bombay High Court [at Principal seat] in case of Yeshwant Damodar Patil Vs. Hemant Karkar, Deputy Commissioner of Police & another had occasioned to consider the scope of provisions of Section 56[1][a] and [b] and also mandate of provisions of Section 59 of the Bombay Police Act. In order to fulfill mandate of provisions of Section 56(1) (b), designated officer has to record his opinion that witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property.

It does not appear from discussion in order passed by Respondent no.3 that, as a matter of fact ,he recorded in-¬camera statements of witnesses and before passing impugned order of externment, he formed opinion that witnesses are not willing to come forward to give evidence in public against Petitioner. There is no discussion in impugned order why externment of Petitioner is necessary from Latur District and Ausa Taluka in Latur District, Barshi in Solapur District, North Solapur, South Solapur when alleged activities/offences against the petitioner are registered with Osmanabad Gramin Police Station, Osmanabad.

Respondent No.3 has not followed mandate of provisions of Section 56 [1] [b] of Maharashtra Police Act. There is non-application of mind of Respondent No. 3 as he has not adverted to specific grounds in show cause notice and also did not adhere to mandate of provisions of Section 56 [1] [b] of Maharashtra Police Act, 1951.Appellate Authority, though, modified order passed by Respondent no.3 and restricted it’s implementation to Osmanabad District nevertheless did not consider that Respondent No. 3 has not adhered to provisions of Section 56 [1] [b] of Maharashtra Police Act, 1951. High Court allowed petition and quashed impugned order.

Relevant

Yeshwant Damodar Patil Vs. Hemant Karkar, Dy. Commissioner of Police & another

Tags : Proceedings Externment Validity

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