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1995 (10) TMI 253
Issues:
1. Imposition of penalty for non-realization of export proceeds under section 18(2) of the Foreign Exchange Regulation Act, 1973.
2. Exoneration of the appellant from certain charges related to non-realization of export proceeds.
3. Consideration of factors affecting non-realization of export proceeds.
4. Application for waiver of pre-deposit and its disposal.
5. Reduction of penalty amount based on upheld contravention.
Analysis:
1. The appeal was filed against an Adjudication Order imposing a penalty on the appellant for non-realization of export proceeds, contravening section 18(2) of the Foreign Exchange Regulation Act, 1973. The appellant had complied with the Board's directions regarding waiver of pre-deposit, leading to the disposal of the appeal on merits.
2. The show-cause notice charged the appellant with contravention of section 18(2) for non-realization of export proceeds covered by various GRIs. The Adjudicating Officer exonerated the appellant from certain charges based on permissions granted by the Reserve Bank and dropped proceedings for some GRIs. The judgment focused on the remaining GRIs to determine the appellant's liability.
3. The judgment considered specific cases of non-realization of export proceeds under different GRIs. Factors such as the foreign buyer not taking delivery of goods, auctioning of goods by customs authorities, and claims for discount due to inferior quality were analyzed. The appellant's actions in seeking reduction of value and efforts to realize outstanding amounts were scrutinized to assess liability.
4. The appellant's application for waiver of pre-deposit was addressed in the judgment, emphasizing compliance with the Board's directions. The disposal of the appeal on merits indicated a comprehensive review of the appellant's case and adherence to procedural requirements.
5. The judgment concluded by partially allowing the appeal, sustaining the contravention for one GRI and imposing a reduced penalty of Rs. 20,000. The penalty amount was adjusted based on the upheld contravention, and instructions were provided for the recovery and return of the deposited sum. The decision highlighted fairness and reasonableness in penalty imposition based on the specific non-realization instance.
This detailed analysis of the judgment showcases the thorough consideration of the appellant's case regarding non-realization of export proceeds under the Foreign Exchange Regulation Act, leading to a nuanced decision on penalty imposition and liability.
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1995 (10) TMI 252
Issues:
1. Imposition of penalty for contravention of Foreign Exchange Regulation Act.
2. Violation of statutory requirements in adjudication proceedings.
3. Evidence regarding the presence of the appellant's husband during the investigation.
4. Validity of the appellant's statement and corroborating evidence.
5. Justification of penalty imposed by the Adjudicating Officer.
Detailed Analysis:
1. The appeal challenged the penalty imposed on the appellant for receiving a sum of Rs. 2,59,000 without RBI permission, contravening the Foreign Exchange Regulation Act. The appellant did not deposit the penalty and sought a waiver. The Tribunal waived the pre-deposit requirement and proceeded with the appeal on merits.
2. The appellant raised concerns about procedural irregularities in the adjudication proceedings. The Adjudicating Officer initiated oral proceedings without waiting for the appellant's reply to the Show Cause Notice, breaching statutory rules. Despite this, the Tribunal decided not to remand the case, as the Adjudicating Officer had already considered the evidence and the matter was suitable for appellate disposal.
3. The appellant contended that her husband was present in India during the relevant period, supported by documentary evidence of his passport. The Tribunal criticized the Adjudicating Officer for not investigating the husband's presence, which was crucial for the case, as his statement could have been significant evidence.
4. The Tribunal analyzed the voluntariness and truthfulness of the appellant's statement. It found discrepancies and lack of corroboration in the evidence presented. However, based on the fax message, statements of witnesses, and the husband's letter, the contravention of the Act was upheld, disregarding the disputed portion of the appellant's statement.
5. The Tribunal upheld the penalty imposed by the Adjudicating Officer, considering the evidence and circumstances of the case. It dismissed the appeal and directed the appellant to pay the penalty within 30 days, failing which the respondent could recover the amount as per the law.
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1995 (10) TMI 251
Issues:
1. Imposition of penalty under section 18(2) of the Foreign Exchange Regulation Act, 1973.
2. Exoneration of charges based on RBI permissions for write-offs.
3. Realization of outstanding export proceeds under various GRIs.
4. Discrepancies in outstanding amounts and reasons for non-realization.
5. Appellants' efforts in pursuing outstanding amounts with foreign buyers.
6. Assessment of penalty amounts for the appellants.
Analysis:
1. The judgment addresses the imposition of a penalty under section 18(2) of the Foreign Exchange Regulation Act, 1973. The appellants were penalized for contravention of the Act due to failure to realize proceeds of exports covered by various GRIs mentioned in the show-cause notice. The penalty was imposed on both appellants, with the first appellant facing a penalty of Rs. 5 lakhs and the second appellant also penalized for the same contravention under section 68(1) of the Act.
2. The appellants were exonerated of charges in respect of certain GRIs based on permissions granted by the RBI for write-offs. The judgment highlights the importance of RBI permissions in determining exoneration from charges related to non-realization of export proceeds.
3. Detailed analysis was conducted regarding the realization of outstanding export proceeds under different GRIs. The judgment delves into specific GRIs and the status of outstanding amounts, including permissions granted by the RBI for further write-offs in certain cases.
4. Discrepancies in outstanding amounts and reasons for non-realization were thoroughly examined by the tribunal. The judgment discusses discrepancies in amounts mentioned in the show-cause notice compared to actual outstanding balances and reasons provided by the appellants for seeking write-offs.
5. The judgment scrutinizes the appellants' efforts in pursuing outstanding amounts with foreign buyers. It evaluates the appellants' actions, including correspondence with RBI and foreign buyers, in attempting to recover outstanding export proceeds under different GRIs.
6. Lastly, the tribunal assessed the penalty amounts for the appellants. After considering the facts and circumstances of the case, the tribunal decided to reduce the penalty for the first appellant to Rs. 2,50,000, while completely setting aside the penalty imposed on the second appellant based on lack of evidence of knowingly causing non-realization of outstanding amounts.
This comprehensive analysis of the judgment provides insights into the legal intricacies surrounding the imposition of penalties, exoneration based on RBI permissions, efforts in realizing outstanding export proceeds, discrepancies in amounts, and the assessment of penalty amounts for the appellants.
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1995 (10) TMI 250
Issues:
- Imposition of penalty for non-realization of export proceeds
- Contravention of section 18(2) of the Foreign Exchange Regulation Act, 1973
- Justification for holding appellants guilty
- Realization of export proceeds for specific GRIs
- Evidence provided regarding non-realization of export proceeds
- Applicability of section 18(2) to specific GRIs
- Lack of evidence to support imposition of penalty under section 68(1)
- Allegations of suppression of information by the appellants
- Actions taken by the appellants in relation to export proceeds
- Decision to set aside the impugned order
Analysis:
The judgment pertains to an appeal filed against the imposition of a penalty on a firm for non-realization of export proceeds covered by 10 GRIs. The appellants, as surviving partners of the firm, contested the penalty, arguing that they were not liable as goods from most GRIs were warehoused abroad under the bank's control, with auction proceeds realized for some GRIs before 1988. The Chairman found it unjust to require the appellants to pre-deposit the penalty amount, considering the facts and evidence on record. He noted that the firm was held guilty without proper consideration, as goods from only two GRIs were delivered to the foreign buyer, and the remaining GRIs were under the bank's control, with approval for closure granted by the Reserve Bank. Consequently, the Chairman waived the pre-deposit and disposed of the appeal in favor of the appellants.
The judgment highlights that the provisions of section 18(2) of the Act apply only when goods are received by the foreign buyer, emphasizing the necessity of realizing export proceeds. It was noted that for specific GRIs where proceeds remained unrealized, the appellants provided evidence of correspondence with the foreign buyer, a criminal case against the buyer, and efforts made by the appellants' bank to recover the proceeds. The appellants' explanation of being deceived by the foreign buyer was deemed credible, especially considering the threat of legal action by the buyer, which could have led to civil litigation. The Chairman found the adverse conclusions drawn by the adjudicating authority unsustainable, supporting the appellants' contentions and ultimately setting aside the impugned order against them.
Regarding the imposition of penalties under section 68(1) of the Act, the judgment highlighted the lack of evidence supporting such penalties against the appellants. The Chairman criticized the adjudicating authority for rejecting the appellants' claim of being sleeping partners without sufficient evidence and for doubting the appellants' disclosures to the authorities. The judgment emphasized that the appellants did not take actions leading to non-realization of export proceeds for specific GRIs and did not retain the proceeds outside the country, leading to the decision to allow the appeal and set aside the impugned order against both appellants.
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1995 (10) TMI 249
Issues Involved:
1. Validity and interpretation of the lease deed.
2. Applicability of the West Bengal Premises Tenancy Act, 1956.
3. Heritability of the lease.
4. Definition and rights of a statutory tenant.
5. Contractual terms versus statutory protection.
Detailed Analysis:
1. Validity and Interpretation of the Lease Deed:
The lease deed dated 11.7.1966 contained a covenant that the lease was for the lifetime of the lessee and required the heirs, executors, administrators, representatives, and assigns of the lessee to yield up and deliver quiet, peaceful, and vacant possession of the demised premises within three months of the lessee's death. The lessee died on 16.12.1970, and his heirs did not deliver possession, leading to the filing of Suit No. 704 of 1971 for eviction. The High Court concluded that the lease was not heritable based on the lease deed's terms.
2. Applicability of the West Bengal Premises Tenancy Act, 1956:
The principal defense raised was that the lease fell under the category of a lease for less than five years by operation of statute and thus was governed by the West Bengal Premises Tenancy Act, 1956. The defendants argued they became monthly tenants under the plaintiffs by operation of law after the lessee's death. The High Court, however, determined that the lease was not heritable and that statutory protection under the Act was not available to the defendants.
3. Heritability of the Lease:
The High Court found that under the terms of the lease deed, the lease was not heritable, and the heirs were obligated to deliver possession within three months after the lessee's death. The statutory definition of a tenant under Section 2(h) of the Act did not apply to the defendants, as the lease explicitly made it non-heritable.
4. Definition and Rights of a Statutory Tenant:
Section 2(h) of the Act defines a tenant as including any person continuing in possession after the termination of his tenancy or, in the event of such person's death, such of his heirs as were ordinarily residing with him at the time of his death. The concept of a statutory tenant is central to rent control legislation, aimed at protecting tenants from eviction. The Supreme Court held that a statutory tenant has a heritable interest in the premises, as established in The Management of Orissa Transport Co. v. The Workmen AIR1976SC2229.
5. Contractual Terms versus Statutory Protection:
The statutory definition under Section 2(h) of the Act is not subject to any contract between the parties. It is a provision made in the public interest for the protection of tenants, which cannot be waived by the tenant nor can the parties contract themselves out of it. The Supreme Court emphasized that the period of lease need not be certain on the date of the lease; it is enough if it can be made certain on a future date. In the present case, the lease was for the lessee's lifetime, making the period certain upon the lessee's death.
Conclusion:
The Supreme Court concluded that the lease was not heritable and the appellants could not claim tenancy rights under the West Bengal Premises Tenancy Act, 1956. The lease deed's terms, which required the heirs to vacate the premises within three months of the lessee's death, prevailed. The appeal was dismissed, and the High Court's judgment was upheld, affirming that the statutory protection did not override the specific contractual terms of the lease deed.
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1995 (10) TMI 248
Issues:
1. Interpretation of Bye-laws regarding advertisement tax exemption.
2. Whether neon signs displayed by traders qualify as name boards for tax exemption under Bye-law 7.
3. Application of Clause (e) of Bye-law 7 for tax exemption based on trade-related advertisements.
Detailed Analysis:
1. The case involved a dispute over the interpretation of Bye-laws governing advertisement tax exemption. The appellant, New Delhi Municipal Committee, framed Bye-laws under the Punjab Municipal Act, 1911, for the regulation of advertisements. The High Court overturned a Single Judge's decision, allowing a writ petition challenging the advertisement tax demand. The key issue was the interpretation of Bye-law 7 for tax exemption on specific types of advertisements.
2. The respondents, traders displaying neon signs, contested the tax demand, claiming exemption under Clause (a) of Bye-law 7, arguing that their signs were name boards without advertisement content. The Single Judge dismissed the petition, but the Letters Patent Bench accepted the appeal, ruling that the signs were purely name boards exempt from tax. The Supreme Court analyzed the definition of "name board" under Bye-law 7 and concluded that the neon signs did not qualify as name boards, as they related to commodities sold, not the trader's identity, leading to the reversal of the High Court's decision.
3. The Court also discussed the potential application of Clause (e) of Bye-law 7, which exempts advertisements related to the trade, profession, or business conducted on the premises. However, the respondents did not base their case on this provision, and the Court refrained from further analysis due to the lack of clarity on this issue. The Court highlighted an amendment to Bye-law 7, effective from 1971, which specified conditions for displaying name boards without additional advertisement content, but the judgment pertained to the period before this amendment.
In conclusion, the Supreme Court set aside the High Court's decision, upholding the advertisement tax demand on the respondents and emphasizing the distinction between name boards and advertisements. The Court clarified the interpretation of Bye-law 7 and underscored the specific criteria for tax exemption under the relevant provisions.
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1995 (10) TMI 247
Issues:
1. Application of respondents barred under O. 23 R. 1 of the C.P.C.
2. Application of respondents barred by provisions of S. 31H of the Bombay Rent, Hotel and Lodging Houses Rates Control Act, 1947.
3. Jurisdiction of Co-operative Court to try the dispute.
4. Maintainability of present proceedings before Competent Authority.
5. Applicability of the principle of approbate and reprobate.
6. Error in Co-operative Court's order of withdrawal without granting permission to initiate fresh proceedings.
7. Granting time to vacate the premises.
Analysis:
1. The petition challenged an order directing delivery of possession of licensed premises to the respondents. The petitioner argued that the respondents' application was barred under O. 23 R. 1 of the C.P.C. Alternatively, it was contended that the application was barred by S. 31H of the Bombay Rent Act. The factual background revealed that the agreement of leave and licence had ended, leading to a dispute filed in the Co-operative Court. The Co-operative Court's order permitted withdrawal of the dispute without liberty to file fresh proceedings, prompting the respondents to approach the Competent Authority for possession.
2. The judge clarified that S. 31H did not apply to the case as it pertained to proceedings pending before the Amending Act of 1986, whereas the dispute in question was filed post the Act's enforcement. Regarding the application being barred under O. 23 R. 1, the principle of approbate and reprobate was invoked. The petitioner's challenge to the Co-operative Court's jurisdiction precluded them from now asserting the maintainability of the dispute, as per legal precedent.
3. Another reason for rejecting the petitioner's contention was the Co-operative Court's error in not granting permission to initiate fresh proceedings despite the respondents' application for withdrawal with liberty to file anew. The judge emphasized that courts should grant liberty to file fresh proceedings when allowing withdrawal with such liberty is requested. Consequently, the petition was dismissed summarily.
4. The judge granted the petitioner time to vacate the premises until April 30, 1996, considering the petitioner's circumstances. Conditions were set for vacating the premises, including filing a written undertaking and complying with arrears payment. The civil revision application was disposed of accordingly, with no order as to costs, and the revision was dismissed.
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1995 (10) TMI 246
Issues Involved:
1. Rule of reservation in promotions in Railway service.
2. Determination of seniority between general and reserved category candidates.
3. Application of reservation once the quota is filled.
4. Specific cases of promotion and seniority disputes.
Summary:
1. Rule of reservation in promotions in Railway service:
The appeals and writ petitions address the rule of reservation in promotions within the Railway service, particularly how it affects the seniority between general candidates and candidates from reserved categories (Scheduled Castes and Scheduled Tribes). The rule of reservation applies not only at the initial recruitment stage but also at every subsequent promotion stage.
2. Determination of seniority between general and reserved category candidates:
The Tribunal held that the seniority in the promoted category should be based on the initial seniority in Grade 'C'. Reserved category candidates promoted earlier due to reservation should not gain seniority over general candidates promoted later. The Railway Board's circulars support this view, stating that seniority should be governed by the panel position in the initial grade, not by the date of promotion to higher grades.
3. Application of reservation once the quota is filled:
The Tribunal and the Supreme Court referred to the Constitution Bench decision in R.K. Sabharwal v. State of Punjab, which held that once the reserved posts in a cadre are filled, the rule of reservation should not be applied further. The percentage of reservation should be worked out concerning the total number of posts, not vacancies.
4. Specific cases of promotion and seniority disputes:
In the case of Sri D. Williams, the Tribunal directed that seniority in the grade of Rs. 2000-3200 should be revised based on the date of actual promotion for general candidates and the date reserved candidates would have been promoted without reservation. The Supreme Court upheld the Tribunal's decision, emphasizing the need to adhere to the Railway Board's circulars and the principles enunciated.
In the case of Sri Mohd. Sabir, the Tribunal directed the Railway authorities to promote general community members according to their seniority, as the reserved category representation had exceeded the prescribed percentage. The Supreme Court dismissed the appeal, reiterating that the rule of reservation should not be applied once the quota is filled.
In another case, the Tribunal directed that the remaining vacancies in the category of Head Clerks should go to general candidates as the reserved category representation had already exceeded the prescribed percentage. The Supreme Court upheld this decision, emphasizing that the rule of reservation should be applied to posts, not vacancies.
Conclusion:
The Supreme Court affirmed that the rule of reservation in promotions should be applied in a manner that does not confer seniority to reserved category candidates over general candidates promoted later. The representation of reserved categories should be based on the total number of posts, and once the quota is filled, the rule of reservation should not be applied further. The Tribunal's decisions in specific cases were upheld, emphasizing the need to follow the Railway Board's circulars and the principles enunciated by the Supreme Court.
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1995 (10) TMI 245
Issues:
- Applicability of Section 41A(7) of the Arbitration (Orissa Amendment) Act, 1982 to a pending arbitration proceeding where an award was made on the same day the Act came into force.
Analysis:
The judgment revolves around the interpretation of Section 41A(7) of the Arbitration (Orissa Amendment) Act, 1982, which deals with the automatic transfer of pending arbitration proceedings to the Arbitration Tribunal. The key issue is whether an arbitration proceeding, in which an award was made on the same day the Act came into force, falls under the purview of the said provision.
The Arbitration (Orissa Amendment) Act, 1982 introduced Section 41A, which mandated the transfer of certain arbitration proceedings involving government entities to the Arbitration Tribunal. The crux of the matter lies in determining the meaning of the expression "by the said date" in sub-section (7) of Section 41A.
The appellant argued that since the award was made on the day the Act came into force, the arbitration proceeding was not pending before the arbitrator and, therefore, not subject to transfer. Conversely, the respondent contended that the Act's objective was to transfer such cases to the Arbitration Tribunal, preventing arbitrators from making awards post the Act's commencement.
The Court analyzed the legislative intent behind the provision and concluded that the expression "by the said date" refers to awards made before the Act's commencement. The word "by" was interpreted to mean "before a certain time," implying that awards made on the commencement date were not valid. This interpretation aligned with the Act's purpose of transferring pending cases to the Tribunal for resolution.
Several legal precedents were cited to support the interpretation of the term "by" in the context of statutory provisions. The Court emphasized that the context of the provision in question necessitated interpreting "by" as "before," ensuring consistency and adherence to the legislative intent.
Ultimately, the Court upheld the High Court's decision, ruling that the arbitrator lacked jurisdiction to make an award on the day the Act came into force. Consequently, the appeal was dismissed, affirming the automatic transfer of the arbitration proceeding to the Arbitration Tribunal as per Section 41A(7) of the Act.
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1995 (10) TMI 244
Issues Involved:
1. Legality and validity of the judgment and decree.
2. Competency and time-barred nature of the suit.
3. Acknowledgment of debt and limitation period.
4. Authority of the partner to acknowledge debt.
5. Right of the bank to liquidate fixed deposit receipts.
6. Proof of suit dues and entitlement to interest.
7. Rate of interest charged by the bank.
Detailed Analysis:
1. Legality and Validity of the Judgment and Decree:
The appellants challenged the judgment and decree of the City Civil Court, Ahmedabad, which decreed the suit of the respondent bank for a sum of Rs. 5,66,368/- with interest at 18% per annum on Rs. 3,76,000/- from the date of the suit till realization. The High Court found no illegality in the judgment and decree, deeming them "weighty, legal and sustainable."
2. Competency and Time-Barred Nature of the Suit:
The appellants argued that the suit was incompetent and time-barred. The High Court noted that the suit was filed within the three-year limitation period prescribed under Article 1 of the Limitation Act, 1963, for suits relating to accounts. The last entry in the account was on 21st October 1980, and the suit was filed on 17th February 1984, within the permissible period.
3. Acknowledgment of Debt and Limitation Period:
The suit was founded on acknowledgments made by the defendants. The bank produced three written acknowledgments at Exhs. 74, 75, and 103, confirming the dues. The High Court upheld these acknowledgments under Section 18 of the Limitation Act, which extends the limitation period upon acknowledgment of liability in writing.
4. Authority of the Partner to Acknowledge Debt:
The appellants contended that the acknowledgments made by one partner, Mr. D.K. Patel, were not binding on the firm and other partners. The High Court rejected this argument, citing Section 18 of the Indian Partnership Act, 1932, which states that a partner is an agent of the firm for business purposes. The court also referenced a Division Bench decision affirming that a partner's acknowledgment of liability binds the firm.
5. Right of the Bank to Liquidate Fixed Deposit Receipts:
The appellants questioned the bank's authority to liquidate fixed deposit receipts for appropriation towards dues. The High Court upheld the bank's action, citing the banker's general lien under Section 171 of the Indian Contract Act, 1872, and the doctrine of "set-off." The court found the bank's action justified, legal, and not arbitrary.
6. Proof of Suit Dues and Entitlement to Interest:
The High Court found that the bank had successfully established the suit dues through certified copies of bank entries and oral evidence from bank witnesses. The court dismissed the appellants' argument that the bank had failed to prove its dues.
7. Rate of Interest Charged by the Bank:
The appellants argued that the bank was not entitled to the interest rate awarded. The High Court found that the interest rate was contractual and in line with the Reserve Bank of India's directions. The court referenced Sections 21 and 35-A of the Banking Regulation Act, 1949, and concluded that the interest rate was just, reasonable, and legal.
Conclusion:
The High Court dismissed the appeal, affirming the trial court's judgment and decree. The court found no merit in the appellants' arguments and upheld the bank's actions as legal and justified. The appeal was dismissed with full costs, and the court noted that the judgment should not hinder any departmental action against erring bank officers.
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1995 (10) TMI 243
Issues Involved:
1. Legality and propriety of adverse remarks against the Chairman of the Orissa Administrative Tribunal.
2. Validity of the transfer order of D.N. Mishra.
3. Judicial propriety and restraint in making adverse comments.
Issue-wise Detailed Analysis:
1. Legality and Propriety of Adverse Remarks Against the Chairman of the Orissa Administrative Tribunal:
The appeal was filed by the Chairman of the Orissa Administrative Tribunal to expunge certain adverse remarks made against him by a Division Bench of the Tribunal. The remarks were made in the context of quashing a transfer order of D.N. Mishra. The Supreme Court noted that there was no allegation of malafides against the Chairman in the application challenging the transfer order. The Division Bench made strong critical comments against the Chairman without notice to him, which the Supreme Court found to be against judicial propriety. The Court observed that the Chairman had acted within his responsibilities to ensure the proper functioning of the Cuttack Bench and had written to the Chief Secretary to transfer D.N. Mishra due to his obstructive attitude. The Supreme Court highlighted that the High Court had previously recorded its satisfaction with the Chairman's actions, and there was no justification for the adverse remarks made by the Tribunal.
2. Validity of the Transfer Order of D.N. Mishra:
The transfer order dated 11.5.1992, which posted D.N. Mishra as Additional District Magistrate, Koraput, was issued to ensure the proper functioning of the Cuttack Bench of the Tribunal. The Supreme Court reiterated that a transfer is an incident of service and should not be interfered with unless it is shown to be arbitrary or vitiated by malafides. The transfer of D.N. Mishra was made in public interest, and there was no permissible ground for the Tribunal to quash it. The Supreme Court found that the Division Bench of the Tribunal had quashed the transfer order on the ground of malice against the Chairman, which was against the material on record and bordered on judicial impropriety.
3. Judicial Propriety and Restraint in Making Adverse Comments:
The Supreme Court expressed distress at the tenor of the impugned order, which lacked judicial propriety and sobriety. The Court quoted several portions of the order to illustrate the unwarranted adverse remarks made against the Chairman. The Supreme Court emphasized the need for sobriety and restraint in making adverse and critical comments, citing previous decisions that highlighted the importance of judicial restraint and respect. The Court reiterated that harsh or disparaging remarks should not be made unless necessary for the decision of the case. The Supreme Court concluded that the Division Bench of the Tribunal had misread the documents and made disparaging remarks against the Chairman based on a non-existing foundation. Consequently, all the disparaging remarks in the impugned order against the Chairman were expunged.
Conclusion:
The Supreme Court allowed the appeal, expunging all the adverse remarks made against the Chairman of the Orissa Administrative Tribunal. The Court underscored the principles of judicial propriety, restraint, and the importance of avoiding intemperate language and disparaging remarks unless absolutely necessary for deciding the case.
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1995 (10) TMI 242
The Supreme Court set aside certain directions in the case of Dr. Ashok Kumar Kohli, who sought appointment as a Lecturer in the Opthomology Department of Jammu & Kashmir. The Court requested the High Court to expedite the disposal of the writ petition within six weeks. No costs were awarded.
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1995 (10) TMI 241
The Supreme Court of India dismissed the appeal in the case with citation 1995 (10) TMI 241. Judges were Mr. J.S. Verma and Mr. K.S. Paripoornan.
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1995 (10) TMI 240
Issues Involved:
1. Competence of the State Legislature to enact U.P. Sheera Niyantran Adhiniyam 1964.
2. Legislative developments concerning the control of molasses.
3. Interpretation of relevant constitutional entries and their interrelationship.
4. Application of the doctrine of "occupied field" and federal supremacy.
5. Validity of the U.P. Sheera Niyantran Adhiniyam 1964 in light of Section 18G of the Industrial (Development and Regulation) Act, 1951.
Issue-wise Detailed Analysis:
1. Competence of the State Legislature to Enact U.P. Sheera Niyantran Adhiniyam 1964:
The primary issue was whether the State Legislature was competent to legislate on the regulation of molasses, a product of the sugar industry, under Sections 7, 8, and 10 of the U.P. Sheera Niyantran Adhiniyam 1964, in light of Section 18G of the Industrial (Development and Regulation) Act, 1951. The Court concluded that the State Legislature retained the power to legislate on this matter under Entry 33 of List III of the Seventh Schedule, as Section 18G of the IDR Act is referable to this entry, making it a concurrent subject.
2. Legislative Developments Concerning the Control of Molasses:
The Court traced the history of legislation related to the control of molasses in Uttar Pradesh. Initially, the U.P. Molasses Act 1947 regulated the supply and pricing of molasses. This was repealed and replaced by the U.P. Sheera Niyantran Adhiniyam 1964. The Molasses Control Order 1961, issued under Section 18G of the IDR Act, was never applied to U.P., and control continued under the Adhiniyam until its rescindment in 1993.
3. Interpretation of Relevant Constitutional Entries and Their Interrelationship:
The Court examined the relevant entries in the Seventh Schedule of the Constitution. Entry 52 of List I pertains to industries controlled by the Union, while Entry 33 of List III covers trade, commerce, and production, supply, and distribution of products of controlled industries. The Court emphasized that the subject matter of trade, commerce, and production, supply, and distribution of controlled industries falls under Entry 33 of List III, not Entry 52 of List I.
4. Application of the Doctrine of "Occupied Field" and Federal Supremacy:
The Court addressed the argument that the field became occupied by Parliament upon enacting Section 18G of the IDR Act. It was held that the doctrine of "occupied field" and federal supremacy applies only when there is an irreconcilable conflict between Union and State legislation. Since Section 18G is a concurrent subject, the U.P. Legislature's enactment of the Adhiniyam was valid, subject to the President's assent as per Article 254 of the Constitution.
5. Validity of the U.P. Sheera Niyantran Adhiniyam 1964 in Light of Section 18G of the Industrial (Development and Regulation) Act, 1951:
The Court concluded that Section 18G of the IDR Act does not denude the State Legislature's power to legislate on the regulation of molasses. The Adhiniyam, being a concurrent legislation, is valid with the President's assent, as required under Article 254. The Court upheld the validity of Sections 7, 8, and 10 of the Adhiniyam.
Conclusion:
The Full Bench answered the referred question in the negative, holding that the State Legislature was competent to enact the U.P. Sheera Niyantran Adhiniyam 1964. The judgment emphasized the concurrent nature of the legislative field concerning the regulation of molasses and upheld the validity of the Adhiniyam, subject to the President's assent. The decision reaffirmed the principles of federalism and the proper interpretation of constitutional entries.
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1995 (10) TMI 239
Issues Involved:
1. Closure and winding up of Rohtas Industries Limited.
2. Revival and rehabilitation of the Company.
3. Financial constraints and funding for revival.
4. Offers for purchase and revival of the Company.
5. Role of the State of Bihar and the Union of India.
6. Role of the Board of Industrial and Financial Reconstruction (BIFR).
7. Role of the Rehabilitation Commissioner.
8. Security and maintenance of the Company's assets.
9. Payment of dues to creditors and financial institutions.
10. Employment and dues of the workmen.
11. Sale of the Company's assets.
12. Future course of action for winding up.
Detailed Analysis:
1. Closure and Winding Up of Rohtas Industries Limited:
Rohtas Industries Limited, a large industrial undertaking, was closed on September 9, 1984, resulting in the unemployment of about 10,000 workmen. A petition for winding up was filed in the Patna High Court, and a Provisional Liquidator was appointed on May 22, 1986.
2. Revival and Rehabilitation of the Company:
The Supreme Court entertained a writ petition under Article 32 of the Constitution to revive the industry and rehabilitate the workmen. The Sick Industrial Companies (Special Provisions) Act, 1985 (the Act) came into force, and the Court directed the Central Government to refer the matter to the BIFR to frame a revival scheme.
3. Financial Constraints and Funding for Revival:
The State of Bihar and the Union of India were directed to provide funds for the revival. Initially, Rs. 30 crores were provided, but due to financial constraints, the units could not function profitably and had to be closed again. Further funds were sought but were not provided.
4. Offers for Purchase and Revival of the Company:
Several offers were received for the purchase of the units, but they were not considered viable. Notably, offers from Shri L.N. Dalmia and Speedcrafts Pvt. Ltd. were considered but were found insufficient to cover the liabilities and ensure long-term viability.
5. Role of the State of Bihar and the Union of India:
The State of Bihar and the Union of India were involved in providing financial assistance and concessions. The State of Bihar agreed to defer payment of dues and extend help to any intending purchaser. However, there were difficulties in granting certain concessions and leases.
6. Role of the Board of Industrial and Financial Reconstruction (BIFR):
The BIFR, along with Industrial Financial Corporation of India (IFCI) and Soni Industrial Revival Consultants (SIRCON), prepared reports on the viability of the Company. The BIFR concluded that the Company could only be revived with substantial financial support from the State Government and financial institutions.
7. Role of the Rehabilitation Commissioner:
The Rehabilitation Commissioner was appointed to take control of the Company's assets and attempt to revive the units. Despite efforts, the units could not be made profitable, and the Commissioner sought additional funds, which were not provided.
8. Security and Maintenance of the Company's Assets:
The Central Industrial Security Force was deployed for security, and measures were taken to reduce expenditure on security and electricity. The Rehabilitation Commissioner was directed to sell raw materials and finished products to cover some liabilities.
9. Payment of Dues to Creditors and Financial Institutions:
The Claims Committee assessed various claims, and objections were pending consideration. The BIFR highlighted the need for substantial sacrifices by financial institutions and banks to settle the Company's liabilities.
10. Employment and Dues of the Workmen:
The Court issued directions to reduce the number of employees and ensure payment of salaries up to September 1995. The employment of the entire workforce could not be ensured under the proposed revival schemes.
11. Sale of the Company's Assets:
The Court directed the sale of raw materials and finished products and considered offers for the purchase of the entire industrial undertaking as a running concern. However, the offers received were not sufficient to cover the liabilities.
12. Future Course of Action for Winding Up:
The Supreme Court concluded that the revival of the Company was not feasible and directed the resumption of the winding-up proceedings in the Patna High Court. The Rehabilitation Commissioner was instructed to complete the sale of assets, pay dues, and hand over possession to the Official Liquidator.
Conclusion:
The Supreme Court, after extensive efforts to revive Rohtas Industries Limited, concluded that revival was not feasible. The Court directed the resumption of winding-up proceedings and provided detailed instructions for the sale of assets, payment of dues, and handling of the Company's properties. The writ petitions were disposed of with no order as to costs.
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1995 (10) TMI 238
Issues:
1. Dismissal of civil suit in default and subsequent restoration application.
2. Remarks made against the counsel during the judicial proceedings.
3. Appeal dismissal and request for expunging remarks and setting aside the order.
Analysis:
The judgment by T.S. Doabia, J. of the Madhya Pradesh High Court pertains to a civil suit dismissal in default and subsequent restoration application. The suit, initially dismissed in default, saw an application for restoration dismissed by the trial court, which was later upheld on appeal. The key grievances raised in this petition were the remarks made against the counsel and the dismissal of the appeal. The judgment emphasized the importance of judicial propriety, highlighting that only essential matters should be addressed in judicial proceedings. The court cited the principle that unnecessary remarks should not form part of the judicial record, referencing the decision in The State of Uttar Pradesh v. Mohammad Naim AIR 1964 SC703.
Moreover, the judgment reiterated that strong language should be avoided when discussing the conduct of parties or witnesses, as disparaging remarks could cause significant harm. This was supported by the observations in the case of State of M. P. and Ors. v. Nandlal Jaiswal and Ors. 1987 MPLJ 250 :AIR 1987 SC 251, cautioning judges to act with sobriety and restraint. The court also referred to A M. Mathur v. Pramod Kumar Gupta AIR 1990 SC 1737, emphasizing the necessity of judicial restraint and discipline in maintaining the respect and independence of the judiciary.
In light of the above principles, the court concluded that the remarks made against the counsel should be expunged. Additionally, the court noted that the lower court had been influenced by the counsel's conduct, directing the appellate court to reconsider the matter without such influence. Consequently, the order dismissing the appeal was set aside, and a fresh order was instructed to be passed, thereby disposing of the petition accordingly.
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1995 (10) TMI 237
The Supreme Court allowed the appeal regarding Garage charges as the matter was pending before the Civil Court. The National Forum's order directing to hand over possession of the car was set aside. (Citation: 1995 (10) TMI 237 - SC)
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1995 (10) TMI 236
Issues:
1. Imposition of penalty under Section 10-A of the U.P. Sales Tax Act for false representation by a registered dealer.
2. Interpretation of Section 10(b) of the Act regarding the offense of falsely representing goods covered by a registration certificate.
3. Allegations of violation of principles of natural justice in the imposition of penalty.
Analysis:
1. The case involved a registered dealer under the Central Sales Tax Act who purchased goods falsely represented to be covered by their registration certificate, leading to a penalty under Section 10-A of the U.P. Sales Tax Act. The dealer purchased items not specified in the certificate, resulting in penalty imposition. Appeals to the Appellate Assistant Commissioner and Sales Tax Tribunal were unsuccessful, leading to a revision challenging the penalty order.
2. Section 10(b) of the Act stipulates that a registered dealer falsely representing goods covered by their registration certificate is punishable. The offense requires a deliberate false representation at the time of purchase, with the knowledge that the goods are not covered by the certificate. Mens rea and the intention to benefit from concessional rates by providing incorrect declarations are essential for penalty imposition under this provision.
3. The dealer contended that no penalty should have been imposed as they believed in good faith that an application for amending the registration certificate was pending. However, the Sales Tax Tribunal found that the dealer had tampered with records to falsely claim the application, indicating a deliberate attempt to evade tax liability. The Tribunal's findings were based on evidence and the dealer's failure to produce original documents for verification. The Tribunal concluded that the purchases were made with ulterior motives, justifying the penalty.
4. The Tribunal's findings were upheld as factual and conclusive, indicating deliberate false representation by the dealer. The Tribunal's decision was deemed justified, considering the clear evidence of misrepresentation and ulterior motives. The plea of violation of natural justice was dismissed, as the dealer was given ample opportunity to present their case before the penalty order was issued.
5. Ultimately, the revision was rejected for lacking merit, with no costs imposed. The judgment highlighted the importance of genuine representation in commercial transactions and upheld the penalty for deliberate misrepresentation by the dealer, emphasizing compliance with tax laws and principles of natural justice in penalty proceedings.
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1995 (10) TMI 235
Issues Involved:
1. Jurisdiction of the District Court.
2. Delay, laches, waiver, and acquiescence.
3. Balance of convenience.
4. Common field of activity.
5. Bona fide use of the name "Kirloskar."
6. Likelihood of deception or confusion.
7. Grant of interim injunction.
Detailed Analysis:
1. Jurisdiction of the District Court:
The court held that under Section 105(c) of the Trade and Merchandise Marks Act, 1958, the District Court has jurisdiction to entertain and try suits for passing off arising from the use of a trade mark that is identical or deceptively similar to the plaintiff's trade mark, whether registered or unregistered. The definition of "trade mark" includes "name," and thus the term "trade mark" in Section 105(c) must be considered comprehensive, covering trade names and business names.
2. Delay, Laches, Waiver, and Acquiescence:
The court found that the respondents served notice upon the appellants objecting to the use of "Kirloskar" soon after acquiring knowledge of the appellants' intentions. The period of about 1.5 years between the notice and the filing of suits does not amount to consent, waiver, or acquiescence. The respondents made a strong prima facie case for interlocutory relief, and any delay does not disentitle them to such relief. The court referenced the case of Astra-IDL Ltd. v. TTK Pharma Ltd. and Hindustan Pencils Pvt. Ltd. v. India Stationery Products Co., emphasizing that delay does not amount to laches and does not disentitle the respondents to an injunction.
3. Balance of Convenience:
The court concluded that the balance of convenience lies in favor of the respondents. The respondents have a long-standing reputation and goodwill associated with the "Kirloskar" name, while the appellants' use of the name is recent. The respondents' reputation would likely be adversely affected if the appellants were allowed to continue using the name "Kirloskar."
4. Common Field of Activity:
The court noted that the requirement for a common field of activity in passing off actions has evolved. It is no longer necessary to show a common field of activity to succeed in a passing off action. The focus is on whether there is a likelihood of confusion or deception. The court referenced cases such as Mirage Studies v. Counter Feat Clothing Co. Ltd. and Albion Motor Car Company Ltd. v. Albion Carriage and Motor Body Works Ltd., highlighting that the absence of a common field of activity does not bar relief if there is a likelihood of confusion.
5. Bona Fide Use of the Name "Kirloskar":
The court found that the appellants' use of "Kirloskar" was not bona fide. The second appellant had prior knowledge of the respondents' reputation and participated in their image-building programs. The use of "Kirloskar" by the appellants was seen as an attempt to trade on the respondents' reputation and goodwill. The court cited the case of Parker-Knoll Ltd. v. Knoll International Ltd., stating that an artificial person like a company cannot claim the defense of bona fide use of a name under Section 34 of the Act.
6. Likelihood of Deception or Confusion:
The court held that the respondents established a likelihood of deception or confusion due to the appellants' use of "Kirloskar." It was not necessary for the respondents to prove actual confusion; the likelihood was sufficient. The court referenced cases such as Parker-Knoll Ltd. v. Knoll International Ltd. and The North Cheshire & Manchester Brewery Co. Ltd. v. The Manchester Brewery Co. Ltd., supporting the view that the likelihood of confusion is enough to grant relief.
7. Grant of Interim Injunction:
The court upheld the order granting interim injunction, preventing the appellants from using "Kirloskar" as part of their corporate names. The court emphasized the importance of protecting the respondents' reputation and preventing public confusion. The court referenced cases such as British Bata Shoe Co. Ltd. v. Czechoslovak Bata Co. Ltd. and Sheraton Corporation of America v. Sheraton Motels Ltd., supporting the grant of interim injunctions in similar circumstances.
Conclusion:
The court dismissed the appeals with costs, upheld the interim injunction, and refused the application for stay of the order. The issuance of a certified copy was expedited.
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1995 (10) TMI 234
Issues:
Whether qualified Librarians employed in the University of Delhi and its constituent colleges are entitled to parity in pay scales with the teaching staff recognized since January 1961.
Analysis:
The case revolves around the entitlement of qualified Librarians to parity in pay scales with the teaching staff in the University of Delhi and its constituent colleges. The appellants argued that a Committee appointed by the University Grants Commission recommended in 1957 that the status and salary scales of the library staff should be the same as the teaching and research staff. Subsequently, decisions were taken in 1961 and 1968 to maintain parity in pay scales between the two categories. The Third Central Pay Commission also reiterated the principle of parity for school librarians, accepted by the Central Government. However, the Government disturbed the parity retrospectively from 1973, leading to representations and ultimately a Civil Writ Petition filed by the appellants.
The respondents opposed the appellants' claim, arguing that the scales given to library staff were not based on scientific justification, as the nature of work, duties, and responsibilities of the two categories of employees are different. The Government decided to upgrade the pay scales of librarians and Directors of Physical Education generally from 1980 after reviewing the matter comprehensively.
The Court, after considering the submissions, found no rationale or justification for parity between the teaching staff and the library staff. It emphasized the differences in duties, workload, experience, and responsibilities between the two categories of employees. The Court highlighted that the Government has the authority to change policies based on administrative exigencies, and it is not the Court's role to interfere unless the decision is unfair, malafide, or contrary to statutory directions. The Court concluded that there was no merit in the appeal and dismissed it without costs.
In conclusion, the Court upheld the Government's decision to disturb the parity in pay scales between the teaching staff and the library staff, emphasizing the Government's discretion in policy matters and the Court's limited role in interfering with such decisions unless there are clear grounds for judicial review.
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