2018 SCC Vol. 8 September 21, 2018 Part 2

Arbitration and Conciliation Act, 1996 — Ss. 7 and 11(6) — Agreement to settle disputes by arbitration — Inference of — When warranted: Cl. 12 of the MoU between the parties provided that any decision to be taken by the specified mediators/arbitrators during the period of entire transaction in the event of any breaches committed by either of the parties shall be final and binding on all the parties. On analysing the various clauses of the MoU, held, that the specified persons though styled as mediators/arbitrators, were escrow agents who had been appointed to keep certain vital documents in escrow, and to ensure a successful completion of the transaction contained in the MoU. Further, the very fact that they were referred to as “mediators/arbitrators” and as “mediators and arbitrators” showed that the language used was loose. Also, the expression “decision” used in Cl. 12 was only a pro tem decision. Namely, that the two escrow agents were to make decisions only during the period of the transaction and not thereafter. Thus, when viewed as a whole, the two escrow agents were not persons who had to decide disputes after hearing the parties and observing the principles of natural justice, in order to arrive at their decision. In the present case, held, the wording of the agreement, was inconsistent with the view that the agreement intended that disputes be decided by arbitration. [Shyam Sunder Agarwal v. P. Narotham Rao, (2018) 8 SCC 230]

Constitution of India — Art. 137 — Review under — Ambit and scope of power to review in criminal proceedings — Review when maintainable — Principles reiterated: Application to review a judgment is not to be lightly entertained and Supreme Court could exercise its review jurisdiction only when grounds are made out as provided in Or. XLVII R. 1, Supreme Court Rules, 2013. Review is not rehearing of original matter. Power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court.  A repetition of old and overruled argument is not enough to reopen concluded adjudications. Normally in a criminal proceeding, review applications cannot be entertained except on ground of error apparent on face of record. Further, power given to Supreme Court under Art. 137, is wider, and in an appropriate case, can be exercised to mitigate a manifest injustice. By review application, applicant cannot be allowed to re-argue appeal on grounds which were urged at the time of hearing of appeal. Even if applicant succeeds in establishing that there may be another view possible on conviction or sentence of accused, that is not a sufficient ground for review. Supreme Court shall exercise its jurisdiction to review only when a glaring omission or patent mistake has crept in earlier decision, due to judicial fallibility. [Vinay Sharma v. State (NCT of Delhi), (2018) 8 SCC 186]

Evidence Act, 1872 — Ss. 30 and 3 — Scope — Confession of co-accused — Admissibility against other accused: As a result of provisions contained in S. 30, confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by court is evidence; circumstances which are considered by court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of provisions of S. 30, fact remains that it is not evidence as defined by S. 3. Result, therefore is, that in dealing with a case against an accused person, court cannot start with confession of a co-accused person; it must begin with other evidence adduced by prosecution and after it has formed its opinion with regard to quality and effect of said evidence, then it is permissible to turn to confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. Law so laid down has always been followed except in cases where there is a specific provision in law making such confession of a co-accused admissible against another accused. [Surinder Kumar Khanna v. Directorate of Revenue Intelligence, (2018) 8 SCC 271]

Government Contracts and Tenders — Award/Non-award of contract — Conduct of auction/Evaluation/Acceptance/Rejection of Bid/Tender/Scope of judicial review: Right of First Refusal(ROFR)/right to match the lowest bid, granted to claimant/contractor by Arbitral Tribunal qua tender for completion of the balance unfinished works originally awarded to the claimant, is inconsequential, when such original awardee/contractor does not participate in the subsequent tender. Tender documents for balance work making it obligatory for the respondent/contractor to participate in the tender process. Tacit or implied exemption from participating in tender process is not permissible in matters of tender process. [NHAI v. Gwalior-Jhansi Expressway Ltd., (2018) 8 SCC 243]

Infrastructure Laws — Water and Water Resources — Canals, Dams and Irrigation — Multipurpose hydroelectricity projects — Tariff determination under the provision of the 1948 Act: The latter part of the fourth proviso to S. 14 of Electricity Act i.e. “… and the provisions of the Damodar Valley Corporation Act, 1948 insofar as they are not inconsistent with the provisions of this Act, shall continue to apply to that Corporation…”, is a substantive provision to lay down something more than what a proviso generally deals with and is to bring in the continued application of some of the provisions of the 1948 Act which are not inconsistent with the provisions of the 2003 Act. Also, a comparative reading of the third and the fourth provisos to S. 14 of Electricity Act indicates the intention of the legislature that the second part of the fourth proviso is to bring in the continued application of some of the provisions of the 1948 Act which were not inconsistent with the provisions of the 2003 Act. [Bhaskar Shrachi Alloys Ltd. v. Damodar Valley Corpn., (2018) 8 SCC 281]

Insurance — Fees payable to Investigators/Advocates: Direction to the insurance companies to adhere to fees schedule issued by GIPSA dt. 21-2-2005 qua advocates/investigators by High Court is not warranted, particularly when they were already adhering to the fee structure enforced from 2009 and 2014. [United India Insurance Company Limited, In Re, (2018) 8 SCC 177]

Labour Law — Wages — Overtime Wages — Claim to — Sustainability: Respondents (total 17), employees of appellant’s printing press claimed overtime wages for work allegedly done for period 1986 to 1990. Claim was allowed on following grounds: (i) Respondents no longer in service and either retired or died; (ii) Amount involved not very sizeable; (iii) Relates to period from 1986-1990; (iv) Amount, pursuant to impugned order paid long back; and (v) It relates to overtime work admittedly done by respondents. [Currency Note Press v. N.N. Sardesai, (2018) 8 SCC175]

Labour Law — Wages: Directions issued to pay unpaid wages of workers who had worked for about 20 yrs in tea estates which were later abandoned by tea companies in States of Assam, W.B., T.N. and Kerala. [IUF Workers’ Assn. v. Union of India, (2018) 8 SCC 201]

Land Acquisition Act, 1894 — Ss. 18(2)(b), 18(1), 12(2) and 11 — Limitation for filing reference application under S. 18(2)(b): Since notice dt. 4-12-1987 was not accompanied by award, it was not a valid notice as envisaged under S. 12(2). It was only after appellant received certified copy of award on 3-2-1988, there was valid notice. Thus, reference for enhancement was not barred by limitation. Matter remanded to High Court for consideration on merits. [Vijay Mahadeorao Kubade v. State of Maharashtra, (2018) 8 SCC 266]

Land Acquisition Act, 1894 — Ss. 48 and 16: Release of land from acquisition proceedings is not permissible after possession of land has been taken by State. State is at liberty to withdraw from acquisition of any land “of which possession has not been taken” except in cases falling under S. 36 since acquired land vests in State absolutely free from all encumbrances. In instant case, since possession of land in question was taken by State in accordance with law on 30-5-2004, provisions of S. 48 were inapplicable, disentitling State to release land from acquisition proceedings by taking recourse to S. 48. The then Revenue Minister had no power to deal with land in question in any manner whatsoever after possession was taken. [Pimpri Chinchwad New Township Development Authority v. Vishnudev Cooperative Housing Society, (2018) 8 SCC 215]

Negotiable Instruments Act, 1881 — S. 139 — Presumption under — When may fail — Ingredients and scope of S. 139 — Principles summarized: Accused may adduce evidence to rebut presumption under S. 139, but mere denial regarding existence of debt shall not serve any purpose. In the event accused is able to raise a probable defence which creates doubt with regard to existence of a debt or liability, the presumption may fail. [Kishan Rao v. Shankargouda, (2018) 8 SCC 165]

Penal Code, 1860 — S. 302 or S. 304 Pt. II — Appellant-accused caused death of deceased by a single sword-blow in the rib-cage area of deceased — Offence committed — Determination of: Irked by loud noise of tape recorder being played by deceased in his house, appellant had verbal altercation with deceased, which culminated in the incident. High Court, upon reappreciation of evidence, correctly held, that evidence of PW 4 (injured witness) stands corroborated by PWs 1 to 3 (eyewitnesses), hence, reversed acquittal of appellant, convicting him under S. 302. However, held, occurrence took place in the heat of moment. Assault was made without premeditation on the spur of time. Entire episode lasted for 1½ to 2 minutes. There was no intention to kill and no second assault was made by appellant to ensure death of deceased, but, in the nature of weapon used and position of assault, knowledge that death was likely to ensue, is attributable to appellant. Therefore, conviction of appellant altered from S. 302 to S. 304 Pt. II and sentence altered from life imprisonment to period of custody already undergone. [Deepak v. State of U.P., (2018) 8 SCC 228]

Service Law — Regularisation — Entitlement to regularisation — Daily wagers/Contractual Employees — Benefit of 2015 Regularisation Rules to employees who had not completed 10 yrs of service on cut-off date of 10-4-2006 on ground that the same was not permitted by Umadevi (3), (2006) 4 SCC 1: Supreme Court in Umadevi (3) case(2006) 4 SCC 1 granted, as one time measure, benefit of regularisation of services to irregularly appointed employees who had put in more than 10 yrs of service on cut-off date of 10-4-2006. High Court by impugned judgment denied benefit of regularisation to appellants in terms of Regularisation Rules of 2015 holding that Umadevi (3) case did not permit regularisation of services of appellants since they had not put in 10 yrs of service on cut-off date of 10-4-2006 when Constitution Bench rendered its decision. The Supreme Court held, intention of Umadevi (3) case was to prevent irregular/illegal appointments and to confer benefit on those who were irregularly appointed in past. Fact that State of Jharkhand continued with irregular appointments for almost a decade after decision in Umadevi (3) case was rendered strongly deprecated, which was nothing but exploitation of employees concerned and which Umadevi (3) case and M.L. Kesari, (2010) 9 SCC 247 precisely sought to avoid. If a strict and literal interpretation, forgetting spirit of decision in Umadevi (3) case is taken into consideration, then no irregularly appointed employee can ever be regularised in State of Jharkhand since it came into existence on 15-11-2000, and the cut-off date was 10-4-2006. High Court as well as the State ought to have considered entire issue in contextual perspective from point of view of interest of State, financial or otherwise, and also the employees. Regularisation Rules of 2015 should be given pragmatic interpretation and in case appellants have completed 10 yrs of service on date of promulgation of Rules, their services should be regularized. State of Jharkhand directed, henceforth, to consider making regular appointments only. [Narendra Kumar Tiwari v. State of Jharkhand, (2018) 8 SCC 238]

T.N. Buildings (Lease and Rent Control) Act, 1960 (18 of 1960) — Ss. 10(2)(ii)(a) and 10(3)(c): Eviction by court on the basis of compromise arrived at between landlord and tenant, not permissible when statutory grounds for seeking eviction are not made out. Where protection under a Rent Act is available, no eviction can be ordered unless ground seeking eviction is made out, even if parties had entered into a compromise. [Alagu Pharmacy v. N. Magudeswari, (2018) 8 SCC 311]

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