2016 SCC Vol. 6 July 21, 2016 Part 4

scccover 21.07.2016 (final)

Central Excise Act, 1944 — Ss. 11-B and 11-BB — Circular dated 30-5-1995, cl. (g) — Refund — Liability of the Revenue to pay interest on refund: Under S. 11-BB of the Act, liability of Revenue to pay interest commences from the date of expiry of three months from the date of receipt of application for refund under S. 11-B(1). It is obligatory on the part of the Revenue to intimate the assessee to remove the deficiencies in the application within two days and, in any event, if there are still deficiencies, it can proceed with adjudication and reject the application for refund. Further, the adjudicatory process by no stretch of imagination can be carried on beyond three months and is required to be concluded within three months. [Union of India v. Hamdard (Waqf) Laboratories, (2016) 6 SCC 621]

Constitution of India — Art. 136 — Appeal against cryptic and vague order of High Court: As High Court passed order recording findings of fact without taking note of facts in issue and without identifying point(s) to be decided.  Such findings of fact liable to be set aside, if order is appealable. [Ajay Arjun Singh v. Sharadendu Tiwari, (2016) 6 SCC 576]

Constitution of India — Art. 254 and Sch. VII List III Entry 42 — Repugnancy — Test — Land Acquisition (Goa Amendment) Act, 2009 (7 of 2009) adding sub-sections (6) to (9) to S. 41 of Land Acquisition Act, 1894: There is no inconsistency between State legislation (Goa Amendment Act) and Central legislation (S. 41 of Land Acquisition Act). State Amendment Act made certain additional provisions regarding modification/variation or deletion/subtraction of terms of agreement under S. 41 which were not barred under the Central Act. Where acquisition was made under S. 40(1)(aa) of Land Acquisition Act, deletion of a clause of the agreement, executed under preamended S. 41 prohibiting any construction on acquired land effected by State Amendment Act, would be in furtherance of acquisition under Central Act. Hence, there is no repugnancy between two legislations. [Goa Foundation v. State of Goa, (2016) 6 SCC 602]

Constitution of India — Arts. 3 and 4 — Formation of new States from existing State: When an existing State is bifurcated to form two new States, there must be an equitable bifurcation of the assets and liabilities of the statutory bodies among the two successor States as well, to ensure welfare of the public at large residing within these territories. [A.P. State Council of Higher Education v. Union of India, (2016) 6 SCC 635]

Factories Act, 1948 — Ss. 92 & 93 r/w Rr. 88 & 103-A, Bihar Factories Rules, 1950 (as applicable to State of Jharkhand) — Violation of statutory provisions: Considering serious violations of enactment whose laudable role is to ensure due facilities to labour engaged in factories and to provide measures for regulating emoluments of factory employees, no interference with impugned judgment declining prayer to quash proceedings initiated against appellant employer called for, however, instead of relegating appellants to face protracted trial, penalty of Rs 50,000 each imposed on appellants. [Hemant Madhusudan Nerurkar v. State of Jharkhand, (2016) 6 SCC 504]

Income Tax Act, 1961 — Ss. 192 and 56(1) — Tax deducted at source: There is no liability of employer to deduct TDS on tips collected from customers and paid to waiters, etc. working in hotels/restaurants, etc. [ITC Ltd. v. CIT (TDS), (2016) 6 SCC 652]

Industrial Disputes Act, 1947 — Ss. 2(s) & 2(j) — “Workman”: Driver employed by school being a skilled person, is “workman” for purpose of ID Act. [Raj Kumar v. Director of Education, (2016) 6 SCC 541]

Land Acquisition (Amendment) Act, 1984 — Ss. 30(2) and 15(b) — Applicability of S. 23(2) of Land Acquisition Act, 1894, as amended by S. 15(b) of Amendment Act of 1984 regarding enhanced solatium: Decision of three-Judge Bench in K.S. Paripoornan (2), (1995) 1 SCC 367 not in conflict with that rendered by Constitution Bench in Raghubir Singh, (1989) 2 SCC 754. In Raghubir Singh case, Court held that benefit of S. 30(2) of 1984 Act would be available only to award by Collector or Court which had been made between 30-4-1982 and 24-9-1984, even in pending reference made before 30-4-1982, so long as award was rendered after 30-4-1982. In Paripoornan it was only clarified that S. 23(2) of 1894 Act (as amended) would apply to award of civil court pending at the time when Amendment Act of 1984 came into force i.e. on 24-9-1984 and award was made by court thereafter, which is completely in consonance with law laid down in Raghubir Singh case. [Lilawati Agarwal v. State of Jharkhand, (2016) 6 SCC 566]

Life Insurance Corporation Act, 1956 — Ss. 21, 48 r/w Rr. 37 & 55 and Appendix IV Para (3-A) of LIC (Employees) Pension Rules, 1955 — Resolution passed by Board: Board can pass Resolution but that does not authorise it to take decisions with regard to matters which are within domain of rule-making authority. S. 48 of 1956 Act clearly envisages that conferment of benefit, either pension or anything ancillary thereto has to be conferred by rules which are to be tabled before Parliament. In absence of Rules no benefit can be granted on basis of resolution proposing amendment to 1995 Rules for upgrading pension, passed by Board i.e. unless resolution is conferred status of Rules as provided under S. 48 of 1956 Act, it cannot become operative. [LIC v. Krishna Murari Lal Asthana, (2016) 6 SCC 515]

Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 — Ss. 32 and 33 — Reservation of posts for differently abled persons: Supreme Court in National Federation of the Blind, (2013) 10 SCC 772 held that computation of 3% reservation for differently abled persons was based on total number of vacancies in cadre strength and not on basis of vacancies available in identified posts. High Court by impugned judgment, based on vacancies held that since 3% reservation would work out to 0.27 posts there was no scope for reservation under said category, hence matter remitted to High Court for reconsideration afresh in light of judgment of Supreme Court. [Ashok Kumar Giri v. Union of India, (2016) 6 SCC 511]

Service Law — Recruitment Process — Select/Merit list — Right to Appointment: Merely because name of candidate finds place in select/merit list, it does not give him indefeasible right to appointment as well. It is always open to Government not to fill up vacancies. However, such decision should not be arbitrary or unreasonable. Once decision is found to be based on valid reason, mandamus cannot be issued to fill up vacancies. [Kulwinder Pal Singh v. State of Punjab, (2016) 6 SCC 532]

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