Case BriefsHigh Courts

Allahabad High Court: Dr Y.K. Srivastava, J. while dismissing the petition observed that the assertion made by the petitioner that the proceedings were without notice or opportunity to him is contrary to the material on record.

In the instant petition, it was sought to challenge an order of the Additional Collector (Land Revenue) in proceedings under Section 28 of the U.P. Land Revenue Act, 1901 and challenge the order of the Additional Commissioner (1st) whereby the revision was also rejected for the same.

Counsel for the petitioner, Rajesh Kushwaha submitted that powers under Section 28 of the 1901 Act are to be exercised by the Collector and that the impugned order was passed in violation of the principles of natural justice.

Counsel for the fourth respondent, R.N. Yadav and Standing Counsel, Prakash Singh pointed out that in terms of the provisions under the above-mentioned Act, the expression “Collector” would include “Additional Collector” also. It was further submitted that there was no violation of principles of natural justice as an enquiry report was sought from the Naib Tehsildar and thereafter notice was issued to the petitioner whereupon the petitioner duly filed his objections but did not appear later on.

In view of the above and to analyse the primary submission made by the petitioner, the Court observed that the provision with regard to appointment of Additional Collector was brought in by insertion of Section 14-A whereunder the State Government is empowered to appoint an Additional Collector in a district or in two or more districts combined who shall exercise such powers and discharge such duties of a Collector in such case or classes of cases as the Collector concerned may direct.

The Court also cited the Full Bench decision of this Court in the case of Brahm Singh v. Board of Revenue, 2008 SCC OnLine All 490, where it was held that the Additional Collector when he acts and discharges the duties and functions or exercises such powers of a Collector either under the 1901 Act or under any other Act for the time being in force, the powers would be deemed to have been exercised by him as Collector of the district under that Act. [Seetla v. State of U.P., 2019 SCC OnLine All 4784, decided on 05-12-2019]

Case BriefsHigh Courts

“Occupation of hotel room by an unmarried couple, will not attract a criminal offence”

Unmarried couples sharing hotel room doesn’t attract criminal offence

Madras High Court: M.S. Ramesh, J., while allowing the present petition calling out the action of the respondent with respect to the sealing of petitioner’s hotel to be illegal as it did not follow the principles of natural justice.

Petitioner has stated that a search was conducted from the office of Tahsildar and during the search certain liquor bottles were found inside one of the rooms occupied by the guests and in one room two adults, male and female who were not married with each other were staying. Further, it was stated that the team without any order sealed the petitioner’s premises.

Petitioner’s counsel K. Chandrasekaran stated that no justification on the part of the respondents was put forward with respect to no opportunity being given to the petitioner in regard to putting forth their objections and sealing of the premises without any order being served to the petitioner, which is in violation of the principles of natural justice.

Additional Public Prosecutor, C.Iyyapparaj, informed the Inspector of Police that the petitioner’s premises had not obtained Form ‘D’ and without details of the guests in the booking registers, permitted illegal activities by the guests.

It has also been stated that various print media and social media reports were produced before the Court to ascertain the fact that the petitioner permitted unmarried couples to stay in the hotel rooms, which has been termed to be immoral.

A specific question was put to the respondents as to what could be the illegality in permitting the unmarried couples to stay in the hotel rooms?

High Court stated that,

“there are no laws or regulations forbearing unmarried persons of opposite sex to occupy hotel rooms, as guests. While live-in-relationship of two adults is not deemed to be an offence, terming the occupation of hotel room by an unmarried couple, will not attract a criminal offence.”

Court added to its conclusion that, the extreme step of sealing the premises on the ground that an unmarried couple were occupying the premises, is totally illegal in the absence of any law prohibiting the same.

In response to the contention of the respondents that certain liquor bottles were found in the room occupied by the guests and since the premises does not possess the license to serve or sell liquor inside, the action of sealing was initiated;

Court stated that Tamil Nadu Liquor (Possession for Personal Consumption) Rules, 1996, permits any individual person to possess various types of liquor in specified quantities. Any person can possess 4.5 Litres of IMFS; 4.5 Litres for Foreign liquor; 7.8 Litres of Beer; 9 Litres of Wine, at a given point of time, within the State. Thus, the consumption of liquor by the guests cannot be termed as illegal.

High Court noting the above held that sealing of the premises was in total violation of the principles of natural justice. Hence the Court would be justified in invoking its extraordinary powers under Article 226 of the Constitution of India.

In view of the above, the respondent has been directed to de-seal the petitioner’s premises. [Mypreferred Transformation and Hospitality (P) Ltd. v. District Collector, Coimbatore; 2019 SCC OnLine Mad 9835; decided on 26-11-2019]

Case BriefsHigh Courts

Patna High Court: Madhuresh Prasad, J. disposed of the writ petition on the ground that the petitioner was not incarcerated when joining was offered.

The petitioner was a Peon in the respondent bank. An FIR was lodged against the petitioner, his son and other family members alleging offences under Sections 304-B read with Section 34 of the Penal Code, 1860. The allegations led to the conviction of the petitioner. Later, the petitioner was granted bail and released from custody. He then submitted for his joining in the bank but was subsequently served with a notice of proposed punishment of dismissal by the respondent bank. The petitioner thus filed the instant proceedings.

During the pendency of the instant writ proceeding, the petitioner was dismissed on account of his conviction in the criminal case by the bank in view of the provisions contained in the Regulations 39 and 40. The petitioner had preferred a criminal appeal against the conviction order and the impugned order was set aside but he had already crossed the age of retirement by then.

The petitioner in view of the developments during pendency had sought for quashing of the order dismissing him from service and also prayed that he may be granted benefits of payment of salary from the date on which he offered joining. The counsel    Shashi Bhushan Kumar-Manglam representing the petitioner relied on the Judgment of the Apex Court in the case of Ranchhodji Chaturji Thakore v. Superintending Engineer, Gujarat Electricity Body, Himmat Narayan, (1996) 11 SCC 603, according to which the petitioner was entitled to grant of salary from the date on which he offered to join in the bank after his release on bail as thereafter he had been prevented from working by the authorities on account of their non acceptance of petitioner’s joining.

Advocates Prabhakar Jha and Mukund Mohan Jha, representing the bank submitted that the scheme of the Regulations which governed terms and conditions of the petitioner’s services make it abundantly clear that conviction by itself was a disqualification to continue in service. The mere fact of conviction was sufficient to dismiss an employee dispensing with the requirement of compliance with the principles of natural justice. He even referred to the same judgment relied on by petitioner’s Counsel to submit that it was only upon his acquittal in the criminal charges that the disqualification was removed.

The Court held that such an offer of joining, post acquittal which if not acceded to by the respondent authority, may ensue to the petitioner to claim salary. The petitioner’s status was of a convict at the time of submitting for joining and as such his claim for payment of salary for the period subsequent to such joining was not sustainable in the eyes of law.

It was further held that there was no disqualification against the grant of post-retirement benefits as was available under the service regulation.

In view of the above-noted facts, the instant petition was disposed of accordingly with the observation that the respondent Bank was to consider and dispose of the claim and pay the admissible dues within three months with regard to the retrial benefits of the petitioner. [Tarkeshwa Pandey v. Uttar Bihar Gramin Bank, 2019 SCC OnLine Pat 1924, decided on 16-10-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Bench comprising of Justice R.K. Agrawal (President) and M. Shreesha (Member) while addressing a complaint with respect to “deficiency of services” by the developer granted compensation keeping in view of the “Principles of Natural Justice”.

In the present case, aggrieved preferred the first appeal against the order passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai under Section 19 of the Consumer Protection Act, 1986.

Complainant stated that there was a deficiency of service against the Developer since an amount of Rs 37, 00,000 was paid towards sale consideration for Flat No. 601 situated at Vijaya and on account of non-providing of certain amenities the Complainant cancelled the booking and sought for a refund of the amount paid. Despite the complainant having requested for interest several times as the Developer had retained her amount from 14-05-2010 till 31-01-2011, there was no response.

State Commission allowed the complainant in part with the aforenoted directions.

According to the respondent’s, though the ‘developer’ had offered the payment of the amount, the complainant refused the same as her stand was that since the ‘developer’ had taken the money, the ‘developer’ alone should come to her doorstep and handover the money. Though, the Complainant stated that the amount was never offered to her.

Appellant submitted that some amount of compensation was to be awarded to meet the ends of justice as the compensation amount awarded by the State Commission was paid subsequently after 5 years.

Reliance was placed on Ghaziabad Development Authority v. Balbir Singh, (2004) 5 SCC 65, wherein the Court discussed the grounds on which the compensation be awarded in matters of delayed possession.

In the present matter, interest @18% has been awarded by the State Commission. The fact that the respondents did not challenge the impugned order, but also complied with the order only after 4 years, the order dated 12-05-2012 and as per the submission of the appellant/complainant the cheque was handed over on 3-05-2016.

Thus, keeping in view the “Principles of Natural Justice”, Commission awarded Rs 75,000 towards compensation within 4 weeks. The appeal is allowed in part with aforenoted directions. [Leela Narasimhan v. Vijay Grihanirman (P) Ltd., 2019 SCC OnLine NCDRC 328, decided on 16-10-2019]

Case BriefsHigh Courts

Patna High Court: Rajeev Ranjan Prasad, J. dismissed the writ application on the grounds that the settled proposition of law was that the writ of certiorari should not be issued only for making out a legal point.

The petitioner, aggrieved by the order dated passed by the Additional Chief Secretary, Department of Industries, Government of Bihar whereby the appeal preferred by the petitioner against the order of canceling the allotment of his industrial plot was been dismissed has challenged the same in the instant writ application.

N.K. Agrawal, senior counsel on behalf of the petitioner submitted that it was a case of violation of principles of natural justice wherein the cancellation order was not served upon the petitioner and further the appellate authority failed to decipher that the inquiries conducted by the Department during the pendency of the appeal could not be taken as a conclusive proof of the fact that the unit in question was not functioning.

The counsel on behalf of the Bihar Industrial Area Development Authority (‘BIADA’) argued that the matters related to allotment of industrial plots and were to be considered from a larger public interest purview. He further submitted that the petitioner’s allegation that the order of cancellation passed in the year 2007 was not served upon the petitioner is not correct inasmuch as ‘BIADA’ had produced the proof of service by placing on record that the said decision canceling the allotment in favor of the petitioner was sent through courier and it was not returned un-served. It was also submitted that the industrial plot was given to the petitioner for carrying industrial activity but instead the petitioner was utilizing it for some kind of residential purpose which was confirmed by the inquiry report submitted after the spot verification by the appellate authority.

Upon perusal of the records, the court found that the industrial plot was allotted to the petitioner in the year 1996, and the purpose behind the same was setting up of industry but the materials available on record showed that no industrial activities were going on for the last several years. Since no prima-facie material was brought on record to controvert the findings and no material was made available to show that the findings were perverse and required any interference.

The case being one for issuance of a writ of certiorari, the principle was well-settled that while exercising its power to issue a writ in the nature of certiorari the Court under Article 226 would not sit in appeal and could not exercise an appellate power. Such a writ of certiorari could be issued only when the Court found that the impugned order suffered from perversity. [Santosh Kumar Jalan v. State of Bihar, 2019 SCC OnLine Pat 1772, decided on 30-09-2019]

Case BriefsHigh Courts

Rajasthan High Court: Ashok Kumar Gaur, J. dismissed the writ petition filed against the order passed by the Registrar, Cooperative Societies-cum Registrar Institution exercising the powers inferred upon him under Section 24 of the Rajasthan Sports (Registration, Recognition and Regulation of Association) Act, 2005.

The respondent had issued a notice against the petitioners under Section 24 of the said Act with respect to the powers inferred upon him. The petitioners herein subsequently filed a civil writ petition challenging the notice issued by the respondent. The Court refused to interfere in the writ petition and dismissed the same. Further, when the petitioner approached the respondent, he then issued an order against the petitioner regarding disqualification. The petitioner then filed the current writ petition questioning the jurisdiction of the respondent Registrar under the Act of 2005.

The counsel for the petitioner, S.S. Hora, contended that the respondent does not have the jurisdiction for disqualification; instead, he can conduct fresh elections. It was contended that under Article 226 of the Constitution of India, High Court has the discretion to entertain a writ petition where there has been a violation of fundamental rights or principles of natural justice.

The learned counsels for the respondent, M.S. Singhvi, Darsh Pareek, Rajendra Prasad, Karan Tiberwal and S.S. Raghav, contended that the respondent Registrar was competent to issue such notice and order with respect to powers conferred upon him. It was further contended that the writ petition should be dismissed as the petitioner had other alternative remedies.

The Court noted that the first writ petition filed by the petitioner had been dismissed on the ground that the power invoked by the Registrar, could not be faulted for conducting enquiry. It was observed that when the respondent had passed the impugned order exercising his power under Section 24 of the Act, the proper course open to the petitioner was to file an appeal under Section 35 of the Act.

It was opined that the remedy provided to any aggrieved person against the order passed by the Registrar, is a statutory remedy and writ jurisdiction in such cases straightaway cannot be exercised.

Relying on the Judgment in Agarwal Tracom Pvt. Ltd v. Punjab National Bank, (2018) 1 SCC 626 it was held that a High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person. Consequently, the writ petition was dismissed. [District Cricket Association v. Deputy Registrar, Cooperative Societies, 2019 SCC OnLine Raj 3121, decided on 24-09-2019]

Case BriefsHigh Courts

Karnataka High Court: B.A. Patil, J. while allowing the appeal set aside the Judgment of the trial court with a direction to recall the witnesses who have not been cross-examined.

Asif Hussain, the appellant/accused in the instant case preferred this appeal against the judgment and order of his conviction and sentence for the offence punishable under Section 397 of Penal Code, 1860 passed by the Additional City Civil and Sessions Judge, Bengaluru City.

Sirajuddin Ahmed, Counsel for the appellant submitted that the trial court did not give full opportunity to the accused to cross-examine all the witnesses and passed the impugned order erroneously. 

In consonance to the Counsel for the appellant, M. Divakar Maddur, High Court Government Pleader submitted that the evidence of PW7 was not fully chief examined and for this no reason was assigned. 

The Court after analyzing the evidences given in the trial court observed that witnesses were examined. But, after the Public Prosecutor was done with the examination-in-chief, counsel for the accused took time for preparation. However, the court below rejected the prayer without any justifiable reasons and took that there is no cross examination. Moreover, PW7 was examined-in-chief in part. The cross examination of PWs 9 and 10 was not even recorded. The material witnesses who were examined before the Court were also not cross-examined. Thus, it was clear that principles of natural justice were not followed. 

The Court remitted back the matter and directed the trial court to expeditiously dispose of the case.[Asif Hussain v. State, 2019 SCC OnLine Kar 1600, decided on 04-09-2019]

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of S.R. Brahmbhatt and Dr A.P. Thaker, JJ. did not interfere with the order passed by a Single Judge in a letters patent appeal.

The relevant authority in the case had declined to accede to the original petitioner’s request for conversion of her full time M.Tech course into part-time, since this conversion was not requested in 4th semester as prescribed and it was requested slightly before 3rd semester because the petitioner got an employment offer wherein she was required to join immediately when 3rd semester was on the verge of getting completed and her dissertation preliminaries (examination) was permitted to be preponed and she was not in any manner falling sort of either any academic requirement or attendance requirement. The petitioner had relied upon the case of Vejabhai, which was sought to be distinguished by respondent – present appellant, as Shri Vejabhai did not ask for any advancement of dissertation preliminaries (examination) though his request for conversion was made in the vacation of 3rd semester. The Single Judge directed the original respondents to consider the case of the petitioner on the same lines as Shri Vejabhai was permitted to convert his course before the completion of the third semester.

The appellant for the present appeal filed a petition to contend that permission for conversion from full time M.Tech course to part time M.Tech course cannot be denied on the ground of taking a job by the student during the vacation after appearing for dissertation preliminaries after the last day of teaching of the 3rd semester (autumn semester). They requested the Court to quash the earlier order of the Court on the grounds that it was arbitrary, issued in violation of the principles of natural justice, goes beyond the resolution no. 13 passed by the Senate at its meeting held on 16-02-2013, discriminatory, and therefore illegal. They prayed to the court to grant them the same parity in treatment as meted out to Shri Vejabhai, who was allowed to pursue part-time M. Tech course in accordance with resolution 13 of Senate.

The appellant contended that this order would set a precedent in which the very sanctity of the post-graduation course and its tenure will be affected. Advancing of the dissertation preliminaries in itself would not be treated to have been sufficient for treating the 3rd semester complete, as the academic calendar of the institute clearly indicated that 3rd semester would end at least on 7th December and not prior to that.

The respondent contended that the preponement of the preliminary examination for 4th semester is not a unique case and that the student keeps requesting for pre-poning their examination on a regular basis and that this is a case of hostile discrimination as the institute was jeopardising the chances of employment.

The Court held that the apprehension raised on behalf of appellant qua the same being treated as precedent was not sustainable, as such interim order cannot be treated as precedent at all. Every case involving such prayers is required to be dealt with in accordance with the facts of the case. The Court refused to interfere, as there was no likelihood of infringement of any academic requirement, attendance requirement or any violation of statutory provisions but apart from a technicality in the filing of the request. Since the petitioner had already completed her dissertation preliminaries (examination), it cannot be said to be a so grave impediment in the way of the petitioner in seeking conversion. The Appeal was rejected.[Sardar Vallabhbhai National Institution of Technology v. Union of India, 2019 SCC OnLine Guj 1461, decided on 23-07-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities Appellate Tribunal (SAT): Coram of Justice Tarun Agarwala (Presiding Officer), Dr C.K.G. Nair (Member), and Justice M.T. Joshi (Judicial Member) set aside the impugned order in this case. The appellant challenged an ex-parte order passed against him alleging that he was not served properly and therefore the impugned order was against the principles of natural justice as under Article 14 of the Constitution. The appellant, being the Managing Director of Sigrun Holdings Ltd. (SHL) sold 45,000 shares of the company on 24-05-2010, while having knowledge/possession of the adverse quarterly result of SHL based on sensitive information which had not yet been made public, without the authorization of the board.  The adjudicating officer imposed heavy penalties on the appellant in an order citing the various SEBI regulations which had been violated.

The appellant, being aggrieved by the said order, filed an appeal on the ground that the impugned order is an ex-parte order and that he had no knowledge of the proceedings initiated by the Adjudicating Officer. The Appellant has alleged that he did not receive the show cause notice for the proceedings by the Adjudicating Officer and the proper procedure for service of the same has not been followed as under Rule 7 of the Securities and Exchange Board of India (Procedure for Holding Inquiry and Imposing Penalties by Adjudicating Officer) Rules, 1995.

The Court held that the respondent was in violation of Rule 7 as stated above as they had not tried to personally serve the appellant at the place where he carried on business or had worked for gain and had instead directly moved on to affixation which does not comply with the procedure laid down in Rule 7. The Court further said that “mode of service prescribed under Rule 7 is not exhaustive and other modes of service was always available in addition to the modes of service prescribed under Rule 7 i.e. for example publication of the notice in an appropriate newspaper or service through email.”

Thus, the Court set aside the impugned order in the interest of natural justice and in violation of the principles of natural justice as embodied under Article 14 of the Constitution of India and ordered the Adjudicating Officer to comply with the proper procedure.[C.R. Rajesh Nair v. Securities & Exchange Board of India, 2019 SCC OnLine SAT 71, decided on 18-07-2019]

Case BriefsHigh Courts

Karnataka High Court: S. Sujatha, J. while preserving the right of the petitioner disposed of this petition.

In the instant case, the petitioner-institution is an Engineering College and was established by permission granted by AICTE and the State Government. It is affiliated by Visvesvaraya Technological University (Respondent 4). In the academic year 2019-2020, a team from the University visited the petitioner’s premises and found some deficiencies in the working of the college thereby, issuing a show-cause notice and finally a communication was issued to the Department of Higher Education, State of Karnataka (Respondent 1) to remove the name of the petitioner from the seat matrix and to show that no courses would be offered during the counseling process. The petitioner assailed the aforesaid communication.

Counsel for the petitioner, Abhishek Malipatil submitted that the impugned communication is ex-facie illegal and in violation of principles of Natural Justice as the order was passed before hearing the petitioner. It was further submitted that the petitioner is permitted by the AICTE to run the college, therefore, the University cannot deny affiliation on insubstantial grounds. The Institution imparts education in the rural areas which mainly depends on the Government quota seats. This communication since issued in the mid of the counseling process has adversely affected the petitioner-Institution.

Counsel for Respondent 4, Santhosh S. Nagarale submitted that since the petitioner did not cooperate with the Visiting Team from the University, the Communication had to be issued. It was further submitted that the Team shall visit and inspect the Institution if the petitioner-Institution agrees to bear the expenses and compliance of the deficiencies pointed out before.

The Court after observing the submissions directed Respondent 4 to carry out the inspection on the expense borne by the petitioner-Institution. After submission of the compliance report by the petitioner, a decision shall be taken on the extension of the affiliation within ten days of this order.[Eklavaya Institute of Technology v. State of Karnataka, 2019 SCC OnLine Kar 879, decided on 02-07-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJ and Manoj K. Tiwari, J. set aside in review an order passed by another Division Bench.

The Applicant contended that she was working as Principal of constituent College, which was later conferred “Deemed University” status and hence, Memorandum of Association was to be accorded with UGC Regulations, 2010. The applicant was part of the committee to deliberate on the proposed amendments. Further, she alleged that Division Bench held that she had acquiesced to the amendment; and could not, thereafter, contend that she should be continued contrary to the said amendment. The petitioner was denied relief on the ground of acquiescence.

Learned counsel for the applicant Tapan Singh, submitted that, applicant had merely participated in the meeting; she had not specifically agreed to the said amendment; even otherwise, her participation in the deliberations of the Committee meeting, was in her official capacity as a Principal of the College, who was a member of the Committee ex-officio; that cannot result in her vested right, to continue as a Principal, being deprived even without complying with the principles of natural justice; and the order under review necessitates being set aside.

Arvind Vashishta, learned Senior Counsel for respondent-University, submitted that the Division Bench was justified in its conclusion that petitioner had acquiesced to the amendment to the Memorandum of Association; and her appointment as a Coordinator, consequent on her designation as a Principal being withdrawn, was merely a consequence thereof.

The Court observed that, mere participation in a meeting convened to consider amendments doesn’t mean that the petitioner acquiesced and had waived her right to continue as a Principal. Hence, the order under review was set aside, and the writ petition was restored to file.[Dr Sangeeta Singh v. Gurukul Kangri University, Haridwar, 2019 SCC OnLine Utt 378, decided on 24-05-2019]

Case BriefsHigh Courts

Jammu & Kashmir High Court: Sanjeev Kumar, J. dismissed a petition challenging an order suspending petitioner and ordering an enquiry into his conduct, holding that principles of natural justice are not applicable to matters of suspension from service.

The petitioner challenged his suspension order on the grounds that he was deprived of his right to be heard, and on the ground that suspension order was served on the basis of allegations levelled by the Respondent 8, being his first wife, without any verification of the same.

The Court noted that the impugned order was based on the allegations of petitioner’s first wife that he had contracted the second Nikah without seeking prior permission from her. Respondent 2 (employer) suspended the petitioner in terms of Rule 22 of the Jammu and Kashmir Government Employees (Conduct) Rules, 1971, which states that no government employee who has a wife living, is entitled to contract another marriage without first obtaining the permission of the government, notwithstanding that the subsequent marriage is permissible under the personal law for the time being in force. Before passing the suspension order, Respondent 2 had considered the explanatory note submitted by the petitioner in relation to the said issue. It was noted that the relevant authority/employer found that neither the petitioner obtained any prior permission of the government nor had he sought the consent of his first wife.

It was opined that mere suspension does not tantamount to punishment; hence in the present case, it was not necessary to provide an opportunity of being heard or complying with the principles of natural justice.

In view of the above, the writ petition was held to be not maintainable.[Adil Rashid Butt v. State of J&K, 2019 SCC OnLine J&K 375, decided on 24-04-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: A Bench of Vandana Kasrekar, J. allowed a writ petition and set aside an order passed by Director, Employment and Training, MP Civil Centre, in the appeal against the impugned order, removing the petitioner from his services by the Joint Director of the aforementioned Training Centre.

The petitioner was appointed as Class-III employee in the aforementioned Centre on a compassionate basis. The petitioner contended that, Joint Director issued a show cause notice which stated the non fulfillment of the conditions of employment i.e. passing of Hindi typing examination by the petitioner, further as per the terms and conditions of the appointment order he has availed 466 days of leave without pay and was continuously absent for a period of 3 months, for which he was terminated from his services as a way of punishment, allegations were found to be true in internal enquiry. The petitioner was aggrieved by such report and was not given an opportunity of being heard by the Joint Director.  He was equally aggrieved by the order of Director, terminating his services and agreeing with the order of Joint Director, therefore, dismissing his appeal.

Learned Counsel for petitioner, M.I. Khan, argued that order impugned is arbitrary and illegal, it is also violative of the principles of natural justice i.e. ‘Audi Alteram Partem’. According to his submissions, the order of the Director was contrary to the provision of Civil Services Rule, 1966. No proper procedure was followed while adjudicating the matter of the petitioner. The enquiring officer has filed the report on the basis of the fact that the petitioner has admitted the charges and no statements of witness were recorded by the enquiring officer. He further submitted that the order of removal is not passed by the competent authority. Joint Director was in no position to terminate the petitioner as he was appointed by the Director and no person subordinate to him had such powers.

Learned Counsel for the respondent, Vikas Yadav, replied that the petitioner has not cleared the essential requirement of qualification for the respective post i.e. Hindi typing exam. The non-performance of the petitioner was also highlighted by his continuous unauthorized absence from work for a period of almost 3 months and his non-attendance for a total of 466 days.  Respondent contended that though, the petitioner replied to the show cause notice, the same was not satisfactory. After issuance of the charge sheet, the petitioner himself admitted the charges levelled against him before the enquiring officer. Therefore, the impugned order of removal was passed. Thus, no illegality was caused in removing the petitioner from his services.

The Court observed that, before the show cause notice was issued no enquiry was initiated against the petitioner by the respondents and the said show cause notice was issued for termination of services of the petitioner. “It shows that the authorities have make up their mind for terminating the services of the petitioner before initiating any departmental enquiry.” Court was of the view that petitioner stated the medical reasons in reply to the show cause notice, but he also admitted not clearing the exam and taking unauthorized leaves for such a long tenure.

Court held, that no alleged enquiry was conducted by the respective respondents, which was arbitrary and they served a copy of the report without filing any charge sheet. The Court stated the provisions of CCA Rules, which provide for the opportunity of hearing to the accused even if the charges in written statements are admitted. The enquiring officer must always ask the accused whether he pleads guilty or not in a proper recorded manner. It was found by the Court that there was a breach in proper proceedings in recording the statements of the petitioner and the proceedings were not in conformity with the law. The Court directed the respondents to reinstate the petitioner in service without any back wages.[Ajay Kadam v. State of M.P., 2019 SCC OnLine MP 769, Order dated 07-05-2019]

Case BriefsHigh Courts

Gujarat High Court: A Bench of A.Y Kogje, J. partly allowed a petition whereby the case was remanded back to the Sub-Divisional Magistrate to reconsider the earlier order by giving an opportunity of hearing to the petitioner.

In the pertinent case, the petitioner submitted that while the period for which the license was to operate an FIR came to be registered with an allegation that in the area where the Anand Mela was being conducted, some people had indulged in gambling activity and therefore the area where the Anand Mela was being held was sealed. Since the livelihood of many families was dependant on the functioning of the Anand Mela, the petitioner thus approached the Court for an amendment to such order.  Further, it was contended that the license holder was not even present when the alleged incident had taken place and therefore if any of the visitors would have indulged in such activity then the petitioner cannot be held responsible.

The respondents, in turn, made allegations that the persons involved in the gambling activities and that the person conducting such activity had escaped from the premises. He also submitted that the petitioner is not entitled to any opportunity of hearing more particularly when he is in breach of the condition of license condition No. 16 of the license.

The Court after considering the material facts and the registered FIR opined that “the contention itself discloses that the license holder himself was not found on the spot when the petitioner strongly disputes about the nature of game being played at the Anand Mela and also disputes his presence at the time when the offence came to be registered. It would be a question of fact which will have to be gone into while the offence is being tried”. Also “The Provisions of Bombay Police Act under which the license is granted does not provide for any appeal as the provisions for appeal is restricted to certain sections but does not include Section 33(1) of the Bombay Police Act”. Further since conducting the Anand Mela was the primary source of livelihood for the petitioner and others, therefore before canceling the license where the petitioner is strongly opposing activity of gambling in the premises, the principles of natural justice should be followed.[Manharbhai Kachrabhai Rathod v. State of Gujarat, 2019 SCC OnLine Guj 604, Order dated 04-04-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Madhuresh Prasad, J., allowed the writ petition which was filed against the act of arbitrary stoppage of the salary of the panchayat teachers.

The facts of the case are that petitioners were appointed as panchayat teachers in the year 2010 and they continued till April 2017. From the month of May, 2017 their salary had been arbitrarily stopped without issuing any order in respect thereof.

The respondents asserted that the petitioners’ degrees of integrated course from Central Board of Higher Education, New Delhi were not recognized in view of the letter issued by the Principal Secretary and as such the very appointment of the petitioners as panchayat teacher was bad.

The Court held that there was nothing in the counter affidavit to show that prior to withholding of such salary/stoppage of salary with effect from May, 2017 the petitioners were ever afforded any opportunity of being heard in the matter. It is trite law that when an order is violative of the principles of natural justice, the plea of alternative remedy would not be a bar to exercise of jurisdiction under Article 226 of the Constitution of India in such matter.

The Court observed that whether the petitioner’s degree obtained in 2010 on basis of which petitioners were appointed as panchayat teacher was recognized or not was an issue which was required to be looked into by the authority before inflicting such harsh penal consequence.[Kanchan Kumari v. State of Bihar, 2018 SCC OnLine Pat 2293, Decided on 06-12-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal for Electricity, New Delhi: A Division bench comprising of N.K. Patil, J. and S.D. Dubey (Technical Member) allowed an appeal, filed against Central Electricity Regulatory Commission, holding that the order of Commission was a non-speaking order.

Appellant, a joint venture company between National Thermal Power Corporation Ltd. and Uttar Pradesh Rajya Vidyut Utpadan Nigam Ltd., was working on a project for development of a 1320 MW coal-based generating station at Meja in Uttar Pradesh. Respondent is the regulator which determines generation and transmission tariff for central government-owned or controlled companies including the appellant.

In a petition, the respondent passed an order directing appellant to pay Interest during Construction (IDC) and Incidental Expenditure during Construction (IEDC) for the period of delay in commissioning of Meja-Allahabad line and also for payment of transmission tariff. Aggrieved by the said order, the present appeal was preferred by the appellant under Section 111 of the Electricity Act, 2013. The sole point of challenge in the appeal was that the order passed by respondent is a non-speaking order bereft of any analysis or reasons, and while passing the impugned order, the respondent Commission had failed to consider the relevant material placed on record by the appellant.

After perusing the order passed by the respondent Commission, the Hon’ble Appellate Tribunal noted that there was no discussion, reasoning or finding therein in relation to the case of appellant. Relying on the judgment of Apex Court in Commissioner of Police, Bombay v Gordhandas Bhanji, 1952 SCR 135, the Tribunal observed that it is a settled principle of law that an order passed by a statutory body should speak for itself, and cannot be supplemented later with fresh reasons. Public orders, publicly made, in the exercise of statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order. Since such an order has a public effect and also affects the acts and conduct of those to whom it is addressed, it must be construed objectively with reference to the language used in the order itself.

On the aforesaid reasoning, finding that there was no reasoning or discussion in the respondent’s order, the Tribunal held that the said order being a non-speaking order was liable to be set aside. [Meja Urja Nigam Private Limited v. Central Electricity Regulatory Commission,2018 SCC OnLine APTEL 103, decided on 28-09-2018]

 

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of S.S. Shinde and V.K. Jadhav, JJ. allowed a criminal writ petition in terms of remitting the matter to Divisional Commissioner, Aurangabad, for fresh adjudication on the externment order passed against the petitioner.

The petitioner was accused in three criminal cases. The cases were pending adjudication. Assistant Commissioner of Police, Aurangabad, issued a show cause notice to petitioner asking as to why he should not be externed from Aurangabad city and adjoining districts for two years. In his reply, the petitioner stated that the cases pending against him were false and nothing had been proved. Thereafter, the Assistant Commissioner sent petitioner’s externment proposal to the Deputy Commissioner who passed the order externing the petitioner from Aurangabad city for two years. An appeal was filed before the Divisional Commissioner who confirmed the externment order. Hence, this petition.

The High Court gave careful consideration to submissions made on behalf of the parties and perused the impugned order. It was noticed that impugned orders did not discuss the statement of witnesses produced by the petitioner. The order was passed without giving the petitioner an opportunity to be heard, which was a violation of principles of natural justice. It was observed that to brand a person a habitual criminal, it is necessary to find out his past record. The Authorities concerned failed to consider the fact that the petitioner was not convicted in any of the cases pending against him. He was on bail and nothing was brought on record to show that he misused that liberty. In such circumstances, the High Court thought it fit to remit the matter back to the Divisional Commissioner for fresh adjudication. Operation of externment order passed against the petitioner was stayed. [Rauf Khan Wahab Khan Patel v. State of Maharashtra,2018 SCC OnLine Bom 1606, dated 23-07-2018]

Case BriefsHigh Courts

Gauhati High Court: The order of the Superintendent of Taxes (Respondent 2) charging 12.5% VAT on coal tar in provincial assessment was set aside by a Division Bench comprising of Ajit Singh, CJ and Prasanta Kumar Deka, J.

The petitioners were dealers of coal tar. They filed tax returns wherein they assessed coal tar for 4% tax. The said return was accepted by the respondents. However, later, Respondent 2 passed an order of provincial assessment under Section 34 of the Assam Value Added Tax Act, 2003 whereby the return filed by the petitioners was re-assessed and the coal tar was charged at 12.5% tax on grounds that earlier a wrong classification was done as far as coal tar was concerned. Aggrieved by the same, the petitioners filed the instant petition.

The High Court considered the record and found that the impugned order was passed under Section 34 of the Act which mandates that before passing any order of provincial assessment, the assessee is to be given a right of hearing via giving him a show-cause notice. In the case, the Court found that no show-cause notice was given to the petitioner, thus, violating the mandate of Section 34. Also, it was a clear case of violation of principles of natural justice as no right of hearing was given to the petitioner before passing orders prejudicial to him. Thus, the petition was allowed and the impugned order was set aside. [Kamakhya Coal Tar Industries v. State of Assam, 2018 SCC OnLine Gau 350, order dated 07-05-2018]

Case BriefsHigh Courts

Allahabad High Court: A Single-Judge Bench comprising of Hon’ble Siddharth, J. quashed the impugned termination order against the petitioner.

As per the facts of the case, the petitioner was alleged to have defalcated a sum of Rs. 26, 40,937.93 and based on the preliminary enquiry, he was found guilty of the stated charge. Two subsequent FIRs under Sections 3 and 7 of the Essential Commodities Act and under Section 419 IPC were filed against the petitioner. The petitioner was subsequently suspended from service.

Respondents have filed that the petitioner embezzled a huge amount for which he was asked for an explanation. Further, the petitioner was sent a notice in regard to no explanation from his side. An enquiry report based on the records found the petitioner guilty of defalcation of more than Rs. 26 lakhs. The petitioner was issued a letter in which it was stated that his services are governed by Model Service Regulations for the employees of U.P Consumer Cooperative Store. Petitioner was also granted personal hearing and the disciplinary proceedings were conducted in accordance with the rules.

Further, it has been argued that the petitioner was not afforded any opportunity of defending his case which was in violation of Regulation 77(i)(a) of the Regulations under which he was governed. Secondly, before passing of the termination order approval from the board of directors was not taken which was a violation of Regulation 76(b) of the above-stated regulations. Thirdly, he was not granted personal hearing and finally the impugned termination order was passed.

Upon perusal of Regulation 77 it was found that the entire disciplinary enquiry was against the said regulation and also against the principles of natural justice. Therefore, it was held by the Court that, the disciplinary proceedings against the petitioner were absolutely illegal and against the express provisions of Regulation 77 and further no material was brought on record regarding the status of criminal cases. The impugned termination order against the petitioner was quashed. [Dhodha Singh v. State of U.P, 2018 SCC OnLine All 448, delivered on 24-04-2018]