2018 SCC Vol. 7 August 21, 2018 Part 2

Advocates — Government Law Officers/Counsel/Pleader/Public Prosecutor: Method of appointment and conditions of service of Asstt. Public Prosecutors and Public Prosecutors are qualitatively different inasmuch as Asstt. Public Prosecutors are appointed through competitive selection process conducted by PSC as per prevalent rules and are entitled to all service benefits enjoyed by government employees, while Public Prosecutors are appointed from panel of advocates furnished by Advocate General for a term of three years only and are neither considered as government employees nor do they derive any service benefits enjoyed by government employees. The fact that nature of duties and functions of Asstt. Public Prosecutors and Public Prosecutors are similar, per se, cannot be basis to claim parity with Public Prosecutors in respect of age of superannuation. It was further held that disparity in age of Asstt. PPs appointed on or before 31-3-2013 and those which joined on or after 1-4-2013 inconsequential since those appointed on or before 31-3-2013 were governed by statutory Pension Scheme as applicable to other government employees while those appointed on or after 1-4-2013 were governed by new Contributory Pension Scheme which was again applicable to all government employees. [Kerala Asstt. Public Prosecutors Assn. v. State of Kerala, (2018) 7 SCC 314]

Arbitration and Conciliation Act, 1996 — Pt. I or Pt. II and S. 34 — International commercial arbitration or Foreign-seated arbitration — Determination of: For determination and effect of “seat” of arbitration on maintainability of challenge to award rendered in international commercial arbitration, as in the present case between the appellant (Union of India) and the respondent (foreign company), under S. 34 in courts in India, when the arbitration agreement specifies the “venue” for holding the arbitration but does not specify the “seat”, exercising the power under Or. 6 R. 2 of Supreme Court Rules, 2013 appeal referred to larger Bench for hearing. [Union of India v. Hardy Exploration and Production (India) Inc., (2018) 7 SCC 374]

Armed Forces — Navy — Service conditions — Pension — Reservist pension — Entitlement to: Ex-Navy Direct Entry Artificers are entitled to special pension instead of reservist pension. [Ex Navy Direct Entry Artificers Assn. v. Union of India, (2018) 7 SCC 386]

Armed Forces Tribunal Act, 2007 — Ss. 2, 3(o) and 14 — Jurisdiction of AFT — Service conditions: For a matter to be treated as service matter, it must relate to conditions of service of persons subject to Army Act, 1950, Navy Act, 1957 and Air Force Act, 1950. Decision not to grant permanent secondment to appellant in DGQA (Directorate General of Quality Assurance) by QASB (Quality Assurance Selection Board) which was a different organisation did not in any manner affect service conditions of appellant as Commissioned Officer in Army. Hence, as rightly found by Tribunal it had no jurisdiction to entertain appellant’s original application. [Vijaynath Jha v. Union of India, (2018) 7 SCC 303]

Civil Procedure Code, 1908 — Or. 21 Rr. 90, 92(1) & (3) and Ss. 47, 104(1)(ffa) — Res judicata: Application was filed under Or. 21 R. 90 r/w S. 47 for setting aside court auction-sale. Order dismissing application though appealable but no appeal was filed, sale was confirmed under Or. 21 R. 92(1), and confirmation of sale was not questioned whereby auction purchase attained finality. It was held that by virtue of R. 92(3) applicant/objector would be barred from bringing fresh suit to set aside sale on same ground. [Siddagangaiah v. N.K. Giriraja Shetty, (2018) 7 SCC 278]

Civil Procedure Code, 1908 — S. 97 and Or. 7 R. 7: Challenge to correctness of preliminary decree in final decree proceedings barred when no appeal was preferred by defendant against preliminary decree. Fundamental issue (as to boundaries nad description of suit properties) was consistently and sufficiently averred by defendant to warrant enquiry by trial court, however still it was not enquired into by trial court. Thus, even in absence of appeal against preliminary decree, since defendant had consistently raised fundamental averment in question, to warrant enquiry thereinto by trial court, matter remitted to trial court for consideration of disputed question on basis of evidence. [Selvi v. Gopalakrishnan Nair, (2018) 7 SCC 319]

Constitution of India — Arts. 226 and 21 — Multi-State crime involving high officials of State and Centre: In this case of illegal manufacture and sale of gutkha and pan masala, containing tobacco and/or nicotine, transfer of investigation to CBI to ensure fair investigation and instil confidence of public and victims, upheld. [E. Sivakumar v. Union of India, (2018) 7 SCC 365]

Consumer Protection — Consumer Forums — National Forum — Inadequate infrastructure: Central Government directed to take following measures and apprise court: (a) To sanction additional posts to enhance work efficiency. Sanctioned posts being only about one-fourth of that required/ recommended by Staff Inspection Unit, (b) to take urgent steps to provide additional space to store files as filing of cases going up by nearly 300%, and (c) to state its concurrence about proposed amendment to R. 11 of Consumer Protection Rules, 1987 relating to salaries, honorarium and other allowances of National Forum. [State of U.P. v. ALL U.P. Consumer Protection Bar Assn., (2018) 7 SCC 423]

Criminal Procedure Code, 1973 — S. 407 — Transfer of case within the State — When permissible: As no possibility for conduct of fair and impartial trial at present place, was clearly visible, apprehension of threat to life of appellants, was obvious and as Respondent-accused being very influential in their locality, witnesses were not coming forward to depose and turning hostile due to pressure tactics of accused and no prejudice was being caused to respondent-accused in any manner from such transfer, rejection of transfer petitions by High Court, set aside and transfer of cases, directed. [Sarasamma v. State, (2018) 7 SCC 339]

Inter-State River Water Disputes Act, 1956 — Ss. 6-A, 3, 5 and 6 — Adjudication of Cauvery Water Dispute between riparian States by Tribunal: Corrected Draft Scheme (Cauvery Water Management Scheme) issued and modified in terms of directions of Supreme Court, affirmed and directed to be notified at the earliest. Objections to said Scheme by States of Karnataka and Kerala, rejected. [State of T.N. v. P.K. Sinha, (2018) 7 SCC 403]

Penal Code, 1860 — S. 302 or S. 304 Pt. II and Ss. 341, 323 and 34 [S. 300 Exception 4] — Ingredients and applicability of Exception 4 to S. 300:  In this case of land dispute between parties. injuries caused by sudden attack on deceased by accused persons, resulted in his death after sometime. It was a sudden verbal quarrel and there was no premeditated plan to attack deceased. Civil disputes was already pending between both families. Minor verbal exchange bloated into a sudden physical attack. Hence, conviction converted from S. 302 to S. 304 Pt. II. [Manoj Kumar v. State of H.P., (2018) 7 SCC 327]

Penal Code, 1860 — Ss. 307, 323, 149 and 148: In this case where in a dispute related to watering of field from tubewell of accused party infliction of several injuries by appellant-accused on complainant’s party using lethal weapons, after appreciation of evidence, conviction of accused confirmed. [Suresh Singh v. State of M.P., (2018) 7 SCC 381]

Ranbir Penal Code, 1989 (2 of 1989 Smvt.) (1932 AD) — Ss. 302/341 — Murder trial: In this case accused assaulted deceased on his head with iron rod, resulting in his death. Acquittal of accused was reversed by the High Court, convicting him under Ss. 302/341 RPC. As direct oral evidence coupled with medical evidence, clearly pointed at guilt of accused, testimony of eyewitness was wholly trustworthy, evidence of other prosecution witnesses also found reliable, FIR was lodged promptly, motive also stood established and prosecution proved guilt of accused beyond reasonable doubt, hence, reversal of acquittal, confirmed. [Khurshid Ahmed v. State of J&K, (2018) 7 SCC 429]

Service Law — Judiciary — Conditions/Benefits of service — Unreasonable condition(s): Denial of benefit of increment/seniority until candidate cleared Hindi examination in “higher grade”, not proper. [Ashok Kumar v. State of Jharkhand, (2018) 7 SCC 296]

Service Law — Judiciary — Recruitment process — Vacancy — Determination of: Appeals challenging the advertisement and process of recruitment to Punjab Superior Judicial Service conducted in year 2008, dismissed while holding that a seat that fell vacant on elevation of a judge after the publication of advertisement cannot be included in the recruitment. [Gurmeet Pal Singh v. State of Punjab, (2018) 7 SCC 260]

Service Law — Judiciary — Retirement/Superannuation — Retiral benefits — Computation of qualifying service:  Service rendered by appellant Judicial Officers as Fast Track Court Judges is liable to be counted for pensionary and other benefits, post joining regular judicial service. Methodology of non-creation of adequate regular cadre posts and consequent establishment of Fast Track Courts manned by appellants cannot be used as ruse to deny dues of appellants. [Mahesh Chandra Verma v. State of Jharkhand, (2018) 7 SCC 270]

Tenancy and Land Laws — Revenue Records — Entry in revenue records — Substantive error or clerical error — Determination of: In this case appellant Housing Board acquired and took possession of entire Survey No. 1009. Allegedly survey records did not depict exact extent of land. Some additional area probably should have been included in description of Survey No. 1009. Respondent landowners, taking chance and claiming that additional area under said Survey was not acquired by filing application under S. 87, Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 Fasli, for correction of clerical error. Said application, held, could not have been entertained because said error was not a clerical or mathematical error but a substantive error. [Telangana Housing Board v. Azamunnisa Begum, (2018) 7 SCC 346]

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