Cases reported in SCC 2016 SCC Vol. 9 November 7, 2016 Part 3

Service Law — Retirement/Superannuation — Voluntary retirement — Voluntary Retirement Scheme (VRS): Where VRS floated by employer is contractual in nature and not statutory in character, provisions of Contract Act would apply. VRS would be treated as invitation to offer and application submitted by employees pursuant thereto an offer which does not amount to resignation in praesenti and offer can be withdrawn during validity period. Further held, even when there is clause in VRS prohibiting withdrawal of offer once given by an employee, offer can be withdrawn during validity period of VRS but not thereafter i.e. offer could be withdrawn in instant case before 1-8-2005 in case of first group and before 28-10-2006 in case of second group by employees concerned. Acceptance of offer of employees after its withdrawal during validity period, was inconsequential. However, employees who withdrew their offer after validity period could not do so and Corporation was within its right to accept their offers though such acceptance was after their (invalid) application for withdrawal. Thus, only those employees who had withdrawn their offer during validity period entitled to reinstatement. [M.P. SRTC v. Manoj Kumar, (2016) 9 SCC 375]

Civil Procedure Code, 1908 — Ss. 102 and 100: Second appeal would not lie where subject-matter of original suit is only for recovery of money not exceeding Rs 25,000, but would lie where subject-matter involves other issues also. [Nagar Palika Thakurdwara v. Khalil Ahmed, (2016) 9 SCC 397]

Constitution of India — Arts. 19(1)(g) & (6), 26 and 30 — Regulation of right to freedom of “occupation” of private unaided minority and nonminority educational institutions: Centralised State-conducted admission process held to be permissible in Modern Dental College and Research Centre, (2016) 7 SCC 353, encompasses not only centralised State-conducted entrance test but also centralised State-conducted counseling. [State of Maharashtra v. D.Y. Patil Vidyapeeth, (2016) 9 SCC 401]

Rent Control and Eviction — Landlord: “Family”, in relation to a landlord of a building, as defined under S. 3(g) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 includes “married daughter”. Having regard to the inclusive part of the definition of “family” under S. 3(g) of the 1972 Act, any female having a legal right of residence in the building of landlord is included in the definition of “family” in relation to landlord regardless of the fact whether she is married or not. Such female is entitled to seek eviction of tenant from that building for her own need. [Gulshera Khanam v. Aftab Ahmad, (2016) 9 SCC 414]

Service Law — Recruitment Process — Number of posts to be filled — Determination of: It is well-settled principle of service law that only the number of vacancies advertised can be filled up. Where advertisement gives liberty to Government to vary number of posts, such power cannot be exercised for filling up future vacancies. [Anurag Kumar Singh v. State of Uttarakhand, (2016) 9 SCC 426]

Labour Law — Reinstatement/Back Wages/Arrears — Compensation in lieu of reinstatement — When proper: As two sets of workmen in same colliery under same Company received unequal treatment, hence, compensation directed in lieu of reinstatement in full and final settlement of their claims. [Workmen Rastriya Colliery Mazdoor Sangh v. Bharat Coking Coal Ltd., (2016) 9 SCC 431]

Education and Universities — Professional Colleges/Education — Medical and Dental Colleges — Admission: Students not having passed NEET, held, cannot be granted admission to MBBS course. NEET is very much necessary to get admission to MBBS course. When conditional interim admissions were cancelled during pendency of writ petitions, direction of High Court for accommodation of affected students in other medical colleges, was unwarranted. Students, held, have no right to continue/pursue courses on basis of admission on basis of conditional interim order granted in writ petitions. It would be open to those students, who are qualified to get admission on the basis of their performance in NEET, to get admission elsewhere and they must have participated in the counseling. [Medical Council of India v. Harshitha, (2016) 9 SCC 437]

Contempt of Courts Act, 1971 — S. 15 — Criminal contempt of subordinate court — Cognizance of: Proceedings not initiated as per provisions of S. 15, stand vitiated. [Vilas V. Sanghai v. Sumermal Mishrimal Bafna, (2016) 9 SCC 439]

Criminal Procedure Code, 1973 — Ss. 437 and 439 — Bail — Grant of — Relevant considerations for: Duty is cast upon court in addressing such a prayer in a case on its own merit, and while applying its discretion, it must be applied in a judicious manner and not as a matter of course. Balance has to be struck between right to individual liberty and interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While one of considerations in deciding whether to grant bail to accused or not is whether he has been in jail for a long time, the court has also to take into consideration other facts and circumstances, such as the interest of society. [Chandrakeshwar Prasad v. State of Bihar, (2016) 9 SCC 443]

Education and Universities — Appointment/Recruitment — Entitlement to appointment/Non-appointment/Denial of appointment: It is the duty of State College Service Commission under Bihar College Service Commission Act, 1976 to recommend two persons for one post in terms of S. 2(9), while S. 2(10) of 1976 Act granting discretion to governing body of college to select one out of the recommended candidates, but in this case, State College Service Commission recommended two persons for one post and governing body appointed one of them while denying appointment to R-1 (second recommended candidate). Since there were 2 vacant posts, Commission ought to have recommended 4 candidates. R-1 should not suffer injustice for no fault of her own in view of such violation of statutory provisions. Impugned judgment directing appointment of R-1 against second available post, wherefor her suitability was undisputed, calls for no interference. [L.P. Shahi College v. Seema Mishra, (2016) 9 SCC 449]

Hindu Marriage Act, 1955 — S. 13(1)(i-a) — Divorce — Grounds — Mental cruelty: (i) Threats and attempt to commit suicide by respondent wife; (ii) Merely for monetary considerations respondent wife wanting her husband to get separated from his family since appellant husband’s family was virtually maintained from his income; and (iii) Unsubstantiated extramarital affair allegations levelled by respondent against her husband, constitute mental cruelty justifying decree of divorce. Further held, only one event of attempt to commit suicide was sufficient for appellant husband to get decree of divorce on ground of cruelty considering serious repercussions it could entail. Furthermore, in Hindu society, it is pious obligation of son to maintain his parents and persistent efforts of respondent wife to constrain appellant to be separated from his family without any justifiable reason, merely for some monetary consideration would be tortuous to husband constituting act of “cruelty”. Hence, divorce decree restored. [Narendra v. K. Meena, (2016) 9 SCC 455]

Labour Law — Industrial Disputes Act, 1947 — S. 33-C(2) — Claim for lay-off compensation after availing VRS and receiving special compensation package: Where VRS does not cover past dues like lay-off compensation, subsistence allowance, etc. workman would be entitled to approach Labour Court under S. 33-C(2). Where the same are specifically covered or language of VRS shows that it covers such claims under scheme, no forum would have jurisdiction to grant the same. [A. Satyanarayana Reddy v. Labour Court, (2016) 9 SCC 462]

Criminal Procedure Code, 1973 — Ss. 154 and 207 — FIR — Supply of copy to accused: Person(s) accused in FIR of commission of offence(s), are entitled to have copy of FIR at a stage prior to that prescribed under S. 207 CrPC. FIRs registered in police stations, excepting those pertaining to offences of sensitive nature, are required to be uploaded on official website of all States. [Youth Bar Assn. of India v. Union of India, (2016) 9 SCC 473]

Arbitration Act, 1940 — Ss. 30 and 33 — Legal misconduct by arbitrator: Award can be set aside only on grounds set out in cls. (a) to (c) of S. 30. Court, before which objections regarding legal misconduct filed, passed decree in terms of award. In appeal, High Court’s enquiry should be confined to whether any legal misconduct is committed by arbitrator and if so, how and in what manner. High Court cannot act as if appeal arose before it directly against award. It cannot accordingly proceed to examine legality and correctness of findings of fact of arbitrator by re-appreciating evidence and on that basis conclude that arbitrator had gone beyond terms of agreement between parties. An objection, neither raised before arbitrator nor before trial court, but raised for first time before High Court should not be entertained. It can set aside a reasoned award only when reasons ascribed by arbitrator are perverse to the extent that no man with ordinary prudence could take such view or there is error apparent on record or award is based on wrong proposition of law. [Harish Chandra & Co. v. State of U.P., (2016) 9 SCC 478]

Service Law — Departmental Enquiry — Criminal proceedings: Whether departmental enquiry can be initiated simultaneously with criminal proceedings, where facts and evidence involved in both proceedings are common, would depend upon facts of particular case, keeping in mind broad approach to be adopted. Pendency of criminal proceedings cannot be sole basis to suspend/stay disciplinary proceeding but employee’s defence in criminal case may be prejudiced because of continuance of disciplinary proceedings. Balance has to be struck between fair criminal trial and expeditious disciplinary proceeding, which cannot be stayed for indefinite period. [SBI v. Neelam Nag, (2016) 9 SCC 491]

Constitution of India — Art. 226 — Tax matters: In this case where Appellant, engaged in developing housing projects, was issued a notice under S. 148 of IT Act on the premise that the appellant was not entitled to deduction under S. 80-IB(10) of IT Act for a plot for which it had not correctly disclosed the actual assets, contention of the assessee that there was full disclosure of all the relevant facts in the return, rejected and order of High Court, inter alia, holding that petitioner for invoking the extraordinary jurisdiction of High Court under Art. 226 of the Constitution is required to make out a case that no part of the relevant material had been kept from assessing officer, upheld. [Girilal & Co. v. ITO, (2016) 9 SCC 510]

Land Acquisition Act, 1894 — S. 16(2): Notification published in official gazette is evidence to show that possession of land was taken, however such evidence is not conclusive. [Hubli-Dharwad Urban Development Authority v. Shekhargowda Chennabasannagowda Phakirgowdar, (2016) 9 SCC 513]

Sales Tax and VAT — Manufacturing/Manufacturing process: Blending and packing tea does not amount to “manufacturing” of tea. [Dugar Tea Industries (P) Ltd. v. State of Assam, (2016) 9 SCC 519]

Courts, Tribunals and Judiciary — High Courts — Letters Patent — Letters Patent of Bombay High Court — Cl. 15: A conspectus reading of Ss. 5 and 13 of Commercial Courts, Commercial Division and Commercial Appellate Division of the High Courts Act, 2015 and S. 50 of Arbitration Act, 1996 leads to an irresistible conclusion that letters patent appeal is maintainable before Division Bench in a case against order passed by Single Judge of High Court refusing to enforce foreign award in exercise of its original jurisdiction (conferred on it vide amendment in Arbitration Act, 1996 in 2015). It has to be treated as an appeal under S. 50(1)(b) of Arbitration Act, 1996 and has to be adjudicated within said parameters. [Arun Dev Upadhyaya v. Integrated Sales Service Ltd., (2016) 9 SCC 524]

 

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