Tuesday, 7 August 2012

Latest Judicial Cases - Supreme and Delhi High Court

                                                              Latest Judicial Cases:-

1. Jainendra Singh Vs. State of U.P. Tr. Prinl. Section Home and Ors. - Jul 30 2012 (Supreme Court)

Indian Penal Code - Sections 34, 147, 148, 149, 307, 323, 324, 325, 326, 336, 380, 427, 506, 596

The main issue was whether the services of a Constable in the Police Department be terminated who concealed certain relevant facts which he was called upon to disclose after his selection was finalized and after order of appointment was issued by placing him on probation. It was found that the Appellant was involved in a criminal case for an offence falling under Sections 147, 323, 336, Indian Penal Code which was pending in the Court at the time of his selection though subsequently he was acquitted by the competent Court. Since the Appellant concealed his involvement in a criminal case, the Senior Superintendent of Police passed orders terminating his appointment/ services on that ground. Aggrieved by the said termination order, the Appellant approached the High Court by filing a Writ Petition and by the challenged order the High Court declined to interfere with the order of termination holding that the Appellant consciously concealed the important information in order to secure employment and subsequent acquittal. It was laid down as a preposition of law that suppression of material information which a candidate was called upon to furnish and which he failed to do, such concealment would result in serious consequences. It was also not appropriate to the nature of service for which such recruitment was made and the State would be well within its powers to resort to cancellation of such appointment when the appointee was under-going probation in order to ensure cleanliness in the service. It was held that when a criminal case under Sections 148/ 323/ 380/ 427/ 596, Indian Penal Code was filed against the Respondent and it was pending in the Court, it would not be appropriate to appoint the Respondent as a constable. Surely, the authorities entrusted with the responsibility of appointing constables were under duty to verify the antecedents of a candidate to find out whether he was suitable for the post of constable and so long as the candidate had not been acquitted in the criminal case of the charges under Sections 148/ 323/ 380 / 427/ 596 IPC, he could not possibly be held to be suitable for appointment to the post of constable. 

It was held that it was appropriate to refer the above mentioned issue to a larger Bench of this Court for an authoritative pronouncement so that there would be no conflict of views and which would enable the Courts to apply the law uniformly while dealing with such issues.
Registry was directed to place all the relevant documents before the Hon'ble the Chief Justice for constitution of a larger Bench.

2. Jayanti Kumari Nayak Vs. State of Orissa and Ors. - Jul 31 2012 (Supreme Court) 

Service Law

The Respondent made an allegation that despite due selection he was not allowed to work and appellant was put in his place. An appeal was made before the Director and it was decided by an ex-parte order that Respondent be allowed to work. A Writ petition was filed by the Governing Body. The argument raised by the Governing Body was that intimation regarding date of hearing was received a day after the hearing. The Court however found it to be false as Telegram was sent for giving notice of hearing. Thus, the Writ was dismissed with liberty to Governing body to file an application before Director for review. Respondent No. 4 challenged the order of the Director before the High Court in Writ Petition. The High Court allowed the writ petition. The High Court noticed the earlier proceedings between the parties and further that in the previous writ petition filed by the Governing Body of the College, the Court had left it open to the Governing Body to file an application before the Director for review of his earlier order. It was held that the Director had no power to review and its earlier order had become final and it could not be changed by him on the basis of a petition for recall of that order. The High Court pronounced that the order of the Director was final. It, accordingly, allowed the writ petition. Against the order of the High Court the Appellant filed an appeal to this Court. It was held that in the first round High Court gave liberty to Governing body to file a petition for review however in the second round it held Director to be having no power of review. Thus, matter was not properly dealt with and was postponed to Director for fresh consideration. All previous orders were set aside. Different proceedings arising from earlier orders, pending before courts were also abated. The appeal was disposed of by the Director by an ex parte order holding that the action of the General Body in prohibiting the applicant (respondent No.4 in the present appeal) from discharging his duties was illegal and requested the Secretary of the Governing Body to allow respondent No.4 to perform his duties as a lecturer in the college. It was held that the matter was not properly dealt with and at the same time there were materials to suggest that respondent No.4 was able to obtain the ex parte order from the Director on the basis of a document, the genuineness of which was doubtful. 

Thus all the previous orders passed both by the High Court and the Director were set aside and remit the case to the Director to consider the matter afresh after hearing respondent No.4, the Governing Body of the College and the appellant and pass a fresh order on his appeal in accordance with law.

3. The Oriental Insurance Company Ltd. Vs. Siby George and Ors. - Jul 31 2012 (Supreme Court)

Workmen's Compensation Act, 1923 - Sections 3, 3(1), 3(5), 4, 4(2), 4(3), 4A, 4A(1), 4A(2), 4A(3), 19

The Commissioner for Workmen's Compensation, Ernakulam directed for payment of simple interest at the rate of 12% per annum from the date of the accident. The Appellant's appeal was dismissed by the Kerala High Court as barred by limitation. Against the order of the High Court the Appellant filed the special leave petition in which notice was issued "limited to the interest". The main issues in this matter was when did the payment of compensation under the Workmen’s Compensation Act, 1923 become due and accordingly what was the point in time from which interest would be payable on the amount of compensation as provided under Section 4A(3) of the Act. It was stated that Sub-section (3) of Section 4A was in two parts, separately dealing with interest and penalty in Clauses (a) and (b) respectively. Clause (a) provided the levy of interest, with no option, in case of default in payment of compensation, without going into the question regarding the reasons for the default. Clause (b) provided for imposition of penalty in case, in the opinion of the Commissioner, there was no justification for the delay. Before imposing penalty, however, the Commissioner was required to give the employer a reasonable opportunity to show cause. As per Sub-section (3) it was clear that payment of interest was a result of default in payment without going into the reasons for the delay and it was only in case where the delay was without justification, the employer might also be held liable to penalty after giving him a show cause. Therefore, the delay in payment of the amount due was unjustified was required to be recorded only in case of imposition of penalty and no such finding was required in case of interest which was to be levied on default per se. Section 3 of the Act dealt with the employer's liability for compensation. Sub-section (1) of that section provided that the employer was liable to pay compensation if "personal injury was caused to a workman by accident arising out of and in the course of his employment." It was held in Pratap Narain Singh Deo v. Srinivas Sabata that an employer was liable to pay compensation as soon as the personal injury was caused to the workmen by the accident which arose out of and in the course of employment. Thus, the relevant date for determination of the rate of compensation was the date of the accident and not the date of adjudication of the claim. 

Thus, it was not open to contend that the payment of compensation would fall due only after the Commissioner's order or with reference to the date on which the claim application was made. The appeal was therefore dismissed with costs amounting to Rs. 20,000/-. The amount of cost was to be paid to the Respondents within six weeks.

4. Satpal Vs. Union of India - Aug 1 2012 (Delhi High Court)

Indian Evidence Act, 1872 - Section 32; Central Civil Services (Classification, Control & Appeal) Rules, 1965

It was pleaded by the Petitioner in the writ petition that he was served with a charge sheet alleging that while functioning as a driver of vehicle he misappropriated Government Stores like cement, diesel and explosives and sold the same in the village and thereby failed to maintain integrity. As per the statement of imputation to the charge sheet, it was alleged that aforesaid fact surfaced at a Court of Inquiry were recovered from the Superintendent. The petitioner also pleaded that the inquiry was initiated under the CCS (CCA) Rules 1965 on the findings by a Court of Inquiry under the Army Act. The principal three counts on which the penalty levied upon the petitioner i.e. of dismissal from service were: Firstly, that the department could either proceed against the petitioner as per the Army Act or before a Civil Forum and having chosen to proceed under the Army Act, the respondents could not opt to proceed at a Civil Forum. The second contention urged was that statement of Bhola Nath Tiwari during Court of Inquiry proceedings could not be relied at the departmental inquiry. Thirdly, that a person could not be subjected to dual jurisdiction. It was held that as long as there was procedural fairness at a domestic inquiry and as long as a witness was cross-examined, statements made by such a witness would be admissible in evidence, being relevant to the inquiry. It was stated that where statement made by a person implying the other was made in the presence of he who was inculpated and said inculpated person was granted an opportunity to cross-examine the maker of the statement, be it at a preliminary inquiry or a proceeding akin to a Court of Inquiry, such statements would be admissible in evidence at a domestic enquiry for the reason, the person inculpated had been granted a fair opportunity to test the veracity of the statement made by cross-examining the maker of the statement. On the subject of petitioner being proved to be guilty of misappropriating government property i.e. cement bags and selling the same and pocketing the ill gotten gains, the testimony of Bhola Nath Tiwari at the Court of Inquiry proceedings nailed the petitioner. The petitioner cross-examined Bhola Nath and could not destroy his credibility. On the subject of the penalty imposed, it was stated that he who steals government property or misappropriates the same, and was a government servant, must suffer the consequences and the penalty of dismissal from service would be the appropriate penalty. 

Thus, there was no merit in the petition and therefore it was dismissed.

Source: Think Legal

Prakash Verma
E Id:- Prkverma@gmail.com