In CWP No. 1756 of 2019 (O&M)-PUNJ HC- Period for which Punjab Police constable remained out of service on account of his dismissal will be treated as duty period for all intents and purposes, orders P&H HC in matter where cop was dismissed & later reinstated in service in 2017 Justice Jaishree Thakur [19-09-2022]
In CWP No. 1756 of 2019 (O&M)-PUNJ HC- Period for which Punjab Police constable remained out of service on account of his dismissal will be treated as duty period for all intents and purposes, orders P&H HC in matter where cop was dismissed & later reinstated in service in 2017
Justice Jaishree Thakur [19-09-2022]
Justice Jaishree Thakur [19-09-2022]
In Crl.O.P.No.9492 of 2019-MAD HC- Company having turnover of more than Rs 100 crore is liable to appoint Cost Auditor as per Rule 6(1) of Companies (Cost Records & Audit) Rules, 2014; Any failure or omission to do so attracts prosecution under Companies Act, 2013: Madras HC
Justice G.Jayachandran [26-09-2022]
Justice G.Jayachandran [26-09-2022]
Chennai, September 27, 2022: While dismissing a petition to quash the complaint filed by the Registrar of Companies against the petitioner-Company alleging non-compliance of Section 148 of Companies Act, 2013, the Madras High Court has held that the petitioner Company had to appoint Cost Auditor and inform the same to the Ministry of Corporate Affairs
Placing heavy reliance on Companies (Cost Records and Audit) Rules, 2014 as well as Companies Act, 2013, the Bench of Justice G.Jayachandran asserted, “From reading of the provisions, it is evident that the petitioner company which has turn over more than Rs.100 crores is liable to appoint Cost Auditor as per Rule 6(1) and the Registrar of Companies has to be informed about the Board resolution regarding appointment of Cost Auditor in the specific form with specific fees as per Rules 6(2). Any failure or omission to appoint Cost Auditor attracts prosecution under Section 147(1) of the Act.”
In this matter The first petitioner, a Private Company incorporated under the Companies Act. The 2 nd petitioner is the Managing Director of the Company.
This matter was mainly concerned with Section 148 of Companies Act and Rules framed thereunder in Companies (Cost records and Audit) Rules 2014, wherein it is mentioned that a company which has net worth of above Rs 500 crore or annual turnover of above Rs 100 crore has to appoint cost auditor and maintain Cost Audit records in their books of account.
The prosecution was launched on the premise that the first accused, a private company, had not appointed a Cost Auditor within time prescribed and in spite of show cause notice, they did not respond. Hence, being a continuous offence, the petitioner Company was liable to be punished for contravention of Section 148 of the Act.
This complaint was sought to be quashed on the ground that the petitioner Company through its Board Resolution had appointed Cost Auditor and notice to the Government along with fees in Form CRA-2 was submitted by it. As mandate under the Rules, Form CRA-4 was submitted along with the fees on July 13, 2017.
The Bench made it clear that petitioner company which had turn over more than Rs 100 crore was liable to appoint Cost Auditor and the Registrar of Companies had to be informed about the Board resolution regarding appointment of Auditor in the specific form with specific fees.
Taking note of the fact that admittedly the petitioner company had not appointed the Cost Auditor within the time prescribed, the Bench realized that the documents in the typed set of papers annexed to the petition made it clear that the Board had resolved to appoint Cost Auditor by name Mr.Venkateswar, Cost Accountant, for the financial year ending March 31, 2016 in their meeting held on December 2,2016.
Justice Jayachandran considered the fact that within 30 days of the Board resolution, under Rules 6(2) of the Companies (Cost Records and Audit), the Company ought to have submitted Form CRA-2 along with required fee. The receipt issued by Ministry of Corporate Affairs towards fees for CRA-2 was dated December 29, 2016 and thereafter, on receipt of the Cost Audit Report, the petitioner Company along with its explanation, had submitted the Cost Audit Report in Form CRA-4 to the Ministry of Corporate Affairs on July 13, 2017.
The petitioner company had paid a sum of Rs 4,200 under CRA-4 on July 13, 2017 but in the complaint, it was specifically stated that it is a case of continuing offence and therefore, the complaint was not barred by limitation as per Section 472 of Cr.P.C.
As per the Bench, it was evident that the compliance of Section 148 of Companies Act, 2013, for the financial year 2015-2016 had been completed only on July 13.07.2017 hence, the limitation had to be reconciled from that date.
“Thus, the process commenced from issuance of show cause notice dated 05.12.2016, for the contravention of Section 148(1) of the Companies Act, which commenced on 01.10.2015, after expiry of 180 days and ceased on 13.07.2017, the date on which the Cost Audit report under CRA-4 submitted along with the explanation and fees, the complaint filed on 12.03.2018”,the Bench said.
Noticing that the petitioner Company was in existence when the Companies Act 2013 came to force, the Bench observed that it is mandatory on the part of the petitioner to appoint Cost Auditor and inform the same to the Ministry of Corporate Affairs with requisite forms and fees, within the period of 180 days.
It was also held by the Bench that the offence ceased on July 13, 2017, when Form CRA-4 was filed. The complaint was filed within one year, i.e., on March 12, 2018. Therefore, the complaint regarding contravention between October 1, 2015 to July 13, 2017 couldnot be quashed on the ground of limitation. Thus, considering such aspects, the Bench dismissed the Petition.
New Delhi, September 27, 2022: The Delhi High Court has opined that when the report of the Director General comes up for consideration before the Competition Commission, at this stage it becomes open to any party, person or enterprise which has a substantial interest in the outcome of proceedings or who is able to establish that its presence before the Commission is necessary in the public interest, to seek a right of audience before the Commission and to present its opinion for its consideration.
The Bench of Justice Yashwant Varma held, “The Court also bears in mind the fact that the report that may be drawn by the Director General is neither determinative nor conclusive since it is ultimately for the Commission to take all aspects including views that may be expressed before it into consideration before passing final orders.”
The Builders Association of India had approached this Court challenging the order of the Competition Commission of India (Commission) in terms of which its prayer for being impleaded as an informant in proceedings before the Commission came to be rejected. The Commission in the impugned order noticed that the investigation itself had commenced based on an order passed under Section 26(1) of the Competition Act, 2002.
The Commission further took into account the fact that the application by the petitioner had come to be made only on December 7, 2021. On an overall conspectus of the aforesaid, the Commission bearing in mind the advanced stage at which the investigation had reached refused to accede to the request made by the petitioner for impleadment at that stage.
After considering the contentions of the parties extensively, the Court firstly stated the undisputed fact that upon conclusion of investigation, the Director General had already submitted a report which was to be taken up by the Commission for consideration on September 28, 2022. Viewed in that light it was evident that the prayer of the petitioner to the extent that it sought to be impleaded in the investigation proceedings was rendered infructuous.
The Court also noted that while rejecting the application for impleadment which was made on December 7, 2021 the Commission had taken into consideration the fact that the proceedings before the Director General were “at an advanced stage of investigation”. It was in that backdrop that the Commission had declined the request made by the petitioner here.
The Court also noted that the petitioner cannot, strictly speaking, claim to have a direct interest in the investigation process especially when it only stood in the shoes of an informant. While therefore the respondents may have been justified in taking the stand that the petitioner would not fall within the ambit of the expression “parties concerned”, stricto sensu, coupled with the stage at which the investigation had reached, the Court noted.
Undisputedly and upon conclusion of investigation, the report of the Director General was to now come up for consideration before the Commission.
At that stage, it becomes open to any party, person or enterprise which has a substantial interest in the outcome of proceedings or who is able to establish that its presence before the Commission is necessary in the public interest, to seek a right of audience before the Commission and to present its opinion for its consideration. That is a right which is still open to be asserted by the petitioner, the Court noted.
The Court also kept in mind the fact that the report that may be drawn by the Director General is neither determinative nor conclusive since it is ultimately for the Commission to take all aspects including views that may be expressed before it into consideration before passing final orders.
In view of the above, the Court found that it was not only open for the petitioner to apply to the Commission in terms of Regulation 25 of the Competition Commission of India (General) Regulations, 2009 and to seek a right to address submissions and also address a prayer for being provided a copy of the investigation report or the extracts thereof.
Ultimately the interest of bodies like the present petitioner is limited to providing inputs and information to the Commission which may enable it to come to a just conclusion. Since that right is still available to be exercised, the Court finds no justification to issue any peremptory directions except to observe that it would be open to the petitioner to move the Commission under Regulation 25 of the Competition Commission of India (General) Regulations, 2009 and to address all issues before the said body, the Court observed.
In light of the above stated findings, the writ petition was disposed of.
Chennai, September 27, 2022: The Madras High Court has held that the contention of the employee that if at all he was included in the first list of the Permanent Absorption, he would be getting further service benefits, is hypothetical and no employee can presume such eligibility or inclusion.
A Single-Judge Bench of Justice S.M.Subramaniam dismissed the instat writ petition instituted by the petitioner by observing that it did not find any perversity in respect of the permanent absorption conferred on the writ petition pursuant to the policy decision of the Board taken in B.P.(FB) No.22 dated May 14, 1999.
The order of rejection, rejecting the claim of the writ petitioner for retrospective permanent absorption from January 29, 2001 in respondent / Board's Services was under challenge in the present writ petition.
The petitioner stated that he was working as Contract Laborer at Kundah Hydro Generation Circle of Tamil Nadu Electricity Board as Helper during the period from November 4, 1996 to August 5, 2005. The respondent in Board proceedings decided for permanent absorption of contract laborers by creating a regular post of Helper.
Accordingly, the contract laborers, who were qualified as per the Board proceedings, were considered for inclusion of their names in the list for permanent absorption. The contract labourers, who had completed 480 days of services, were absorbed permanently. The list was published initially on May 2, 2001 and the name of the petitioner was not found in the said list. The petitioner approached the authorities concerned for inclusion of his name in the first list dated May 2, 2001.
The petitioner contended that since he had completed 480 days of service as on December 31, 2000 and therefore, his name ought to have been included in the first list itself.
After considering the submissions of the parties, the Court noted that it failed to find any infirmity in respect of the deliberations made by the respondents in the matter of publishing the eligible list of contract laborers for grant of permanent absorption.
In furtherance of the same, the Court noted that the contention of the petitioner that if at all he was included in the first list he will be getting further service benefits is hypothetical and no employee can presume such eligibility or inclusion.
The list of eligible candidates was prepared on May 2, 2000 and February 9, 2005 and at the first instance, the authorities found that the petitioner had not completed 480 days of contract service and therefore, his name was omitted and in the second list, the petitioner was considered, despite the fact that he served about 479 days and he was granted the benefit of permanent absorption in the year 2005, the Court further noted.
Thus, without finding any perversity in respect of the permanent absorption conferred on the writ petition pursuant to the policy decision of the Board, the Bench dismissed the Writ Petition.
Read Order: Suresh Seth v. Union of India & Others
Chandigarh, September 27, 2022:After considering the wrongful loss of public money, the Punjab and Haryana High Court has denied bail to a person accused of acting as the director/ proprietor of bogus entities and of defaulting on repayment of loans involving huge amount obtained fraudulently through criminal conspiracy, cheating and using forged documents in the names of business entities operated in his name and in individual capacity, from Bank of Baroda.
While dismissing the bail plea, the Bench of Justice Anoop Chitkara added, "The sly manner in which the accused Vikram Kumar Seth and the petitioner Suresh Seth, along with their associates and accomplices, in each other’s assistance and with knowledge acquiesced the funds, and systematically siphoned of the money, and laundered it through bogus and false entries in account books, and thereby deceived, and swindled the financial institution, prima facie points towards the commission of the offence under section 3, punishable under section 4 of the Prevention of Money Laundering Act, 2002."
In this case, the main accused was Sh.Vikram Seth who operated bogus entities and availed 19 loans from a bank (Bank of Baroda, G.T. Road, Phagwara) by forging documents as genuine in the names of business entities opened in his name and in that of his family members. He defaulted on those loans resulting in wrongful loss of public money to the bank to the tune of Rs. 21.31 Crores.
The role attributed to the present petitioner was he was acting as the director/ proprietor of bogus entities. It was also alleged that he defaulted on payment of loans that he availed fraudulently through criminal conspiracy, cheating, forgery and using forged documents as genuine in the names of business entities operated in his name and in individual capacity, from Bank of Baroda and thus, resulted in wrongful loss of public money.
Hence, the petitioner, incarcerated upon his arrest in an FIR registered under Sections 44 and 45 of the Prevention of Money Laundering Act, 2002 (PMLA Act) as defined u/s 3 R/w Section 70 and punishable u/s 4 of the PMLA Act 2002, approached the Court under Section 439 read with Section 482 CrPC and Section 45 of PMLA Act, seeking bail.
The petitioner's counsel argued that the petitioner was entitled to bail on parity with Vikram Seth, who was the main accused.
In light of the fact that Vikram Seth was granted bail after the custody of eight months, the Court found the above-stated argument to be premature.
Further, the opposition to the grant of bail on the ground that his son was abroad and thus, the petitioner would also flee was found by the Court to be redundant. The Bench opined in this respect,
"... simply because the petitioner’s son is abroad, and without any clear-cut finding as to whether he is a fugitive or has gone abroad for some purpose, no such adverse inference can be drawn against Vishal Seth. Even if it is
correct, it would not be implied that the petitioner would also be a flight risk unless such a person is a citizen of the said country or has the capacity and financial capability to support their sustenance abroad. In the absence of any such data and averment, this argument is not sustainable."
Further, the Bench also observed that it was only after the trial court, in response to the complaint, issued bailable and non-bailable warrants which led to the arrest of Vikram Seth and the petitioner.
"Thus, it is clear that ED filed the complaint without arresting any of the accused, and on the contrary, now, when the petitioner has come up before this court seeking bail, the same Enforcement Directorate is vehemently opposing the bail. The stand is not only contrary to the reasons for opposing bail", the Court held.
Justice Chitkara further added that Given the decision of the Directorate of Enforcement not to arrest all the accused, coupled with the nature of allegations attributed to each accused, the case of every accused in the FIR stood on a different footing and decided independently of the other.
Against this background, the Bench opined, "The sly manner in which the accused Vikram Kumar Seth and the petitioner Suresh Seth, along with their associates and accomplices, in each other’s assistance and with knowledge acquiesced the funds, and systematically siphoned of the money, and laundered it through bogus and false entries in account books, and thereby deceived, and swindled the financial institution, prima facie points towards the commission of the offence under section 3, punishable under section 4 of the PMLA Act."
Thus, in view of the gravity of the offence alleged, the Court dismissed the petition. However, the petitioner was given liberty to file for a fresh bail application on the ground of seeking parity to Vikram Seth after completing the custody period equal to that undergone by Vikram Seth.
In Writ Petition No.3116 of 2022-BOM HC- State machinery failed to provide required protection to human life guaranteed by Article 21 of Constitution: Bombay HC grants compensation of Rs 10 lakh to woman whose husband died in accident caused due to attack by wild boar
Justices G.S. Patel & Gauri Godse [26-09-2022]
Justices G.S. Patel & Gauri Godse [26-09-2022]
Mumbai, September 27, 2022: If any wild animal causes injury to any person, this in fact is a failure of the State Government to protect the right to life guaranteed under Article 21 of the Constitution of India, the Bombay High Court has observed.
After referring to the Preamble and object of Wildlife (Protection) Act, 1972, the Division Bench of Justices G.S. Patel and Gauri Godse said, “Thus, as noted above it is an obligation of the State Government to protect wild life as well as protect citizens from any injury caused by wild life. Therefore, if any wild animal causes injury to any person, this in fact is a failure of the State Government to protect right to life guaranteed under Article 21 of the Constitution of India.”
Factual matrix of the case was such that the petitioner was the widow of one Shri Arun Arvind Redij who died in an accident that was caused due to an attack by a wild boar.The petitioner’s husband was working as Head Mechanic at a workshop. When he was returning from his duties and was traveling from Ratnagiri to Chanderai on his two-wheeler vehicle, through his regular commuting road at around 2 am, he encountered a wild boar. Due to attack by the wild boar the deceased met with an accident and got hit on the road, which caused serious injuries to him and ultimately, he succumbed to the injuries on February 5, 2019.
The deceased was survived by his widow who was the petitioner in this petition. Petitioner made an application to the second Respondent -Regional Forest Officer,seeking compensation for the loss of life of her husband. Petitioner relied upon the Government Resolution dated July 11, 2018 (the said GR) which provides for grant of compensation in case of death of a person due to attack by a wild animal. The said GR provides for grant of compensation of Rs 10 lakh in case of death. The petitioner did not receive any response to her application for compensation. Hence, she repeated her request by another application on March 14, 2019.
The Officer by his letter dated March 18, 2019 informed the petitioner that her application for compensation was rejected as the information about the accident was not intimated to the nearest Forest Officer within 48 hours of the accident. The communication further stated that the panchanama was not conducted within three days in presence of the forest officer. By giving said reasons the application made by the petitioner for compensation was rejected.
Petitioner thereafter made a representation to the State Minister for Forest by making an application dated March 26, 2019. Petitioner’s representation was given no answer, hence she was constrained to approach this Court by filing the present petition.
After considering the submissions of the parties, the Court noted as the panchanama recorded that the accident was caused due to involvement of wild boar, it was the duty of the said police station to inform the nearest forest office regarding the accident. The State Government did not produce a record copy of any Government Resolution or Order which mandates that such information is to be given within 48 hours. In such circumstances, the reason given by the Officer that within 48 hours information was not given to the nearest forest officer was not acceptable, the Court noted.
In any case, the 48 hours timeline was irrelevant so far as the claim made by the petitioner was concerned. In any event this will not absolve the State Government from its liability to pay compensation, the Court further noted.
In the present case, it was clear from the said GR that the citizens who suffer loss due to wild animals are entitled to compensation. Thus, the said GR creates an additional obligation on the State Government to protect the right to life guaranteed under Article 21 of the Constitution of India, the Bench held.
In our view even dehors the said GR it is the obligation of the State Government to pay reasonable compensation, as the State Government could not protect the right to life of the deceased guaranteed under Article 21 of the Constitution of India. Thus, the approach of the State Government was not acceptable and in fact is dis-heartening, the Court observed.
Considering the above circumstances and having regard to the fact that the husband of the petitioner lost his life in the accident which was caused due to attack by wild boar, the Bench held that the State machinery failed to provide the required protection to human life which is guaranteed by Article 21 of the Constitution of India.
Thus, the petitioner directed the Respondents to pay an amount of Rs 10 lakh to the Petitioner by way of compensation as per Government Resolution.the Bench also ordered that there will be cost of Rs 50,000 payable by the Respondents to the Petitioner within a period of three months.
Read Order: Rakesh Kumar v. State of Punjab
Chandigarh, September 27, 2022: Declining the grant of anticipatory bail to a habitual offender who allegedly forged revenue records to induce petitioner into paying a hefty amount as sale consideration against a plot which already to belonged to a third party, the High Court of Punjab and Haryana has reaffirmed that a civil matter can also have criminal implications and held that the present case fell within that category.
The Bench of Justice Pankaj Jain also added, "Furthermore, keeping in view the antecedents of the petitioner, it cannot be said that it was one of those cases where he himself was under wrong belief and believing the revenue record he executed the sale deed."
Essentially, it was the case of the complainant that he purchased a plot of land from the petitioner, who projected himself as the owner, for a sale consideration of Thirty Two Lac Rupees. However, later when the complainant intended to put a pency around the said plot of land, he saw that the plot already had a fency and a gate. Upon inquiry, the complainant was told that the land belonged to someone else.
Thereafter, the complainant confronted the petitioner and his co-accused, who admitted their crime and agreed to repay the full sale consideration to the complainant, but this promise was not honoured. Thus, the complainant filed a police complaint alleging that both the accused hatched a conspiracy to cheat him by showing a fake plot and grabbing his money in form of sale consideration.
As a result, an FIR under Sections 419, 420 467, 468, 471, 120-B of the IPC, 1860 was registered. Thus, apprehending his arrest in the FIR, the petitioner approached the High Court for the grant of pre-arrest bail.
It was the case of the petitioner's counsel that there were revenue records to show that the petitioner was owner of the land and thus, it couldn't be said that the complainant was allured and cheated. It was further contended that keeping in view that the petitioner executed a sale deed in favour of the complainant, thus, it could not be said that the petitioner had any intent to cheat. Infact, the Counsel added that this was purely a civil lis which was given contours of a criminal nature.
Per contra, the State Counsel submitted that there were serious allegations with respect to forgery of the revenue record and consequential cheating. He further submitted that the complainant was robbed of his entire life's earnings. The Counsel also added that the petitioner was a habitual offender and was facing similar allegations in other FIRs as well.
After hearing the parties, the Court observed at the very outset that the allegations against the petitioner related to forging revenue records and thereby inducing the complainant to part away with a heavy amount of money. Thus, the Court was of the opinion that it could not be said that the matter was purely of civil nature.
Against this backdrop, the Bench added,
"Trite it is, that a civil matter can also have criminal implications and in the considered opinion of this Court, the present case falls within that category. Furthermore, keeping in view the antecedents of the petitioner, it cannot be said that it was one of those cases where he himself was under wrong belief and believing the revenue record he executed the sale deed."
Thus, without commenting further on the merits of the case and keeping in view the fact that the investigation was at a nascent stage and thus, it couldn't be derailed and belayed at this stage, and also keeping in view the seriousness of the allegations levelled against the petitioner, the anticipatory bail was declined to the petitioner.
New Delhi, September 27, 2022: The Delhi High Court has allowed a petition instituted under Sections 276 and 278 of the Indian Succession Act, 1995 and granted the Probate/Letter of Administration with Will to the petitioner-Executioner on payment of requisite court fees.
The Single-Judge Bench of Justice Neena Bansal Krishna was of the view that the unchallenged testimony of the petitioner proved the authenticity and genuineness of the Will dated May 20, 1993 of Late Smt. Basant Kaur.
Factual matrix of the case was such that Smt. Basant Kaur, wife of Late Subedar Shadi Lal Chadha during her lifetime, executed a Will dated May 20, 1993, while she was in possession of her mental and physical senses. She died on December 13, 1997 and was survived by four sons(respondents), namely, Mr. Gian Prakash Chadha, Mr. Ram Prashad Chadha, Mr. Gur Prashad Chadha and Mr. Prakash Lal Chadha and grandson, namely, Mr. Aftab Chadha, who was the son of Late Major Tilak Raj Chadha.
Smt. Basant Kaur left behind certain immovable properties but the fifth respondent- Prakash Lal Chadha was deprived of rights in the aforesaid properties, on the ground that he had taken 3/4th of the property at Kashmeri Gate, which belonged to his brothers (the above mentioned four respondents and had sufficient rental income from the tenants/shopkeepers by letting out the property.Will, had enumerated the manner in which her properties were to be distributed on her demise. She had also appointed D.P.Sachdeva, Advocate, who was the petitioner herein, as her sole Executor.
The subject matter of the present petition was grant of Probate/Letter of Administration in terms of the Will dated May 20, 1993. It was further prayed that the Letter of Administration with respect to the immovable properties may be granted in terms of the Will dated May 20, 1993.
After considering the rival contentions of the parties, the Court was of the opinion that the Will may be bearing the thumb impression of Smt. Basant Kaur instead of her signatures, however, the onus was on the fifth respondent that Smt. Basant Kaur used to sign or that the thumb impression on the Will was forged and fabricated.
No evidence whatsoever was led by the fifth respondent in this regard, the Court noted.
In furtherance of the same, the Court noted that this aspect needs to be considered in the light of the fact that the Will was duly registered in the Office of Sub-Registrar. “The genuineness of a Will cannot be held to be dispelled merely on the claim of the respondent No. 5 that it was not signed but had the thumb impression of the testator, in the absence of any cogent evidence in this respect,” the Court remarked.
There was no challenge to the evidence of the petitioner or the attesting witness. The unchallenged testimony of the petitioner proved the authenticity and genuineness of the Will dated May 20, 1993 of Late Smt. Basant Kaur. The Bench held that the petitioner had successfully proven the Will of Late Smt. Basant Kaur and he was entitled to a Letter of Administration in respect of Will dated May 20, 1993, the Court noted.
Allowing the petition, the Bench granted the Probate/Letter of Administration with Will to the petitioner, subject to payment of requisite court fees.
Read Order: Kishan Singh v. State of Punjab
Chandigarh, September 27, 2022: While dealing with an anticipatory bail application filed by a habitual offender, the Punjab and Haryana High Court has held that in order to constitute offence under Section 307 IPC, the injury should not be necessarily capable of causing death.
"Section 307 IPC would be made out if there is an intention coupled with some overt act in execution thereof", the Bench of Justice Pankaj Jain further held.
The Court was dealing with a petition under Section 438 of the Cr.P.C. seeking pre-arrest bail in an FIR registered under Sections 324, 323, 379-B, 427, 148 and 149 IPC, 1860 (Sections 326 and 307 IPC were added later on).
It was the case of the petitioner's counsel that it was in fact a case of free fight between the two parties in which injuries were suffered at both sides. Further, the Counsel added that the complainant party put various efforts to influence the investigation.
In this respect, the Counsel argued that there were two MLRs with respect to the injury suffered by a member of the complainant party, one prepared by a government doctor while the other was by a private hospital doctor. He submitted that the MLR given by the government hospital ought to have been given credence as compared to that which has been given by the private hospital.
Also, it was his case that the size of the incised wound which was attributed to the petitioner was doubled in the MLR reported by the private hospital. It was also urged by the Counsel that there was an 18 hour delay in lodging the FIR which was fatal to the case of the prosecution. He thus submitted that keeping in view the aforesaid facts, the petitioner should be allowed the concession of pre-arrest bail.
On the other hand, the State Counsel argued that the nature of injuries caused by the datar blow by the petitioner and the fact that he was a habitual offender, facing three more FIRs of assault wherein the allegations of similar nature were levelled, would dis-entitled him from any such relief.
After hearing the parties, the Court termed the argument of the petitioner's counsel on the delay in lodging the FIR being fatal to the prosecution's case, as "mis-conceived and misplaced".
"Once the petitioner himself is aggrieved of the fact that the version has not been recorded and action is not being taken, delay in the FIR cannot be held to the peril of the prosecution" the Bench held.
Further, while observing that the petitioner gave datar blow that too on the vital part of the body of Sahil Sharma, the Court held that trite it is that in order to constitute Section 307 IPC, the injury should not be necessarily capable of causing death.
"Section 307 IPC would be made out if there is an intention coupled with some overt act in execution thereof", the Court held.
Thus, keeping in view the seriousness of the allegations levelled against the petitioner, the Court held that no ground for grant of anticipatory bail was made out.
Read Judgment: SATISH CHANDRA YADAV Vs. UNION OF INDIA & ORS
New Delhi, September 27, 2022: Enunciating the principles to be considered while dealing with cases wherein employee suppresses material information in the requisite forms at the time of employment, the Supreme Court has dismissed the appeal of a former CRPF constable whose services were terminated on account of withholding relevant information regarding criminal case against him.
“The suppression of material information and making a false statement in the verification Form relating to arrest, prosecution, conviction etc., has a clear bearing on the character, conduct and antecedents of the employee. If it is found that the employee had suppressed or given false information in regard to the matters having a bearing on his fitness or suitability to the post, he can be terminated from service”, the Division Bench of Justice Surya Kant and J.B.Pardiwala clarified.
The appellant in this case had been serving as a Constable (General Duty) with the CRPF. He was recruited as a temporary employee of the post of Constable (GD) in the CRPF in 2014 and he reported to the 179th Battalion. While filling up the requisite verification Form–25, in response to the question whether any case was pending against him, the appellant answered in the negative. When the Collector received the Character and Antecedents verification Form, he informed the Deputy Inspector General of Police that a criminal case had been registered against the appellant for the offences punishable under Sections 147, 323, 324, 504 and 506 of the Indian Penal Code.
Thereafter, the services of the appellant herein came to be terminated in exercise of the powers conferred under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965 on the ground that he had concealed the information as aforesaid while filling up the Form–25. Filing of writ petition was also of no use to the appellant as he wasn’t reinstated. Hence, the appellant approached the Top Court.
Certain facts that the Court took note of were such that upon registration of the FIR, the appellant had filed two applications in the Court of the Chief Judicial Magistrate, one application seeking to surrender himself before the Court and the second application seeking for regular bail. The appellant upon surrendering was taken in deemed judicial custody and was ordered to be released on bail and the appellant was not actually put behind bars as asserted by the appellant. The Bench also considered the fact that at the time when the services of the appellant came to be terminated, he was a probationer.
After referring to its judgments in Avtar Singh v. Union of India and Others, (2016) 8 SCC 471, Jainendra Singh v. State of U.P. Tr. Prinl. Sec. Home and Others, Commissioner of Police, New Delhi and Another v. Mehar Singh, Union Territory, Chandigarh Administration and Others v. Pradeep Kumar and Another,the Apex Court shortlisted the broad principles of law which should be made applicable to the litigations of the present nature.
As per the Bench, in a case where the employee has made a declaration truthfully and correctly of a concluded criminal case, the employer still has the right to consider the antecedents, and cannot be compelled to appoint the candidate. The acquittal in a criminal case would not automatically entitle a candidate for appointment to the post. It would be still open to the employer to consider the antecedents and examine whether the candidate concerned is suitable and fit for appointment to the post, the Bench noted.
The Bench further made it clear that the generalisations about the youth, career prospects and age of the candidates leading to condonation of the offenders’ conduct, should not enter the judicial verdict and should be avoided. It was opined by the Bench that the Court should inquire whether the Authority concerned whose action is being challenged acted mala fide, if there is any element of bias in the decision of the Authority and whether the procedure of inquiry adopted by the Authority concerned was fair and reasonable.
Coming to the scope of Appeal under Article 136 of the Constitution, the Bench held that unless, it is shown that exceptional and special circumstances exist, substantial and grave injustice has been done and the case and question present features of sufficient gravity to warrant a review of the decision appealed against, this Court would not exercise its overriding powers under Article 136(1).
“The explanation offered by Satish Chandra Yadav is nothing but his own understanding of what is prosecution and pendency of a criminal case. If he knows that trial is deemed to have commenced with the framing of charge, then we are sure he knows and understands what is criminal prosecution,” said the Bench while not agreeing with the case put forward by the appellant.
Noting that it was not the appellant’s involvement in the criminal case which was then pending, and in which he had been acquitted subsequently, the Bench stated that the fact that he had withheld relevant information while filling in the verification Form, was the reason that had led to the termination of his services. He could be said to have exhibited or displayed such a tendency which shook the confidence of the respondent.
Observing that the judgment relied upon by Madhavi Divan, ASG in Kendriya Vidyalaya Sangathan and Others v. Ram Ratan Yadav was fully applicable to the instant appeal and the fact that there was a deliberate attempt on the part of the appellant to withhold the relevant information, the Bench held that it was this omission which had led to the termination of his service during the probation period. Thus, the appeal was dismissed by the Bench.
In CRM-M-35031-2019(O&M)-PUNJ HC- When complaint regarding failure of maintenance of register in accordance with Equal Remuneration Act, 1976 is filed, at that point in time Labour Department inspection team ought to have examined record to establish as to who was employer and occupier of premises: P&H HC
Justice Jasjit Singh Bei [20-09-2022]
Justice Jasjit Singh Bei [20-09-2022]
Read Order: YOSHINORI ONDA V. STATE OF HARYANA & ANR.
Chandigarh, September 26, 2022: The Punjab and Haryana High Court has held that when a criminal complaint alleging that the 'occupier' of a premise inspect by team of Labour Department failed to maintain a register of workers in Form D in violating Section 8 thereby committing an offence under Section 10(1)(a) of the Equal Remuneration Act, 1976, then at that point in time the Department ought to have examined its record to establish as to who was the 'employer' and 'occupier'.
In this case before the Bench of Justice Jasjit Singh Bedi, on an inspection carried out by a joint inspection team of the Labour Department of the Government of Haryana, M/s Denso Haryana Private Limited, Gurugram was found to be violating the provisions of different labour legislations, including the Equal Remuneration Act, 1976.
As a result of this inspection, a criminal complaint alleging that the 'occupier' failed to maintain the register of workers in Form D in violating Section 8 thereby committing an offence under Section 10(1)(a) of the Equal Remuneration Act, 1976, was filed. In pursuance of this complaint, summoning order was against the petitioner only.
Hence, the present quashing plea was filed.
The petitioner's counsel contended that firstly, the offence (if any) was committed by the Company (M/s Denso Haryana Private Limited) which is a juristic person and thus, it was mandatory to implead the Company as an accused before criminal action was sought to be initiated against its employer/occupier. He further contended that in fact sanction for prosecution was also accorded for the Company and not with regard to the individual i.e. the present petitioner.
Further, while contending that the term 'occupier' was not defined under the Equal Remuneration Act, 1976, the Counsel argued that since the Company M/s Denso Haryana Private Limited was a Company duly incorporated, anyone of its Director could be deemed to be an 'occupier'.
After considering the fact that in this case, the sanction for prosecution was accorded for the Company, and in light of a Gauhati High Court wherein it was held that where the Company has not been arrayed as an accused in prosecution under the Equal Remuneration Act, 1976, proceedings against the Directors/ Officers of the Company cannot be sustained, the Court held,
"on first principle itself the complaint (Annexure P-1) and the summoning order (Annexure P-2) are liable to be quashed."
Further, on the question of occupier, the Court noted that the explanation given for recording the petitioner as the 'occupier' was that voluminous record relating to the 'occupier' and 'Manager' could not be carried at the time of inspecting the premises and therefore what was told at the time of the inspection was what was recorded.
This response was found by the Court to be fallacious. "When the complaint was filed, at that point in time the Department ought to have examined its record to establish as to who was the 'employer' and 'occupier'. Therefore, the stands of the respondents does not cut much ice. The proceedings are liable to be quashed on this ground as well", the Bench held.
In CRA-D-458-DB-2010 (O&M)-PUNJ HC- There can never be more graver and heinous crime than father committing rape on his own daughter: P&H HC reiterates Top Court’s remark while upholding conviction of man for repeatedly raping his minor daughter
Justices Sureshwar Thakur & N. S. Shekhawat [15-09-2022]
Justices Sureshwar Thakur & N. S. Shekhawat [15-09-2022]
Read Order: Roop Lal v. State of Punjab
Chandigarh, September 26, 2022: While dealing with an appeal by a rape accused, convicted for repeatedly raping his minor daughter, the High Court of Punjab and Haryana has remarked that a there can never be more graver and heinous crime than the father committing rape on his own daughter because then, the protector becomes the predator.
Further, on the evidentiary value of the prosecutrix, the Bench of Justices Sureshwar Thakur and N. S. Shekhawat held, "The testimony of the victim in such cases is vital and unless there are compelling reasons, which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused, where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury."
The case of the prosecution was that the accused, who unfortunately was the father of the victim, had been repeatedly committing sexual assault and rape on her for about 2 months.
The Trial Court convicted the accused under Section 376 of the IPC and sentenced him to undergo rigorous imprisonment for 14 years along with fine. Hence, the present appeal was filed.
After hearing the parties, the Court perused the testimony of the victim and found it to be worthy of credence. Further, on the law governing the evidentiary value of such prosecutrix's testimony, the Bench,
"It is a well settled preposition of law that the conviction for the offence under Section 376 of IPC can be based on the sole testimony of the rape victim."
Further, the Bench also held that the testimony of the victim in such cases is vital and unless there are compelling reasons, which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused, where her testimony inspires confidence and is found to be reliable.
"Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury", the Bench asserted.
Further, rejecting the argument of the appellant's counsel to the effect that it is impossible to have sexual intercourse with a minor child of 7 years, whose vagina is not fully developed as to admit a fully grown penis, the Court held that the Supreme Court has time and again held the penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission or semen or even an attempt at penetration into the private part of the victim completely, partially or slightly would be enough for the purpose of Section 375 IPC.
Accordingly, upholding the impugned judgement and order passed by the Court of Additional Sessions Judge, Jalandhar, the Court dismissed the appeal.
Justice Madan B Lokur, was a Supreme Court judge from June 2012 to December 2018. He is now a judge of the non-resident panel of the Supreme Court of Fiji. He spoke to LegitQuest on January 25, 2020.
Q: You were a Supreme Court judge for more than 6 years. Do SC judges have their own ups and downs, in the sense that do you have any frustrations about cases, things not working out, the kind of issues that come to you?
A: There are no ups and downs in that sense but sometimes you do get a little upset at the pace of justice delivery. I felt that there were occasions when justice could have been delivered much faster, a case could have been decided much faster than it actually was. (When there is) resistance in that regard normally from the state, from the establishment, then you kind of feel what’s happening, what can I do about it.
Q: So you have had the feeling that the establishment is trying to interfere in the matters?
A: No, not interfering in matters but not giving the necessary importance to some cases. So if something has to be done in four weeks, for example if reply has to be filed within four weeks and they don’t file it in four weeks just because they feel that it doesn’t matter, and it’s ok if we file it within six weeks how does it make a difference. But it does make a difference.
Q: Do you think this attitude is merely a lax attitude or is it an infrastructure related problem?
A: I don’t know. Sometimes on some issues the government or the establishment takes it easy. They don’t realise the urgency. So that’s one. Sometimes there are systemic issues, for example, you may have a case that takes much longer than anticipated and therefore you can’t take up some other case. Then that necessarily has to be adjourned. So these things have to be planned very carefully.
Q: Are there any cases that you have special memories of in terms of your personal experiences while dealing with the case? It might have moved you or it may have made you feel that this case is really important though it may not be considered important by the government or may have escaped the media glare?
A: All the cases that I did with regard to social justice, cases which concern social justice and which concern the environment, I think all of them were important. They gave me some satisfaction, some frustration also, in the sense of time, but I would certainly remember all these cases.
Q: Even though you were at the Supreme Court as a jurist, were there any learning experiences for you that may have surprised you?
A: There were learning experiences, yes. And plenty of them. Every case is a learning experience because you tend to look at the same case with two different perspectives. So every case is a great learning experience. You know how society functions, how the state functions, what is going on in the minds of the people, what is it that has prompted them to come the court. There is a great learning, not only in terms of people and institutions but also in terms of law.
Q: You are a Judge of the Supreme Court of Fiji, though a Non-Resident Judge. How different is it in comparison to being a Judge in India?
A: There are some procedural distinctions. For example, there is a great reliance in Fiji on written submissions and for the oral submissions they give 45 minutes to a side. So the case is over within 1 1/2 hours maximum. That’s not the situation here in India. The number of cases in Fiji are very few. Yes, it’s a small country, with a small number of cases. Cases are very few so it’s only when they have an adequate number of cases that they will have a session and as far as I am aware they do not have more than two or three sessions in a year and the session lasts for maybe about three weeks. So it’s not that the court sits every day or that I have to shift to Fiji. When it is necessary and there are a good number of cases then they will have a session, unlike here. It is then that I am required to go to Fiji for three weeks. The other difference is that in every case that comes to the (Fiji) Supreme Court, even if special leave is not granted, you have to give a detailed judgement which is not the practice here.
Q: There is a lot of backlog in the lower courts in India which creates a problem for the justice delivery system. One reason is definitely shortage of judges. What are the other reasons as to why there is so much backlog of cases in the trial courts?
A: I think case management is absolutely necessary and unless we introduce case management and alternative methods of dispute resolution, we will not be able to solve the problem. I will give you a very recent example about the Muzaffarpur children’s home case (in Bihar) where about 34 girls were systematically raped. There were about 17 or 18 accused persons but the entire trial finished within six months. Now that was only because of the management and the efforts of the trial judge and I think that needs to be studied how he could do it. If he could do such a complex case with so many eyewitnesses and so many accused persons in a short frame of time, I don’t see why other cases cannot be decided within a specified time frame. That’s case management. The second thing is so far as other methods of disposal of cases are concerned, we have had a very good experience in trial courts in Delhi where more than one lakh cases have been disposed of through mediation. So, mediation must be encouraged at the trial level because if you can dispose so many cases you can reduce the workload. For criminal cases, you have Plea Bargaining that has been introduced in 2009 but not put into practice. We did make an attempt in the Tis Hazari Courts. It worked to some extent but after that it fell into disuse. So, plea bargaining can take care of a lot of cases. And there will be certain categories of cases which we need to look at carefully. For example, you have cases of compoundable offences, you have cases where fine is the punishment and not necessarily imprisonment, or maybe it’s imprisonment say one month or two month’s imprisonment. Do we need to actually go through a regular trial for these kind of cases? Can they not be resolved or adjudicated through Plea Bargaining? This will help the system, it will help in Prison Reforms, (prevent) overcrowding in prisons. So there are a lot of avenues available for reducing the backlog. But I think an effort has to be made to resolve all that.
Q: Do you think there are any systemic flaws in the country’s justice system, or the way trial courts work?
A: I don’t think there are any major systemic flaws. It’s just that case management has not been given importance. If case management is given importance, then whatever systematic flaws are existing, they will certainly come down.
Q; And what about technology. Do you think technology can play a role in improving the functioning of the justice delivery system?
I think technology is very important. You are aware of the e-courts project. Now I have been told by many judges and many judicial academies that the e-courts project has brought about sort of a revolution in the trial courts. There is a lot of information that is available for the litigants, judges, lawyers and researchers and if it is put to optimum use or even semi optimum use, it can make a huge difference. Today there are many judges who are using technology and particularly the benefits of the e-courts project is an adjunct to their work. Some studies on how technology can be used or the e-courts project can be used to improve the system will make a huge difference.
Q: What kind of technology would you recommend that courts should have?
A: The work that was assigned to the e-committee I think has been taken care of, if not fully, then largely to the maximum possible extent. Now having done the work you have to try and take advantage of the work that’s been done, find out all the flaws and see how you can rectify it or remove those flaws. For example, we came across a case where 94 adjournments were given in a criminal case. Now why were 94 adjournments given? Somebody needs to study that, so that information is available. And unless you process that information, things will just continue, you will just be collecting information. So as far as I am concerned, the task of collecting information is over. We now need to improve information collection and process available information and that is something I think should be done.
Q: There is a debate going on about the rights of death row convicts. CJI Justice Bobde recently objected to death row convicts filing lot of petitions, making use of every legal remedy available to them. He said the rights of the victim should be given more importance over the rights of the accused. But a lot of legal experts have said that these remedies are available to correct the anomalies, if any, in the justice delivery. Even the Centre has urged the court to adopt a more victim-centric approach. What is your opinion on that?
You see so far as procedures are concerned, when a person knows that s/he is going to die in a few days or a few months, s/he will do everything possible to live. Now you can’t tell a person who has got terminal cancer that there is no point in undergoing chemotherapy because you are going to die anyway. A person is going to fight for her/his life to the maximum extent. So if a person is on death row s/he will do everything possible to survive. You have very exceptional people like Bhagat Singh who are ready to face (the gallows) but that’s why they are exceptional. So an ordinary person will do everything possible (to survive). So if the law permits them to do all this, they will do it.
Q: Do you think law should permit this to death row convicts?
A: That is for the Parliament to decide. The law is there, the Constitution is there. Now if the Parliament chooses not to enact a law which takes into consideration the rights of the victims and the people who are on death row, what can anyone do? You can’t tell a person on death row that listen, if you don’t file a review petition within one week, I will hang you. If you do not file a curative petition within three days, then I will hang you. You also have to look at the frame of mind of a person facing death. Victims certainly, but also the convict.
Q: From the point of jurisprudence, do you think death row convicts’ rights are essential? Or can their rights be done away with?
A: I don’t know you can take away the right of a person fighting for his life but you have to strike a balance somewhere. To say that you must file a review or curative or mercy petition in one week, it’s very difficult. You tell somebody else who is not on a death row that you can file a review petition within 30 days but a person who is on death row you tell him that I will give you only one week, it doesn’t make any sense to me. In fact it should probably be the other way round.
Q: What about capital punishment as a means of punishment itself?
A: There has been a lot of debate and discussion about capital punishment but I think that world over it has now been accepted, more or less, that death penalty has not served the purpose for which it was intended. So, there are very few countries that are executing people. The United States, Saudi Arabia, China, Pakistan also, but it hasn’t brought down the crime rate. And India has been very conservative in imposing the death penalty. I think the last 3-4 executions have happened for the persons who were terrorists. And apart from that there was one from Calcutta who was hanged for rape and murder. But the fact that he was hanged for rape and murder has not deterred people (from committing rape and murder). So the accepted view is that death penalty has not served the purpose. We certainly need to rethink the continuance of capital punishment. On the other hand, if capital punishment is abolished, there might be fake encounter killings or extra judicial killings.
Q: These days there is the psyche among people of ‘instant justice’, like we saw in the case of the Hyderabad vet who was raped and murdered. The four accused in the case were killed in an encounter and the public at large and even politicians hailed it as justice being delivery. Do you think this ‘lynch mob mentality’ reflects people’s lack of faith in the justice system?
A: I think in this particular case about what happened in Telangana, investigation was still going on. About what actually happened there, an enquiry is going on. So no definite conclusions have come out. According to the police these people tried to snatch weapons so they had to be shot. Now it is very difficult to believe, as far as I am concerned, that 10 armed policeman could not overpower four unarmed accused persons. This is very difficult to believe. And assuming one of them happened to have snatched a (cop’s) weapon, maybe he could have been incapacitated but why the other three? So there are a lot of questions that are unanswered. So far as the celebrations are concerned, the people who are celebrating, do they know for certain that they (those killed in the encounter) were the ones who did the crime? How can they be so sure about it? They were not eye witnesses. Even witnesses sometimes make mistakes. This is really not a cause for celebration. Certainly not.
Q: It seems some people are losing their faith in the country’s justice delivery system. How to repose people’s faith in the legal process?
A: You see we again come back to case management and speedy justice. Suppose the Nirbhaya case would have been decided within two or three years, would this (Telangana) incident have happened? One can’t say. The attack on Parliament case was decided in two or three years but that has not wiped out terrorism. There are a lot of factors that go into all this, so there is a need to find ways of improving justice delivery so that you don’t have any extremes – where a case takes 10 years or another extreme where there is instant justice. There has to be something in between, some balance has to be drawn. Now you have that case where Phoolan Devi was gangraped followed by the Behmai massacre. Now this is a case of 1981, it has been 40 years and the trial court has still not delivered a judgement. It’s due any day now, (but) whose fault is that. You have another case in Maharashtra that has been transferred to National Investigating Agency two years after the incident, the Bhima-Koregaon case. Investigation is supposedly not complete after two years also. Whose fault is that? So you have to look at the entire system in a holistic manner. There are many players – the investigation agency is one player, the prosecution is one player, the defence is one player, the justice delivery system is one player. So unless all of them are in a position to coordinate… you cannot blame only the justice delivery system. If the Telangana police was so sure that the persons they have caught are guilty, why did they not file the charge sheet immediately? If they were so sure the charge sheet should have been filed within one day. Why didn’t they do it?
Q: At the trial level, there are many instances of flaws in evidence collection. Do you think the police or whoever the investigators are, do they lack training?
A: Yes they do! The police lacks training. I think there is a recent report that has come out last week which says very few people (in the police) have been trained (to collect evidence).
Q: You think giving proper training to police to prepare a case will make a difference?
A: Yes, it will make a difference.
Q: You have a keen interest in juvenile justice. Unfortunately, a lot of heinous crimes are committed by juveniles. How can we correct that?
A: You see it depends upon what perspective we are looking at. Now these heinous crimes are committed by juveniles. Heinous crimes are committed by adults also, so why pick upon juveniles alone and say something should be done because juveniles are committing heinous crimes. Why is it that people are not saying that something should be done when adults are committing heinous crimes? That’s one perspective. There are a lot of heinous crimes that are committed against juveniles. The number of crimes committed against juveniles or children are much more than the crimes committed by juveniles. How come nobody is talking about that? And the people committing heinous crimes against children are adults. So is it okay to say that the State has imposed death penalty for an offence against the child? So that’s good enough, nothing more needs to be done? I don’t think that’s a valid answer. The establishment must keep in mind the fact that the number of heinous crimes against children are much more than those committed by juveniles. We must shift focus.
Q: Coming to NRC and CAA. Protests have been happening since December last year, the SC is waiting for the Centre’s reply, the Delhi HC has refused to directly intervene. Neither the protesters nor the government is budging. How do we achieve a breakthrough?
A: It is for the government to decide what they want to do. If the government says it is not going to budge, and the people say they are not going to budge, the stalemate could continue forever.
Q: Do you think the CAA and the NRC will have an impact on civil liberties, personal liberties and people’s rights?
A: Yes, and that is one of the reasons why there is protest all over the country. And people have realised that it is going to happen, it is going to have an impact on their lives, on their rights and that’s why they are protesting. So the answer to your question is yes.
Q: Across the world and in India, we are seeing an erosion of the value system upholding rights and liberties. How important is it for the healthy functioning of a country that social justice, people’s liberties, people’s rights are maintained?
A: I think social justice issues, fundamental rights are of prime importance in our country, in any democracy, and the preamble to our Constitution makes it absolutely clear and the judgement of the Supreme Court in Kesavananda Bharati and many other subsequent judgments also make it clear that you cannot change the basic structure of the Constitution. If you cannot do that then obviously you cannot take away some basic democratic rights like freedom of assembly, freedom of movement, you cannot take them away. So if you have to live in a democracy, we have to accept the fact that these rights cannot be taken away. Otherwise there are many countries where there is no democracy. I don’t know whether those people are happy or not happy.
Q: What will happen if in a democracy these rights are controlled by hook or by crook?
A: It depends upon how much they are controlled. If the control is excessive then that is wrong. The Constitution says there must be a reasonable restriction. So reasonable restriction by law is very important.
Q: The way in which the sexual harassment case against Justice Gogoi was handled was pretty controversial. The woman has now been reinstated in the Supreme Court as a staffer. Does this action of the Supreme Court sort of vindicate her?
A: I find this very confusing you know. There is an old joke among lawyers: Lawyer for the petitioner argued before the judge and the judge said you are right; then the lawyer for the respondent argued before the judge and the judge said you’re right; then a third person sitting over there says how can both of them be right and the judge says you’re also right. So this is what has happened in this case. It was found (by the SC committee) that what she said had no substance. And therefore, she was wrong and the accused was right. Now she has been reinstated with back wages and all. I don’t know, I find it very confusing.
Q: Do you think the retirement age of Supreme Court Judges should be raised to 70 years and there should be a fixed tenure?
A: I haven’t thought about it as yet. There are some advantages, there are some disadvantages. (When) You have extended age or life tenure as in the United States, and the Supreme Court has a particular point of view, it will continue for a long time. So in the United States you have liberal judges and conservative judges, so if the number of conservative judges is high then the court will always be conservative. If the number of liberal judges is high, the court will always be liberal. There is this disadvantage but there is also an advantage that if it’s a liberal court and if it is a liberal democracy then it will work for the benefit of the people. But I have not given any serious thought onthis.
Q: Is there any other thing you would like to say?
A: I think the time has come for the judiciary to sit down, introspect and see what can be done, because people have faith in the judiciary. A lot of that faith has been eroded in the last couple of years. So one has to restore that faith and then increase that faith. I think the judiciary definitely needs to introspect.
‘A major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013.’- Aakash Parihar
Aakash Parihar is Partner at Triumvir Law, a firm specializing in M&A, PE/VC, startup advisory, international commercial arbitration, and corporate disputes. He is an alumnus of the National Law School of India University, Bangalore.
How did you come across law as a career? Tell us about what made you decide law as an option.
Growing up in a small town in Madhya Pradesh, wedid not have many options.There you either study to become a doctor or an engineer. As the sheep follows the herd, I too jumped into 11th grade with PCM (Physics, Chemistry and Mathematics).However, shortly after, I came across the Common Law Admission Test (CLAT) and the prospect of law as a career. Being a law aspirant without any background of legal field, I hardly knew anything about the legal profession leave alone the niche areas of corporate lawor dispute resolution. Thereafter, I interacted with students from various law schools in India to understand law as a career and I opted to sit for CLAT. Fortunately, my hard work paid off and I made it to the hallowed National Law School of India University, Bangalore (NSLIU). Joining NLSIU and moving to Bangalorewas an overwhelming experience. However, after a few months, I settled in and became accustomed to the rigorous academic curriculum. Needless to mention that it was an absolute pleasure to study with and from someof the brightest minds in legal academia. NLSIU, Bangalore broadened my perspective about law and provided me with a new set of lenses to comprehend the world around me. Through this newly acquired perspective and a great amount of hard work (which is of course irreplaceable), I was able to procure a job in my fourth year at law school and thus began my journey.
As a lawyer carving a niche for himself, tell us about your professional journey so far. What are the challenges that new lawyers face while starting out in the legal field?
I started my professional journey as an Associate at Samvad Partners, Bangalore, where I primarily worked in the corporate team. Prior to Samvad Partners, through my internship, I had developed an interest towards corporate law,especially the PE/VC and M&A practice area. In the initial years as an associate at Samvad Partners and later at AZB & Partners, Mumbai, I had the opportunity to work on various aspects of corporate law, i.e., from PE/VC and M&A with respect to listed as well as unlisted companies. My work experience at these firms equipped and provided me the know-how to deal with cutting edge transactional lawyering. At this point, it is important to mention that I always had aspirations to join and develop a boutique firm. While I was working at AZB, sometime around March 2019, I got a call from Anubhab, Founder of Triumvir Law, who told me about the great work Triumvir Law was doing in the start-up and emerging companies’ ecosystem in Bangalore. The ambition of the firm aligned with mine,so I took a leap of faith to move to Bangalore to join Triumvir Law.
Anyone who is a first-generation lawyer in the legal industry will agree with my statement that it is never easy to build a firm, that too so early in your career. However, that is precisely the notion that Triumvir Law wanted to disrupt. To provide quality corporate and dispute resolution advisory to clients across India and abroad at an affordable price point.
Once you start your professional journey, you need to apply everything that you learnt in law schoolwith a practical perspective. Therefore, in my opinion, in addition to learning the practical aspects of law, a young lawyer needs to be accustomed with various practices of law before choosing one specific field to practice.
India has been doing reallywell in the field of M&A and PE/VC. Since you specialize in M&A and PE/VC dealmaking, what according to you has been working well for the country in this sphere? What does the future look like?
India is a developing economy, andM&A and PE/VC transactions form the backbone of the same. Since liberalization, there has been an influx of foreign investment in India, and we have seen an exponential rise in PC/VA and M&A deals. Indian investment market growth especially M&A and PE/VC aspects can be attributed to the advent of startup culture in India. The increase in M&A and PE/VC deals require corporate lawyersto handle the legal aspects of these deals.
As a corporate lawyer working in M&A and PE/VC space, my work ranges from drafting term-sheets to the transaction documents (SPA, SSA, SHA, BTA, etc.). TheM&A and PE/VC deal space experienced a slump during the first few months of the pandemic, but since June 2021, there has been a significant growth in M&A and PE/VC deal space in India. The growth and consistence of the M&A and PE/VC deal space in India can be attributed to several factors such as foreign investment, uncapped demands in the Indian market and exceptional performance of Indian startups.
During the pandemic many businesses were shut down but surprisingly many new businesses started, which adapted to the challenges imposed by the pandemic. Since we are in the recovery mode, I think the M&A and PE/VC deal space will reach bigger heights in the comingyears. We as a firm look forward to being part of this recovery mode by being part of the more M&A and PE/VC deals in future.
You also advice start-ups. What are the legal issues or challenges that the start-ups usually face specifically in India? Do these issues/challenges have long-term consequences?
We do a considerable amount of work with startupswhich range from day-to-day legal advisory to transaction documentation during a funding round. In India, we have noticed that a sizeable amount of clientele approach counsels only when there is a default or breach, more often than not in a state of panic. The same principle applies to startups in India, they normally approach us at a stage when they are about to receive investment or are undergoing due diligence. At that point of time, we need to understand their legal issues as well as manage the demands of the investor’s legal team. The majornon-compliances by startups usually involve not maintaining proper agreements, delaying regulatory filings and secretarial compliances, and not focusing on proper corporate governance.
Another major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013. Keeping up with these requirements can be time-consuming for even seasoned lawyers, and we can only imagine how difficult it would be for startups. Startups spend their initial years focusing on fund-raising, marketing, minimum viable products, and scaling their businesses. Legal advice does not usually factor in as a necessity. Our firm aims to help startups even before they get off the ground, and through their initial years of growth. We wanted to be the ones bringing in that change in the legal sector, and we hope to help many more such startups in the future.
In your opinion, are there any specific India-related problems that corporate/ commercial firms face as far as the company laws are concerned? Is there scope for improvement on this front?
The Indian legal system which corporate/commercial firms deal with is a living breathing organism, evolving each year. Due to this evolving nature, we lawyers are always on our toes.From a minor amendment to the Companies Act to the overhaul of the foreign exchange regime by the Reserve Bank of India, each of these changes affect the compliance and regulatory regime of corporates. For instance, when India changed the investment route for countries sharing land border with India,whereby any country sharing land border with India including Hong Kong cannot invest in India without approval of the RBI in consultation with the central government,it impacted a lot of ongoing transactions and we as lawyers had to be the first ones to inform our clients about such a change in the country’s foreign investment policy. In my opinion, there is huge scope of improvement in legal regime in India, I think a stable regulatory and tax regime is the need for the hour so far as the Indian system is concerned. The biggest example of such a market with stable regulatory and tax regime is Singapore, and we must work towards emulating the same.
Your boutique law firm has offices in three different cities — Delhi NCR, Mumbai and Bangalore. Have the Covid-induced restrictions such as WFH affected your firm’s operations? How has your firm adapted to the professional challenges imposed by the pandemic-related lifestyle changes?
We have offices in New Delhi NCR and Mumbai, and our main office is in Bangalore. Before the pandemic, our work schedule involved a fair bit of travelling across these cities. But post the lockdowns we shifted to a hybrid model, and unless absolutely necessary, we usually work from home.
In relation to the professional challenges during the pandemic, I think it was a difficult time for most young professionals. We do acknowledge the fact that our firm survived the pandemic. Our work as lawyers/ law firms also involves client outreach and getting new clients, which was difficult during the lockdowns. We expanded our client outreach through digital means and by conducting webinars, including one with King’s College London on International Treaty Arbitration. Further, we also focused on client outreach and knowledge management during the pandemic to educate and create legal awareness among our clients.
‘It’s a myth that good legal advice comes at prohibitive costs. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.’ – Archana Balasubramanian
Archana Balasubramanian is the founding partner of Agama Law Associates, a Mumbai-based corporate law firm which she started in 2014. She specialises in general corporate commercial transaction and advisory as well as deep sectoral expertise across manufacturing, logistics, media, pharmaceuticals, financial services, shipping, real estate, technology, engineering, infrastructure and health.
August 13, 2021:
Lawyers see companies ill-prepared for conflict, often, in India. When large corporates take a remedial instead of mitigative approach to legal issues – an approach utterly incoherent to both their size and the compliance ecosystem in their sector – it is there where the concept of costs on legal becomes problematic. Pre-dispute management strategy is much more rationalized on the business’ pocket than the costs of going in the red on conflict and compliances.
Corporates often focus on business and let go of backend maintenance of paperwork, raising issues as and when they arise and resolving conflicts / client queries in a manner that will promote dispute avoidance.
Corporate risk and compliance management is yet another elephant in India, which in addition to commercial disputes can be a drain on a company’s resources. It can be clubbed under four major heads – labour, industrial, financial and corporate laws. There are around 20 Central Acts and then specific state-laws by which corporates are governed under these four categories.
Risk and compliance management is also significantly dependent on the sector, size, scale and nature of the business and the activities being carried out.
The woes of a large number of promoters from the ecommerce ecosystem are to do with streamlining systems to navigate legal. India has certain heavily regulated sectors and, like I mentioned earlier, an intricate web of corporate risk and compliance legislation that can result in prohibitive costs in the remedial phase. To tackle the web in the preventive or mitigative phase, start-ups end up lacking the arsenal due to sheer intimidation from legal. Promoters face sectoral risks in sectors which are heavily regulated, risks of heavy penalties and fines under company law or foreign exchange laws, if fund raise is not done in a compliant manner.
It is a myth that good legal advice comes at prohibitive costs. Promoters are quick to sign on the dotted line and approach lawyers with a tick the box approach. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.
Investment contracts, large celebrity endorsement contracts and CXO contracts are some key areas where legal advice should be obtained. Online contracts is also emerging as an important area of concern.
When we talk of scope, arbitration is pretty much a default mechanism at this stage for adjudicating commercial disputes in India, especially given the fixation of timelines for closure of arbitration proceedings in India. The autonomy it allows the parties in dispute to pick a neutral and flexible forum for resolution is substantial. Lower courts being what they are in India, arbitration emerges as the only viable mode of dispute resolution in the Indian commercial context.
The arbitrability of disputes has evolved significantly in the last 10 years. The courts are essentially pro-arbitration when it comes to judging the arbitrability of subject matter and sending matters to arbitration quickly.
The Supreme Court’s ruling in the Vidya Drolia case has significantly clarified the position in respect of tenancy disputes, frauds and consumer disputes. It reflects upon the progressive approach of the court and aims to enable an efficient, autonomous and effective arbitration environment in India.
Law firms stand for ensuring that the law works for business and not against it. Whatever the scope of our mandate, the bottom line is to ensure a risk-free, conflict-free, compliant and prepared enterprise for our client, in a manner that does not intimidate the client or bog them down, regardless of the intricacy of the legal and regulatory web it takes to navigate to get to that end result. Lawyers need to dissect the business of law from the work.
This really involves meticulous, detail-oriented, sheer hard work on the facts, figures, dates and all other countless coordinates of each mandate, repetitively and even to a, so-called, “dull” routine rhythm – with consistent single-mindedness and unflinching resolve.
As a firm, multiply that effort into volumes, most of it against-the-clock given the compliance heavy ecosystem often riddled with uncertainties in a number of jurisdictions. So the same meticulous streamlining of mandate deliverables has to be extrapolated by the management of the firm to the junior most staff.
Further, the process of streamlining itself has to be more dynamic than ever now given the pace at which the new economy, tech-ecosystem, business climate as well as business development processes turn a new leaf.
Finally, but above all, we need to find a way to feel happy, positive and energized together as a team while chasing all of the aforesaid dreams. The competitive timelines and volumes at which a law firm works, this too is a real challenge. But we are happy to face it and evolve as we grow.
We always as a firm operated on the work from anywhere principle. We believed in it and inculcated this through document management processes to the last trainee. This helped us shut shop one day and continue from wherever we are operating.
The team has been regularly meeting online (at least once a day). We have been able to channel the time spent in travelling to and attending meetings in developing our internal knowledge banks further, streamline our processes, and work on integrating various tech to make the practice more cost-effective for our clients.
By Kumar Shashwat
June 22, 2022
Character merchandising can be defined as the revision or secondary utilization, by the creator of an imaginary character or by a real human being or by one or several sanctioned third parties, of the indispensable personality characteristics (such as the name, image or appearance) of a character in relation to a range of goods and/or services with an outlook to creating in potential consumers a yearning to get hold of those goods and to use those services because of the customers’ attraction with that character. It should already be highlighted that the person or legal entity which will systematize the merchandising activity (the merchandiser) will infrequently be the creator of the fictional character or the real person concerned. The various property or personality rights vesting in the character will be the subject matter of contracts (such as transfer or license agreements or product or service endorsement agreements), enabling one or more than a few involved third parties to be regarded as authorized users of the character.
Registration of Character Trade Marks
The primary function of marks that are symbols in its real sense is to indicate the origin of the goods so that the consumers can distinguish who is responsible for the goods that are placed in public. On the one hand, the creator of the fictional characters is not themselves engaged in such merchandising activities. Still, they may want to procure the trademark rights for their characters in order to regulate and license their use for commercial or merchandising purposes. On the other hand, sportspersons, actors, and pop stars use their characters most rewardingly.
However, in English Law, the Trade Marks Act 1938 prohibits the use of the trademark for trafficking, dealing mainly in a commodity in the right and not primarily to indicate or identify merchandise in which the owner of the trademark is interested; do not contain such restrictions with respect to the registration of trademarks.
In Tarzan, the candidates who were solely qualified to produce movies, records, and commercialization concerning the renowned anecdotal character Tarzan were denied enlisting the word Tarzan in relation to movies, attractive tape recordings, amusement toys and merchandise. The Court of Appeal held that since the word Tarzan was outstanding and was a piece of the dialect, it neglected to meet all requirements for enrolment as a developed or invented word. It was additionally held that the word had an immediate reference to the character and nature of the items since a film managing the endeavours of Tarzan would be portrayed as a “Tarzan” film, and the candidates’ different items were merchandise connected with Tarzan. Hence, the trademark was not considered to be fit for recognizing the candidates’ merchandise. Tarzan couldn’t be enlisted as a trademark because of the way that it spoke of the character and subsequently did not appear to show the origin of the items.
The idea that fame acts as the central impediment to getting the registration of a trademark was further explained in the Elvis Presley case. The candidates, who were the legitimately perceived successors of any promoting exercises carried for the famous personality Elvis Presley, were denied enlisting of the words ” Elvis” and “Elvis Presley”, and the mark “Elvis A. Presley” regarding toiletries. The Court said that every one of the products for which enrollment was looked for was legitimately viewed as memorabilia since they were promoted principally because of their connection with the name and picture of Elvis Presley. It was in this manner held that the imprints were not unmistakable; buyers obtained stock identifying with Elvis Presley, not because they considered that Elvis Presley Enterprises showcased it, but since it conveyed the name or picture of Elvis Presley. The Court’s view was that the general population is occupied with acquiring the merchandise identified with a most loved name as a famous person and is not concerned whether licensees of such a big name create such items. Finally, the Court held that when a character is well known, it is exceptionally far-fetched that the check will mean the inception of the item.
Also, in the Diana case, the executrices of the Estate of Diana, Princess of Wales connected to enlist as a trademark the words “Diana, Princess of Wales” for a wide variety of products and ventures. However, the application was rejected since it was held that the words Diana, Princess of Wales needed peculiarity. It was held that while most individual names might be considered to symbolize the inception of the merchandise, this is not the situation where an acclaimed name is worried; in such cases, it is conceivable that the name will serve to mean the topic of the items, rather than its beginning. It was further held that a normal customer would not expect that all memorabilia bearing the Princess’ name were marketed under the control of one undertaking in charge of their quality.
Exactly when an anecdotal character is introduced in academic work, as a creative work, or an abstract work, it is spoken to by the gauges of copyright law. Usually, the makers of the works hold copyright over these characters. When these characters are a part of a film or the producer has copyrights over the character. Note that the copyright may not come to exist in any fictional character appearing in a copyrighted work without any other person’s information. For such a character to be freely secured under the degree of copyright certification, the character must be managed independently of the story, cartoon or movie that it belongs to. In this instance, Star India v. Leo Burnett, the above was noted:
“The fictional characters are generally drawings in which copyright subsists, e.g., cartoon, and celebrities are living beings who are otherwise very famous in any particular field, e.g., film stars, sportsmen. It is necessary for character merchandising that the characters to be merchandised must have gained some public recognition, that is, achieved a form of independent life and public recognition for itself independently of the original product or independently of the milieu/area in which it appears. Only then can such character be moved into the area of character merchandising. This presumes that the character has independently acquired such reputation as to be a commodity in its own right independently of the goods or services to which it is attached or the field/area in which it originally appears. It is only when this is established on evidence as a fact, that the claimant may be able to claim a right to prevent anyone else from using such a character for other purposes.”
The producer of a film won’t have full rights to exploit the characters that can’t be disengaged from the performer portraying the same. In such a case, the character benefits of the performing craftsman apply despite the producer’s copyrights. This, from time to time, offers a climb to a battle between the two sorts of rights. For example, there has been a conflict between a performing artist assuming the part of a well-known character Gutthi in an Indian TV show and a TV station, which is additionally the maker of the arrangement. Because of this conflict, the performing artist moved out of the show and went ahead to begin his new show on an alternate TV slot. The principal TV slot issued an open proclamation that the character Gutthi had been made for the first show. Thus, it has copyright over the same. The on-screen character issued another announcement declaring his identity rights and saying that it is he who has accomplished acknowledgement as and is constantly related to Gutthi. Inferable from this conflict of rights, none of the parties could utilize the character Gutthi in their separate shows amid the season of the conflict. Identity rights unmistakably apply in instances of superstar marketing. Copyright is relevant just to the degree there are photos of superstars, and they are to be popularized; the picture takers have rights over the photographic works.
Since the vital character components of fanciful and authentic people are utilized as a part of the connection to business articles, trademark law standards likewise come into light in instances of character promotion. For example, in India, a trademark is known as any gadget, heading, plan, mark, word, name, signature, and so on which is fit for a graphical representation and which ought to be equipped for recognizing merchandise and/or administrations of one gathering from those of the other. This broad clarification makes it conceivable to have any anecdotal or real individual’s crucial identity elements as trademarks. For example, the name of a character and his picture, signature, character outlines, voice, catchphrases he utilized, and so forth could be ensured under trademark law.
When it comes to craftsmanship, one needs to consider the most unmistakable identity properties that are celebrated and deserving of trademark security. Character promoting is the initial step for treating acclaimed anecdotal characters or genuine identities as exchange signs. Famous people additionally authorize their identity and name rights under the laws of passing off. For example, in a noteworthy case concerning the identity and trademark privileges of the well-known pop singer “Daler Mehndi”, the pop star and his partner, the offended party, could effectively uphold trademark rights over the name “Daler Mehndi” against the respondents who earned tremendous financial gains by the offering of toys in light of his identity. Even though the name of Daler Mehndi or his fundamental identity components were not enrolled as trademarks, custom-based law gives exclusive privileges to the pop star in his name and identity. The productive instance of passing off could be brought for the execution of customary law marketing rights by the proprietors of such characters in case crucial parts of their characters’ personalities are used without their endorsement. Getting statutory trademark security is also profitable in bringing actual blue instances of trademark infringement against manhandling. The proprietors of universally acclaimed characters like Batman, Harry Potter and so forth have likewise procured statutory rights by enlisting the characters’ names as trademarks in India. On the Indian side, the proprietors of the fictional character Munnabhai (that showed up in the motion picture titled “Munnabhai MBBS” and its continuation “Lage Raho Munnabhai”) have additionally enlisted such character name as a trademark.
 Tarzan Trade Mark  FSR 245, CA.
 Elvis Presley Trade Mark  RPC 543.
 Diana Princess of Wales Trade Mark  ETMR 25. See also the similar view of Isaac,B., ‘Merchandising or Fundraising? Trade Marks and the Diana, Princess of Wales Memorial Fund’ (1998) 20 European Intellectual Property Review 441.
1. Ahuja V K, Law Relating to Intellectual Property Rights (English), Lexis Nexis, 2nd Edition, 2013.
2. Wadehra B L, Law Relating to Intellectual Property (English), Universal Law Publication, 5th Edition, 2012.
3. Ananth Padmanabhan, Intellectual Property Rights HB (English), Lexis Nexis- New Delhi, 1st Edition (Hardcover), 2012.
1. John Perry Barlow, The Economy of Ideas, Wired, Mar. 1994
2. Emem Uduak Udobong, Copyright infringement in the search engine, December 2005.
Kumar Shashwat is Founding Partner at Kumar & Singh Associates.
By Deo Prakash Singh
June 2, 2022
Disciplinary proceedings are the documented rules that define the relationship and control between a master and a servant. The power of the master to exercise control over the servant is to maintain and sustain the working environment at the workplace to achieve the dedicated goal and objectives. It signifies the obligation of the servant to obey and act in accordance with the code of conduct formulated by the master.
Disciplinary action is imposed by the employer on an employee against an act of misconduct by ordering punishment. The proceedings are perhaps the most vast and litigated branches in India and are full of dilemmas and dogmas. Service matters have the maximum number of commentaries, statutes, rules and regulations. The author here tries to discuss disciplinary proceedings — how they are conducted in public service tribunals, the procedure through which cases filed, and how they are conducted.
The general conception that a government job, in contrast to a private job, is a safe and secure job that ensures uninterrupted pay, perks and other service benefits is a misnomer. The statement may be true to a considerable extent because of the play and importance of natural justice in conducting disciplinary proceedings in public service. But the master in this case is that the mighty state has the capacity to diminish the future prospects of a government delinquent employee. Not only this, in public service the government delinquent employee has no way except to knock the doors of the court which is a time-taking and expensive exercise that sometimes even remains undecided. During the pendency of the litigation the employee may be deprived of service benefits and promotions. It is very difficult to decide between the two — whether justice delayed is justice denied or justice hurried is justice buried. The principle of natural justice sometimes derails from its impregnated objective.
Natural Justice and Disciplinary Proceedings
The principles of natural justice, generally, are taken care of while conducting disciplinary proceedings.
Article 311 of the Constitution of India guarantees the protection of rights of civil servants against arbitrary dismissal, removal and reduction in rank. This protection is not available where the employee has been convicted of a criminal charge or the competent authority is satisfied that compliance with the rules of natural justice is not reasonably practicable or the President or the Governor is satisfied that holding of an enquiry is not expedient in the interest of the security of the state. This is one of the express exceptions referred to in Article 310 and not subject to any control by any other provision of the Constitution. This provision in the Constitution aims at providing security of tenure to a government servant. This shield is a security to the extent of providing certain safeguards which have been made conditions precedent for dismissal or removal or reduction in rank of a government servant.
It is established that the principle of natural justice mainly comprises of following two rules:
(I) no person is to be condemned without hearing
(II) no person shall be a judge of his own cause
These two are the basic features. It means that fairness in conducting the proceedings shall be the essence of practice and the delinquent employee should be treated fairly which may culminate into punishment. The fairness principle requires a tribunal to proceed and hear the aggrieved employee on the points of law and procedure of fairness to protect the rights ensconced in the law book.
Elements of Disciplinary Proceedings
The proceedings are conducted under the domestic jurisdiction of the employer. To hold an enquiry into the misconduct of the employee is the most important feature and a precondition to the imposition of any punishment on a public servant. It is a universal principle and procedure because of the fact that almost all government servants and employees of statutory corporations or government companies are governed by rules which generally provide for a detailed procedure to be followed before imposing any punishment.
A departmental proceeding is a quasi-judicial proceeding and hence the enquiry officer’s performance a quasi-judicial function. The articles of charges levelled against the delinquent employee must be found to have been proved. The enquiry officer is duty-bound to arrive at a finding upon taking into consideration the materials brought on record by the parties. The proceeding has to be conducted against any person in a strict adherence to the statutory provisions and the principles of natural justice. The charges would be specific, definite and distinct setting out the details of the incident which forms the basis of the charges. No enquiry can be sustained on vague charges. The enquiry has to be conducted fairly, objectively but not subjectively. The findings should not be unreasonable and perverse nor the same should be based on conjectures and surmises. The court is very a specific on proof and suspicion. Every act or omission on the part of the delinquent employee cannot be a misconduct. The authority must record reasons for arriving at the findings of fact in the context of the statute defining the misconduct. Evidence adduced should not be perfunctory. Even if the delinquent employee does not take the defence or raise any protest, that does not absolve the inquiring authority from being vitiated for the reason particularly in respect of an order involving adverse or penal consequences.
Central Civil Services (Classification, Control and Appeal) Rules, 1965 under Rule 11 enumerated major and minor penalties and the procedure to conduct the disciplinary proceedings. It has also provided, under many decisions of the Government of India, the difference and definition of major and minor penalties in which major penalty shall be in case of grave and serious charges.
The Law provides for the establishment of Administrative Tribunal for the Union and the states specifying the jurisdiction and powers of such tribunals, procedure to be followed by the tribunals and excludes the jurisdiction of all courts except the Supreme Court.
The law also provides that the president in case of Union and the Governor in case of a state may make rules and regulations of services and posts in connection with the affairs of the state to such services.
Here it is important to include that only government servants throughout a state can file their respective cases in the tribunal to get their grievances redressed. It means that the tribunals are vested with the authority to hear the grievances of the employees of the state/Union only whereas further the employees working with private companies or organisations which are not owned by the state can only file their cases under industrial disputes in labour courts and industrial tribunals.
Normally the disciplinary authority appoints a preliminary enquiry officer to look into the alleged charges against the government servant and if the preliminary enquiry officer is prima facie guilty of the alleged misconduct, he may prepare a charge-sheet of the same and produce it before the disciplinary authority. The proceeding may not be known to the delinquent employee. The disciplinary authority on the basis of the charge-sheet submitted by the preliminary enquiry officer proceed to initiate departmental enquiry and it may start afresh and may not be from the point where the preliminary enquiry officer left. It is an established rule that the preliminary enquiry officer cannot be appointed as enquiry officer in the full-fledged enquiry as he may be prejudiced to the delinquent employee because he had already framed a charge-sheet against him in the preliminary enquiry.
Procedure To Conduct Enquiry In Case Of Major Penalty
The appointing authority/ disciplinary authority has to issue in order to initiate the disciplinary proceedings against the government servant. Sometimes the Governor of the state has to do the same as he is being the appointing authority of the specified government servants. The disciplinary authority may himself enquire into the charges or appoint an officer subordinate to the enquiry officer to enquire into the charges. The charge-sheet shall be approved by the disciplinary authority. The charges should be precise and clear to facilitate the government servant of the facts and circumstances against him. The documentary evidences and the names of witnesses proposed should prove the same along with oral evidence.
The delinquent government servant shall be required to submit a written statement of his defence in person within a specified time period mentioned in the book of rules preferably within 15 days from the date of issue/receipt of the order. The government servant shall have to state that whether he desires to cross examine any witness mentioned in the charge-sheet or whether he desires to produce some new or extra evidence. He shall also be informed that in case a written submission is not filed within the specified date it will be presumed that he has none to furnish and the enquiry officer shall proceed to complete the enquiry ex parte.
It has also been decided by a court judgement that after the charge-sheet is given to the employee, an oral enquiry is must and notice should be given to the employee intimating him about the date, time and place of enquiry. It has also been laid down in this case that if an opportunity to the employee to produce witnesses or to rebut the evidence against him is not given then the whole enquiry is liable to be quashed ab initio and the punishment on the basis of such enquiry report shall not be sustainable.
It is settled law that the documents relied in support of the charges have to be proved in departmental enquiry by the enquiry officer in the presence of the delinquent employee. The government servant is also at liberty to ask for documents in case they are mentioned in the charge-sheet. But is the same have not been annexed with the charge-sheet, then opportunity of inspection has to provided.
Per contra if the charged government employee admits the charges, the enquiry officer shall submit his report to the disciplinary authority without further proceedings in enquiry but where the charged government servant denies the charges, the enquiry officer shall proceed with the enquiry to call on the witnesses as per the rules framed under the law in the presence of the government employee who shall be given the opportunity to cross examine such witnesses. After recording the aforesaid evidence, the enquiry officer records oral evidence if the charged government servant desired so in his written defence submission. The enquiry officer may ask what he pleases at any time from any witness or from the person charged with a view to discover the truth or to obtain proof. The disciplinary authority may appoint a presenting officer to present the facts of charges from the government side whereas the charged government servant too can take help of a retired government employee or legal practitioner if the enquiry officer gives his consent for it.
When the enquiry is complete, the enquiry officer shall submit its enquiry report to the disciplinary authority along with all records. The report shall consist of sufficient record of brief facts, the evidence and statement of findings on each charge with reasons thereof but the enquiry officer shall not make any recommendation about the penalty. The enquiry officer shall have to submit his final report within six months from the date of issuance of the order by the disciplinary authority and he is bound to adhere to the time-limit. In any case the total time-limit to complete a disciplinary proceeding should not exceed 18 months from the date of initiation of the proceedings, i.e., from the date of issuance of the framing of charges letter.
If there is vigilance angle, the advice of CVC shall be sought and the time limit for the advice shall be maximum 30 days. For the second advice from the CVC, the same time-limit of 30 days shall be available. Similarly the time limit for concurrence from the UPSC shall be 30 days.
Stage of Tribunal
The cause of action arises due to the impugned punishment order by the disciplinary authority against the delinquent employee and here the role of lawyers come into play to represent the petitioner/the applicant under section 19 of the Administrative Tribunal Act, 1985. Before bringing a case of disciplinary proceeding to the tribunal, the aggrieved employee against whom an adverse order has been passed has to make representation to the appellate authority against the order. It is only after the representations remain unanswered by the authorities or if the delinquent employee has not been satisfied then he can bring his case to the tribunal. The government servant challenges an adverse order as bad order in the tribunal.
The aggrieved employee says in his submissions in the court that the proceeding conducted against him were unjust, unwarranted, malicious and/or arbitrary and the charges levelled against him are unjustified and against the principles of natural justice. The petitioner prays to quash the impugned order as if it had never been passed so that he may be entitled to all consequential service benefits to which he is entitled.
The petitioner may pray for interim relief but the interim relief sought should be different from the final relief. It is prayed in the court that if the impugned order is left to stand it will do irreparable loss to the petitioner.
Disciplinary action cannot be based on breach of statutory rules or administrative actions which do not supplement rules or are inconsistent with them. Before initiating any disciplinary proceeding the master must be prima facie satisfied that the employee has committed some misconduct. The misconduct must be committed during the tenure of the service. An allegation of misconduct against an officer in relation to his quasi-judicial functions cannot be made merely on the basis that he made a mistake of judgement while passing the order. This is because the administrative adjudication also requires to perform their functions without fear or favour which may be defeated by the constant threat of disciplinary proceedings.
Disciplinary proceedings cannot be initiated only on the basis of suspicion. There must be a reasonable basis. Those disciplinary proceedings shall be quashed if the exercise of power was not bona fide, e.g. anonymous complaints, biased preliminary enquiry and disregard to the directions of the Chief Justice by the full court. Similarly, if an employee is allowed to retire on attaining the age of superannuation even after initiation of disciplinary proceedings, major management cannot be imposed on him thereafter except under rare circumstances since retirement results in severance of relationship of master and servant.
Deo Prakash Singh an Advocate practicing at the Patna High Court.
By Pallavi Ghaisas
May 31, 2022
Prior to commencement of Real Estate (Regulation and Development) Act, 2016, (“RERA”), in landmark judgment in Vaidehi Akash Housing Pvt.Ltd. Vs. New D.N. Nagar Co-op.Housing Society Union Ltd. & Ors. [2015(3)ABR270] (“Vaidehi’s Judgement”), decided on 1st December 2014 by Hon’ble Justice S C Gupte of Hon’ble Bombay High Court, inter alia, decided the rights of third party purchasers (“Allottees”) under Maharashtra Ownership Flats Act, 1963 (“MOFA”) vis-à-vis society after termination of development agreement with Developer (“Ex-Developer”). It was observed that the development agreement executed by the Ex-Developer with the society was on principal to principal basis and as per agreement executed by the Allottees with Ex-Developer, the rights of Allottees thereunder were subject to Ex-Developer’s rights and not higher than those. It was held that (i) society was not a co-promoter U/s. 2 (c) of MOFA and was merely in the position of owner vis-à-vis third party purchasers and (ii) the purchasers did not have any enforceable right, under MOFA, against the Society or the New Developer appointed by society, after termination of development agreement with Ex-Developer.
B. RERA- Regime
In the matter of Peter Almeida and Tangerine Almeida vs. M/s. Shubh Enterprises and others [Compliant No. CC006000000055575], filed by complainants therein being allottees, facts are similar to the said Vaidehi matter, the essence being the society terminates the development agreement with Developer (Ex-Developer) and appoints a New Developer for construction on land held by society. The allottees who paid monies to the Ex-Developer for securing flats under allotment letter executed with Ex-Developer sought direction from Regulatory Authority, against the society and the New Developer, for (i) executing agreement for sale and (ii) allotting flat in newly constructed building.
The Maharashtra Real Estate Regulatory Authority, Mumbai (“Regulatory Authority”) by its order dated 5thNovember 2019 directed that registered agreement for sale to be executed with complainants therein (being allottees of Ex-Developer) in accordance with the allotment letter issued by Ex-Developer. The ratio of the Vaidehi’s Judgement was not applied by the Regulatory Authority inter alia for the reason that it was before commencement of RERA and it held that after transfer of development rights in favour of the New Developer, the commitment of Ex-Developer will have to be honoured by the New Developer and society.
By common judgement dated 6th May 2022 in the appeals filed therein, the Maharashtra Real Estate Appellate Tribunal dealt with the question of- “Whether Allottees are entitled to reliefs as claimed in the complaint against the Society and New Developer” while answering the same in negative, it was inter alia reasoned as follows:
i. Since Society is not a party to contract / agreement for sale executed between Allottees and the Ex-Developer, the society cannot be held liable to any obligations that are required to be performed by Ex-Developer towards Allottees;
ii. Society has no privity of contract with the Allottees and the transaction is purely and only between the Allottees and the Ex-Developer as per settled position of law;
iii. Project registered by the New Developer does not involve the circumstances where there is a transfer in its favour as contemplated under Section 15 of RERA
iv. Neither the society nor New Developer appointed by it are under obligation to recognise claims of allottees as prayed for in the complaint therein;
v. In the absence of privity of contract, the Society and New Developer cannot be held liable to Allottees and consequently Allottees are not entitled to reliefs as claimed against the Society and New Developer;
vi. Under these circumstances, since New Developer has already taken over the project, no flat can be made available to Allottees in the project;
vii. The alternative claim of Allottees for refund, if at all, can be considered only against the Ex-Developer who has received the amount of earnest money from Allottees.
The complaint was remanded to the Regulatory Authority for considering and deciding the claim of allottees afresh to the extent of refund of the amount against Ex-Developer after hearing the concerned Parties.
Impact of RERA Judgement on Third-Party Purchasers
There are many projects halted or abandoned by Developers almost everywhere. The Society in such cases usually terminates the Development Agreement and appoints a New Developer. In such circumstances the allottees who have paid monies to Ex-Developer will now have an option to enforce their rights against Ex-Developer, before RERA authorities, for refund of amount paid by them.
Pallavi Ghaisas is a Lawyer specialising in the field of Real Estate. She works at Federal & Company, a Mumbai-based law firm.
In W.P.(C)13881/2019-DEL HC- Petitioner having participated in selection process cannot challenge same after he has been declared unsuccessful: Delhi HC dismisses petition of unsuccessful candidate competing for post of Junior Judicial Assistant/Restorer
Justices Vibhu Bakhru & Amit Mahajan [26-09-2022]
Justices Vibhu Bakhru & Amit Mahajan [26-09-2022]
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