Tag: #legalnews

-Report by Nehha Mishra

In the case of VIRENDRA SINGH VS THE ADDITIONAL COMMISSIONER, the appellant was disqualified under Sections 40 and 16(1)(i) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961.

FACTS

The appellant was elected as a member of the Zilla Parishad, Chimthane Block, Taluq Shindkheda, District Dhule, as a candidate of a recognized party. He was, however, disqualified from this office by an order issued by the Divisional Commissioner, Nashik, in response to a plea made by the respondent, who had lost the Zilla Parishad election.

The respondent sought the appellant’s disqualification because the appellant had abused his elected position for personal financial advantage. This financial gain is said to have occurred due to the appellant’s role in adopting a resolution by which the Aarave Gramme Panchayat sanctioned the repairing and tarring of a road from Aarave Phata to Mauje Aarave.

Following that, the appellant’s Zilla Parishad, Dhule, granted administrative sanction to the project. This sanction order documents that the Zilla Parishad, Dhule, sanctioned the project for Rs. 15 lakhs by exercising its powers under Section 125 of the aforementioned Act.According to Sections 40 and 16(1)(i) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, the respondent filed the plea. 

An e-tender was floated by the Aarave Gram Panchayat upon the sanctioning. The appellant’s son was successful against the other two candidates who had applied. As a result, he got the tender and was assigned the work of repairing roads at Mauje Aarave for a sum of Rs 14,62,871/-  

The Divisional Commissioner observed that it was obvious the appellant would be able to influence the same because the Aarave Gram Panchayat was in the Chimthane Block, which was under the jurisdiction of Zilla Parishad, Dhule. Additionally, it was noted that there was no proof that the son of the appellant had received work orders from any other blocks under the jurisdiction of the Dhule Zilla Parishad, and as a result, there was a prima facie indication of misuse, which was sufficient to disqualify the appellant under Section 16(1)(i) of the aforementioned Act.

PETITIONER’S CONTENTION

The appellant’s main argument was that Zilla Parishad Dhule, not Gram Panchayat Aarave, had assigned his son work. The allocation was carried out using an electronic tendering procedure that was made public on the Maharashtra Government website. Although it was formally approved by the Zilla Parishad, the Gram Panchayat also paid the appellant’s son for the work. 

The second argument was that the appellant had no personal stake in his son’s business and that they didn’t even live in the same house.

Third, it was argued that in disqualifying the appellant, the Divisional Commissioner did not follow the rules of natural justice. It was urged that an elected official cannot be hastily dismissed from office without investigation.

RESPONDENT’S CONTENTION

Learned counsel for respondent no.3 attempted to emphasize the goal of Section 16 of the impugned Act, namely, to inject probity into the operation of the Zilla Parishads.

In this situation, the job was done on the instruction of the Zilla Parishad, and the payment was also made through the Zilla Parishad. As a result, it was argued that the facts fit fully within the purview of Section 16(1)(i) of the aforementioned Act, and the disqualification was obvious.

There were some controversial changes in the translated version of the Gram Panchayat Resolution, which has served the purpose of awarding benefit to the appellant’s son in one way or the other.

JUDGEMENT

It is undeniably true that elected officials should not be disqualified on frivolous grounds.However, we are also obligated by the statutory mandate, which states that activities that undermine the goal of transparency should not be tolerated.

The only contract he received was one in which funds were sent to the Gramme Panchayat from the Zilla Parishad, of which the appellant was a member. The appellant attempted to excuse the circumstance by arguing that his son was registered as a contractor shortly after the appellant’s election since he had just finished his studies. This fact, in our opinion, raises more questions regarding the appellant’s involvement in his son’s business.

The Zilla Parishad’s issuing of the work order dated 09.06.2020 demonstrates the Zilla Parishad’s supervisory and sanctioning role in the contract, which falls within the broad reach of Section 16(1)(i) of the aforementioned Act.

As a father, the appellant had a higher responsibility to ensure that his son did not sign into a contract that is sanctioned by the Zilla Parishad itself. We can see from the lower courts’ findings of fact that nothing had been put on record to demonstrate even a separation of residence between the son and the father, other than a ration card purporting to show that the son was living with his grandmother.

The appeal was accordingly dismissed. The consequential disqualification would take place from the date of the judgement.

READ FULL JUDGEMENT: https://bit.ly/3GOupNa

-Report by Arunima Jain

The Supreme Court on Thursday announced its decision on the long-standing appeal of the petitioner in this case of a triple murder. The Constitution Bench has determined that the HighCourt or, in the event of a subsequent appeal, the Supreme Court, and not any other Court inthis country, may exercise power to impose a fixed term sentence or modified punishmentthat can be derived from the IPC. When a Constitutional Court determines that even though a case does not fall under the category of “rarest of the rare,” taking into account the seriousness and nature of the offence, as well as all other pertinent factors, it can always impose a fixed term sentence, preventing the accused from benefiting from statutory remission, etc. In addition to the same, the Court has the power to alter a lower court’s judgement to the said punishment, whether it lowers or upgrades it, depending on the gravity of the crime committed and the application of judicial conscience appropriate to the offence that was judged to have been committed.

FACTS

In the matter at hand, the appellant had been involved in the gruesome murder of three peoplealongside other co-accused persons in March 2006. Upon the case reaching the SessionsCourt, the appellant was convicted for the offence under Section 302 of the Indian Penal Code. The three co-accused in the case were also convicted for the same offence and all those convicted were sentenced to life imprisonment. After the initial judgement, an appeal waspreferred in

the High Court, which further went on to affirm the lower court’s judgement. On finding norecourse, the appellant came to the present Court.

CONTENTIONS

Appellant

The appellant’s learned counsel has challenged the High Court conviction on the basis ofwrongful identification of the accused in the matter. The counsel has submitted that there isno compelling evidence to prove the involvement of the appellant in the murder. As per thelearned counsel,         he has taken the precedent of Union of India v. V. Sriharan aliasMurugan & Ors., to further his case that the current sessions court has no jurisdiction to deal in the matter in regards to the punishment of life imprisonment. According to the appellant’s counsel, when it came to commuting a death sentence, only the Constitutional Courts can usesuch a power.

Respondent

Contrary to the petitioner’s counsel, the respondent’s learned counsel submits that both theCourts preceding the present Hon’ble court have considered the evidence provided and thetestimony of witnesses so given. The Court has the jurisdiction and power to modify and/orrectify the provided judgement of the High Court in such a manner.

JUDGEMENT

Upon giving due regard to the facts and law in the above-mentioned case, it is contended bythe Hon’ble Court that pursuant to the contested judgements, the appellant’s conviction isaffirmed.    Although the arrangement of the sentence has been tweaked a bit. The appellant is to serve a set term of 30 years of solitary confinement under strict supervision. Moreover, the appellant has been stripped of the opportunity to opt for recourse or remission under the Codeof Criminal Procedure. The appeal was thus partly allowed.

READ FULL JUDGEMENT: https://bit.ly/3zZYCoH

-Report by A.K. Sooraj

The Delhi High Court in the case VIJAY KUMAR JHAMB vs. UNION OF INDIA held that the respondent overstepped its jurisdiction in opining that the bank clerk with 20 years of service was not entitled to any pension under the Pension Rules of the bank.

FACTS

The petitioner joined the services of the State Bank of India as a clerk on April 10, 1981, and was removed from service on the basis of an order dated November 24, 2004, pursuant to ex parte disciplinary proceedings held against him. The petitioner requested the release of his pension from the bank because he had more than 20 years of service and claimed that because he had submitted his retirement on March 10, 2004, he was entitled to it. After not hearing back, the petitioner brought a complaint before the Assistant Labour Commissioner on behalf of the All India Bank Staff Association. The bank asserted during the conciliation proceeding that the petitioner was not entitled to a pension under the applicable Pension Rules. The respondent issued the challenged order denying to refer the petitioner’s claim for adjudication after receiving a failure report from the Assistant Labour Commissioner serving as the Conciliation Officer due to the bank’s opposition to the petitioner’s claim. Being aggrieved, the petitioner approached this Court by way of the present petition.

PETITIONER’S CONTENTIONS

The petitioner’s learned counsel argued that the impugned order was completely without jurisdiction since, according to Section 12(5) of the I.D. Act, the appropriate government lacked the authority to decide on the opposing positions expressed by the parties. He argued that the Conciliation Officer’s and the Appropriate Government’s jurisdictions were extremely constrained, and all that they needed to take into account was whether or not there was a dispute between the parties. A disagreement can only be completely frivolous before the government decides not to refer to it. It was the respondent’s responsibility to refer the case to the Industrial Tribunal in the current instance after it became clear that the bank was refusing to consider the petitioner’s demand for a pension. According to I.D. Act Section 12(5), the respondent was not permitted to perform an adjudicative duty. Therefore, he requested that the contested order be reversed and that the respondent immediately refer the petitioner’s claim to the Industrial Tribunal.

RESPONDENT’S CONTENTIONS

Mr. Gogna, experienced counsel for the respondent, attempted to justify the assailed order by arguing that the appropriate government was required to determine whether a prima facie case was made out for adjudication prior to making a reference under the Industrial Disputes Act. In exercising its authority under Section 12(5) of the I.D. Act, he contends that the appropriate government is not compelled to refer to every issue; rather, it is expected to first determine whether a reference is warranted or not. The government is not compelled to make any references unless it is convinced that the claim has to be submitted for adjudication. Nevertheless, it had to give a justification for not referring the case to the Industrial Tribunal for resolution. As a result, he prayed that the petition be dismissed.

JUDGEMENT 

The judgement was given by considering the facts of the present case with the decision given in the case of M.P. Irrigation Karamchari Sangh Vs. State of M.P. and Another, (1985) 2 SCC 103. It was held that the respondent had overstepped its jurisdiction in opining that the petitioner was not entitled to any pension under the Pension Rules of the bank. The respondent has failed to appreciate that it was the petitioner’s specific case that he had voluntarily resigned from service with effect from May 1, 2004, but was thereafter malafidely removed from service on November 24, 2004. Additionally, despite being terminated, he would still be eligible for a pension because he served for more than 20 years. The respondent could not have simply rejected the petitioner’s position on the basis of a prima facie case without giving him the chance to present evidence before the learned tribunal. For the aforesaid reasons, the impugned order, being wholly unsustainable, was accordingly set aside. The matter was returned to the respondent, who will immediately refer the petitioner’s disputes to the appropriate industrial adjudicator so that a decision can be made without further delay.

READ FULL JUDGEMENT: https://bit.ly/3MNrAzI

-Report by Mehul Jain

It was held by the Supreme Court of India in the case of GUJARAT URJA VIKAS NIGAM LIMITED & ORS VS RENEW WIND ENERGY (RAJKOT) PRIVATE LIMITED & ORS that on April 13, it held that the concurrent findings and orders of the State Commission and APTEL cannot be sustained. They are 51 accordingly set aside. The appeals are allowed, with costs payable to the appellants. It is the conclusion of the Supreme Court of India.

FACTS

The judgment is made by the learned Double Judge bench “Hon’ble Mr Justice S. Ravindra Bhat, Hon’ble Mr Justice Dipankar Datta” On 13 April 2023. The Judgment Is Given By “Hon’ble Mr Justice S. Ravindra Bhat”.

The current civil appeals,1 under Section 125 of the Electricity Act, 2003, challenge orders of the Appellate Tribunal for Electricity (hereafter, “APTEL”), dated 06.12.2018 (“first impugned order”) and order dated 24.07.2020 (“second impugned order”). The APTEL had, by those orders, rejected the appeals preferred by the present appellant, and the review petition, as well. Resultantly, the order of the Gujarat Electricity Regulatory Commission (hereafter “the State Commission”), dated 01.07.20154 was affirmed.

The first appellant – Gujarat Urja Vikas Nigam Limited (hereafter “Gujarat Urja”) had approached this court previously challenging the order of APTEL, which was disposed of by this court granting liberty to it, to seek review/rectification. Gujarat Urja then preferred a review petition, which was rejected by APTEL, by the second impugned order. When this appeal was taken up for hearing, on 14.10.2020, this court issued a notice and stayed the impugned order of APTEL.

Gujarat Urja procures power in bulk on behalf of distribution licensees in the state of Gujarat; it is an authorized licensee within the meaning of the term under the Act. The second, third, fourth and fifth appellants are distribution licensees in the State of Gujarat. The first respondent, Renew Wind Energy (Rajkot) Pvt Ltd (hereafter “RWE”) is a wind generator which had set up 25.2 MW Wind Turbine Generators at District Rajkot, Gujarat under the Renewable Energy Certification scheme notified by the Central Electricity Regulatory Commission (hereafter, “Central Commission”). The second respondent is the Wind Independent Power Producers Association (hereafter “Association”). Respondent No 3, Gujarat Electricity Regulatory Commission (hereinafter “theState Commission”) is the regulatory commission under the Act, for the State of Gujarat. The fourth respondent, Wish Wind Infrastructure LLP (“Wish Wind” hereafter) is a wind generator.

On 11.07.2013, Central Commission amended the REC Regulations 2010 (hereafter “Second Amendment”) and replaced “at a price not exceeding the pooled cost of the power purchase “with” at the pooled cost of power purchase”14 along with the relevant statement of reasons for the said amendment. It was clarified in the amendment that PPAs already executed before this amendment at a tariff lower than APCC would not be affected. The first two respondents were aggrieved by the order of the Central Commission. They filed a petition before the State Commission arguing that the terms of the PPA had to be changed because of the change in the REC regulations. This petition was allowed by the State Commission directing that the order of the Central Commission was general and was therefore applicable to all similarly situated wind power generators. Aggrieved by the order of the State Commission, Gujarat Urja had preferred an appeal16 before APTEL. This appeal was rejected by APTEL by order dated 06.12.2018. The appellants preferred a review petition against APTEL’s order rejecting their appeal against State Commission’s order; that too was dismissed by APTEL vide order dated 24.07.2020.

APPELLANT’S CONTENTION

The learned senior counsel for the appellant, Mr C.A. Sundaram submitted that governing regulations for the PPAs in question were the CERC Regulations 2010. Therefore, the State Commission had no jurisdiction to decide the tariff contrary to the agreement. Further, counsel argued that Central Commission itself has clarified by the Second Amendment that in respect of PPAs entered into before 11.07.2013, tariffs mutually agreed upon between the parties would be valid for the entire duration of the PPA (i.e.25 years) and they could not be substituted or re-determined by the State Commission. It was further argued that had the appellants known about the APPC on a year-on-year basis at the time of signing the agreement, they would not have adopted the REC mechanism but instead would have availed a different method whereby prices were fixed and appellants would have been entitled to RPO benefits as well. Reliance was placed on this court’s judgment in “Gujarat Urja Vikas Nigam Limited v. Solar Semi-Conductors Power Limited Company (India) Private Limited” to argue that if the State Commission re-determines the tariff amongst the parties, then the aggrieved party cannot be compelled to continue the said agreement or enter into a new agreement on such increased tariff.

It is further argued that there is no Regulation of the state or central commissions prohibiting a term being incorporated in PPA which permits an option to either party to switch from REC mechanism to Preferential Tariff Mechanism. The impugned order had not considered judgments referred to by the appellants on clauses granting power to one party to cancel the contract. Inthis regard, reliance is placed on “Central Bank of India v Hartford Fire Insurance Co. Ltd” and “Her Highness Maharani Shantidevi P Gaikwad v Savjibai Haribai Patel & Ors.”

RESPONDENT’S CONTENTION

Mr Shyam Divan and Mr Dhruv Mehta learned senior counsels appearing for the first two respondents urged that State Commission had jurisdiction in the present case. Reliance was placed on the definitional clause of the PPA (Article 1.1) to submit that commission meant ‘State Commission’. It was urged that in terms of the extant regulatory framework, (which provided for regulatory oversight by the appropriate commission), PPAs executed by generating companies and distribution licensees necessarily required approval by the appropriate commission. Firstly, Section 86(1)(b) of the Act specifically vests the State Commission with the power to regulate the electricity purchase and procurement process of distribution licensees including the price at which electricity shall be procured from the generating companies. Secondly, under the Multi-Year Tariff Regulations, 2011 (hereafter “GERC (Multi Year Tariff) Regulations”) notified by the State Commission, PPAs are to be mandatorily approved for them to be considered effective and enforceable. 

It was also submitted that Section 86(1)(b) of the Act empowers the state commission to modify, alter or vary the terms of the agreement of PPAs, to ensure their compliance following the regulatory framework established under the Act. It was further submitted that taking into consideration the definition of APPC, it is evident that floor price and forbearance price are dynamic and APPC is associated with the floor price and the forbearance price is also required to be determined on a year-to-year basis so that the guaranteed return to the generators is not affected.

JUDGEMENT

The crisis arising out of, and the enormous environmental cost involved in the continued use of fossil fuels has led governments, the world over, to promote alternative and renewable sources of energy. The rapid growth of renewable energy over the decade and a half has witnessed that solar and wind power are now the cheapest sources of energy in many countries in the world. Once green energy was an expensive alternative, however, it is now helping to reduce energy bills.

The rapidly changing economics of such sources has led, the Union government to realize that solar and other renewables can potentially transform the energy landscape, increase access and help India meet its climate change objectives. Grid transmission capacity has been a barrier; however, distributed and off-grid solar solutions provide a viable solution for increasing energy access. Being dependent primarily on cheap coal-based power generation, traditional thinking on energy has been that increase in renewable energy’s share of electricity generation would further impair local distribution companies’ poor financial situation.

In the present case, this salutary rule was thrown to the wind, by the State Commission. In this court’s opinion, APTEL, in the most cavalier fashion, virtually rubber-stamped the State Commission’s findings on coercion, regarding the entering into the PPA by the parties. There was no shred of evidence, nor any particularity of pleadings, beyond a bare allegation of coercion, alleged against Gujarat Urja. As a judicial tribunal, dealing with contracts and bargains, which are entered into by parties with equal bargaining power, APTEL is not expected to casually render findings of coercion, or fraud, without proper pleadings or proof, or without probing into evidence. The findings of coercion are, therefore, set aside.

Given the foregoing discussion, it is held that the concurrent findings and orders of the State Commission and APTEL cannot be sustained. They are accordingly set aside. The appeals are allowed, with costs payable to the appellants.

READ FULL JUDGEMENT: https://bit.ly/3mF5rIY

-Report by Nehha Mishra

In the case of KALPANA DEVI VS UNION OF INDIA, the appellant failed to prove the situation as an ‘untoward incident’ defined under Section 123(c) of the Railways Act and was denied compensation by the Railway Claims Tribunal and was endorsed by the High Court of Delhi.

FACTS

The appellant claimed that her husband boarded the train after purchasing a rational 2^nd class superfast railway ticket for the train running from Agra Cantt to Hazrat Nizamuddin railway station. 

Her Husband was standing at the door of the compartment and fell accidentally from the moving train and died at the stop. The appellant claimed that her husband has died in an ‘untoward incident’ and she is entitled to get compensation.

The Railway Claims Tribunal decided that the appellant cannot claim compensation as the journey ticket was not recovered, proving he was not a bona fide passenger. After reading the thorough details of the material on record, it further concluded that the had not occurred due to falling from the moving train. 

The claim petition was dismissed by the Railway Claims Tribunal as they found the appellant non-suited on both counts. 

PETITIONER’S CONTENTION

Referring to the post-mortem report, the Learned counsel for the appellant contended that in the report, the cause of death was particularly expressed as ‘…possible in a railway track accident.’ The Tribunal has misjudged that the accident has not occurred due to the falling from a moving train.

He further contended that declaring him as a bona fide passenger is incorrect as the ticket was lost at the time of the accident.

RESPONDENT’S CONTENTION

A detailed analysis of the case record showed that the incident was first informed by a record that was made at 18:40 hours where it was expressed that one person was lying run over on the Ashram railway bridge whereas another record made at 19:50 hours mentioned that three dead bodies were found in the badly disfigured condition lying at the UP- line of Nizamuddin – Tughlakabad Section.

Adding to this fact, he said no eyewitness could confirm the incident and the appellant herself did not see her husband buying the tickets or boarding the train.

The cause of death was recorded as “a result of combined effects of craniocerebral damage and shock.”  Whereas, the post-mortem report did not mention anything to the matter related to brain damage but rather noted multiple crush injuries, fracture of skull bones, and fracture of the pelvis on both sides.

JUDGEMENT

The fact that 3 dead bodies were found at the place of the accident makes it difficult to conclude that all of them died by accidentally falling from the moving train at the same time. 

Supporting this fact, the journey ticket was not found, and the first information as well as the post-mortem report mentioned that the appellant’s husband was run over.

The appellant failed to make out a case of an ‘untoward incident.’ The court agreed to the decision of the Tribunal.

The Findings recorded were upheld by the court and the appeal was hence, dismissed.

READ FULL JUDGEMENT: https://bit.ly/3KFDokV

-Report by Utkarsh Kamal

In this case, The Supreme Court has reaffirmed that the State cannot be forced to create posts and hire qualified individuals without sanctioned positions. In this case, the Bench comprising Justice Ajay Rastogi and Justice Bela M. Trivedi was deciding a case pertaining to the reinstatement and regularisation of members of the ‘Makkal Nala Paniyalargal’, or Village Level Workers were members of the Makkal Nala Paniyalargal (MNP) organizations who worked in Tamil Nadu.

FACTS:

A program offering jobs to educated youngsters in rural regions who had completed the 10th standard was started by the Tamil Nadu government in 1989. In the entire State, 25,234 MNPs (Makkal Nala Paniyalargal/Village Level Workers) were employed. The program was abandoned by the government in 1991. As a result, those hired through the program had their employment terminated. The scheme was reinstated in 1997 by government order, and it was abandoned once more in 2001. The government devised a plan in 2006 to transfer those who had been hired as Panchayat Assistants and part-time clerks to any scale as of September 1st, 2006. The Government announced in an order dated 2008 that it would take into account filling 50% of open positions in the cadre of record clerks, office assistants, night watchmen, and analogous posts from MNP. The government hired 600 MNPs to work as night watchmen and official assistants in local panchayats. The period of MNPs was extended by two years till May 31, 2012, subject to absorption. However, the Government disbanded MNPs in the interim on November 8, 2011. The Government order was contested before the Madras High Court, and the Single Judge permitted it. The decision made by the single judge was upheld by the Division Bench. In response to an appeal, the Supreme Court gave notice and suspended the High Court’s decision. The Mahatma Gandhi National Rural Jobs Guarantee Scheme is a program that the State Government started in 2022 to give jobs to educated unemployed youth. The majority of the 13,500 MNPs had enrolled in the program, while 489 MNPs had declined the chance.

LAW:

The schedule of the Act included the State of Tamil Nadu. According to Section 3 of the Act, each State must implement a program that offers every household in rural areas covered by the Scheme, whose adult members agree to perform unskilled manual labour, at least 100 days of guaranteed employment in a fiscal year. The Court remarked that the 2005 Act’s provision of the benefit made by the State of Tamil Nadu’s plan remains in effect.

ISSUE:

Whether the government can be compelled to create posts and absorb those in service in the absence of sanctioned posts?

APPELLANT’S CONTENTION:

The appeals court would be the least qualified to determine whether the government acted honestly in creating a post or refusing to create a post or whether its decision suffers from malice (legal or factual), according to the appellants, who argue that creation and abolition of posts rest with the government and is a matter of government policy, which can always be exercised in the interest and necessity of internal administration.Because these appointments were not made in accordance with the State Government’s formation against a cadre post, the service conditions of which are governed by the service regulations established in accordance with the proviso to Article 309 of the Constitution. The current appointments are made solely to give educated youngsters in rural regions employment as MNPs in the implementation of various schemes at the village level for an honorarium that has periodically been updated.

RESPONDENT’S CONTENTION:

A court must review every government decision to create or eliminate posts, especially if it goes against established service rules or constitutional clauses. The respondent may contend that the creation of positions purely to give educated children in rural areas work is not a proper use of public funds and may not be a valid government policy. The respondent may further argue that rather than being subject to arbitrary periodic modifications, the service conditions of such posts should be governed by established regulations.

JUDGMENT:

The National Rural Employment Guarantee Act was passed by the Central Government in 2005 to provide direct supplemental wage employment to rural citizens, the Supreme Court remarked. In a fiscal year, it guaranteed at least 100 days of paid employment. The schedule of the Act included Tamil Nadu as a state. According to Section 3 of the Act, each State must adopt a program that offers every household in rural areas covered by the program, whose adult members agree to perform unskilled manual labour, at least one hundred days of guaranteed work in a fiscal year. The Court determined that the 2005 Act-adopted benefit offered by the State of Tamil Nadu’s plan is still in effect. The court took note of the High Court’s ruling that employees who lost their jobs as a result of the government order disbanding the program in 2011 are not only entitled to reinstatement but also to be regularised in service after the post was created. 

According to the Supreme Court, judges cannot command the creation of jobs. The MNPs were hired through a system and received honoraria rather than compensation for holding a cadre position.

After the scheme expired, the Divisional Bench ruled that MNPs were not eligible for reinstatement or regularisation of service. Hench overruled the judgment of the High Court.

READ FULL JUDGMENT: https://bit.ly/419WE0D

-Report by Sejal Jethva

Radhey Shyam & Ors VS State of Rajasthan, in this case, political rivalry between the family of the deceased & accused. The eyewitnesses the minor, who was the daughter of the deceased and who is the mother of the deceased.

FACTS

The family of the late Raghunath Singh and a few of the accused, who are members of the Ahir clan, found a party called the Azad party, have a history of political enmity. The incident happened on April 16, 1976. Shiv Raj Singh, PW6, filed a First Information Report. Shiv Raj Singh is the brother of the deceased Raghunath Singh (FIR). The dead were attacked by a bunch of Ahirs. The prosecution claims that PWs 2, 3, and 4 were the actual witnesses. The Trial Court disregarded PW2’s testimony but accepted PW3 Krishna, the deceased’s minor daughter, and PW4 Kanwarbai, the deceased’s mother, as credible witnesses.

APPELLANT’S CONTENTION

PW3 is a young witness whose testimony must be scrutinised quite carefully. She drew our attention to PW­3 Krishna’s testimony and, in particular, her cross­examination, arguing that her testimony cannot be taken seriously, especially given the witness’s exceedingly dubious identification of the defendant in court. Furthermore, PW4 was unable to name a single accused present in court, making it risky to rely on her testimony. She further emphasised that the FIR was sent to the knowledgeable Magistrate with a 3-day delay. Political competition existed between the deceased person’s family and the accused’s political party, therefore during these three days, the accused must have been falsely implicated.

RESPONDENT’S CONTENTION

The State argued that reading the child witness’s (PW3) responses to the opening questions demonstrate the witness’s high level of knowledge and intellect. He claimed that while she accurately recognised the first accused as the son of Ramchander, she accidentally revealed the name of Modu (the accused who was found not guilty), who was also the son of Ramchander. He claimed that there is a small inconsistency that does not suffice to invalidate the version of PW3. He asserted that PW­4 Kanwarbai mentioned five people as the defendants. According to his argument, PW4 was unable to recognise the accused by name. He asserted that the passage of time makes it simple for this to occur. He would contend that the judgments rendered by the High Court and the Sessions Court regarding the guilt of the appellants were correct and cannot be criticized.

JUDGEMENT

1. We discover that the prosecution’s case is solely supported by PWs 3 Krishna and 4 Kanwarbai’s evidence. At the time her testimony was recorded, PW 3 was 12 years old. PW 3’s testimony cannot be disregarded solely because she was 12 years old. But, because she is a child witness, her testimony needs to be evaluated extremely carefully and with additional caution because a child witness can always be readily instructed. As a result, her version has undergone a thorough examination.

2. PW3, a young witness, provided testimony. Her evidence reveals that even though the five accused she allegedly named were ordered to stand apart from the other accused, she struggled to identify at least two of them. Regarding the identity of the accused, PW-3 Krishna’s version does not arouse confidence. It is extremely risky, in any event, to convict the accused based on such testimony, particularly given that the sole other eye witness (PW-4) who was believed by the Trial Court was unable to identify even one accused in the Court. The learned Trial Judge observed that the courtroom had enough light and that the faces of the defendants were clearly visible.

3. As the identity of the listed accused as the assailants of the deceased has not been confirmed in court beyond a reasonable doubt, we are of the considered view that this is true. The only evidence left is the purported seizure of the assault rifles at the accused’s request. Only based on the supposed recovery may the conviction not be upheld.

4. As a result, the appellants are exonerated of the accusation brought against them, and their conviction under the in-question judgments and decrees is hereby quashed and set aside. Appellants are free on bail. Their sureties have been released. Hence, the appeal is granted.

READ FULL JUDGMENT: https://bit.ly/419VylD

-Report by A.K. Sooraj

The Delhi High Court in the case of  Rashmi Sehrawat vs Praveen Sehrawat held that the failure to comply with the orders of maintenance, even after giving several opportunities, amounts to contempt of court.

 FACTS:

The contempt petition was filed by the petitioner, wife stating that the Respondent, husband was in wilful disobedience and deliberate non-compliance with the order dated 18.09.2019 passed by the Mahila Court, New Delhi ( Trial Court), whereby the Respondent was directed to pay a monthly maintenance amount of Rs. 35,000, including rent, for the two minor sons and the Petitioner from the date of application to the disposal of the case. This contempt petition was filed by the Petitioner on 24.08.2020, given the absolute non-compliance of the said order dated 18.09.2019. The petition alleged that since the date of the order, the Respondent has not made any payments. The aforementioned order of 18.09.2019 had been challenged by both parties, and the cross-appeals were dismissed by the Additional Sessions Judge, New Delhi in an order dated 12.11.2020. A finding was returned by the Appellate  Court that the monthly income of the Respondent is Rs. 65,000. The Appellant Court directed the Respondent to pay to the Petitioner an amount of Rs. 5000 per month for the maintenance of each child and apart from that he was directed to pay Rs. 10000 per month for the school fees of each child. In addition, the Respondent was directed to pay Rs 10000 per month for the Petitioner towards the maintenance and Rs. 5000 towards the rent. The Appellate Court determined the sum total of the monthly amount of maintenance as Rs. 45000 subjects to the variation on account of school fees.

ARGUMENTS OF THE PETITIONER:

The learned counsel for the petitioner submitted that there was Rs. 15,45,000 in maintenance arrears as of the current date for the petitioner and her young children. He said that this did not include the minor children’s unpaid school expenses. He claims that the Respondent in this case has a sizable rental revenue of 10–12 lakhs per month based on instructions from the Petitioner. According to him, the respondent in this case and his family are the owners of 32 units in Mahipalpur. He further refers to the Petitioner’s averments, which allege that the Respondent sold the Greater Noida villa for Rs. 49,00,000 in 2018. He claims that the Trial Court had directed the Respondent to present an account of the relevant transaction and specifics of how the relevant sum had been spent. He claims that the Respondent has purposefully disobeyed the aforementioned directive and has not yet supplied it. He added that the minor children were being harassed for fee demands and made fun of by the relevant school as a result of the Respondent’s actions in failing to pay their tuition on time.

ARGUMENTS OF THE RESPONDENT:

The learned counsel for the Respondent claimed in a computation that the amount of arrears due and payable as of 01.02.2023 was Rs. 8,52,333. The Petitioner disputed the computation and the statement of payments attached, refusing to accept the entries made therein. On February 15, 2023, he restated his arguments from February 13 to the effect that the petitioner could not continue the current contempt proceedings since she had submitted an execution petition that was still being decided by the Trial Court. He also added that the non-compliance with the orders was not wilful or intentional. He claimed that despite his best efforts, the Respondent was unable to pay the arrears under the conditions of the maintenance order due to the Respondent’s meagre income.

JUDGEMENT:

The current matter has been listed 32 times. Even as of the date the decisions were reserved, the amount of accepted maintenance arrears owed by the Respondent was Rs. 8,52,333 (which, according to the Petitioner, should be Rs. 15,45,000). The Respondent had not made the payments of the admitted arrears even after repeatedly, seeking time from this Court to clear the same. the Respondent is a 50-year-old professional, holding a degree and therefore, in accordance with the judgement in Anju Garg vs Deepak Kumar Garg, 2022 SCC OnLine 1314, capable of earning and maintaining his wife and children. Respondent had numerous opportunities and undertakings, but he had failed to follow the maintenance directives. The Respondent was adjudged to have committed contempt of court and was subject to punishment under Section 12 of the Contempt of Courts Act, 1971, as the Court was of the opinion that the Respondent was defiant and wilfully and intentionally disobeyed the undertakings made to the Court and orders made by the Trial Court, Appellate Court, and the Court in these proceedings. The Court sentenced the respondent, contemnor, Mr. Praveen Sehrawat, to undergo two months of simple imprisonment along with a fine of Rs. 2000, and in default of the payment of the fine, he shall further undergo fifteen days of simple imprisonment. Following the judgement in Sonali Bhatia vs Abhivansh Narang, the Court directed that the Respondent exhibit his apology by complying with the orders of the Trial Court as modified by the Appellate Court, and directions issued by the Court makes payment of entire arrears of maintenance within ten (10) days and undertakes to continue to pay the maintenance until the order dated 12.11.2020 continues to remain in force, and tenders an unconditional apology to the Court, the Court shall consider recalling the punishment of Respondent undergoing simple imprisonment, provided the respondent complies with the aforesaid directions within 10 days. However, he was instructed to appear before the Jail Superintendent at the Central Jail, Tihar, New Delhi, on April 20, 2023, if he does not abide by the aforementioned instruction within the time allotted.

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-Report by Harshit Yadav

In the case of Anwar @Bhugra V. State of Haryana, the Supreme Court set aside the judgement of the trial court, which was confirmed by the High Court. The trial court convicted two accused under Section 394 and 397 IPC and the third accused under Section 25 of the Arms Act.

FACTS:

The complainant purchased and was going back to his village Rana Majra meanwhile he was apprehended by three persons near the cremation ground around 8:00 pm. They asked him to hand over things to them but he only had grocery items. On hearing this, they give him leg blows and fists and took his wristwatch. Seeing a  tractor coming from the side of the village and he cried for help. On seeing this, two persons helped the complainant. Those three men inflicted injury on all these persons. Mahindra Singh a resident of village Balehra came to the spot and apprehended one person who was with a knife. He disclosed his name as Satpal and the other members were Anwar and Bablu. Taking advantage of darkness, Satpal flew from the place. An FIR was lodged by the Complainant. The trial court convicted Anwar and Bablu for a punishment of seven years and ₨ 2000. The High Court also confirmed the decision of the Trial Court.

CONTENTIONS:

Appellant:

The appellant contended that the story built by the prosecution on the basis of the complaint is concocted. Such incident was never has taken place. Recovery of the pistol is in doubt as the memo of personal search after the arrest of the appellant mentioned that nothing was found at that time. The memo of pistol says that the pistol was found when the arrest of the appellant was done. It is contrary to the memo of personal search. The allegation of the purse is also in doubt as nothing such allegation was made in the FIR. Many witnesses were declared hostile.

Respondent:

The counsel from the respondent said that the entire prosecution was duly supported by witnesses. Merely few witnesses were declared hostile, which does not demolish the case. The concurrent findings of facts were recorded by the lower courts and there is no call for interference by this Court.

JUDGEMENT:

In this case, the Apex Court held that the recovery and memos of the pistol are highly doubtful as the memo of personal search says that no pistol was found, but the memo of pistol says that it was found in the right pocket of the appellant when he was arrested which was highly doubtful in the view of Apex Court and can demolish the case by this reason only. The medical report of the pistol also suggests that it was never used. Witnesses turning hostile also holds importance, and material witness was not presented by the prosecution. Therefore on these findings by the Apex Court, the Court set aside the impugned judgement of the Trial Court which was confirmed by the High Court. The appeal was allowed thereafter.

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-Report by Arunima Jain

The Mumbai High Court on Thursday upheld the Maharashtra Administrative Tribunal’s judgement that is related to the reinstatement and absorption in service of a wrongly terminated woman for the post of lecturer. The court has supported the judgement in the case of Sachin Dawale v. The State of Maharashtra while stating that ‘adherence to the rule of equality in public employment is a fundamental feature of our Constitution, and because the rule of law is at the heart of our Constitution, a Court would be barred from upholding a violation of Article 14 or ordering the disregard of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Moreover, unless the appointment of a government servant is made in accordance with the relevant rules and following proper competition among qualified candidates, the appointee will not have any rights. It is not open to the court to prevent regular recruitment in the case of temporary employees whose period of employment has expired or ad hoc employees who, by definition, do not have any rights.’

FACTS

In the matter at hand, the State had imposed a ban on the recruitment of various departments in the educational sector. Upon upliftment of the ban, through a policy decision in July 2002, the respondent was instituted as a Lecturer on a contract basis for a period of two years or till

the availability of an MPSC-selected candidate, whichever was earlier. By subsequent government policies and resolutions after the completion of the two years of the contractual agreement, the respondent was reinstated as a Lecturer in a different university till October 2012. In lieu of an administrative ground against vacancy generated by contract lecturer transfer, the respondent’s employment was terminated in September 2012 before the end of her tenure. After the passing of the judgement in the case of Sachin Dawale v. The State of Maharashtra, the respondent filed an application challenging her termination before the Tribunal. The Tribunal directed reinstatement and absorption back into the service of the respondent as a Lecturer in the Government Polytechnic. The State Government has filed this case in order to challenge the Tribunal’s judgement and order.

CONTENTIONS

Petitioner

The petitioner’s learned counsel has submitted before the High Court that the Tribunal should not have entertained the original application owing to the fact that the respondent had accepted the termination of her services as a lecturer without a predicament, as and when it occurred. Moreover, the original application that challenged the termination was sought after 4 years of the respondent being relieved of her duties. The counsel for the respondent further stated that during the initial contract, it was made clear to the respondent that according to the law at the time, the contractual agreement existed till the specified date or till the availability of an MPSC-selected candidate. Since the termination was in lieu of the selection of an MPSC-selected candidate, the respondent was rightly relieved of her duties. Therefore, according to the petitioner’s counsel, the current contentions of the respondent are absurd and cannot be relied upon.

Respondent

Contrary to the petitioner’s counsel, the respondent’s learned counsel submits that all contractual lecturers instituted in service along with the respondent have been regularized in their jobs, with just the exception of the respondent. On top of that, the candidate employed in replacement of the respondent was not an MPSC-selected candidate, but a transferee to the Government Polytechnic. In addition, it is submitted that the job vacancy created through the transfer did not require the termination of the respondent’s post. As far as the limitation act condones the delay in filing the Original Application, the respondent’s counsel contends that the Court shall be awry in interfering with the interpretation of the Tribunal in the same regard.

JUDGEMENT

Upon giving due regard to the facts and law in the above-mentioned case, it is contended by the hon’ble court that this was a proper instance in which the Tribunal should have excused the delay in filing the application and the appellants should have been awarded relief in the same terms as the Full Bench of the Tribunal. As a result, the appeal is granted, the contested Tribunal judgement is reversed, the delay in filing the order is excused, and the application is granted. The Tribunal made no mistakes in overturning the order freeing the respondent from service or directing her regularisation.

Because of the unique facts and circumstances of the current case, the bench has also mentioned that it is inclined to maintain the Tribunal’s ruling directing the Respondent’s regularisation. As a result, no errors were detected in the Tribunal’s judgement and order. It was further directed to the petitioner to comply with the Tribunal’s instructions. The writ petition filed was thereby dismissed.

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