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Indian Laws - Case Laws
Showing 541 to 560 of 26755 Records
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2024 (1) TMI 1151
Grant of permission to respondent No. 1 to travel abroad subject to certain conditions.
The respondent No. 1 submits that in terms of the aforesaid order, the respondent No. 1 traveled abroad and has also returned back to India. By a further order dated 18th December, 2023 in Misc. Application No. C.C.No.4767/Misc./2023, the learned Additional Chief Metropolitan Magistrate, 19th Court, Esplanade, Mumbai has further relaxed the conditions which were imposed by earlier orders.
HELD THAT:- Nothing survives in this petition - The petition stands disposed.
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2024 (1) TMI 1016
Public Interest Litigation - Doctrine of Locus Standi - validity of notification dated 19 January 2024 issued by the Government of Maharashtra declaring 22 January 2024 as a public holiday on the occasion of the celebrations of the “Shri Ram-Lalla Pran-Pratishtha Din” - HELD THAT:- The principles of judicial review in considering the legality of the decisions when tested on arbitrariness and procedural impropriety are well settled - it is not satisfying that the petitioners have made out any case to suggest that the State Government has not acted in accordance with law while issuing the impugned notification. This, more particularly, when we find that the State Government has exercised power as entrusted to it under notification dated 8 May 1968 of the Central Government.
The petitioners appear to be completely unmindful of such elementary requirements when the canvass of their petition is likely to have wider ramifications. Thus such petition could not have been moved making unwarranted and untenable statements and raising contentions in such a casual manner, this more particularly despite on pointing out to the petitioners as to whether they would be serious on their contentions in the petition.
There are no manner of doubt that the present proceeding is a patent abuse of process of law. The proceedings cannot be kept pending and are required to be dismissed in limine with exemplary cost.
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2024 (1) TMI 1015
Cancelling / revoking her candidature and recommendation for appointment to the Delhi Judicial Service (DJS) - petitioner’s candidature for appointment to the DJS was cancelled on the ground that she had concealed the fact that a criminal prosecution/criminal complaint was pending against her, in her application form for the Delhi Judicial Service Examination – 2022 (DJS Examination) - HELD THAT:- It is settled law that suppression of material information or making a false statement particularly in respect of queries relating to prosecution and conviction would have a material bearing on the suitability of a candidate. In Kendriya Vidyalaya Sangathan & Ors. v. Ram Ratan Yadav [2003 (2) TMI 559 - SUPREME COURT], the Supreme Court had made it abundantly clear that neither the gravity of the offence nor the fact that the criminal proceedings had ultimately culminated in acquittal of the candidate, would be relevant in considering whether a candidate who has suppressed information while applying for the post was suitable for continuing as a probationer.
In the present case, there is no dispute that the petitioner was being prosecuted at the material time. Thus, the petitioner was required to respond in the affirmative to any query requiring her to disclose whether she was being prosecuted. The petitioner’s defence largely rests on the assertion that the information required under serial no.6 of the application form was not free from ambiguity. It is contended that the query is capable of being interpreted to mean whether the candidate had been arrested, prosecuted, and kept under detention or bound/convicted by a court of law. It is contended that the punctuation marks (commas) between the words arrest, prosecuted, and kept under detention were capable of being construed conjunctively - The suitability of the petitioner’s candidature for being appointed as a DJS is called into question on the premise that the petitioner made a false assertion when she responded in the negative to the information sought at serial no.6 of the application form. Clearly, such measures would be impermissible unless the information sought is in unambiguous terms lending a high degree of certainty to the conclusion that the petitioner’s response to the query in question was false.
Pursuant to the order dated 03.11.2023 passed by this Court, Dr Amit George, learned counsel appearing for DHC had submitted a short note confirming the same. The note indicates that a complaint was also made in regard to the said candidate. However, DHC has not revoked the candidate’s appointment but is awaiting the outcome of the criminal case. Concededly, no proceedings have been initiated against the said candidate for making a false statement in his application form. There is merit in the petitioner’s contention that DHC cannot adopt a pick and choose policy whereby it proceeds against one candidate in similar facts while refraining from doing so in the case of another.
The impugned communication cancelling the petitioner’s candidature and recommendation for appointment to DJS, is set aside - Petition allowed.
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2024 (1) TMI 956
Polluting the stream of administration of justice - contempt of court - husband had filed fabricated document to oppose the prayer of his wife seeking transfer of matrimonial proceedings - HELD THAT:- A perusal of the paper book in second bail application shows that there is a report annexed by the Registry in the matter. It mentioned about the earlier two bail applications filed in the FIR inquestion. The first bail application filed by the appellant was disposed of on 06.03.2023. Bail application filed by the co-accused Gangesh Kumar Thakur was disposed of on 17.01.2023. The next one was the second bail application filed by the appellant. Though Standing Order No.2 of 2023 directed the Registry to annex all the orders passed in the earlier bail applications by different accused in the same FIR, however, the order passed by the High Court in the case of the appellant, rejecting his earlier bail application, does not form part of the bail application before the High Court. Only the order dated 17.01.2023 passed in the bail application, filed by the co-accused Gangesh Kumar Thakur was annexed.
The High Court even granted bail to the appellant. In the bail application filed before the High Court, it was not mentioned that the same was second bail application filed by the appellant. This Court cannot comment on the contents of the bail application filed before the Sessions Judge as the copy thereof is not available on record here.
The present appeal is, accordingly, dismissed as infructuous.
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2024 (1) TMI 955
Compulsory / premature retirement - Doubting integrity and expressing discontent about the functioning of the Petitioner - Approval of the ACC is a precondition to invoke FR 56 (j) against the officers of SAG or not - correctness of action taken by the respondent compulsorily retiring the petitioner on May 10, 2018 by invoking FR 56 (j) - The petitioner became the Director in the Directorate General of Anti-Dumping (‘DGAD’, for short) in the year 2014. He was posted as Regional Joint DGFT, Guwahati and Shillong in the year 2017. Thereafter, he was put in the Senior Administrative Grade (‘SAG’, for short) of ITS, at the level of Joint Secretary, on November 16, 2017 and was promoted on regular basis to SAG on February 27, 2018.
HELD THAT:- The Second Review Committee was of the view that in a few APARs of the petitioner, there were remarks which cast doubts on the integrity of the petitioner. Reference was also made, specifically, to the APAR of 2014-2015, which recorded in the integrity column of the petitioner, that “there is a room for improvement”. Suffice to state, this remark was also disclosed to the petitioner, however, no representation was submitted against the same.
The petitioner herein has been given fair opportunity to file his representation against the order of compulsory retirement. Moreover, the First Review Committee, the Representation Committee as well as the Second Review Committee have gone through the entire service record of the petitioner. In fact, when the representation dated June 1, 2018, was in depth examined by the respondent, it remanded the case of the petitioner back to the review committee for a fresh consideration and only thereafter, the Second Review Committee, came to the conclusion that the service of the petitioner, was no more required.
The aforesaid judgments relied upon by petitioner shall have no applicability in the facts of the present case and as such, not help the case of the petitioner.
There are no merit in the present petition. The impugned order of the Tribunal does not require any interference. The writ petition is dismissed.
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2024 (1) TMI 928
Maintainability of petition - Aggregate value of claims and counter-claims in arbitration - Seeking return of the petition on ground of lack of pecuniary jurisdiction of this Court entertain this Petition - invocation of Order VII Rule 10 of the Code of Civil Procedure, 1908 - inclusion of pendente lite interest - HELD THAT:- Section 12(2) of the CCA stipulates that the ‘aggregate value’ of the claim and any counter-claim in a commercial dispute arbitration forms the basis for determining the pecuniary jurisdiction of the Court. In cases where the Statement of Claim includes a component of interest, such as in the present case, it is necessary to consider the portion of interest accrued up to the date of invocation of arbitration as part of the ‘aggregate value’, in accordance with Section 12(2) of CCA. However, this provision cannot be interpreted as requiring the computation of interest up to the commencement of proceedings under Section 34 of the Arbitration and Conciliation Act, 1996. The intent is to consider interest only until the arbitration is invoked, thereby establishing a definitive cut-off for calculating the ‘aggregate value’ for jurisdictional purposes.
The calculation presented by the Petitioner conflicts with the proper interpretation of Section 12 of the CCA. It is not permissible to apply interest to the original value of both the claim and counter-claim up until the filing date of petition under Section 34 of the Act. Accepting such a method would imply that in any arbitration case, the Specified Value would continually get revised. Consequently, if the Specified Value is initially below the pecuniary jurisdiction of this Court, it would eventually fall within the jurisdiction of a High Court simply due to the accrual of interest over time. This outcome would contravene the legislative intent behind establishing a specific threshold for the pecuniary jurisdiction of the Courts.
Reliance placed upon a Division Bench judgment of this Court in NATIONAL SEEDS CORPORTION LTD. & ANR. VERSUS RAM AVTAR GUPTA [2021 (12) TMI 1479 - DELHI HIGH COURT], wherein the Court took into consideration only the portion of interest claimed till the date of invocation of arbitration for the purposes of calculating the pecuniary jurisdiction of this Court under Section 12(2) of the CCA. Section 21 of the Act stipulates that the arbitral proceedings commence when the notice invoking arbitration is received by the Respondent, and therefore, the interest is calculated up to such date.
The interest component in the calculation supplied by the Petitioner would reduce substantially, for the following reasons:
(a) Interest on risk and cost amount is to be calculated from due date (19th January, 2019) to the date of notice invoking arbitration (04th October, 2019): 18% interest p.a. on INR 58,07,799.82 for a period of 258 days = INR 7,38,891.5.
(b) Moreover, the inclusion of pendente lite (interest accruing during litigation) and future interest on the counter-claim, as well as litigation costs, is impermissible to be inlcuded in the calculation of the Specified Value, as they commence accrual after date of notice invoking arbitration.
Application disposed off.
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2024 (1) TMI 879
Dishonour of Cheque - compounding of sentences - HELD THAT:- There is doubt that the offence punishable under Section 138 of the NIA, 1881 is compoundable. In the said circumstances, the parties are desirous to compound the sentence - there are no reason for not to compound the sentence of the appellant and acquit the appellant.
The appeal is allowed and appellant is acquitted - The respondent shall furnish his details of the bank account to the Registry of this Court.
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2024 (1) TMI 878
Post GST era: Unconstitutional validity of Goa Cess Act - violation of Articles 301, 303, and 304 of the Constitution of India - violation of petitioner’s rights under Article 14 of the Constitution of India, since the levy is on two classes of items, the ‘Goan ore’ on which royalty is paid and the ‘non-Goan’ ore on which royalty is not paid - power/competence to sustain the levy of cess.
Whether the Goa Cess Act is constitutionally valid when tested on the anvil of Articles 14, 301, 303 and 304 of the Constitution - whether the Goa Cess Act levys an unconstitutional fee or a tax? - whether the State stand denuded of its power to levy cess under the said Act on the ground that levy stands subsumed by the GST Act?
HELD THAT:- The title of the Goa Cess Act namely “Goa Rural Improvement and Welfare Cess Act, 2000” as also the preamble of the Act would indicate that the object of the Act is to provide additional resources for improvement of infrastructure and health with a view to promote the welfare of people residing in the rural areas affected by the use of plastics, dumping of garbage and spillage of materials. It provides that the legislature thought it expedient to provide additional resources for improvement of infrastructure and health with a view to promote the welfare of people residing in the rural areas affected by the use of plastics, dumping of garbage and spillage of material.
The legislative competence to enact the Goa Cess Act has been upheld by a Division Bench of this Court in the case Sociedade De Fomento Industrial Pvt.Ltd., Goa [2018 (9) TMI 2141 - BOMBAY HIGH COURT]. The Division Bench has held that the Goa Cess Act is relatable to Entries 6, 13, 23 and 66 of List II (State List) under the Seventh Schedule to the Constitution, and its validity is not impaired or affected by Entries 52 and 54 of List I. It is also held that it does not in any manner breach the mandate of the Central Act namely Mines and Minerals (Development and Regulation) Act,1957 read with Act 65 of 1951 and Act 53 of 1948 respectively. The Division Bench held that considering the substance and object of the Goa Cess Act and the Rules framed thereunder vis a vis MMDR Act and the Rules framed thereunder, there was no irrevocable conflict between the concerned Union Legislation and the State Legislation.
Whether Tax or Fee? - HELD THAT:- In Consumer Online Foundation & Ors. Vs. Union of India & Ors. [2011 (4) TMI 1275 - SUPREME COURT] the Supreme Court was considering the decision of the Delhi High Court upholding levy of development fees on the embarking passengers, by the lessees of the Airports Authority of India, at the Indira Gandhi International Airport, New Delhi and the Chhatrapati Shivaji International Airport, Mumbai. The Supreme Court held that the nature of the levy under Section 22A of the Airports Authority of India Act, were not the charges or any other consideration for services for the facilities provided by the Airports Authority. Referring to the decision in Vijayalashmi Rice Mills & Ors. [2006 (8) TMI 307 - SUPREME COURT] , it was held that levy under Section 22A though described as fees, is really in the nature of a cess or a tax for generating revenue for the specific purposes mentioned in clauses (a), (b) and (c) of Section 22A.
It also needs to be observed that the Division Bench in Sociedade De Fomento Industrial Pvt. Ltd., Goa also considered the contention of the petitioners therein, that the State cannot levy any fee under Entries 6, 13 and 50 of List II, as it was required to provide some special service to the petitioner, and no such service, much less special service, was provided to the petitioners. The petitioners had also contended that the imposts can be by way of tax or fee, but not both - It was observed that it could not be said that the petitioners do not benefit at all from the services rendered and that there is not even a remote connection. It was held that the Goa Cess Act and the Rules are a device for the State to augment its resources and the services rendered by the collection of the levy, benefits the petitioner as well, and there existed a co-relationship. It was thus observed that the Goa Cess Act and the Rules, whether it imposes a tax or fee, could not be said to be unconstitutional.
Thus, there is no substance in the contention of the petitioner that the Goa Cess Act levies a tax and not a fee.
Whether Goa Cess Act is violative of Articles 301, 303 and 304 of the Constitution? - HELD THAT:- By now it is well settled that clauses (a) and (b) of Article 304 are required to be read disjunctively. Clause (a) of Article 304 provides for imposition of any tax on goods imported from other States or Union territories to which similar goods manufactured or produced in that State are subject with an intention as not to discriminate between goods so imported and goods so manufactured or produced. Thus, per se clause (a) of Article 304 is not attracted in the facts of the present case inasmuch as the Cess being levied by Goa Cess Act cannot be strictu sensu categorized as a “tax on goods” which are sought to be imported - The petitioners are merely concerned in regard to the iron ore/ores or coal. It is thus seen that what is sought to be included in the canvass of the Act is the massive and/ or mass transportation activity of such materials as listed under the schedule to the Act, the spillage of which is a potential threat to the health and welfare of the people and a cause of serious concern to the environment necessitating its preservation.
There cannot be two opinions that the transportation of materials of the nature which are provided for in Schedule I of the Goa Cess Act and that too within a small State like Goa, which has a meager land mass would certainly bring about situations of serious issues of public health, for the reason that it is undisputedly that not only normal transportation but such heavy transportation of materials in trucks/heavy vehicles are bound to cause large scale pollution and damage to the environment. There also cannot be two opinions that pollution caused by such transportation would be of varied nature which can be spillage of dust generated from the minerals, coal, fume generated from carriage of fluid substances apart from the smoke pollution and water pollution it would generate. Moreover, the effects on health of smokes/fumes generated from the exhaust of the heavy vehicles is to be imagined.
Once the legislation is traceable under Entry 6 read with Entry 66 of List-II, which provides for fees in respect of any matter in List-2 (except fees taken in any Court) and when such legislation concerns an eminent interest in relation to public health, the Courts are required to be extremely slow to tinker with such legislation, as the direct impact of any interference by the Court would be a casualty to human health and life.
Challenge on the ground of Article 14 of the Constitution - HELD THAT:- It is well settled that Article 14 does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of attaining specific ends. Such principle was reaffirmed by the Supreme Court in R.K. Garg And Ors. vs Union Of India (UOI) And Ors. [1981 (11) TMI 57 - SUPREME COURT].
It is well settled that fixation of rates of cess is within the domain of the rule making power of the authority and unless there is some strong material, that the rates as fixed are unconscionable and/or are patently arbitrary, it would not be appropriate for the Court to question the wisdom of the Government in fixing of the rates. Even otherwise fixing of rates is a matter of expertise which would depend on several factors to be considered. It would completely lie within the powers of the rule making authority to fix the rates. Except for a bald case of breach of Article 14, no material is placed on record to contend that the rates so arrived at and fixed by the State of Goa as issued by different notifications need interference.
Challenge on the ground of GST Laws - HELD THAT:- The object of GST laws is totally distinct from the object and purpose of the Goa Cess Act. Even the expert body namely the GST council has refrained from subsuming and thereby recommending the repeal of the Goa Cess Act in view of the incorporation of the GST laws. It would not be out of place to mention that Entry 52 of List II which dealt with taxes on entry of goods into local area for consumption use or sale therein and Entry 55 of List II inter alia in regard to taxes on advertisement, have been repealed, that too without any corresponding amendment in Entry 66 of List II. It is therefore, an unwarranted exercise on the part of the petitioners in making an attempt to attack the validity of the Goa Cess Act on the incorporation of the GST laws.
Further Section 174 of the Goa Goods and Services Act, 2017 would list the Acts as existing on the date of introduction of the Goa Goods and Services Act, 2017 and the Acts which would stand repealed. The Goa Cess Act does not figure in the list of the Acts repealed. In fact what is significant is that an Act which is relevant for the entry of goods in the State of Goa namely the Goa Tax on Entry of Goods Act, 2000, has stood repealed by the introduction of the Goa Goods and Services Act, 2017. Thus, it is unfounded for the petitioners to contend contrary to the clear legislative intent as reflected under the Goa Goods and Services Act, 2017 that the Court needs to consider that the Goa Cess Act stands subsumed in the GST laws and therefore, is rendered invalid. Such contention of the petitioners is required to be rejected.
Thus to conclude, none of the grounds on which the Court would exercise its powers of judicial review to invalidate an Act of the Legislature are made out by the petitioners so as to declare the Goa Cess Act to be in any manner unconstitutional. The petitions accordingly, need to fail on all counts.
Petition dismissed.
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2024 (1) TMI 814
Interpretation of statute - Section 17A of the Prevention of Corruption Act, 1988Corruption - siphoning of public funds - Difference of opinion - HELD THAT:- As different views is expressed on the interpretation of Section 17A of the Prevention of Corruption Act, 1988 as also its applicability to the appellant in the subject-case, the matter is referred to the Hon’ble the Chief Justice of India.
The Registry to place the papers before the Hon’ble the Chief Justice of India so that appropriate decision can be taken for the constitution of a Larger Bench in this case for adjudication on the point on which contrary opinions have been expressed.
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2024 (1) TMI 667
Liability to pay the amount of the sum assured on the death of the assured - date from which the policy becomes effective - whether it would be the date on which the policy is issued or the date of the commencement mentioned in the policy or it would be the date of the issuance of the deposit receipt or cover note? - HELD THAT:- In the present case, period of 12 months from 16.07.2012 will complete on 15.07.2013. It would be the last day of 12 months as from the next day, i.e., 16.07.2013 the next month will start. Unfortunately, the incidence of suicide is on 15.07.2013, the last day of 12 months. The date of proposal cannot be treated to be the date of policy until and unless on the date of proposal, initial deposit as also the issuance of policy happens on the same date where, for example, the premium is paid in cash then, immediately, the policy could be issued. Merely, tendering a cheque may not be enough as till such time the cheque is encashed, the contract would not become effective. The drawer of the cheque may, at any time, after issuing, stop its payment or there may not be enough funds in the account of which the cheque is issued and there could be many other reasons for which the cheque could be returned without being encashed.
Relying upon the above judgment in the case of Dharam Vir Anand [1998 (10) TMI 534 - SUPREME COURT], this Court again in the case of Life Insurance Corpn. of India vs. Mani Ram [2005 (8) TMI 747 - SUPREME COURT], reiterated the same view and held that the date of issue of policy would be the relevant date even if there was backdating as has been done in the case of Dharam Vir Anand - In the present appeals, there are no issue of back dating but the date of issuance of the policy would be the relevant date for all the purposes and not the date of proposal or the date of issuance of the receipt. In view of the above, the stand taken by the appellant is approved. The impugned orders are thus liable to be set aside.
The orders passed by the District Forum, the State Commission, and the National Commission are set aside and the claims of the respondent are rejected - Appeal allowed.
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2024 (1) TMI 666
Dishonour of Cheque - insufficient funds - discharge of legal liability or cheque issued towards the security - HELD THAT:- The accused admitted in his statement recorded under Section 313 of Cr.P.C. that the cheque was dishonoured due to ‘insufficient funds’. Therefore, this fact is not in dispute otherwise also Amrander Kumar (CW2) stated that cheque No.713405 was dishonoured due to insufficient funds and it was returned to the collecting bank with the memo. He admitted in his cross-examination that he was not posted in the bank at the time of the receipt of the cheque. However, that is not material because there is a presumption under Section 146 of the Negotiable Instrument Act regarding the correctness of the memo of dishonour. The accused has not disputed this fact in his statement recorded under Section 313 Cr.P.C. and the presumption has not been rebutted; therefore, it was duly proved that the cheque was dishonoured due to insufficient funds.
The complainant stated that he had not received the notice. Learned Trial Court had rightly pointed out that the person, who claimed that he had not received a notice as to pay the amount within 15 days from the receipt of the summons of the Court. It was laid down in CC. ALAVI HAJI VERSUS PALAPETTY MUHAMMED [2007 (5) TMI 335 - SUPREME COURT] that the person who claims that he had not received the notice has to pay the amount within 15 days from the date of the receipt of the summons from the Court and in case of failure to do so, he cannot take the advantage of the fact that notice was not received by him.
The accused has not paid any money to the complainant, and it was duly proved that the accused had failed to pay the money despite the receipt of the notice - Thus, it was duly proved that the cheque was issued in discharge of the legal liability which was dishonoured due to insufficient funds and the accused failed to make the payment despite the receipt of a valid notice of demand; hence, the complainant had succeeded in proving its case beyond the reasonable doubt.
In the present case, the amount awarded by the learned Trial Court as affirmed by the learned Sessions Judge is inadequate but in the absence of any appeal regarding the enhancement of sentence, no interference is required with the same.
The present revision fails and the same is dismissed.
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2024 (1) TMI 665
Dishonour of Cheque - funds insufficient - compounding of offence - amicable settlement arrived at between the parties - HELD THAT:- Having taken note of the fact that the matter has been amicably settled between the parties under One Time Settlement Scheme and the complainant-Bank has also issued No Dues Certificate in favour of the petitioner and the account stands closed, this Court sees no impediment in accepting the prayer made on behalf of the accused petitioner for compounding of offence while exercising power under Section 147 of the Act as well as in terms of guidelines issued by the Hon’ble Apex Court in DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT], wherein the Hon’ble Apex Court has held A bare reading of this provision would lead us to the inference that offences punishable under laws other than the Indian Penal Code also cannot be compounded. However, since Section 147 was inserted by way of an amendment to a special law, the same will override the effect of Section 320(9) of the CrPC, especially keeping in mind that Section 147 carries a non obstante clause.
In K. SUBRAMANIAN VERSUS R. RAJATHI REP. BY P.O.A.P. KALIAPPAN [2009 (11) TMI 1013 - SUPREME COURT], it has been held by the Hon’ble Apex Court that in view of the provisions contained in Section 147 of the Act read with Section 320 of Cr.P.C., compromise arrived at can be accepted even after recording of the judgment of conviction.
Since, in the instant case, the petitioner-accused after being convicted under Section 138 of the Act, has amicably settled the matter with the complainant-Bank under One Time Settlement Scheme, prayer for compounding the offence can be accepted in terms of the aforesaid judgments passed by the Hon’ble Apex Court.
Accordingly, the present matter is ordered to be compounded - Taking into consideration the law laid down by the Hon’ble Apex Court and the financial condition of the petitioner, as he is a poor person, since the competent Courts can reduce the compounding fee with regard to the specific facts and circumstances of the case, the petitioner is directed to deposit token compounding fee of Rs.10,000/- (rupees ten thousand) only with the H.P. State Legal Services Authority, Shimla, H.P., within four weeks from today.
Petition disposed off.
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2024 (1) TMI 664
Non-payment of subsistence allowance in view of an unfulfilled condition stipulated by the Respondent – Company in the suspension order - whether the act of the Respondent – Company is in consonance with the provisions of Section 10(A) of the Industrial Employment (Standing Orders) Act, 1946? - HELD THAT:- Section 10(A) refers to payment of subsistence allowance during the period of suspension. From reading Section 10(A) of the said Act, it appears that the provision is a beneficial enactment to take care of employees who are placed under suspension and they are required to be paid the prescribed 50% wages as contemplated for the period under suspension.
In the present case, the Respondent - Company has argued that it is a long standing customary practice of the Respondent - Company to require marking of attendance at the factory gate because of which subsistence allowance is denied to Mr. Natubhai Patel - A customary practice cannot be equated as a provision under any law or a provision under any other law and the provisions of Section 10(A) of the said Act clearly supervene in relation to the payment of subsistence allowance over the alleged customary practice followed by the Respondent - Company. Once it is found that the said customary practice is in clear conflict with the provisions of Section 10(A) of the said Act, the claim of the employee being entitled to subsistence allowance cannot be permitted to be defeated on the basis of a customary practice followed by the Respondent - Company.
What is required under the law is for the suspended employee to inform the employer that he is not gainfully employed elsewhere and nothing more. Once the statutory provisions does not provide for requiring marking of attendance everyday such introduction of a stipulation as per customary practice is illegal in law, no matter what the concerned employer desire from introducing such a condition. In the present case, the said restrictive condition cannot be made a precondition to the extent of claiming that it was for ensuring that the employee was not gainfully employed during the period of suspension. Such an interpretation and argument deserves to be rejected and dismissed in the first instance itself. Such a stipulation is unreasonable and cannot be within the four corners of the statutory provisions.
The impugned Award dated 13.08.2014 is quashed and set aside and it is declared that Mr. Natubhai Patel, the concerned employee is entitled to payment of subsistence allowance from the date of suspension till the date of his termination alongwith interest @ 10% per annum (simple interest) from the date on which each payment was due and payable till the same is paid over to him - It is directed that Petitioner shall compute the details of payment and inform the same to the Respondent - Company alongwith an authenticated copy of this judgment within a period of one week from today - The Respondent Company is directed to pay the entire amount as computed and entitled to alongwith interest to the concerned employee Mr. Natubhai Patel within a period of one week thereafter.
Petition disposed off.
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2024 (1) TMI 628
Dishonour of Cheque - Seeking waiver of deposit of 20% amount of compensation - whether there exist exceptional circumstances to exempt the petitioner from depositing the 20% of the fine, as directed by the learned Trial Court by way of order on sentence, during the pendency of Criminal Appeal filed by the petitioner against his conviction under Section 138 of NI Act? - HELD THAT:- This Court notes that in the application filed before the learned Sessions Court by the petitioner under Section 148 of NI Act seeking waiver of deposit of 20% of fine amount, only two circumstances were raised before the learned Sessions Court, which were claimed as exceptional in nature. The first exceptional circumstance was the pendency of petition filed by the petitioner under the Provincial Insolvency Act, and the second exceptional circumstance was the medical condition of the petitioner. Before this Court, one additional circumstance has been claimed as exceptional i.e. the pendency of consumer complaints filed by the complainant before the NCDRC against the insurance company, allegedly seeking the same amount as the amount in question in the present case.
This Court also notes that in the impugned order dated 20.01.2020, though the learned Sessions Court has dealt with the argument regarding pendency of insolvency petition, it has not given any finding on the second exceptional circumstance i.e. the medical condition of the petitioner. However, it also appears from the perusal of impugned order that the arguments in this regard were not addressed before the learned Sessions Court by the counsel for petitioner, though this ground was mentioned in the application filed under Section 148 of NI Act.
This Court is of the opinion that the present case be remanded back to the learned Sessions Court/Appellate Court for deciding afresh, as to whether the three exceptional circumstances being raised by the petitioner herein fall within the category of exceptional circumstances so as to warrant waiver of condition to deposit 20% of fine amount during the pendency of appeal against conviction under Section 138 of NI Act. The petitioner shall also be at liberty to bring any other exceptional circumstance to the notice of the learned Sessions Court.
The present petition alongwith pending application is disposed of.
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2024 (1) TMI 507
Dishonour of Cheque - no factual basis to show existing debt or liability - absence of necessary averments in the complaint regarding the nature of transaction between the parties - HELD THAT:- All that a complaint under Section 138 of N.I. Act requires to contain is such factual averments as are necessary to satisfy the ingredients of the said provision, namely, that the cheque/money bill which has been dishonoured was issued to discharge full or partial pre-existing debt liability. It is not be the pre-requisite of Section 138 of the N.I. Act to plead evidence in the complaint itself. Once a specific plea has been taken, it can be later on substantiated by adducing evidence at an appropriate stage. On a reading of paragraph 3 of the complaint, the appellant has made the necessary averments in order to prima facie attract the consequences under provisions of the N.I. Act. The High Court, thus, fell in error in misconstruing the averments made in the complaint(s).
The impugned order dated 17.07.2019 of the High Court is set aside and all the five complaints filed by the appellant against the respondents under Sections 138, 141 and 142 of the Negotiable Instrument (Amendment & Miscellaneous Provisions) Act, 2002 read with Section 420 of the Indian Penal Code 1860, are restored to their original numbers and files - Appeal allowed.
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2024 (1) TMI 438
Dishonour of Cheque - rejecting the petitioner's prayer under Section 311 of the Code of Criminal Procedure for recalling of Prosecution Witness No. 1.
The Learned Metropolitan Magistrate concerned was pleased to reject the said application on the ground that by allowing the said application the petitioner herein could not be permitted to fill up the lacuna of the prosecution case to the disadvantage of the accused person in the said case, being the opposite party no. 2 herein.
HELD THAT:- In the present case, the documents sought to be brought on record by the petitioner by way of additional evidence are documents “essential” and thus relevant for arriving at a just decision in the case. The prayer under Section 311 Cr.P.C. has been made in this case as soon as the documents were made available to the petitioner and the same are essential to aid in the discovery of truth. The documents in this case are necessary only with the object of proper proof of relevant facts in order to meet the requirement of justice. The reason for not being able to bring the present materials on record at the relevant stage has been satisfactorily explained and as such the Trial Court should have allowed the prayer under Section 311 Cr.P.C., considering the materials on record, while carrying out its function of administration of criminal justice to meet the ends of justice.
The accused/opposite party herein shall have ample opportunity and the liberty to counter the materials to be brought on record by the petitioner.
The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side - In the present case, the documents sought to be brought on record are essential for arriving at a just decision and as such is to be allowed for the ends of justice.
Revision allowed.
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2024 (1) TMI 328
Persistent disregard for judicial directives and a lackadaisical approach to legal and financial obligations - High Court took a firm stance against the appellant’s continued failure to fulfil his financial obligations, culminating in the cancellation of his bail and suspension of sentence - HELD THAT:- The complainant was entitled to receive a total amount of Rs. 4,63,50,000/-. The undertaking as also the order dated 03.07.2018 clearly mention that both of them will pay the amount equally as agreed by and between them and it further contains a stipulation that in default of the payment by either of them as per their agreed share in the settlement, they shall be held liable and prosecuted as per law.
The settlement between the two directors i.e. the appellant and the intervenor is inter se these two only and the complainant is not bound by the same. Complainant’s agreement or consent was only to the extent of accepting Rs. 4,63,50,000/- only. He was not a signatory to the agreement which was signed by the two parties. Admittedly, both the appellant and the intervenor were Chairman and Vice-Chairman of the company AGPL and, therefore, were convicted by the Trial Court and their conviction was affirmed by the Appellate Court.
There are no illegality in the order passed by the High Court. The appeal is accordingly dismissed with costs quantified at Rs. 5 lakhs to be paid to the respondent No. 2 (Complainant) within four weeks from today. It is clarified that this amount of costs will not be adjusted against the compensation awarded to the respondent No.2 but will be in addition to it.
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2024 (1) TMI 327
Granting payment of revised rates to take care of escalated cost of work executed by the claimant and the work executed beyond the originally stipulated time i.e., 6.5.1992 - It was held by High Court that the arbitrator’s award being patently illegal, unreasonable, contrary to public policy, the Court below exercising the power under Section 34(2) of the Act is sustainable. At any stretch of imagination, it cannot be construed as mere re-appreciation of evidence.
HELD THAT:- The appeal is allowed in terms of the signed reportable judgment.
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2024 (1) TMI 295
Modification of the arbitral award as carried out by the learned Civil Judge as confirmed by the High Court - Whether the petitioner made out the proper grounds that the award passed by the arbitrator is not supported by sound reasonings and it is in arbitrary nature and it is liable to be set aside?
HELD THAT:- In the instant case, the only provision under which the award could have been assailed was for it to have been in conflict with the public policy of India.
A perusal of the judgment and order of the learned Civil Judge, in the considered view of this Court, does not reflect fidelity to the text of the statute. Nowhere does it stand explained, as to, under which ground(s) mentioned under Section 34 of the A&C Act, did the Court find sufficient reason to intervene. In fact, quite opposite thereto, the Court undertook a re-appreciation of the matter, and upon its own view of the evidence, modified the order.
The reasons recorded by the learned Civil Judge for modifying the arbitral award, as reflected from a perusal thereof, have been recorded in an earlier section of the judgment. None of those reasons even so much as allude to the award being contrary to the public policy of India, which would enable the court to look into the merits of the award.
The reasons assigned by the Court under Section 34 of the A &C Act, are totally extraneous to the controversy, to the lis between the parties and not borne out from the record. In fact, they are mutually contradictory.
The award passed by the learned Arbitrator is “patently illegal, unreasonable, contrary to public policy.” There is no reason forthcoming as to how the holding of the learned Arbitrator flies in the face of public policy - it cannot be doubted that the Claimant-Appellant is entitled to interest.
In the absence of compliance with the well laid out parameters and contours of both Section 34 and Section 37 of the A&C Act, the impugned judgement(s) are required to be set aside. Consequently, the award dated 18th February 2003 of the learned Arbitrator is restored, for any challenge thereto has failed.
Appeal allowed.
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2024 (1) TMI 294
Validity of the detention order - refusal of the High Court of Calcutta to set aside the order of detention passed by the respondents - Smuggling of gold and foreign currencies - bounden duty of the authorities in serving the grounds of detention containing such grounds which weighed in the mind of the detaining authority in passing the detention order - HELD THAT:- There is a subtle difference between the background facts leading to detention order and the grounds of detention. While the background facts are not required in detail, the grounds of detention which determine the detention order ought to be found in the grounds supplied to the detenue. In other words, the knowledge of the detenue is to the subjective satisfaction of a detaining authority discernible from the grounds supplied to him. It is only thereafter that a detenue could be in a better position to take a decision as to whether he should challenge the detention order in the manner known to law. This includes his decision to make a representation to various authorities including the detaining officer. Therefore, an effective knowledge qua a detenue is of utmost importance.
To what extent a communication can be made both orally and in writing’? - HELD THAT:- In a case where a detenue is not in a position to understand the language, a mere verbal explanation would not suffice. Similarly, where a detenue consciously declines to receive the grounds of detention, he has to be informed about his right to make a representation. In such a scenario, the question as to whether the grounds of detention contained a statement that a detenue has got a right to make a representation to named authorities or not, pales into insignificance. This is for the reason that a detenue despite refusing to receive the grounds of detention might still change his mind and receive them if duly informed of his right to challenge a detention order by way of a representation - in a case where a detenue receives the ground of detention in the language known to him which contains a clear statement over his right to make a representation, there is no need for informing verbally once again. Such an exercise, however, would be required when the grounds of detention do not indicate so.
The grounds of detention forming the basis of the satisfaction of the detaining authority, were made known to the detenue. He cannot seek all the facts, including access to the telephonic conversation relied on, especially when he did not exercise his right to make the representation. It is pertinent to mention that we are only dealing with the validity of the detention order and not a regular criminal case against the accused.
There are no ground to interfere with the impugned order passed by the High Court of Calcutta - appeal dismissed.
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