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In FAO 1548/2019 (O&M)-PUNJ HC- Responsible Doctors & Senior Army Officers have given medical opinion regarding injuries suffered by claimant, says P&H HC while dismissing Insurance Company’s appeal against MACT Award
Justice Nidhi Gupta [31-01-2023]

Read Order: New India Assurance Company Limited v. Satwant Singh deceased through his LRs and Others

 

Monika Rahar

 

Chandigarh, February 1, 2023:  The High Court of Punjab and Haryana has reiterated that Motor Vehicles Act is a beneficial legislation and cases thereunder are to be decided on preponderance of probabilities and strict rules of criminal trial are not applicable thereto.

 

Present appeal before the Bench of Justice Nidhi Gupta was filed by the Insurance Company against the Award of the Motor Accident Claims Tribunal, Ambala (‘the Tribunal’), whereby a compensation of Rs. 44,37,456/- was granted to the injured-claimant.

 

In 2013, the claimant’s motorcycle was hit by a Car (offending vehicle) being driven by the second respondent in a rash and negligent manner and at a very high speed. As a result of the impact, the claimant fell on the road and received severe head injuries and remained hospitalized thereafter for a considerable period.

 

The Tribunal concluded that the claimant had been injured in the said roadside motor-vehicular accident due to the rash and negligent driving of the offending vehicle by the second respondent which was owned by the third respondent and insured by the appellant-Insurance Company. The Tribunal also concluded that the offending vehicle hit the motorcycle of the claimant from front by coming on the wrong side of the road.

 

Accordingly, the compensation payable to the claimant was assessed to be Rs. 44,37,456/– along with interest at the rate of 7.5% per annum from the date of institution of the petition till realization. Further, the Tribunal held the appellant Insurance Company along with the respondents herein to be jointly and severally liable to pay the compensation.

 

After hearing the parties, the Court observed at the very outset that a perusal of the record of the case established without doubt that the claimant had suffered “severe head injury” and had remained admitted in Command Hospital, Chandimandir. “It is also not in dispute that the Medical Board, at page 101 of the LCR, had opined that the claimant had suffered functional disability to the extent of 60% for life”, the Bench added. 

 

The Bench further observed that an extensive detailed medical record running into over 50 pages was presented and proved before the Tribunal, which was duly endorsed by Senior Army Officers. Thus, it was opined that the Medical Board had given findings regarding the condition of the claimant only after considering the case of the claimant in great and minute detail. 

 

“Thus, the credentials of the Medical Board instituted by the Senior Officers of the Army Authorities including a Captain, Lieutenant Colonel, and President of the said Medical Board being of the rank of Colonel, cannot be impugned or doubted. I have considered the said record in great detail and gone through every page and it is clear that the opinion contained therein cannot be doubted”, the Bench held. 

 

Regarding the objections made on behalf of the appellant’s counsel regarding the inadmissibility of the said medical record produced by the claimant, the Court held that the same were to be rejected in view of the fact that it was open to the appellant to have summoned the Doctors or any other Member of the Medical Board. 

 

There was nothing forbidding the appellant Insurance Company to summon any of the Doctors from the Medical Board to verify or discard the evidence produced by the claimants, the Bench opined while adding that thus, it does not lie in the mouth of counsel for the appellant-Insurance Company to submit that the said record was not reliable. 

 

“In the present case responsible Doctors and other Senior Officers of the Army have given medical opinion regarding the injuries suffered by the claimant and I find that no cogent reasons have been given by the appellant Insurance Company to merit rejection of the same”, the Court held. 

 

Even otherwise, the Bench was of the opinion that it is well established position in law that Motor Vehicles Act is a beneficial legislation and cases thereunder are to be decided on preponderance of probabilities and strict rules of criminal trial are not applicable thereto. 

 

Thus, the appeal was dismissed. 

 

In W.P.(T) No.4782 of 2022-JHK HC-Notice issued u/s 73(1) of Jharkhand GST Act, 2017 is not mere formality: Jharkhand HC 
Justices Aparesh Kumar Singh & Deepak Roshan [24-01-2023]

Read Order: SANTOSH KUMAR ROY VS  THE STATE OF JHARKHAND


 

Mansimran Kaur

 

Ranchi, February 1, 2023: The intent of legislature for issuing a show cause notice along with FORM GST DRC-01 is that the DRC-01 is a summary of show cause notice and show cause notice should be in detailed giving the facts and circumstances and the grounds for levying tax, the Jharkhand High Court has observed.

 

The Division Bench of Justice Aparesh Kumar Singh and Justice Deepak Roshan allowed the instant application and observed  that  stating specific charges in the show cause notice is part of due procedure and fair play in action which are essential requirements of rule of law and has its genesis in Article 14 of the Constitution of India. 

The instant writ application was preferred for quashing and setting aside the impugned purported show cause notice dated January 7, 2022 issued by the  third respondent  in purported exercise of powers under Section 73 of the Jharkhand Goods and Services Tax Act, 2017.

The petition was also filed for quashing the consequential impugned summary of show cause notice in FORM GST DRC-01 issued by the  third respondent  in purported exercise of powers under Rule 142(1) (a) of the Jharkhand Goods and Services Tax Rules, 2017 and for issuance of an appropriate order to the respondents to not attach the business bank account of the petitioner running in the Corporation Bank, Deoghar Branch.

Brief facts of the case were such that the petitioner was engaged in construction work and was  a civil contractor registered under the Central Goods and Service Act, 2017 and the Jharkhand Goods and Service Act, 2017  . The petitioner for supply of taxable services received input services, inputs and capital goods for use in the course or furtherance of its businesses and claims input tax credit on such inward supply in accordance with Section 16 of the Act. 

 

Thereafter, a show cause notice under Section 73 of GST Act was issued on January 7, 2022 along with summary of show cause in Form DRC-01 of even date, however, the petitioner did not send the reply and finally DRC-07 was issued as per Rule 142 (5) of the Act 2017 on February 9, 2022. 

 

After considering the submissions, the Court noted that having heard counsel for the parties and after going through the documents available on record and the averments made in the respective affidavits, it transpires that a show cause notice under Section 73(1) of the GST Act, 2017 dated for the tax period of January 2019-February 2019 was issued.

 

 However, from bare perusal of Annexure-1, it appears that the same was issued in a format without striking out of irrelevant particulars, thus the same was vague and does not spell out clearly the contravention for which the petitioner was  charged. It is in fact worse than summary of show cause notice in Form GST DRC-01 of the same date, the Court noted. 

 

It is well settled that the show cause notice issued under Section 73(1) of the Act is not mere a formality”, the Bench added.

 

As a matter of fact, the intent of the legislature for issuing a show cause notice along with DRC-01 is that the DRC-01 is a summary of show cause notice and show cause notice should be in detail giving the facts and circumstances and the grounds for levying tax. However, by going through the impugned show cause notice it appears that it is in a format without striking out the irrelevant particulars.

 

In fact, no adjudication order was on record and it was only the summary of order issued under DRC-07 which was on record. As a matter of fact, stating specific charges in the show cause notice is part of due procedure and fair play in action which are essential requirements of rule of law and has its genesis in Article 14 of the Constitution of India, the Court further remarked. 

 

At the outset, the Court observed that having regard to the facts of the case that the show cause notice was in a format and was not in a strict compliance of Section 73 (1) of the GST Act and Rule 142(1) (a) of the Rules and since the principle of natural justice was not compiled in the instant case, the ground of alternative remedy was not acceptable by this Court. For such reasons, the instant application was allowed. 


 

In CR-4445-2019 (O&M)-PUNJ HC- Provisions of Order VIII Rule 1 CPC are not mandatory in nature, reaffirms P&H HC
Justice Alka Sarin [31-01-2023]

Read Order: Mander Singh v. Punjab State Warehousing Corporation and Others 

 

Monika Rahar

 

Chandigarh, February 1, 2023:  While dismissing a Revision Petition, the Punjab and Haryana High Court has relied upon the judgment of the Top Court in Bharat Kalra Vs.  Raj Kishan Chabra wherein after referring to the judgment in Kailash v. Nankhu & Ors. it was opined that the provisions of Order VIII Rule 1 CPC are not mandatory in nature.

 

In this case before the Bench of Justice Alka Sarin, the petitioner challenged the order of the Trial Court vide which the application filed by the plaintiff-petitioner  for striking off the defence of the defendant-respondents, was dismissed.

 

The suit was filed by the plaintiff-petitioner in the year 2018, thereafter, despite the  matter being adjourned, the written statement was filed after delay. On the same day, an application was filed by the plaintiff-petitioner for striking off the defence of the defendant-respondents and returning the written statement on the ground that the same was not filed despite the expiry of 90 days from the date of issue of notice.

 

The counsel for the plaintiff-petitioner contended that earlier the defendant-respondents were proceeded against ex-parte and the said order was set aside, subject to payment of Rs. 200 as costs. It was further the contention of the counsel that the provisions of Order VIII Rule 1 CPC are mandatory in nature. 

 

Per Contra, the counsel for the defendant-respondent contended that the provisions of Order VIII Rule 1 CPC were held directory in nature in the case of non-commercial suits. 

 

Regarding the argument of the counsel for the plaintiff-petitioner, the Court observed, 

 

"Thereafter, in the case of Bharat Kalra Vs.  Raj Kishan Chabra [2022 SCC OnLine SC 613] also it has been held that the provisions of Order VIII Rule 1 CPC are not mandatory in nature relying upon the judgment of the Supreme Court in Kailash Vs. Nankhu & Ors. [(2005) 4 SCC 480]".

 

As far as the facts of the case are concerned the Bench noted that in this case, via the impugned order it was noticed that the written statement was already filed by the defendant-respondents in March 2019 and on the same day the application was filed by the plaintiff-petitioner for striking off the defence and returning the written statement on the ground that the written statement was not filed within a period of 30 days. 

 

In WP(C) No. 29807 of 2022-KER HC- Form GST REG-31 relates to proceedings for suspension of registration and can't be treated as Show Cause Notice under Rule 21 of CGST Rules, which requires issuance of notice in form GST REG-17: Kerala HC
Justice Gopinath P. [22-12-2022]

Read Order: DOMINIC DAVID v. THE STATE TAX OFFICER AND ORS 

 

Mansimran Kaur

 

Ernakulam, February 1, 2023: The Kerala High Court has recently quashed an order issued u/s 29 of the CGST / SGST Acts canceling the registration granted to the petitioner after noting that the notice was absolutely vague and the reasons for proposing cancellation even the period for which there was alleged failure to file returns was not specified. 


Justice Gopinath P. disposed of the instant petition by observing,  “It is clear that Form GST REG-31 is one relatable to proceedings for suspension of registration and cannot be treated as a show cause notice under Rule 21 of the CGST Rules, which requires the issuance of a notice in form GST REG-17.”

The petitioner approached this Court on being aggrieved by the cancellation of registration granted to the petitioner under the provisions of the CGST / SGST Acts. 

The brief facts necessary for the consideration of the issues raised in this writ petition indicated that the petitioner was issued with a show cause notice calling upon the petitioner to show cause as to why the registration granted to the petitioner shall not be canceled for failure to file returns for a continuous period of six months.

 

The petitioner did not respond to the show cause notice and order dated May 5, 2022 was issued under Section 29 of the CGST / SGST Acts canceling the registration granted to the petitioner. 

 

The petitioner did not file any application for revocation as provided for in Section 30 of the CGST / SGST Acts, however the petitioner approached the appellate authority by filing an appeal under Section 107 of the CGST / SGST Acts. 

 

The appeal of the petitioner was  rejected finding essentially that the appellate authority has no power to interfere with an order issued under Section 29 of the CGST / SGST Acts and since the petitioner had not filed any application for revocation within the time permitted under section 30 of the CGST / SGST Acts, the appellate authority has no option but to reject the appeal.

 

After pursuing the rival contentions of the parties, the Court was of the view that the writ petition was liable to be allowed as the notice was  absolutely vague and it was not clearly specified with any clarity, the reasons for proposing cancellation even the period for which there was alleged failure to file returns was not specified.

 

The contention taken by the Government Pleader that since the Court deals with fiscal legislations, the law must be strictly interpreted in favour of the revenue is not a principle that applies to the situation that this Court is concerned, the Court stated.  

 

Reference at this stage was placed on the judgments in Mumbai v. Dilip Kumar and Company and others & Kerala and another v. Mother Superior Adoration Convent.

 

Noting that the provisions of Sections 29/30 of CGST/SGST gives the power to cancel registration and also to revoke it, the Bench added that hese are not provisions which need to be interpreted with reference to the principles laid down in Dilip Kumar’s case (supra) and in Mother Superior Adoration Convent.

 

In view of such observations, the writ petition was allowed. 

 

In W.P.(C) 6924/2022-DEL HC- Goods detained u/s129(1) of GST Act would not have been released unless tax & penalty was paid: Delhi HC remands matter to GST officer where Notice & demand order didn't clearly mention reason for imposing liability & penalty
Justices Amit Mahajan & Vibhu Bakhru [19-01-2023]

Read Order: RAM PRAKASH CHAUHAN v. COMMISSIONER OF DELHI (GOODS AND SERVICE TAX) & ANR 

 

Mansimran  Kaur

 

New Delhi, February 1, 2023: In a case relating to detention of a consignment of goods intercepted during their transportation where the order which formed the basis for penalising the appellant didnot disclose the discrepancy or mismatch between the E-Way Bills and the goods, the Delhi High Court has aksed the GST officer to consider the matter afresh.

 

While considering the petition, instituted by the petitioner impugning an order whereby the petitioners goods were detained under Section 129(1) of the Goods & Services Tax Act, 2017 as well as an order raising a demand of tax and penalty of a sum of 2,78,129, the Division bench of Justice Amit Mahajan and Vibhu Bakhru observed that it was apparent that neither the show cause notice nor the order of demand clearly set out the reason for imposing the tax liability as well as penalty. 

The petitioner had appealed the said orders. However, the said appeal was dismissed by the Appellate Authority. The petitioner also impugns the said appellate order.

The controversy, in the present case, related  to detention of a consignment of goods intercepted during their transportation. The petitioner stated  that it had purchased the said consignment of steel from M/s Mahendra Steels .  The said goods were in the process of being transported directly from the premises of M/s Mahendra Steels to M/s S.K. Integrated Consultants.

 

The petitioner's goods were detained by a detention order and on the same date, notice under Section 129(3) of the GST Act was issued. The said notice stated the reasons for detaining the goods as prima facie, the documents tendered were found to be defective.

 

Thereafter, the petitioner preferred an appeal before the Appellate Authority impugning the said demand of tax and the levy of penalty. The said appeal was dismissed by the Appellate Authority by an order dated December 31, 2021. 

 

The Appellate Authority found that the said order passed by the proper officer, was legally justified and required no interference.

 

After considering the submissions of the parties, the Court noted that it was unable to accept that the order of demand and penalty was  a consent order and the petitioner was precluded from challenging the same. The goods had been detained and it was  not disputed that the same would not have been released unless the tax and penalty was paid. The Court  was  persuaded to accept that the petitioner had paid the tax and penalty for release of the goods and the said payment was not voluntary.

 

It was apparent that neither the show cause notice nor the order of demand clearly set out the reason for imposing the tax liability as well as penalty, the Court further remarked. 

 

In the given facts,  the Court was of the view that it would be apposite to remand the matter to the concerned GST officer to decide afresh after giving the petitioner full opportunity to address the allegation against him.

 

In view of the above, the order dated October 23, 2020, raising a demand of tax and penalty, was set aside. The petition was disposed of accordingly. 


 

In CRIMINAL APPEAL No.257 of 2023-SC- Folly to treat each breach of promise to marry as false promise and prosecute person for offence u/s 376 IPC: Top Court allows appeal against Order convicting rape accused
Justices Ajay Rastogi & Bela M. Trivedi [30-01-2023]

Read Judgment: NAIM AHAMED v. STATE (NCT OF DELHI) 

 

LE Correspondent

 

New Delhi, February 1, 2023: While clarifying that in case of breach of promise, accused might have given a promise with all seriousness to marry prosecutrix and subsequently might have encountered certain unforeseen circumstances which prevented him to fulfill his promise, the Supreme Court has acquitted an accused in a rape case.

 

While allowing the appeal instituted by the appellant-accused against the judgment passed by the  of Delhi High Court confirming the conviction of the appellant-accused, the Division Bench of Justice Ajay Rastogi and Justice Bela M. Trivedi held, “So, it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence under Section 376. As stated earlier, each case would depend upon its proved facts before the court.”

The case of the prosecution was that the prosecutrix was residing in a tenanted premises with her husband and three children. The accused was also residing in a tenanted premises which was situated in front of her house.In 2015, the prosecutrix lodged a complaint against the accused alleging that the accused was persuading her by stating that her husband was not earning sufficient income and that he (the accused) had a good job and he would maintain her according to his status. The accused also assured her that he would solemnize marriage (nikah) with her. 

Thereafter, the accused with an intention to have illicit intercourse with her, used to call her at various places, as a result thereof, she was impregnated in the year 2011. She further alleged that the accused persuaded the prosecutrix that after the delivery of the child, he would marry her. 

In the year 2012, the accused enticed her away in another rented premises and continued to have illicit relationship with her. The prosecutrix further alleged in the complaint that the accused had lied to her that he had gone to his native place, but in fact he had not gone. In this backdrop, the complaint was  filed. 

 

 The Sessions Court while holding the appellant-accused guilty for the offence under Section 376 of IPC had sentenced him to undergo rigorous imprisonment for a period of 10 years and pay fine of Rs.50,000, in default thereof to suffer further imprisonment for a period of one year.

 

The High Court in the appeal filed by the appellant, modified the order of sentence passed by the Sessions Court, by reducing the substantive sentence to 7 years with fine of Rs.5,000.

 

The Bench took into consideration Section 90 and Section 375 of IPC and held, “It cannot be gainsaid that a consent given by a person would not be a consent as intended by any Section of the Indian Penal Code, if such consent was given by the person under the fear of injury, or under a misconception of fact as contemplated in Section 90 IPC”. 

 

Further, Section 375 also describes certain acts which if committed by the accused under the circumstances mentioned therein, as the commission of Rape, even though committed with the consent of the prosecutrix, the Court further remarked. 

 

As per the Bench, the basic principles of criminal jurisprudence warrant that the prosecution has to prove the guilt of the accused beyond reasonable doubt by leading cogent evidence, however, considering the ethos and culture of the Indian Society, and considering the rising graph of the commission of the social crime – Rape, the courts have been permitted to raise a legal presumption as contained in Section 114A of the Indian Evidence Act.

 

Moreover, the Court also referred to the judgments in Uday vs. State of Karnataka and Deepak Gulati vs. State of Haryana and noted that one may be tempted to hold the appellant-accused guilty of the offence under Section 376 IPC as has been done by the Sessions Court and the High Court, however, on the closer scrutiny of the evidence on record,  there was fallacy on the part of the courts below to hold the appellant guilty under Section 376 IPC.

 

“It is pertinent to note that there is a difference between giving a false promise and committing breach of promise by the accused. In case of false promise, the accused right from the beginning would not have any intention to marry the prosecutrix and would have cheated or deceived the prosecutrix by giving a false promise to marry her only with a view to satisfy his lust, whereas in case of breach of promise, one cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfill his promise”, the Court observed. 

 

In view of such observations, the Court set aside the impugned judgments and orders passed by the High Court and the Sessions Court except the direction for the payment of compensation to the prosecutrix. 

 

Thus, the appellant-accused was acquitted from the charges levelled against him and was directed to be set free forthwith.


 

In CWP No. 1332 of 2023-PUNJ HC- While exercising jurisdiction under Article 226 of Constitution, P&H HC refuses to venture into disputed question with respect to alleged error in date of birth of petitioner discharged from his duty on account of attaining age of superannuation
Justice Pankaj Jain [31-01-2023]

Read Order: Sukhdev Singh v. The State of Punjab and Others

 

Monika Rahar

 

Chandigarh, February 1, 2023: While dealing with a petition involving an error in the date of birth of an employee discharged from his duty on account of attaining the age of superannuation, the High Court of Punjab and Haryana has held that it did not find that it was a fit case wherein the Court, while exercising jurisdiction under Article 226 of the Constitution of India, would venture into the disputed question with respect to the date of birth of the petitioner. 

 

In the present petition before the Bench of Justice Pankaj Jain sought the quashing of the impugned order passed by the fifth respondent whereby the petitioner was discharged from his duty w.e.f. January 4, 2023 for having attained the age of superannuation. 

 

It was the petitioner’s case that the actual date of birth of the petitioner was January 5, 1975, however, the authorities misread the same as January 5, 1965. 

 

The State Counsel produced the official record which included a form filled in the hand of the petitioner himself as per which his date of birth was mentioned as January 05, 1965 on the basis of information and the documents submitted by the incumbent at the time of recruitment. Rules prepared by the Punjab Home Guards also reveal that the date of birth of the petitioner was mentioned as January 05, 1965, the Counsel added. 

 

In view of the aforesaid facts, the Court held at the very outset, 

 

“I do not find that it is a fit case wherein this Court while exercising jurisdiction under Article 226 of the Constitution of India would venture into the disputed question with respect to the date of birth of the petitioner”. 

 

However, liberty was granted to the petitioner to avail an alternate remedy in accordance with law, if so advised to establish his date of birth by leading cogent evidence as claimed in the writ petition.


 

In LPA No.56 of 2023-PUNJ HC- Appellant served department for nearly three decades but raked up issue of error in DOB only when he was on verge of superannuation, says P&H HC while dismissing employee’s LPA
Justices Ravi Shanker Jha & Arun Palli [31-01-2023]

Read Order: Ram Parshad v. State of Punjab and Others 

 

Monika Rahar

 

Chandigarh, February 1, 2023: While dealing with a case wherein the appellant raised the issue of correction of his date of birth on the verge of his retirement after being in the service of the respondents for nearly three decades, the High Court of Punjab and Haryana has held that as per Annexure (A), appended with Rule 2.5 (ChapterII, Volume-I) of the Punjab Civil Services Rules, a declaration of age made at the time of or for the purpose of entry into Government service shall, as against the Government employee in question, be deemed to be conclusive.

 

The Bench of Chief Justice Ravi Shanker Jha and Justice Arun Palli held, “The appellant served the department for nearly three decades, but never questioned the entries regarding his date of birth recorded in his service book. However, he raked up the issue only when he was on the verge of superannuation. In the given circumstances, the Pan Card, Aadhaar Card and the salary certificate, upon which a reliance was sought to be placed by the appellant to support his claim, were inconsequential.”

 

As per the appellant’s case, he was engaged as Sewerman on muster roll in 1984. In the year 1987, while he was still working as a daily wager, the respondents required him to furnish proof as regards his date of birth. Since he did not possess any such document, he submitted his affidavit specifically mentioning his date of birth as December 12, 1965. 

 

Later, his services were regularized w.e.f. December 01, 1994. In the month of June/July, 2022, regarding employees working in Fazilka Division, who were on the verge of retirement, the process for preparation of pension documents was initiated. It was then, for the first time, the appellant learnt that he was being retired on December 31, 2022, for his date of birth in the service records was recorded as December 12, 1962. 

 

The appellant’s claim was that his year of birth (1965) was clearly reflected in his affidavit submitted to the authorities, but the same was tampered with. Accordingly, he expressed his concern/grievance to the respondents but his claim was rejected. 

 

Thus, he approached the High Court via a writ petition which was dismissed. 

 

After hearing the parties, the Court observed that as per the records, even in the appellant’s service book, his date of birth was recorded as December 12, 1962, based on his medical fitness certificate and that too was countersigned by the appellant. “There was no other document in his service record that showed his date of birth as 12.12.1965”, the Bench added. 

 

Further, the Bench observed that it would be apposite to point out that there was nothing on record to indicate, as to how the said affidavit or its photocopy found its way in the service book of the appellant. “The case of the authorities has been that no entry as regards submission of the said affidavit was found in the service book of the appellant. Nothing is brought on record by the appellant either to show that the authorities, at any stage, asked for any such affidavit, to lend credence to his version”, the Bench noted. 

 

It was also observed by the Bench that as per Annexure (A), appended with Rule 2.5 (ChapterII, Volume-I) of the Punjab Civil Services Rules, a declaration of age made at the time of or for the purpose of entry into Government service shall, as against the Government employee in question, be deemed to be conclusive. 

 

Accordingly, the Court observed that the date of birth declared by the appellant at the time of his entry into service on a regular basis and recorded in his service book, as December 12, 1962, was treated as final by the authorities throughout his service. 

 

It was also pointed out by the Court that in the year 1994, while implementing the Punjab Civil Services (First Amendment) Rules, Volume-I, Part-I, 1994, an opportunity was afforded to the employees to seek a change as regards their date of birth, on the basis any conclusive proof/material, within a period of two years, but that period had also elapsed. 

 

The appellant served the department for nearly three decades, but never questioned the entries regarding his date of birth recorded in his service book. However, he raked up the issue only when he was on the verge of superannuation. In the given circumstances, the Pan Card, Aadhaar Card and the salary certificate, upon which a reliance was sought to be placed by the appellant to support his claim, were inconsequential”, the Bench asserted while dismissing the appeal.



 

In LPA-1146-2021(O&M)-PUNJ HC- No civil servant has right to be promoted to higher rank/post; Only right eligible aspirant would possess is right of consideration for promotion as and when any such process is initiated by employer, reiterates P&H HC
Justices Ravi Shanker Jha & Arun Palli [31-01-2023]

Read Order: Satish Kumar v. State of Punjab and Others 

 

Monika Rahar

 

Chandigarh, February 1, 2023: While dealing with an appeal involving the question of promotion of candidates allegedly ranked lower in the seniority list, the High Court of Punjab and Haryana has held that the position of law is settled that no civil servant has a right to be promoted to a higher rank/post, as the only right an eligible aspirant would possess is a right of consideration for promotion as and when any such process is initiated by the employer.

 

Essentially, in this case before the Bench of Chief Justice Ravi Shanker Jha and Justice Arun Palli, the petitioner filed a writ petition to issue directions to consider the petitioner’s case seeking promotion to the post of Medical Laboratory Technician Grade-1, whose candidature was not considered and denied despite of the fact that his name featured at Serial No.6 of the Seniority Merit List and that some candidates featuring lower in the list were preferred over the petitioner.

 

This Writ was dismissed, hence, the present LPA was filed. 

 

Upon analysis of the matter, the Single Judge Bench concluded that in the absence of any rules that mandate a time frame within which, upon the vacancies being available, promotions have to be made, no such direction could be issued to the respondent-employer to promote the appellant. 

 

After hearing the parties, the Bench opined that the position of law is settled that no civil servant has a right to be promoted to a higher rank/post, as the only right an eligible aspirant would possess is a right of consideration for promotion as and when any such process is initiated by the employer. 

 

Adverting to the present case, the Bench observed that even though the appellant was at serial No.6 in the seniority list of Medical Laboratory Technician Grade-2, yet persons junior to him were promoted, was equally erroneous and misplaced. Further, the Bench opined that it would be crucial to point out here that appellant had retired from service in 2017 whereas the persons, purportedly junior to him were promoted as Medical Laboratory Technician Grade-1, post his retirement in 2019.

 

In view of the above, the present appeal was dismissed. 

 

In WP No. 20885 of 2018-TEL HC- GST being levy which has been introduced in place of service tax, petitioner cannot absolve herself of liability to pay GST in place of service tax when such tax was agreed to be paid under Deed of Licence: Telangana HC
Justices T. Vinod Kumar & Pulla Karthik [12-12-2022]

Read Order: Smt K. Himabindu Vs. The TSRTC

 

Tulip Kanth

 

Hyderabad, February 1, 2023: In a case where the petitioner running a pop-corn stall had entered into a Deed of Licence whereby she had agreed to pay service tax in addition to the monthly licence fee fixed thereunder, the Telangana High Court has dismissed her claim for non-liability to pay GST on the licence fee as the GST, being a levy, had been introduced in the place of service tax

 

The Division Bench of  Justice T. Vinod Kumar and Justice Phulla Karthik held that the claim of the petitioner of her non-liability to pay GST on the licence fee was devoid of merit and said, “...by the introduction of GST, the provision of Finance Act, 1994, under which service tax was levied, has been subsumed into the GST.”

 

It was the petitioner’s case that the respondents-authorities had granted her license to set up business for running a pop-corn stall at the premises of the third respondent on payment of agreed licence fee. For the said purpose, she had entered into an agreement with the respondents , titled as ‘Deed of Licence’.

 

The petitioner contended that the respondents notwithstanding the terms of the Deed of Licence granted, demanded payment of GST, w.e.f. July 1, 2017 and that the said demand made was contrary to the terms of the Deed of Licence.

 

The respondents argued that the in terms of the Deed of Licence, the licencee had agreed to pay service tax on the monthly licence fee and that the same was also collected in addition to the licence fee payable periodically from the petitioner upto July 1, 2017.

 

It was submitted that with the introduction of GST w.e.f. July 1, 2017, in place of Service Tax, the respondents-authorities had demanded payment of GST being a levy substituting the service tax and no additional or new levy was sought to be imposed on the petitioner.

 

The Bench went through Clause (43) of the Deed of Licence wherein it was mentioned that the license would pay the service tax at the rate of 14% as applicable on payment of monthly license fee every month under notification No.14/2015, dated May 19, 2015, issued by the Govt. of India.

 

Not only this but the High Court also considered the fact that the document as placed by the respondents also showed that in addition to the licence fee for each month as fixed under the agreement titled as ‘Deed of Licence’, the respondents were also charging service tax separately and the same was being paid by the petitioner without any demur or protest.

 

Thus, the Bench held that it was not open for the petitioner to contend that demand of GST by the respondents was a new levy/imposition that had been fastened by the respondents as by the introduction of GST, the provision of Finance Act, 1994, under which service tax was levied, had been subsumed into the GST.

 

“Under the terms of Deed of Licence, since the petitioner had agreed to pay service tax in addition to the monthly licence fee fixed thereunder and the GST being a levy which has been introduced in the place of service tax, the petitioner cannot absolve herself of the liability to pay GST in place of service tax”, the Bench affirmed.

 

Thus, the Bench dismissed the petition.

 

In CR-580-2023(O&M)-PUNJ HC- P&H HC upholds order granting approval to defendants to operate bank account of Trust for meeting day-to-day expenses in terms of Resolution
Justice Anupinder Singh Grewal [30-01-2023] 

 

 

Read Order: RAM DEVI AND ANOTHER V. KUMARI SUSHILA DEVI AND OTHERS 

 

Monika Rahar

Chandigarh, January 31, 2023: The Punjab and Haryana has upheld the order of the lower appellate court granting approval to the defendats to operate the bank account of a Trust created for preaching Vedas and performing Yagya Hawan, in terms of the latest resolution approving such operation to manage the day-to-day affairs of the Trust. 

There is a dispute with regard to the operation of the bank account which would be adjudicated by the trial Court after evidence is led in that regard. However, the functioning of the Trust should not come to a standstill and the operation of the bank account would be necessary for meeting the day-to-day expenses of the Trust, which is precisely what the Appellate Court had done”, the Bench of Justice Anupinder Singh Grewal held. 

The petitioners/plaintiffs had filed a suit for permanent injunction restraining the defendants/respondents from operating the bank accounts and misappropriating the moveable and immovable property owned by Guru Brahmanand Trust. 

The defendants had preferred an appeal thereagainst and the lower Appellate Court had partly allowed the appeal and directed the defendants to operate bank account for meeting the day to day expenses. 

The Appellate Court relied upon the Resolution whereby the defendants/respondents No.1 and 2 were authorized to operate the bank account. The resolution was signed by two members of the Trust and was the latest resolution for operating the bank account.

The petitioners’ counsel submitted that the first petitioner who was a Trustee and a Secretary of the Trust alongwith the second petitioner who was the Trust writer, would be entitled to operate the bank accounts of the Trust during the pendency of the suit. He further submitted that the resolution which was relied upon by the Appellate Court while partly allowing the appeal, was not signed by at least 03 members which was the quorum for passing the Trust Resolutions. 

The Bench observed that there was a dispute with regard to the operation of the bank account which would be adjudicated by the trial Court after evidence was led in that regard, however, the functioning of the Trust should not come to a standstill and the operation of the bank account would be necessary for meeting the day-to-day expenses of the Trust, which the Bench added “is precisely what the Appellate Court had done”.  

The Appellate Court has also directed that no payment/amount is to be withdrawn without permission of the trial Court and the concerned bank has also been directed to remain vigilant to that effect to avoid any misappropriation of funds during the pendency of the suit”, the Bench added while holding that it did not find any infirmity in the order of the Appellate Court directing the respondents to operate the bank account for meeting the day-to-day expenses in terms of the Resolution. 

Consequently, the petition was dismissed