Cases reported in SCC : 2017 SCC Vol. 1 January 14, 2017 Part 2

Constitution of India — Art. 243-ZD: Vidhayak Nidhi Scheme as introduced by State of U.P. similar to MPLADS, not violative of Art. 243-ZD and U.P. District Planning Committee Act, 1999 (32 of 1999). [Lok Prahari v. State of U.P., (2017) 1 SCC 244]

Criminal Procedure Code, 1973 — Ss. 156, 157 and 173 — Incomplete/Unfair/Unauthorised investigation: As submission made by State that appropriate investigation was undertaken which culminated in filing of a report under S. 173 CrPC but objection raised by R-1 that investigation in question was not in conformity with the direction issued by Supreme Court in Zorawar Singh, (2015) 2 SCC 572, it has been observed that since appropriate report under S. 173 CrPC had already been filed before the court concerned, entire matter left to be considered by that court in accordance with law keeping in view the directions passed by Supreme Court. On going through the report submitted by Chief Secretary of State, there is no need to carry the matter further. Hence, proceedings closed accordingly. [Zorawar Singh v. Gurbax Singh Bains, (2017) 1 SCC 270]

Family and Personal Laws — Will — Due execution of — Proof of — Manner and mode: Propounder had to show that will was signed by testator, and that testator was in sound and disposing state of mind at the relevant time. That testator had understood nature and effect of disposition and put his signature to document on his own free will. Such document shall not be used as evidence unless one of attesting witness is called to prove execution. This mandate of law does not change even if opposite party does not specifically deny execution of will. [Ramesh Verma v. Lajesh Saxena, (2017) 1 SCC 257]

Gujarat Cooperative Societies Act, 1961 — Ss. 4, 107, 108(2) & (3)(b) r/w Ss. 2(xiii) and (xiv), 9, 10 and 11, Gujarat Agricultural Produce Markets Act, 1963: Rights and functions of officers of cooperative society are either created by statute under which office is created or by subordinate legislation. Further held, in terms of S. 11(1), Markets Act an additional statutory right is conferred on officers of a class of credit societies to elect members of Market Committees which cannot be taken away in absence of express authority of law. Thus, merely because officers of credit society facing liquidation are disabled from enforcing certain rights attached to office or perform certain obligations appended to office, it does not necessarily follow that they are disabled from performing every function entrusted by law to such office. [Vineshkumar Mavjibhai Parmar v. Dethali Gopalak Vividh Karyakari Sahakari Mandali Ltd., (2017) 1 SCC 273]

Industrial Disputes Act, 1947 — S. 10 — Reference — Parity: As cases of similarly situated persons referred for adjudication without any objection with regard to delay, hence, directed that cases of appellants shall also be considered for reference ignoring objection on ground of delay. [Basant Singh v. State of H.P., (2017) 1 SCC 263]

Karnataka Sales Tax Act, 1957 (25 of 1957) — S. 5 r/w Entry 17(i) of Part S of the Second Schedule — Classification of goods: If a polished granite stone is used in a building for any purpose, it will come under Entry 17(i) of Part S of the Second Schedule, but if it is a tile, which comes into existence by different process, a new and distinct commodity emerges and it has a different commercial identity in the market. Further, a granite tile would come within Entry 8 if involvement of certain activities is established but if tiles are manufactured or produced after undertaking some other activities, the position would be different. Therefore, a finding has to be arrived at by carrying out due enquiry and for that purpose appropriate exercise has to be undertaken and in the absence of that, a final conclusion cannot be reached. [CCT v. Ayili Stone Industries, (2017) 1 SCC 225]

Labour Law — Reinstatement/Back Wages/Arrears — Compensation in lieu of reinstatement: In this case claim of parity with workmen engaged in another colliery, Ref. No. 204 of 1994 where benefit of reinstatement without back wages was granted was laid, Order dt. 18-5-2004 passed by High Court directed that as and when management intended to employ workmen preference would be given to appellants, if found suitable by relaxing requirements of age and academic qualifications, attaining finality. Judgment in Ref. No. 204 of 1994 cannot aid appellants since in that case judgment of Division Bench was challenged, while in instant case judgment of Division Bench had attained finality and hence, entitlement of workmen would flow from order dt. 18-5-2004. Besides, in writ petition filed in 2007 appellants had sought implementation of order dt. 18-5-2004. However, following judgment in Bharat Coking Coal Ltd., (2016) 9 SCC 431 and considering that workmen in instant case were working in skilled category of Tyndals Category IV, no vacancies existed in that category, one of the collieries was a closed mine, existence of surplus manpower, and fact that appellants were performing job of permanent and perennial nature and workers performing similar jobs in other collieries were regularised, respondent directed to pay Rs 4 lakhs each to 88 workmen concerned. [Rashtriya Colliery Mazdoor Sangh v. Employers, (2017) 1 SCC 264]

Proof of demand of illegal gratification: Proper proof of demand and acceptance of illegal gratification by the public servants is necessary to record a conviction under Sections 7 and 13 of the Prevention of Corruption Act, 1988. This article discusses various judgments of the Supreme Court in this context. [Is “demand” the sine qua non for an offence under the Prevention of Corruption Act? by V.N. Muralidharan, (2017) 1 SCC (J-16)]

Section 6 of the Indian Evidence Act and res gestae: Even though Section 6 of the Indian Evidence Act has a significant non-hearsay use both in making facts which are not utterances relevant1 as well as making certain verbal acts relevant; the courts have applied this section largely as a rule against hearsay in connection with the doctrine of res gestae, that is, to include spontaneous exclamations. This article explores if it is appropriate to interpret Section 6 as an embodiment of the res gestae doctrine, and how the courts should further interpret this section. Ultimately, this article argues that it is harmful to interpret Section 6 in light of the res gestae doctrine and the courts should proceed to interpret this section as envisaged in the statute. [Interpretation of Section 6 of the Indian Evidence Act by Shreya Prakash, (2017) 1 SCC (J-21)]

Service Law — Pay — Parity in pay/pay scale — Principle of “equal pay for equal work” — Applicability to temporary employees: Principle of “equal pay for equal work” expounded through various decisions of Supreme Court constitutes law declared by Supreme Court, which is binding on all courts in India. As such, it is also applicable to temporary employees performing the same duties and responsibilities as regular employees. It is fallacious to determine artificial parameters to deny fruits of labour, more so, in a welfare State. Any act of paying less wages as compared to others similarly situated, constitutes act of exploitative enslavement emerging out of domineering position of the State. Thus held, temporary employees possessing requisite qualifications and appointed against posts which were also available in regular cadre, performing similar duties and responsibilities as being discharged by regular employees holding same/corresponding posts, were entitled to claim wages on a par with minimum pay scale of regular employees holding the same posts. [State of Punjab v. Jagjit Singh, (2017) 1 SCC 148]

Statute Law — Validating or Overriding Enactment/Statute/Legislation: Legislature has the power to enact laws including the power to retrospectively amend laws and thereby remove causes of ineffectiveness or invalidity. Further, when such a correction is made, the purpose behind the same is not to overrule the decision of the court or encroach upon the judicial turf, but simply enact a fresh law with retrospective effect to alter the foundation and meaning of the legislation and to remove the base on which the judgment is founded. Thus, this does not amount to statutory overruling by the legislature. [Cheviti Venkanna Yadav v. State of Telangana, (2017) 1 SCC 283]

Statutory procedure for challenging an Arbitral Tribunal on the grounds of bias: The Indian Arbitration and Conciliation Act, 1996 was enacted to provide a timely and swift dispute redressal mechanism to the parties at dispute. Unfortunately, the object of the Act has been consistently defeated by the poor drafting of the Act coupled with the mala fide intention of disgruntled parties to keep the dispute hinge on technicalities. One such instance arises in cases when there is an apprehension of bias2 in the mind of any of the parties regarding the arbitrator(s). The article attempts to study various conflicting decisions of the courts in India on the issue of appropriate statutory procedure for challenging the appointment of an arbitrator under the Act. In part one after discussing the relevant statutory provisions of the Act with respect to the procedure for challenging the constitution of an Arbitral Tribunal, part two critically evaluates the decisions of various courts in India in light of UNCITRAL and other laws, subsequently with part three concluding with some recommendations. [Procedure to Challenge an Arbitrator on the Issue of Bias: Discord in the Legal Position by Akaant Kumar Mittal, (2017) 1 SCC (J-8)]

Substantial question of law for the purposes of a second appeal: The Supreme Court thereafter cautioned the Judges to ensure that the cases not involving substantial questions of law should not be entertained, and at the same time cases involving substantial questions of law should not be rejected, as not involving substantial questions of law. However, what is substantial question of law for the purposes of a second appeal and how should it determine the scope of such appeal has always been a matter of deliberation before the courts. On this aspect, a comprehensive study of the judgments given by the Supreme Court of India at various intervals has been done under this article. [Revisiting the Substantial Question of Law in A Civil Second Appeal by Justice Deepak Maheshwari and Naman Maheshwari, (2017) 1 SCC (J-1)]

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