2019 SCC Vol. 4 April 28, 2019 Part 2

Arbitration and Conciliation Act, 1996 — S. 7 — Striking down of arbitration clause: A claim which is frivolous can be dismissed with exemplary costs. Further, a “deposit-at-call” of 10% of the amount claimed, which could amount to large sums of money, was without any direct nexus to the filing of frivolous claims, as it applied to all claims (frivolous or otherwise) made at the very threshold. Further, the clause led to a wholly unjust result of a party who had lost an arbitration being entitled to forfeit such part of the deposit as falling proportionately short of the amount awarded as compared to what was claimed. Further, deterring a party to an arbitration from invoking this alternative dispute resolution process by a pre-deposit of 10% would discourage arbitration, contrary to the object of de-clogging the court system, and would render the arbitral process ineffective and expensive. [ICOMM Tele Ltd. v. Punjab State Water Supply & Sewerage Board, (2019) 4 SCC 401]

Armed Forces Tribunal Act, 2007 — Ss. 30 and 31 — Appeal to Supreme Court — Exercise of jurisdiction: On facts it was held that there was no point of law of general public importance warranting grant of leave to appellant in instant case. Further held, finding of Tribunal in respect of misconduct alleged against appellant was plausible view and hence, no interference in exercise of jurisdiction under Ss. 30 and 31 called for. [Yogesh Pathania v. Union of India, (2019) 4 SCC 311]

Civil Procedure Code, 1908 — Or. 6 R. 17 proviso: Amendment of pleadings after commencement of trial is not permissible except under conditions stated in proviso. Burden on person seeking amendment after commencement of trial to show “due diligence” on his part as contemplated under proviso. Bona fides of prayer for amendment as also prejudice to the other side should be taken into consideration. Neither can amendment be claimed as a matter of right nor has court absolute discretion to allow amendment in view of proviso. Belated application for amendment, which if allowed, would result in travesty of justice and is liable to be rejected. [M. Revanna v. Anjanamma, (2019) 4 SCC 332]

Civil Procedure Code, 1908 — Or. 7 R. 11(d) — Application for rejection of plaint on ground of being barred by law [in this case Benami Transactions (Prohibition) Act, 1988]: Test for rejection of plaint on ground of being barred by law is whether from statement made in plaint it appears without doubt or dispute that suit is so barred. In this case, controversy was raised by plaintiff that suit is saved by S. 4(3) of 1988 Act. It was held that such disputed question of fact has to be adjudicated on basis of evidence and cannot be decided at stage of consideration of application under Or. 7 R. 11, hence, application was held liable to be rejected. [Pawan Kumar v. Babulal, (2019) 4 SCC 367]

Civil Procedure Code, 1908 — S. 11, Or. 2, Or. 7 Rr. 7 & 8 — Ameliorative relief — Grant of: In this case, litigant filed misconceived suit and sought improper reliefs. Liberty was granted to file fresh suit seeking proper reliefs and was clarified that present proceedings would not operate as res judicata. [Anant Shankar Bhave v. Kalyan Dombivali Municipal Corpn., (2019) 4 SCC 348]

Civil Procedure Code, 1908 — Ss. 100(4) and (5) proviso and S. 115: In this case, High Court though admitted second appeals on three substantial questions of law but instead of answering these questions, dismissed appeals by answering a question regarding maintainability of suit, which was not framed, this was held to be not permissible. [Tanuku Taluk Village Officers’ Assn. v. Tanuku Municipality, (2019) 4 SCC 397]

Constitution of India — Art. 136 r/w Art. 141 — Review petition against order of court/forum below: Time of filing of the review petition i.e. before or after the SLP is filed, is relevant for determining maintainability of review petition against order of court/forum below. Doctrine of merger is not applicable when an SLP is dismissed. Power to review extinguish once leave is granted on an SLP and the appeal is decided i.e. when the doctrine of merger applies. Harmonising the principle laid down by the three-Judge Bench in Abbai Maligai Partnership Firm, (1998) 7 SCC 386, in such cases High Court before exercising its review jurisdiction has to examine whether the same would amount to an abuse of process or breach of judicial discipline. [Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd., (2019) 4 SCC 376]

Constitution of India — Arts. 136 and 226 — Alternative Remedy/Exhaustion of Remedies: Directly approaching Supreme Court without exhaustion of alternative remedy, assuming that such alternative remedy would prove fruitless in light of observations of High Court in a connected case, not proper. [Delhi Dayalbagh Coop. House Building Society Ltd. v. Registrar, Cooperative Societies, (2019) 4 SCC 429]

Constitution of India — Arts. 226 and 136 — Remand — When warranted — Unreasoned order: Every judicial or/and quasi-judicial order passed by court/tribunal/authority concerned, which decides lis between parties must be supported with reasons in support of its conclusion. [State of Orissa v. Chandra Nandi, (2019) 4 SCC 357]

Consumer Protection Act, 1986 — S. 13 (as amended after 15-3-2003): Amended S. 13 replacing “procedure on receipt of complaint” with words “on admission of a complaint” gives Commission jurisdiction to dismiss complaint in limine and decline its admission without notice to respondents (opposite party). However, such jurisdiction to dismiss complaint in limine has to be exercised by Commission having regard to facts of each case. [Anjaneya Jewellery v. New India Assurance Co. Ltd., (2019) 4 SCC 337]

Criminal Procedure Code, 1973 — S. 319 — Power to proceed against other persons appearing to be guilty of offence — When exercisable: Word “appear” means “clear to the comprehension”, or a phrase near to, if not synonymous with “proved”, and imparts a lesser degree of probability than proof. Though only a prima facie case is to be established from evidence led before court, it requires much stronger evidence than a mere probability of complicity of persons against whom deponent has deposed. Test that has to be applied is of a degree of satisfaction which is more than that of a prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that evidence, if goes unrebutted, may lead to conviction of proposed accused. In absence of such satisfaction, court should refrain from exercising power under S. 319 CrPC. [Dev Wati v. State of Haryana, (2019) 4 SCC 329]

Criminal Procedure Code, 1973 — S. 320 — Offence compoundable with permission of court: For offence compoundable with permission of court under S. 320 CrPC, discretion can be exercised by court having regard to nature of offence. Effect of offence on society at large, on facts of each case, as important determinant for exercise of such discretion. Reduction of sentence, as relief when there is a compromise, but court refuses to compound case, proper. [Bhagyan Das v. State of Uttarakhand, (2019) 4 SCC 354]

Criminal Procedure Code, 1973 — S. 439 — Bail — Entitlement to — Factors to be considered: In this case on perusal of FIR and charge-sheet, it was held that detention of appellant-accused in custody since 27-9-2017 will come in the way of conduct of trial that will have to be held against him. While taking into account facts and period of custody suffered, appellant-accused ordered to be released on bail to satisfaction of trial court which was free to impose appropriate condition(s) as it deems fit. [Manish Solanki v. State of Rajasthan, (2019) 4 SCC 340]

Criminal Procedure Code, 1973 — Ss. 197 and 482 — Prosecution of government servant — Sanction for — Reasonable connection/Nexus test: In view of nature of allegations made by complainant against R-2, Police Officer (SHO) at relevant time, it was held that no prior sanction to prosecute R-2 under S. 197 CrPC was required for filing such complaint. [Devendra Prasad Singh v. State of Bihar, (2019) 4 SCC 351]

Criminal Procedure Code, 1973 — Ss. 319, 161 and 173(8) — Addition of accused not named in FIR: In absence of requirement of more than prima facie case, strong and cogent evidence (though standard of proof being less than that required for conviction), being met, High Court adding accused under S. 319 CrPC, on facts, held, unsustainable. [Periyasami v. S. Nallasamy, (2019) 4 SCC 342]

Criminal Procedure Code, 1973 — Ss. 482 and 320: Quashment of criminal proceedings faced by accused persons under Ss. 307 and 294 r/w S. 34 IPC, which are non-compoundable offences, solely on ground of settlement of dispute between complainant and accused, held, gravely erroneous. [State of M.P. v. Kalyan Singh, (2019) 4 SCC 268]

Education Law — Employment and Service Matters re Educational Institutions — Seniority — Determination of seniority: In this case, seniority was to be determined between Appellant who was appointed as untrained teacher on 15-7-1994 and becoming trained teacher on 19-9-1997 vis-à-vis R-5 who was appointed as trained teacher on 13-8-1997. R-5 was a member of Category C at very inception of appointment having requisite qualification for being trained teacher while appellant became member of Category C later on acquiring BEd qualification after entry of R-5 into service. Hence, it was held that she cannot claim seniority over him. Further submission by appellant that nature of appointment viz. trained/untrained teacher for purpose of determination of inter se seniority was insignificant was liable to be rejected since appointments of teaching staff are made strictly in terms of R. 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 and their seniority is determined under R. 12 r/w guidelines annexed to Schedule F, which envisages total continuous service rendered in particular cadre which is a relevant consideration for purpose of seniority and promotion. [Bhawana v. State of Maharashtra, (2019) 4 SCC 300]

Employees’ Compensation Act, 1923 — Ss. 3, 4, 4-A and 26 — Accident arising out of and in course of employment: In this case, deceased bus driver was ferrying passengers daily from B at 6.30 a.m. and reaching I at 11.00 a.m., while returning back from I at 3.00 p.m. and reaching B at 7.30 p.m. Deceased met accidental death at terminus while coming down from roof of bus after having meal at about 8.30 a.m. It was held that 2009 Act being a welfare legislation should be interpreted in facts of each case and evidence available, to determine if accident occurred in course and out of employment. In instant case, there was clear nexus between accident and employment for applying doctrine of “notional extension” since staying of deceased with bus was integrally connected with efficiency of service to be provided to public and deceased was not present at bus terminal as a member of public by choice. Appellant legal heirs of deceased were entitled to compensation. [Leela Bai v. Seema Chouhan, (2019) 4 SCC 325]

Human and Civil Rights — Rights of Differently-Abled/Disabled Persons and Mental Health — Education and Public Employment — “Partially Blind” candidates: Stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post of a judicial officer is a legitimate restriction. [V. Surendra Mohan v. State of T.N., (2019) 4 SCC 237]

Infrastructure Laws — Maritime Laws — Damages for accident caused at the time of berthing of vessel: In this case, at the time of berthing of the vessel the starboard quarter of the vessel came in contact with a coal loader stationed by the side of the berthing area and the coal loader got damaged. According to the Committee, the factors that led to occurrence of the accident were: (i) De-ballasting of the ship (ii) Higher water level within the impounded dock because of the higher rise of tide (iii) Blowing of wind at high speed of 24 knots at an angle (iv) Inadequacy of communication system between the ship and the assisting tugs (v) Parking of No. 1 Shiploader at southern end of the berth instead of usual location at the centre. The Supreme court held that every single factor was gone into and at the end of its discussion the Committee had found that individual responsibility could not be assigned in the matter. Further, all the other factors being natural factors, though the Master of the vessel may be responsible to a certain extent for his non-intimation, but the failure on part of the Berthing Master in doing what was expected of him was also responsible. In the present case, accepting the conclusion of the Committee, held, the matter could not be put at the level of negligence on part of any individual simpliciter. [Essar Shipping Ltd. v. Port of Calcutta, (2019) 4 SCC 432]

Insolvency and Bankruptcy Code, 2016 — Ss. 7, 238, 239 and 255 — Overriding effect of 2016 Code: Winding up proceedings under SICA will continue in High Court and not NCLT, until an application for transfer is filed by a party under Section 434(1)(c), Companies Act 2013. [Employees Organization v. Jaipur Metals & Electricals Ltd., (2019) 4 SCC 227]

Kerala Private Forests (Vesting and Assignment) Act, 1971 (26 of 1971) — Ss. 3 and 8 — Vesting of land in State: Kerala Private Forests (Vesting and Assignment) Act, 1971 provides vesting in Government, free from all encumbrances, of private forests in Kerala and assignment of such forest to agriculturists and agricultural labourers for cultivation. Two categories of land exempted from such exemption such as (i) land comprised in private forest held by owner for his personal cultivation, if it does not exceed ceiling limit provided under Kerala Land Reforms Act, and (ii) where private forests held by owner under valid registered document of title executed before appointed day (10-5-1971), if ceiling limit does not exceed as per Kerala Land Reforms Act. Expression “held by an owner under his personal cultivation” means claimant must hold such land as owner and it should be under his personal cultivation. “To own” means to have good legal title to hold and possess property.  As per S. 74 of Kerala Land Reforms Act, tenancy after 1-4-1964 prohibited. Possession and title under certificate of purchase have to relate back to date prior to date of vesting under Kerala Land Reforms Act (1-4-1964). Under S. 72-K of Kerala Land Reforms Act certificate of purchase is conclusive proof of assignment. Question of vesting of land in Government under Kerala Private Forest Act does not arise which has come into force subsequent to 1-4-1964, as per Kerala Land Reforms Act. [State of Kerala v. Mohd. Basheer, (2019) 4 SCC 260]

Labour Law — Reinstatement/Back Wages/Arrears — Compensation in lieu of reinstatement — When warranted: In this case Respondent was working as daily wager hardly for few years, having no right to claim regularisation nor to continue as daily wager and raised dispute after almost 15 yrs of his alleged termination. Rupees one lakh awarded to respondent in lieu of his right to claim reinstatement and back wages in full and final satisfaction of his claim. [State of Gujarat v. Kuberbhai Kanjibhai, (2019) 4 SCC 307]

Negotiable Instruments Act, 1881 — Ss. 138, 139 and 142: Prosecution based on second or successive default where drawee did not bring prosecution after first default and issuance of statutory notice, is maintainable. [Sicagen (India) Ltd. v. Mahindra Vadineni, (2019) 4 SCC 271]

Penal Code, 1860 — S. 302 or S. 304 Pt. I [96, 97, 100 & Ss. 300 Exceptions 2 and 4], and Ss. 324 & 341 r/w S. 34 — Murder trial: In this case, right of private defence not made out. There was sudden fight without any premeditation and death occurred in heat of passion upon a sudden quarrel, hence, it was held that Exception 4 to S. 300, applicable. Conviction of main assailant converted from S. 302 to S. 304Pt. I. Other accused, against whom common intention to cause death was not established, held, rightly convicted only under Ss. 324/341 r/w 34. [Mani v. State of Kerala, (2019) 4 SCC 360]

Penal Code, 1860 — Ss. 302, 364, 307, 201 and 380: In this case there was premeditated cold-blooded murder of six family members including two minor children below 10 yrs by drugging them with sleeping tablets and pushing them into canal. Itwas held that the crime was committed with extreme brutality which would shock the collective conscience of society. As accused failed to point out any mitigating circumstance, death sentence was affirmed. [Khushwinder Singh v. State of Punjab, (2019) 4 SCC 415]

Penal Code, 1860 — Ss. 302/34 — Murder: As circumstantial evidence only established case of murder against main assailant, hence, remaining accused acquitted under Ss. 302/34 and said main assailant alone convicted under S. 302 simpliciter. [Bikash Bora v. State of Assam, (2019) 4 SCC 280]

Service Law — Appointment — Compassionate appointment: Direction to consider application for compassionate appointment of dependants of deceased employee dehors policy, not permissible. [State of H.P. v. Parkash Chand, (2019) 4 SCC 285]

Service Law — Pay — Pay Scale, fixation and revision — Pay revision: Non-grant of Financial Upgradation, to appellant considering ACRs which were below benchmark for certain years but were not communicated to him, not proper. [Anil Kumar v. Union of India, (2019) 4 SCC 276]

Service Law — Promotion — Norms/Principles/Rules applicable — Applicability of Rules which prevail on date of consideration for promotion: In absence of anything in the Rules indicating that vacancies must be filled on basis of Rules as they prevailed in year in which they had occurred, impugned judgment holding that criteria of seniority-cum-merit and merit as envisaged by the Rajasthan State Sports Council Service Rules, 2006 could not be made applicable to vacancies occurring in 2003-2004, is unsustainable. [Rajasthan State Sports Council v. Uma Dadhich, (2019) 4 SCC 316]

Service Law — Promotion — Norms/Principles/Rules applicable — Applicability of Rules which prevail on date of consideration for promotion: There is no vested right to promotion, but right to be considered for promotion in accordance with Rules which prevail on date when promotion is considered. Further held, there is no rule of universal application to effect that vacancies must be necessarily filled on basis of law which existed on date they arose. Furthermore, creation of intermediate post would not amount to interference with vested right to promotion. [Union of India v. Krishna Kumar, (2019) 4 SCC 319]

Service Law — Regularisation — Entitlement to: Establishment in which regularisation may be made, once all other requirements for regularisation as per law, are satisfied, is the home establishment of the employees concerned. Direction to regularise in other establishments other than home establishment of employees concerned, is not permissible. [Union of India v. Central Administrative Tribunal, (2019) 4 SCC 290]

Service Law — Reversion: Reversion from post of Bill Clerk to Khalasi after putting in twenty-five years of service on ground that appellant had secured appointment by fraudulent methods suppressing fact that he did not possess requisite qualifications for post. [Sukh Bilash Thakur v. Bihar SEB, (2019) 4 SCC 258]

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