Case BriefsHigh Courts

Madhya Pradesh High Court: G. S. Ahluwalia, J., allowed a petition and directed the respondents to not take any coercive step against the petitioner unless and until an enquiry is conducted under Section 89 of M.P. Panchayat Raj Awam Gram Swaraj, Adhiniyam, 1993.

 The petitioner has filed the instant petition under Article 226 of the Constitution of India has against the order passed under Section 92 of the M.P. Panchayat Raj Awam Gram Swaraj, Adhiniyam, 1993. The facts of the case are that a show-cause notice was issued to the petitioners under Section 92 of the Adhiniyam for recovery of Rs 2,70,000. The show-cause notice was duly replied by the petitioners, however, without conducting any enquiry, the impugned order was passed.

Counsel for the petitioner submitted that the respondents have already taken a final decision, which is bad because the provision of Section 92 of Adhiniyam, is merely an execution provision, and unless and until an enquiry is conducted under Section 89 of Adhiniyam, no action can be taken against the petitioners.

Counsel for the State stated that the impugned order is not a final order, but it is merely a show-cause notice and no action under Section 92 of Adhiniyam would be taken unless and until an enquiry is conducted under Section 89 of Adhiniyam.

In view of the above, the court relying upon the decision in Kadam Singh v. CEO, 2019(1) MPLJ 420, directed that the respondents shall not affect any recovery or shall not take any coercive step against the petitioners, unless and until an enquiry is conducted under Section 89 of Adhiniyam. Further, the Court has also directed the respondents to initiate an enquiry under Section 89 of Adhiniyam and decide the same within a period of six months in accordance with the law. [Kamla Yadav v. State of M.P., 2019 SCC OnLine MP 3090, decided on 22-10-2019]

Case BriefsHigh Courts

Rajasthan High Court: Arun Bhansali, J. dismissed a writ petition filed by the petitioners against an order passed by Rajasthan Non-Government Educational Institution Tribunal, Jaipur (the Tribunal).

In the instant case, during the pendency of a charge sheet leveling four charges against the respondent, the petitioners passed a resolution inter alia compulsorily retiring the respondent under the provisions of Section 16 (1) of the Rajasthan Non-Government Education Institutions Act, 1989. Aggrieved thereby, the respondent approached the Tribunal by filing an appeal which was allowed. In its impugned judgment, the Tribunal quashed the order of compulsory retirement passed by the petitioners holding it illegal. It also ordered for reinstatement of the respondent with all the consequential reliefs including salary and other benefits. Aggrieved thereby, the petitioners filed the instant writ petition assailing the order of the Tribunal.

The learned counsel for the petitioners, Dr Nupur Bhati and Abhishek Mehta, contended that the Tribunal was not justified in passing the impugned order as, “the burden was on the respondent to prove that he was unemployed from the date of his compulsory retirement till reinstatement, which was not proved.”

The Court observed that “the petitioners were bent upon relieving the respondent from service and, therefore, applied the procedure of compulsory retirement, which was not justified.”  Reliance was placed on the judgment in State of Gujarat v. Umedbhai M. Patel, (2001) 3 SCC 314, where certain principles regarding compulsory retirement were laid down. The Court observed that the petitioners acted contrary to those principles, and held that “from the material which came on record, it was apparent that the order of compulsory retirement was passed as a shortcut to avoid departmental enquiry which was already pending and the same was imposed as a punitive measure by the petitioners and in those circumstances the order was clearly contrary to principles (vi) & (viii) above, the findings of the Tribunal qua the wrongful exercise of power of compulsory retirement cannot be faulted.”

Regarding justification of consequential reliefs, it was held that “..during the intervening period as a temporary employee got engagement with some institution cannot be a reason for the petitioners to deny the payment of back salary and other benefits once it is found that their action was against the law and the order of compulsory retirement was passed only with an intention to ease out the respondent from employment during pendency of enquiry.”

In the view of the above, the Court dismissed the petition holding that the same was devoid of substance.[Chopasni Shiksha Samiti v. Gajendra Singh, 2019 SCC OnLine Raj 430, Order dated 09-05-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: This petition was filed before the Bench of Arun Monga, J.

A circular was issued, whereby the Disciplinary Authority was empowered to appoint any member of the CRPF below the rank of ‘Assistant Commandant’ as Presenting Officer to present the case on behalf of the Disciplinary Authority before the Inquiry Officer in the departmental proceedings. In this petition, the petitioner prayed that no Presenting Officer was appointed, at the relevant time, when the inquiry was conducted against him. Petitioner referred to a Supreme Court case Union of India v. Ram Lakhan Sharma, (2018) 7 SCC 670 and submitted that the inquiry conducted against petitioner was vitiated on account of the Inquiry Officer himself having assumed the role of Presenting Officer and, therefore, the inquiry report and subsequent proceedings pursuant thereto could not be judicially scrutinised. Whereas the respondent relied on the same case to submit that in the judgment relied upon, the Supreme Court had given liberty to respondents to proceed afresh.

High Court was of the view that in the instant matter the same liberty to proceed with enquiry afresh cannot be given as the petitioner had retired and thus benefit of the illegality committed by the respondents should be given to the employee. Therefore, this writ petition was allowed and inquiry report and orders passed by the disciplinary authority were set aside. [Bajinder Singh v. Union of India, 2019 SCC OnLine P&H 405, decided on 11-04-2019]

Case BriefsHigh Courts

Kerala High Court: The Division Bench of V. Chitambaresh and R. Narayana Pisharadi, JJ. dismissed an appeal filed against the order of District Judge refusing to entertain a petition challenging arbitral award.

Appellant was a guarantor to the loan availed of by a company named Anugraha Wood Products Limited from the respondent company. Upon non-payment of the loan by ‘Anugraha’, arbitration clause of the loan agreement was invoked and arbitrator passed an award regarding recovery of the loan amount from the appellant. The said award was challenged by the appellant in a District Court at Thiruvananthapuram under Section 34 of the Arbitration and Conciliation Act, 1996. Learned District Judge dismissed this petition on the ground of maintainability. Aggrieved thereby, the instant appeal was filed.

The contention of the appellant was that since he permanently resides at Thiruvananthapuram, therefore, the District Court at Thiruvananthapuram had territorial jurisdiction to entertain his petition.

The Court noted that the arbitration clause in the loan agreement was worded as: “The Arbitrator shall hold the enquiry at Udupi only. However, the Arbitrator may change the place of enquiry if he desires so.” Thus, it was evident that the seat of arbitration was at Udupi. Even the entire arbitration proceedings were conducted at Udupi.

Appellant’s contention was dismissed holding that once the seat of arbitration is designated, it is akin to an exclusive jurisdiction clause. Reliance in this regard was placed on the Apex Court’s decision in Indus Mobile Distribution (P) Ltd. v. Datawind Innovations (P) Ltd., (2017) 7 SCC 678. It was concluded that the Court concerned at Udupi alone had territorial jurisdiction to entertain the application filed by the appellant under Section 34 of the Act. [S. Balu v. ICDS Ltd., 2019 SCC OnLine Ker 502, Order dated 08-02-2019]

Case BriefsForeign Courts

High Court of South Africa, Western Cape Division:  This appeal was filed before a 2-Judge Bench comprising of J I Cloete and M K Parker, JJ., against the order of Magistrate where appellant was convicted and sentenced without following the relevant provision.

Facts of the case were that the appellant was charged for contravening Section 65(2) (a) read with Section 89 (1) and (2) of the NRTA for drinking and driving. It is pertinent to note that appellant was convicted in 2010 for similar offence but under Section 65(1) (a). Court then ordered the suspension of the order of imprisonment of 4 months till 4 years during which he ought not to be found guilty of the same offence. In terms of the agreement, the appellant pleaded guilty of the charges against him. Appellant had submitted mitigating factors such as his fixed job, sole breadwinner of the family, under debt and had been convicted for a similar offence. Magistrate enquired under Section 35 of the National Road Traffic Act, 1996 as a consequence of which his driving licence was suspended.

The issue before the Court was to see if an agreement formed according to Section 105-A of the Criminal Procedure Act, 1977 regarding the suspension of accused driving licence for a period of time without any enquiry by Court under Section 35 was required to be dispensed with.

Appellant contended that the magistrate was misdirected when he unilaterally altered the terms of plea and sentence agreement related to the period of suspension without informing the parties of proceedings of his intention to do the same based on the finding in the case of  State v. DJ, 2016 (1) SACR 377 (SCA).  The above contention led to the question of whether the magistrate could have done so.

High Court agreed with the findings of the case of S v. Lourens, 2016 (2) SACR 624 (WCC) and accordingly observed that enquiry under Section 35 was an important part so as to determine the sentence. Magistrate erred in concluding above provision as a post-sentence procedure and he should have followed Section 105-A (9). Therefore, appellant’s conviction and sentence ought to be set aside and the matter was remitted back to District Court Mitchells Plain for trial de novo before another magistrate. [Micheal Muller v. State, 2018 SCC OnLine ZAWCHC 2, dated 16-11-2018]

 

Case BriefsForeign Courts

South Africa High Court, Western Cape Division: Two matters came for review before a 2-Judge Bench comprising of DM Thulare AJ; MJ Dolamo J, where the proceedings were held considering the accused as major but they were found to be minor.

One of the accused pleaded guilty and thereby he was convicted under Section 112(1)(a) of the Criminal Procedures Act, 1977. While mitigation of sentences were being held it was brought before the court that the accused was minor as a consequence of which he was released and the matter was postponed for the determination of the correct age of the accused.  The second accused was found guilty and accordingly sentenced where his age was not determined.

The High Court viewed that terminology used in Section 12, 13 and 14 in Part 3 of Chapter 2 of the Child Justice Act, 2008 were not interpreted and applied in the best interests of children. Court with respect to Section 12 observed that police officer after arrest should have treated a youngster as child unless there were other reasons to the contrary. Further, Section 14 states that where the age of accused is uncertain, it is for the presiding officer to hold enquiry to determine same.  It was found that the presiding officer before whom the accused first appeared failed to determine the age of accused. Finding the Magistrate to be correct who said that the wrong determination of date caused prejudice to the accused conviction was liable to be set aside. Therefore, Court ordered the conviction of first accused and sentence on second accused to be set aside and the matter was remitted back to the magistrate for sentencing under Chapter 10 of Child Justice Act, 2008. [State v. B O, 2018 SCC OnLine ZAWCHC 3, dated 02-11-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Sanjeev Kumar, J., allowed a writ petition filed against the order of respondent authorities, whereby petitioner was placed under suspension without there being any misconduct on petitioner’s part.

The main issue that arose before the Court was whether the actions of respondents were justified with regard to the suspension of the petitioner.

The Court observed that the respondents communicated the order of suspension to the petitioner after a year of issuance of that order. The respondents had not initiated enquiry into the matter of petitioner, nor the petitioner had been charge-sheeted even after 2 years of his order of suspension was passed. The prolongation of suspension period beyond two years can only be viewed as punitive which is not sustainable in law. The Court referred to the judgment passed in the case of Ghulam Mohammad Mir v. State, 2017 (II) SLJ, 1996, wherein it was held that the suspension of an employee is resorted to only to facilitate unhindered and fair inquiry into alleged misconduct committed by such employee but if such suspension is unnecessarily prolonged and object for which it was resorted to, is not achieved and no inquiry into conduct of such employee is initiated with reasonable dispatch, the order of suspension would become punitive and susceptible to challenge, being violative of Article 14 and 16 of the Constitution of India.

The Court held that the as per the principles laid down in Ghulam Mohammad’s case, the actions of the respondent authorities cannot be held justified. The respondents ought to have initiated a proper inquiry into the matter within a reasonable time. Resultantly, the Court allowed the writ petition and quashed the order of respondents. [Babu Ram Sharma v. State,2018 SCC OnLine J&K 777, order dated 24-10-2018]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Dr Sambuddha Chakrabarti, J. held an alleged contemnor guilty for not complying with its order.

The alleged contemnor was the erstwhile Pradhan of the village in which the subject land was located. A land dispute arose between the petitioners and the respondents. Pursuant to its adjudication of the matter, the High Court directed the alleged contemnor to cause an enquiry in the matter including physical inspection of the plots in question. The order was communicated to the respondent on 16 March 2016. However, the said order was not complied till date. Consequently, the instant contempt proceedings were undertaken.

The alleged contemnor submitted that due to some wrong understanding, he could not comply with the direction of the Court. The High Court observed that the order was passed in the simplest language possible. If the alleged contemnor had any difficulty in comprehending the contents of the order, he could have mentioned the matter for clarification. Furthermore, at Paragraph 6 of his affidavit, the alleged contemnor submitted that he was intimated by Panchayat Office that the parties have settled the matter amicably. The Court was of the view that when the Court directed the alleged contemnor to do a certain thing in a certain manner he was  required to act in terms of the said order and if he had any information that the dispute had been settled, even then he had no excuse for not complying with the Court’s direction. It was held that non-compliance of the Court’s order could not be allowed to go absolutely without any consequence. It appeared from the alleged contemnor’s reply that he did not take any serious effort to comply with the Court’s order for reasons best known to him. If the Court decided to be a bystander to the disobedience of its order without taking appropriate remedial steps, the majesty and dignity of the Court’s order shall very fast be lost relevance. Holding thus, the alleged contemnor was found guilty for contempt of Court and sentenced him undergo seven days simple imprisonment along with a fine of Rs 2000. [Haran Laskar v. Nikhil Baidya,2018 SCC OnLine Cal 7676, decided on 03-10-2018]

Case BriefsHigh Courts

Patna High Court: A Division Bench comprising of Mukesh R. Shah, CJ. and Ashutosh Kumar, J. while hearing a petition seeking mandamus against State for implementing organic farming policy, observed that efforts on the same were underway and dismissed the petition holding that the nature of petitioner’s prayers were that of a roving enquiry.

The instant public interest petition had been filed seeking a mandamus directing the respondent to encourage farmers of the State to opt for organic farming in order to save productivity of the earth and environment. Further, the petitioner also sought the details of the expenditure incurred for encouraging organic farming in the State as well as of the allocated subsidy amount for organic farming disbursed in various financial years since 2007-08.

The court noted that the averments in writ petition admitted that the State Government had taken a policy decision of encouraging farmers for undertaking organic farming, and for the aforesaid purpose, budgetary limits had been fixed and subsidies had been offered. The petitioners had not raised any allegation of siphoning of funds or embezzlement of public money. Thus, the prayers made in the writ petition were more in the nature of fishing and roving enquiry from the respondents, which is impermissible in public interest litigation.

The respondent’s submission before the court was that even though organic farming, being a labour-intensive exercise, is much more expensive owing to production cost being higher and less yield being produced per hectare; but still the State was using budgetary allocation to make the farmers aware of the advantages of using/ manufacturing vermi-compost and green manure. Setting up of gobar gas units was being encouraged by providing subsidy to the entrepreneurs for the said purpose.

Further, the State also submitted list programmes which had been initiated and the budgetary allocation as well as expenses incurred on “Organic Corridor Scheme” project launched in the year 2017-18. As a part of first phase, organic corridors had been developed in villages adjoining National/State highways running by the side of Ganga river. The process for certification of fields after elimination of chemical residue was afoot. Lastly, the State submitted that it was planning to implement the scheme at a larger scale by 2022; and the entire process of converting agricultural operations to organic method being a long drawn process, it would take a while before the results are visible.

Having regard to the detailed submissions made by the State and vague prayers in the petition, the High Court observed that the State was making efforts to achieve the objective of organic farming by 2022 and expecting results in such a short time would be chimerical. On that observation, the writ petition was dismissed. [Bihar Rajya Kishan Sabha v State of Bihar,2018 SCC OnLine Pat 1808, decided on 09-10-2018]

Case BriefsHigh Courts

Jharkhand High Court: A writ petition filed against the order passed by the respondents whereby recovery of Rs. 1.90 lakh was to be made from the petitioner, was allowed by a Single Judge Bench comprising of Pramath Patnaik, J. due to the absence of a departmental enquiry before the passing of the order.

The petitioner, at the relevant time, was a Member of Finance in Jharkhand State Electricity Board.  Alleging that he delayed in making certain payments, the petitioner was asked to show cause. The petitioner alleged that without giving a proper opportunity, the liability was fixed and order of recovery was passed against him. The said order was challenged by the petitioner.

The High Court considered the submissions made on behalf of the parties and perused the record. The Court found that the impugned order was passed by the respondents without holding any departmental proceedings. The order was passed only on the basis of the preliminary enquiry. The Court held the law to be well settled that culpability of an employee cannot be fastened basing only on the preliminary enquiry without holding a full-fledged departmental enquiry. It was held that the impugned order, punishing the petitioner, was not sustainable as it was passed without holding a departmental enquiry. Accordingly, the petition was allowed and the impugned order was set aside. [Niranjan Roy v. Jharkhand SEB,  2018 SCC OnLine Jhar 369, dated 15-05-2018]

 

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): CIC has rejected an appeal where the appellant requested the CPIO of Sarva Haryana Gramin Bank, Rohtak, to disclose to him the steps taken and details of proceedings in a complaint he had filed against the bank’s manager.

The appellant requested for the following details under the RTI Act:

i. Whether enquiry has been initiated on the said complaint,

ii. Copy of order appointing an enquiry officer,

iii. Details of the report submitted by the enquiry officer.

The appellant submitted that the response provided to him by the CPIO was not satisfactory as he had asked not just for the report of the enquiry officer, which was provided to him, but also documents pertaining to the course of the enquiry, including depositions made by customers about the conduct of the manager to the enquiry officer.

The CPIO contended that the statements by the customers and villagers consisted of personal information relating to a third party and had hence been accordingly denied under Section 8(1)(j) of the RTI Act, which reads:

“Notwithstanding anything contained in this act , there shall be no obligation to give any citizen information which relates to personal information the disclosure of which has no relationship to any public activity or interest , or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information.”

The Commission relied on the Supreme Court’s judgment in Girish Ramchandra Deshpande v. CIC, (2013) 1 SCC 212 where the Court held that details recording proceedings of disciplinary enquiries were personal information, outside the ambit of the RTI Act as follows:

“The performance of an employee/officer in an organisation is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression “personal information”, the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual.”

Hence the Commission was of the view that the information solicited by the appellant was of a private nature, protected under Section 8(1)(j) of the RTI Act and disclosing the same would not cause any public good, hence the appeal was dismissed. [R.N. Kapur v. CPIO, Sarva Haryana Gramin Bank, Head Office, Rohtak, 2018 SCC OnLine CIC 310, decided on 17-05-2018]

Case BriefsHigh Courts

Bombay High Court: Dismissing an appeal against the order of a probation committee, a Bench comprising of RM Savant and SV Kotwal, JJ. upheld the order of discharging a lower court Judge from service for reportedly turning up late at work on several occasions and violating other judicial norms. In this case, an anonymous complaint was received by the Registry of Court that the petitioner, who was a probationer Civil Judge Junior Division and Judicial Magistrate First Class at Ulhasnagar, was reporting to work late daily and beginning his court between 11.30 am -12 noon. Other allegations against him were that he used to chit chat with lawyers which thereby undermined the confidence of the litigants. It was also alleged that the petitioner discussed about other Judges in the presence of lawyers and carried out court work from his chamber.

Surprise checks were conducted based on the complaint and it was found that the petitioner was missing from work on the first day of the surprise check. It was also established that he was absent for 6 days each in the last 3 months. Subsequently, the Principal District Judge left disparaging remarks with regards to the conduct, character and integrity of the petitioner and he was subsequently dismissed. The petitioner’s lawyer contended that the comments made against her client were stigmatic in nature and were based on unsubstantiated allegations. She also stated that the petitioner was not given an opportunity of hearing to present his case before the probation committee.

After hearing arguments from both sides, the Court quoting the case of Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, (1980) 2 SCC 593 held that having regard to the allegation or suspicion of misconduct that the master/employer may have against the probationer, the employer may not choose to hold an enquiry to discharge the probationer whom the employer is not desirous of keeping. The Court further stated that even if strong language was used by the Principal District Judge against the petitioner, the probation committee still did not find him suitable for continuation of service. [Girish Chandrakant Gosavi v. Chief Secretary, Law and Judiciary Department, 2018 SCC OnLine Bom 939, order dated 03-05-2018]