Case BriefsHigh Courts

Uttaranchal High Court: The Bench of Ramesh Ranganathan, CJ and Ramesh Chandra Khulbe, J. dismissed a petition for it being raised for the first time in an intra-court appeal.

The appellant has filed the said writ petition questioning the “Science & Technology Entrepreneurship Park” (STEP) in terminating their services. The counsel has contended that STEP was initially established and funded by the respondent and consequently “STEP” would fall within the ambit of Article 12 of the Constitution of India. On the other hand, the respondent pressed upon the fact that STEP is a self-financing body whose funds were initially granted by the Government of India to establish the above plus there was no allocation of funds towards the same for more than 15 years now. Also, STEP was a society registered under the Societies Registration Act which further corroborates their submission. The case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 was referred to wherein it was stated that to prove instrumentality it has to be proved that financially, functionally and administratively there existed governmental control but if the control was found to be regulatory then body was not a “State” within the meaning of Article 12 of the Constitution of India.

Now the question that arose before the Court was whether termination of the services of the petitioners under the Indian Contract Act necessitates examination in writ proceedings under Article 226 of the Constitution of India. Here the Court said that the scope of interference in an intra-court appeal was extremely limited so accordingly the question cannot be decided here that too after permitting the parties to amend their respective pleadings.

Hence appeal was disposed of with a liberty to file a fresh appeal. [Hasibur Rahmaan v. Union of India, 2019 SCC OnLine Utt 28, Order dated 03-01-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): A Single Judge Bench of V.K. Jain, J., allowed a revision petition filed against the order of the State Commission, whereby the petitioner was directed to reconstruct the tomb in the cemetery of the Cathedral at their own expenses and also pay a sum of Rs.25,000/- as compensation to the complainant.

The complainant/respondent had paid Rs. 1001/- to the opposite party/petitioner for granting permission to construct a family tomb in the cemetery of the said Cathedral. The permission was granted and the family tomb was constructed but later on, it was demolished by the petitioner and hence the respondent approached the appropriate fora claiming deficiency in services on the part of petitioner.

The main issue that arose before the Commission was whether the respondent would fall under the definition of consumer and whether the respondent can be said to have hired or availed the services of the Cathedral or its Trustees.

The Commission observed that as per the definition of the consumer under Section 2(1) (d) of the Consumer Protection Act (COPRA), a consumer is a person who either purchases goods or avails service for a consideration. The Commission then referred to the definition of service as given under Section 2(1)(o) of the COPRA.

The Commission held that from a perusal of Section 2(1)(o) of the COPRA, it becomes clear that granting permission in for construction of a family tomb in lieu of a certain sum of money does not amount to rendering services under the COPRA. At best it can be seen as permission granted to one of the devotees by a religious organization. Further, the Commission also held that a person who is granted such a permission would not fall under the ambit of consumer for the purpose of Section 2(1)(d) of the COPRA. Resultantly, the review petition was allowed and the order of State Commission was set aside. [Jacobite Syrian Cathedral v. Jippu Varkey, Revision Petition No. 2695-2696 of 2018, order dated 25-10-2018]

Case BriefsHigh Courts

Bombay High Court: The Single Judge Bench of S.C. Gupta, J. has held that a co­operative housing society cannot be termed as an industry within the meaning of Section 2 (j) of the Industrial Disputes Act if it carries on some commercial activity, not as its predominant activity, but as an adjunct to its main activity.

The petitioner was a Cooperative Housing Society which had engaged Respondent 1 as a watchman. Upon the latter’s completion of 60 years of age, his services were terminated with effect from 1 November 2000. Petitioner’s case was that the termination was with mutual consent and with payment of retirement benefit. This was a matter of dispute as Respondent 1 thereafter raised a demand for reinstatement. The Labour Court held against petitioner and rejected its claim of non-maintainability of reference.

The Court referred to Supreme Court’s judgment in Bangalore Water Supply and Sewerage Board v. A. Rajappa, (1978) 2 SCC 213 where the Apex Court held that when there are multiple activities carried on by an establishment, what is to be considered is the dominant function. The Court held that merely because the society charged some extra charges from a few of its members for display of neon signs, the society cannot be treated as an industry carrying on business of hiring out of neon signs or allowing display of advertisements. The Court set aside the order of the Labour Court. [Arihant Siddhi Co.Op. Hg. Soc. Ltd. v. Pushpa Vishnu More, Writ Petition No. 787 OF 2007, order dated 22-06-2018]

Case BriefsSupreme Court

Supreme Court: Reviewing its judgment dated 9-1-2015, the Division Bench of Chelameswar and Dr. A.K. Sikri, JJ has held that there is no provision for reservation in public sector banks for  SC/ST categories in promotion of  officers  from one grade/scale to the next, when such promotions are to be made on selection basis i.e. on merits.

The Court however, observed that it is open to the State and the banks to consider whether it is feasible to provide such reservation in the officers’ category and if so up to what level.

 The Court had to decide upon the validity of the Madras High Court’s judgment in the batch of appeals, which had decided that in the matter of promotions in the officer grades, a reservation in favour of SC/ST officers was provided for in the Office Memorandum dated August 13, 1997. The Banks contended that there was no rule of reservation for promotion in Class A (Class I) to the post/scales having a basic salary of more than Rs 5700 per month and the OM at best only provided a concession. The Supreme Court had upheld the Banks’ contention observing that  there was no reservation in respect of promotion by selection within only those Group A  posts carrying ultimate salary of  Rs 5700. However, based on other memoranda, it observed  that reservation existed only in respect of those posts carrying basic pay of up to Rs 5700 per month and with the implementation of the Fifth Pay Commission  Report, It would follow that such reservation was applicable to the post carrying pay scale of Rs 18,300. On that basis, it was held that since pay scale of the posts up to Scale VI was Rs 18,300 reservation is to be provided.  This aspect of the judgment was under review.

The Attorney General Mr Mukul Rohatgi submitted that a fundamental error, apparent on the face of the record had crept in para 34 of the judgment wherein the Court had observed that “reservation is provided in promotion by selection qua those posts which carry an ultimate salary of less than Rs 5700 (pre-revised)” while observing in the earlier portion of the same paragraph that “there is no reservation in promotion by selection in Group A posts which carry an ultimate salary of Rs 5700 per month. In such cases it is only the concession that applies”. In spite of deciding the main issue against the respondents, because of the aforesaid error in the judgment, the said benefit was still bestowed by giving reservations to officers belonging to SC/ST category from Scale I to Scale VI. The Court agreed that it was in conflict not only with the earlier portion of para 34 but the  entire conclusion discussed in the judgment. It is clearly an error on the face of record as no such consequence follows. Consequently, the Court allowed the review petitions  by deleting paras 33 to 36 of the judgment, the directions contained therein as well as the directions contained in para 37 . It was to be replaced with

“33. Result of the aforesaid discussion would be to allow these appeals and set aside the judgment of the High Court. While doing so, we reiterate that it is for the State to take stock of the ground realities and take a decision as to whether it is necessary to make a provision for reservation in promotions from Scale I to Scale II and upward, and if so, up to which post. The contempt petition also stands disposed of.”

Guided by the principle of ex debito justitae as discussed in A.R. Antulay v. R.S. Nayak,(1988) 2 SCC 602 and S.Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595, the Court observed “when an error is pointed out and the Court also finds that there is an error apparent on the face of the record, it would not shy away from correcting that error”. [Chairman  & Managing Director, Central  Bank of India v. Central  Bank of  India SC/ST Employees Welfare Association2016 SCC OnLine SC 19 , decided on  8-1-2016]