2018 SCC Vol. 1 January 14, 2018 Part 2

Bihar Tax on Entry of Goods into Local Areas for Consumption, Use or Sale Therein Act, 1993 — S. 3(2) — Set-off of VAT against entry tax: In order claim set-off, the following conditions are required to be fulfilled, (i) the entry tax is paid by the dealer liable to pay tax under the VAT Act; (ii) the assessee is an importer of scheduled goods, who is liable to pay tax under the VAT Act; (iii) the assessee incurs tax liability at the rates specified under S. 14 of the VAT Act; (iv) liability is only by virtue of the sale of imported scheduled goods. Then, “his” i.e. assessee’s tax liability under the VAT Act will stand reduced to the extent of tax paid under the Entry Act. [Indian Oil Corpn. Ltd. v. State of Bihar, (2018) 1 SCC 242]

Contempt of Court — Civil Contempt — Orders of which contempt possible/punishable: Division Bench in writ appeal without going into disputed contentions merely observed that judgment impugned before it for restoration of land would be given effect to subject to right of State available to it under 2003 Act. However, Division Bench vide order dt. 17-10-2007 categorically found that having declined to restore land, appellants had committed contempt of court and decided to frame charge accordingly. It was held by the Supreme Court that Division Bench in writ appeal was conscious of right available to State to proceed against disputed land under the Act and thus, appellants cannot be said to have committed contempt for having taken steps under the Act. Impugned order dt. 17-10-2007, was set aside and liberty was granted to respondents to take recourse to statutory remedy under S. 10 of the Act. [L. Radhakrishnan v. Parakulangara Devaswom, (2018) 1 SCC 236]

Criminal Procedure Code, 1973 — S. 482 — Quashing of one of two remarkably identical FIRs — If proper: High Court, in exercise of its powers under S. 482, cannot undertake a detailed examination of facts contained in FIRs, by acting as an appellate court and draw its own conclusion. It is only when on reading the FIRs, a sheer absurdity in allegations is noticed and when no prima facie cognizable case is made out on its mere reading due to absurdity in allegations or when facts disclose prima facie cognizable case and also disclose remarkable identity between two FIRs, as if the first FIR was filed second time with no change in allegations, then the court may, in appropriate case, consider it proper to quash the second FIR. Such is not the case herein, in quashing of 5 out of 6 FIRs. Hence, High Court’s order of quashing of five FIRs, set aside. [Chirag M. Pathak v. Dollyben Kantilal Patel, (2018) 1 SCC 330]

Insolvency and Bankruptcy Code, 2016 — Ss. 8 and 9 — Application for initiation of corporate insolvency resolution process by operational creditor: All that the adjudicating authority is to see at the stage of admitting/rejecting the application, is whether there is a plausible contention which requires further investigation and that the “dispute” is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the authority does not need to be satisfied that the defence is likely to succeed. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. Moreover, the existence of the dispute and/or the suit or arbitration proceeding must be pre-existing i.e. it must exist before the receipt of the demand notice or invoice. [Mobilox Innovations (P) Ltd. v. Kirusa Software (P) Ltd., (2018) 1 SCC 353]

Labour Law — Labour Court/Industrial Tribunal — Labour Court — Jurisdiction, Powers and Function: Respondent drivers who were supposed to remain present in Transport Department so that on receiving call they would attend place of call with their respective vehicles allegedly found involved in committing theft of “Face Milling Cutter” and caught in factory premises while on duty. Labour Court though found that departmental enquiry was properly conducted held same to be vitiated due to criminal court’s order acquitting respondents from charge of theft. The Supreme Court held, once Labour Court upheld departmental enquiry as legal and proper it should have confined its enquiry to examine only one limited question as to whether punishment of dismissal was disproportionate to gravity of offence proved, by taking recourse to S. 11-A, ID Act, 1947. Moreover, it also erred in setting aside order of dismissal on ground that appellant failed to produce evidence to prove charge of theft. [BHEL v. M. Mani, (2018) 1 SCC 285]

Maharashtra Village Panchayats Act, 1958 — Ss. 14(1)(j-3), 53(1), 53(2) and 53(2-A) — Disqualification of person who encroached upon government land or public property: Word “person” cannot be so construed as to disqualify original encroacher’s family members who continue to occupy such land/property but person who himself/herself committed encroachment for first time is disqualified. Member punished for encroachment under S. 53(1) or evicted from such land/property by final order of eviction under S. 53(2) or (2-A) also not entitled to continue as such. [Sagar Pandurang Dhundare v. Keshav Aaba Patil, (2018) 1 SCC 340]

Narcotic Drugs and Psychotropic Substances Act, 1985 — S. 20 — Search and seizure: In this case of alleged recovery of contraband from bag of appellant-accused, weighing 7 kg, reversal of acquittal by High Court, convicting accused under S. 20, awarding sentence of RI for 20 yrs and fine of Rs 2,00,000 with default stipulation, not valid as evidence adduced by prosecution was not carefully scrutinized by High Court. In absence of examination of independent witnesses, need to scrutinise evidence of police witnesses, with greater care, was not done by High Court. Moreover, there was presence of material contradictions in statements of aforesaid police witnesses, making prosecution case highly doubtful. Hence, guilt of appellant was not established. [Krishan Chand v. State of H.P., (2018) 1 SCC 222]

Penal Code, 1860 — Ss. 302/34 — Murder trial — Appreciation of evidence: Deceased was found hanging from roof, cause of death being asphyxia due to constriction of neck. Conviction of appellant-accused and one other was confirmed by High Court. The Supreme Court held that testimony of solitary eyewitness, related both to deceased and appellant-accused, as a witness to murder, is wholly unacceptable, being fraught with improbabilities, doubts and oddities. Hence, it cannot be acted upon as basis of conviction. Testimonies of other witnesses fall short of requirement of proof of charge beyond all reasonable doubt. Inference of motive, also found flawed. Hence, accused entitled to benefit of doubt. Consequently, appellant stands acquitted. [Kuna v. State of Odisha, (2018) 1 SCC 296]

Service Law — Departmental Enquiry — Natural justice: Mere non-supply of enquiry report does not warrant automatic reinstatement of delinquent employee. It is incumbent upon delinquent employee to plead and prove that he suffered serious prejudice due to non-supply of enquiry report. [Uttarakhand Transport Corpn. v. Sukhveer Singh, (2018) 1 SCC 231]

Service Law — Judiciary — Recruitment process — Examination — Selection to post of District and Sessions Judge: Fixing of minimum marks for viva voce examination by Administrative Committee in deviation from Resolution of Full Court dt. 13-12-2012 envisaging no minimum cut-off marks for interview amounts to change in criteria of selection in midst of selection process. Tej Prakash Pathak, (2013) 4 SCC 540 doubting correctness of view in K. Manjusree, (2008) 3 SCC 512 which held that fixing of minimum marks for interview after entire selection process was completed, amounted to changing rules of game after game was played which was impermissible, placed before larger Bench along with Salam Samarjeet Singh, (2016) 10 SCC 484 dealing with similar issue and heard by three-Judge Bench in view of conflicting opinions. Instant matter also referred to larger Bench. [Sivanandan C.T. v. High Court of Kerala, (2018) 1 SCC 239]

Service Law — Recruitment Process — Character and antecedents verification — Post of Constable: There was cancellation of candidature on ground of suppression of information regarding involvement in criminal case. Appellant permitted to file detailed representation, which respondent is directed to consider in light of law laid down by Supreme Court in Avtar Singh, (2016) 8 SCC 471 and thereafter pass reasoned order after affording opportunity of hearing to appellant. [Vikram Singh v. Commr. of Police, (2018) 1 SCC 308]

Service Law — Termination of Service — Grounds for termination — Suppression of fact: Appellant suppressed fact in his verification form that appeal against his acquittal under Ss. 323 and 324 r/w S. 34 Penal Code, 1860 was pending, hence, Appointing authority directed to consider appellant’s case afresh in light of law laid down by Supreme Court in Avtar Singh, (2016) 8 SCC 471 while passing speaking order after considering appellant’s representation and affording him opportunity of hearing. [Avtar Singh v. Union of India, (2018) 1 SCC 268]

Service Law — Termination of Service — Grounds for termination — Suppression of fact — Character and antecedents: Respondent were terminated from service after three years of entering service finding that he had suppressed fact of his involvement in criminal case. Respondent were permitted to file appropriate representation before appointing authority. Appointing authority directed to consider same in light of judgment rendered by Supreme Court in Avtar Singh, (2016) 8 SCC 471, read with other relevant instructions and pass a speaking order after affording him opportunity of hearing and verifying whether respondent was involved in any other criminal case, his age at time of incident, his conduct during period of service and also fact that he had served for around 5 yrs under CRPF. [Union of India v. Amit Singh, (2018) 1 SCC 293]

Service Tax — Liability to Pay Tax — Lessor of immovable property: As per S. 68 of Finance Act, 2007, the person providing the taxable service to another is to pay service tax at the rate specified in S. 66-B, unless otherwise specified by the Central Government. Further, as per R. 2(1)(d) of Service Tax Rules, 1994, the person liable for paying service tax, where the service of renting immovable property is agreed to be provided by the Government, is the provider of such service and even in the converse situation, it is the provider of the service alone, who is liable for paying service tax. [Union of India v. Bengal Shrachi Housing Development Ltd., (2018) 1 SCC 311]

Succession Act, 1925 — S. 263 Expln. (a) & Ill. (ii) and Ss. 276, 270 and 283: Revocation or annulment of grant of probate of will is at discretion of court which has to be exercised for “just cause” only. “Just cause” under S. 263 Expln. (a) is deemed to exist where proceedings to obtain grant were defective in substance. Defective in substance must mean that defect was of such a character as to substantially affect the regularity and correctness of proceedings. [Lynette Fernandes v. Gertie Mathias, (2018) 1 SCC 271]

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