Central Excise — ‘Roasted Peanuts’ — Classification — Entitlement to benefit of notification dated 1.3.97 — Roasted peanuts not Namkeen and fall under Heading 20.01 in Chapter 20 — Assessee-appellant manufacturer of Roasted Peanuts classified it under Heading 21.08 as Namkeen and claimed benefit of exemption notification — Revenue classified it under Heading 20.01 — Tribunal adopted correct test that essential character of Peanut not changed by process of roasting — Assessee merely applies salt to Roasted Peanuts which does not obliterate essential character — Moreover, roasting is a process — That process not excluded in Note 1 to Chapter 20 — Even according to explanatory notes of HSN under Heading 20.08 groundnuts, Almonds, Peanuts etc. which are dry roasted, fat roasted whether or not containing vegetable oil are items covered by Heading 20.08 — Roasted Peanuts cannot be compared to Bhujia — Roasting is not one of the enumerated process in Chapter Note No. 1 to Chapter 20 — Heading 20.01 specifically refers to preparations of vegetables, fruits, nuts or plants — Sub-heading 2001.90 refers to word ‘other’ — Roasted Peanuts falls under Chapter 20 and not under Chapter 21 and assessee not entitled to benefit of notification — Central Excise Tarriff Act, 1985 — Chapters 20, 21, Headings 20.01, 21.08.
Tenancy — Lawful tenant of Shamilat Deh land — Lawful tenant is one who has been admitted as tenant after following proper formalities — Simply because some one has paid or deposited rent with Gram Panchayat voluntarily after unauthorisedly occupying Gram Panchayat land, would not make him tenant — It is not one man show of Sarpanch of Gram Panchayat that he can surreptitiously take someone as tenant without following procedure under rules — In case Sarpanch or Panch induct someone without following rules then such induction of person will not be authorised or lawful — Gram Panchayat not bound by same — In fact for lease of Shamilat Deh proper procedure has been prescribed and land has to be auctioned and proper documents have to be executed and it has to be authenticated — In absence of same voluntarily deposit of rent or even accepting of rent by Gram Panchayat lawful would not make person a tenant under Act — Punjab Village Common Lands (Regulations) Act, 1961.
Labour Law — Minimum Wages Act — Applicability of — Appellant Society engaged in purchasing milk from its members and distributing it — It does not own cattle — They buy milk for purpose of production of milk and dairy farming — First respondent appointed as milk tester — Contention, sale of milk does form part of process of production of milk and constitutes ‘dairy farming’ rejected — Mere activity of buying milk from its members and distributing it will not constitute dairy farming — High Court ought to have held appellant society which merely collects milk from its members and distributes it, not engaged in any employment scheduled under Act — Respondent not entitled to minimum wages — Order of High Court set aside — Minimum Wages Act, 1948.
Service Law — Seniority of Section Officers (Commercial Audit) in Audit and Accounts Department — Determination — Rules are silent with regard to determination of seniority — Standing Orders brought out to fill gap unfilled by statutory rules — Government cannot amend or supersede statutory rules by administrative instructions, but if rules are silent on any particular point Government can fill up gaps and supplement rules and issue instructions not inconsistent with rules already framed — Seniority of appellants as Section Officer reckoned w.e.f. date they were qualified in Section Officer Grade Examination for appointment as regular Section Officers — Indian Audit and Accounts Department Section Officer (Commercial Audit) Recruitment Rules, 1988 — Rule 12.
Revisional Jurisdiction — Scope of — High Court in exercise of revisional jurisdiction cannot vary terms of decree in execution — Suspension from service — Embezzlement and misappropriation of Government funds — No departmental action taken — Appellant given proforma promotion and retired after attaining age of superannuation as Superintendent Grade IV — Appellant filed suit for declaration and mandatory injunction seeking full pay and allowances for period in question and entitlement to cross efficiency bar and consequential relief — Respondent/State already held appellant entitled to cross efficiency bar w.e.f. 1.1.81 and his pay raised from Rs. 850/- to Rs. 880/- p.m. vide office orders dated 24.3.85 — State has taken stand for first time that order of High Court for considering case of appellant for crossing stage of efficiency bar is justified — Decree passed in favour of appellant attained finality— Stand taken by State in counter-affidavit unfortunate — High Court committed error in granting interest from 9.12.92 though interest is liable to be paid by respondent to appellant — Appellant entitled for amount of Rs. 60,586.75 along with interest @ 12% p.a. from date amount became due and payable, viz., from 25.6.65 — Impugned order set aside — Directions issued.
Labour Law — Workman or Apprentice — Determination of — Removal from service — Appointment of respondent as Apprentice for two years — Applicability of Section 25F of 1947 Act — Services of respondent terminated after completion of 2 years — Order set aside by Labour Court holding respondent-Apprentice is workman and his termination is in violation of Section 25 — Same upheld by High Court — Sustainability — No material to show respondent not “apprentice trainee” — Perusal of documents shows respondent working as apprentice on consolidated salary and he himself was concious of such fact — Other than assertion made on behalf of respondent that appellant agreed to absorb him after completion of apprenticeship and recommendation made by General Manager indicating respondent could be appointed and taken as permanent worker, no material on record to support his case — View of Labour and High Court contrary to appointment letter as well as letter written by respondent — Repondents services never regularised — On account of his contractual tenure respondent case covered by exception to Section 2(oo) (bb) — Section 25F have no application — Respondent’s case covered by Section 18 of 1961 Act — Industrial Disputes Act, 1947 — Sections 2(s), 2(oo)(bb) Exception 25 — Apprentices Act, 1961 — Section 18.
Constitutional Law — Right to acquire property although is not fundamental right, but is constitutional and human right — Before person can be deprived of his right to acquire property, law and/or contract must expressly and explicitly states so.
TRAI — TV Channel Signals — Supply of, by broadcaster on non-discriminatory basis to all distributor — Supply of signals of bouquet of channels by appellant by entering into agreement with respondent No. 1 on reasonable terms and conditions — Directions given by Telecom Disputes Settlement and Appellate Tribunal justified — Distributor agreement between appellant and Moon Network Pvt. Ltd. — Moon Network appointed as exclusive agent of appellant-Star India (P) Ltd. in territory of Agra — Agreement recognised status of Moon Network as MSO engaged in business of transmission of TV channels through ground cables — In providing signals to distributor through agent, who is distributor, per se discriminatory — In case of overlap of functions to be performed by each entity under Interconnection Regulations like distributor, MSO, agent/intermediary, one has to go by facts of each case and terms of agreement between broadcaster and his agent-cum-distributor — No difficulty when agent appointed by broadcaster on commercial side as agent need not be from operation network — Difficulty arises when broadcaster enters into agreement with distributor who is MSO, having his own business, because agent-cum-distributor is competitor of MSO who seeks signals from broadcaster — Object of Interconnection Regulation is to eliminate monopoly — Sea TV Network and Moon Network are MSOs — Quality of signals receivable by Sea TV Network may not be same as through Decoders — Fudging of data is possible — Speed of data-transmission of Sea TV Network could get affected — Subscribers of Sea TV Network and picture quality would be adversely affected — Relationship between Star India and Moon Network not principal-agent relationship — Quality of signals receivable by Moon Network directly from broadcasters better than by Sea TV Network — Sea TV made to depend for signals on feed to be provided by Moon Network — Vital distinction between what is received by agent-cum-distributor from broadcaster and subsequent re-transmission by that agent-cum-distributor to other MSOs/Cable Operators like Sea TV Network — Tribunal correctly drawn distinction between ‘making available of TV Channels’ and re-transmission of TV channels — Although broadcaster free to appoint its agent under proviso to Clause 3.3, such agent cannot be competitor or part of network — Exclusivity of contract between broadcaster and designated agent-cum-distributor, viz. signals of broadcaster shall go through cable network owned and operated by agent-cum-distributor which is Moon Network — Telecommunication (Broadcasting and Cable Services) Interconnection Regulation, 2004 — Regulations 2, 2(b), 2(j), 3, 13, 14, 17.
Distinction — “Partnership firm” and “proprietary concern”.
Criminal Law — Unlawful Assembly — Constructive liability is sine qua non for its operation — Emphasis is on common object and not on common intention — Mere presence in unlawful assembly cannot render person liable unless there was common object and he was actuated by that common object as set out in Section 141, IPC— Indian Penal Code, 1860 — Sections 141, 149.
Criminal Law — Unlawful Assembly — Formation of — Time of forming unlawful intent not material — An assembly which at its commencement or even for some time thereafter, is lawful may subsequently become unlawful — Unlawful intent may develop during course of incident at spot eo instante.
Limitation — If law prescribes period
of limitation, action must be taken within such period — But where law does
not prescribe limitation Court would import concept of ‘reasonable time’
— Length of reasonable time depends upon facts and circumstances of each
case — No rule of universal application can be laid down — Shailesh
Jadavji Varia v. Sub-Registrar, Vadodara & Ors.
Recall of Order — If case of fraud or misrepresentation of such dimension discovered that very basis of order passed by Court of law affected, Court can recall its order — Power to recall order founded upon fraud and misrepresentation is inherent power of Court.
Service Law — Regularisation — Appointment as Lecturer on temporary basis — De-reservation of post — Appellant in service of respondent-college for last 12 years — No candidate from reserved category available for 6 years — Appellant continued on temporary basis from year to year — Fit case to regularise appellant on post after de-reserving same — If appellant is now thrown out, she would be age barred for any other service — Fit case for interference by this Court in exercise of jurisdiction under Art. 136 of Constitution in view of misrepresentation made by respondent-University and considering long service rendered by appellant to respondent at time when no other candidate willing to take assignment — Appellant would be deprived of her livelihood if she is thrown out of her employment — Irreparable injury would be caused to her if prayer made in appeal not granted — No prejudice would be caused to respondent as appellant fully qualified to teach English as has been doing for 12 years — Interviews for post of English Lecturer pursuant to 6th advertisement made on 5.7.1999 and no candidate belonging to backward class turned up for interview — High Court misled by fraudulent misrepresentations made by university — Case of appellant would be similar to that of two other workers — Fit case to pass similar order as in matter of two persons — Impugned order passed by High Court set aside.
Criminal Law — Transfer of Case
— Comparative inconvenience of litigating parties are not only criterion
for transferring cases, but Court to visualize comparative inconvenience and hardship
likely to be caused to witness besides burden borne by state exchequer —
Vague and unfounded allegations — Challenge against legality and validity
of sale deeds in Trial Court at Rampur — Suit for declaration, permanent
injunction and setting aside mutation order — Petitioner alleges if she
has to go to Rampur to attend proceedings in Court of CJM, her safety would be
in danger or she apprehends physical harm to her from respondent No. 2 or anti-social
elements — This is too nebulous a ground for transferring cases from Court
of CJM, Rampur to Court of competent jurisdiction at Delhi or Chandigarh —
Petitioner not substantiated her apprehension of threat or bodily harm or intimidation
from respondent No. 2 or other anti-social elements as alleged by her —
She has been going to Rampur in past and attended Court proceedings before Magistrate
and Collector but no untoward incident ever brought to notice of police or Chief
Judicial Magistrate — If petitioner fears any sort of threat to her life,
she can report matter to police or Court, to pass orders according to law —
Plea of illness of petitioner not supported by medical evidence — Petitioner
travelling all the way from USA to India and going to Rampur to look after landed
property of her husband and daughter as their Attorney — Petitioner is person
of means and not difficult for her to attend hearing of criminal cases pending
in Court of CJM, Rampur — Criminal Courts situated in Delhi or Chandigarh
already over-burdened with pendency of cases — Not in interest of litigating
parties as well in interest of justice to add more cases to dockets of transferee
Courts to keep trial of those cases pending for decades — On basis of vague
and unfounded allegations made by petitioner in transfer applications against
respondent, this Court not persuaded to accept prayer of petitioner for transfer
of case from Court of CJM, Rampur to either CJM, Delhi or Chandigarh — Criminal
Procedure Code, 1973 — Section 406.
Evidence — Witness — Credibility of witness does not depend upon his financial standing or social status only — Witness which is natural and truthful should be accepted irrespective of his/her financial standing or social status.
Matrimonial Laws — “Mental Cruelty” — Appreciation of evidence — Parties living separately since 27.8.1990 and thereafter have no interaction with each other — Both appellant and respondent entered into marriage on 13.12.1984 — Soon after marriage, respondent wife (divorcee and having female child) and appellant developed serious matrimonial problems which kept growing — Both appellant and respondent are senior IAS officers — Soon after marriage, respondent asked appellant not to interfere with her career — She unilaterally declared her decision not to give birth to child for 2 years and appellant should not be inquisitive about her child and keep himself aloof as far as possible — Appellant alleged respondent never treated house to be her family home — Both respondent and her mother taught respondent’s daughter that appellant was not her father — Appellant alleged respondent stopped sharing bed with him without any justification — Her unilateral decision not to have any child also caused mental cruelty on appellant — Appellant not permitted to show his normal affection to daughter of respondent although he was loving father to child — Appellant prayed it would not be possible to continue marriage with respondent and filed suit for grant of divorce — High Court seriously erred in not appreciating evidence on record in proper perspective — Respondent’s refusal to cohabit proved beyond doubt — High Court did not take into consideration evidence of servant because of his low status in life — Appellant undergone bye-pass surgery even then respondent did not bother to enquire about his health even on telephone — Now parties have no feelings and emotions towards each other — Impossible to preserve or save marriage — ADJ fully justified in decreeing appellant’s suit for divorce — High Court seriously erred in reversing judgment of ADJ based on carefully watching demeanour of parties and their respective witnesses and ratio and spirit of judgments of this Court and other Courts — Impugned judgment of High Court set aside and judgment of ADJ granting decree of divorce restored.
Restoration of Second Appeal — Dismissal of appeal on merits no ground to refuse restoration of appeal — Matter fixed for filing of Vakalatnama of respondents — Unintentional absence — Reasons for same indicated — When matter called learned Counsel for appellant arguing another matter before Bench of Chief Justice — Respondents yet to put appearance — Assisting Counsel instructed to attend to note next date — By the time assisting Counsel reached Court, matter already taken up and dismissed for want of prosecution — High Court found reason not in any manner incorrect or untrue — Factual scenario projected by appellant correct — Mere fact that appeal dismissed on merits could not be ground to refuse restoration — Impugned order of High Court set aside and restoration of second appeal directed by this Court — Civil Procedure Code, 1908 — Order 41 Rule 19 r/w Section 151.
Written Statement — Extension of time for filing — Computation of limitation — After amendment to Order 8, CPC w.e.f. 1.7.2002, defendant granted 30 days’ time to present written statement — Period to be reckoned from date of service of summons — Proviso to Order 8, CPC permits extension of time when Court satisfied about existence of reasons to be recorded in writing — Written statement filed after 142 days — By cryptic order written statement permitted to be filed and taken on record subject to payment of costs of Rs. 2,000/- — High Court upheld order of Trial Court and summarily dismissed writ petition on ground that discretionary power exercised — Neither Trial Court nor High Court indicated any reason to justify acceptance of written statement after expiry of time fixed, orders of both Trial Court and High Court set aside — Civil Procedure Code, 1908 — Order 8 Rule 1 Proviso (as amended w.e.f. 1.7.2002).
Written Statement — Extension of time for filing — Computation of limitation — After amendment to Order 8, CPC w.e.f. 1.7.2002, defendant granted 30 days’ time to present written statement — Period to be reckoned from date of service of summons — Proviso to Order 8, CPC permits extension of time when Court satisfied about existence of reasons to be recorded in writing — Written statement filed after 142 days — By cryptic order written statement permitted to be filed and taken on record subject to payment of costs of Rs. 2,000/- — High Court upheld order of Trial Court and summarily dismissed writ petition on ground that discretionary power exercised — Neither Trial Court nor High Court indicated any reason to justify acceptance of written statement after expiry of time fixed, orders of both Trial Court and High Court set aside — Civil Procedure Code, 1908 — Order 8 Rule 1 Proviso (as amended w.e.f. 1.7.2002).
Criminal Law — Murder — Strangulation — Extra-judicial Confession — Reliability — Circumstantial Evidence — Murder of 20 years old girl by strangulation after committing forcibly rape upon her — Extra-judicial confession corroborates evidence of PWs 1, 4, 11 and 14 — Circumstance of deceased being followed by appellant and appellant being followed by co-accused into field, corroborated by contents of extra-judicial confession made by A4 to PW 6 in presence of appellant — Conduct of appellant comes within Explanation 2 to Section 8, Evidence Act — All accused seen by PW 11 — Evidence of PW 11 corroborated by evidence of PW 4 to that extent — Extra-judicial confession shows deceased raped forcibly and then strangulated — Injuries on different parts of her body indicates she was raped forcibly— Location of body in scattered field shows she was forcibly raped — Strangulation by dhoti also one more circumstance showing how she was murdered — Each and every statement made in extra-judicial confession corroborates evidence of PWs 1, 4, 11 and 14 — Moreover, appellant remained silent when confession was made by co-accused B to PW 6, implicating him in commission of alleged offence — Trial Court correctly invoked Section 8 of Evidence Act while evaluating extra-judicial confession — Impugned order upheld — Indian Penal Code, 1860 — Section 302 r/w Section 34 — Evidence Act, 1872 — Section 8 Explanation (2).
Interpretation of Statutes — Penal provisions — Taxing statute — To be construed strictly and narrowly — With object of advancing object and intention of Legislature.
Taxation (Income Tax) — Taxing provision — Operation of — Taxing provision imposing liability governed by normal presumption that it is not retrospective.
Criminal Law — Company, “juristic person” is also subject to criminal liability under relevant law — Only thing is in case of substantive sentence, order not enforceable and juristic person cannot be ordered to suffer imprisonment — Other consequences viz., payment of fine, etc. would ensue — Standard Chartered Bank & Ors. v. Directorate of Enforcement and Ors., IV (2005) SLT 387=I (2006) CCR 161 (SC).
Criminal Law — Failure to credit TDS to Central Government — Once statute requires to pay tax and stipulates period within which such payment to be made, payment must be made within that period or there will be default and appropriate action can be taken under Act.
Criminal Law — Failure to credit TDS to Central Government — Notice — No separate or independent notice necessary to Directors, treated as principal officers under Act — Complaint entertainable by Court provided it is otherwise maintainable — Income Tax Act, 1961 — Section 276B read with Section 278B.
Writ Petition — Maintainability — Contractual matters — Alternative remedy — Availability of — Effect of — Allotment of plot for construction of multiplex in favour of appellant — Respondent-corporation issued allotment letter in favour of appellant in view of fact there was no multiplex in that area and earlier there was no response to advertisement — Agreement of lease executed — Commencement certificate to start construction also issued — However, later on respondent issued letter to cancel allotment — Ground — Allotment void in view of Section 23, Contract Act as being opposed to public policy — Further allotment was without issuance of tender — Writ petition filed before High Court — High Court dismissed same on ground of availability of alternative efficacious remedy — Plea of appellant his case was only singled out — High Court committed grave mistake by relegating appellant to alternative remedy — When three grounds for exercise of extraordinary jurisdiction as outlined in Whirlpool case, VIII (1998) SLT 380=I (1999) CLT 15 (SC), present — Allotment made to appellant on account of absence of entertainment facility in area — CIDCO got no response to its earlier advertisement — Allotment made in favour of appellant on first come first serve basis — CIDCO in show cause notice has taken ground of non-issuance of tender only as basis for cancelling allotment — But in reply to writ petition CIDCO seeking to add further grounds to justify order of cancellation — Same not permissible in terms of law laid down by this Court — Allotment made in favour of appellant cannot be faulted — Order of CIDCO seeking to resile from concluded contract in favour of appellants set aside — Since matter pending for long time, High Court requested to dispose of matter expeditiously.
Constitutional Law/Education — “Creamy Layer” — Identification amongst backward classes and their exclusion from purview of reservation, vis-a-vis, report of Justice K.K. Narendran Commission — In pursuance of directions given in Indra Sawhney case, O.M. issued laying down guidelines for identifying `creamy layer’, stipulating sons and daughters of persons having gross annual income of Rs. 1 lac or above would be excluded — Non-compliance with said direction by State of Kerala — Pursuant to directions of Chief Justice of Kerala High Court Joseph Committee constituted, which in its report published in 1996, fixed income limit of Rs. 1.5 lacs — Recommendations made by Joseph Committee not implemented in terms of Court directions — State appointed another Commission headed by Justice K.K. Narendran — Narendran Commission report published in 2000 and it raised income limit to Rs. 3 lacs — Narendran Committee report criticised Joseph Committee Report — It advocated change of age from 40 to 35 — Those who have reached status of general category, cannot be permitted to defeat purport and object of concept of `creamy layer’ as idea creamy layer conceptualized on that philosophy — State can also lay down legislative policy as regards extent of reservation to be made for different members of OBC class, provided they remain same — In Indra Sawhney-II, `means-test’ and `creamy layer test’ held to be beyond domain of State but evidently in relation to backward classes, same applicable — It was obligatory on part of Narendran Committee to consider seriously that aspect of matter — While fixing income limit, State entitled to take into consideration level of literacy, village income, rise of living index and not accept report of Committee which did not proceed scientifically having regard to constitutional scheme — No justification for fixing income limit of Rs. 3 lacs — Tests adopted by Joseph Committee could not have been given complete go-by by Narendran Committee — No reason why successor Committee, without any just and cogent reason, ignored recommendations of former Committee — Constitution of India, 1950 — Arts. 14, 15(4), 16, 16(4) — Kerala State Backward Classes (Reservation of Appointments or Posts in Services under State) Act, 1995 — Kerala State and Subordinate Services Rules, 1958.
Interpretation of Statutes — Constitutional provisions required to be construed harmoniously.
Criminal Law — Outraging Modesty of Woman — Essential ingredients of offence under Section 354, IPC — Essence of woman’s modesty is her sex — Culpable intention of accused is crux of matter — Reaction of woman is very relevant, but its absence not always decisive — It is virtue which attaches to female owing to her sex — Act of pulling woman, removing her Saree, coupled with request for sexual intercourse, is such as would be outrage to modesty of woman — Knowledge that modesty likely to be outraged, sufficient to constitute offence without any deliberate intention having such outrage alone for its object — Indian Penal Code, 1860 — Section 354.
Criminal Law — Rape — Penetration is sine qua non of offence of rape and not ejaculation — Ejaculation without penetration constitutes attempt to commit rape and not actual rape — Intercourse means sexual connection — It is clearly established — When evidence of prosecutrix considered in proper perspective, it is clear commission of actual rape established — Indian Penal Code, 1860 — Sections 375, 376.
Service Law — Clubbing of vacancies for several years — Illegal — Quashing of Select List — Induction of State Forest Service officials of J&K into Indian Forest Service — Clubbing of vacancies for period 1991-95 by Select List is in violation of Regulation 5 of Indian Forest Service Rules — In Select List of 12.9.1995, many persons not eligible for year 1991 included, while appellant excluded — Persons at Sl. Nos. 32 to 35 in Select List of 1995 not eligible for selection in 1991 — There cannot be clubbing of vacancies of several years and common Select List for these years — Select List can only be prepared for particular year — Only those who are eligible in that particular year alone can be considered for selection in Select List — Even if Select List not prepared in that very year, it will relate back to that particular year — Only those officers who are eligible for induction into IFS in year 1991 could be considered in Select List for year 1991 (even if it is prepared subsequent to 1991) — Clubbing of vacancies arising between 1991-95 illegal in view of decision in UOI v. Vipinchandra Hiralal Shah — Impugned judgments of Division Bench and Single Bench of High Court set aside — Impugned select list quashed — Indian Forest Service (Recruitment) Rules, 1965 — Regulation 5.
Criminal Law — COFEPOSA — Preventive detention —Representation — Belated consideration of representation does not satisfy requirement as provided for under Art. 22(5) of Constitution — Person detained under COFEPOSA has right to make representation to Central Government which is required to be considered and disposed of as expeditiously as possible — Central Government’s inaction in considering representation of respondent amounts to infringement of guaranteed right of detenu but does not render initial order of detention void ab initio — Initial decision is not ultra vires and required no interference by High Court in exercise of its jurisdiction under Art. 226 of Constitution — High Court committed grave error in quashing order of detention dated 14.6.2002 — No legal impediment to proceed against respondent under provisions of SAFEMA — Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 — Sections 3(1), 9, 11 — Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 — Constitution of India, 1950 — Art. 22(5).
Criminal Law — Dowry Death, Common Intention — Presumption — Ingredients of dowry death — Reading together provisions of Section 304B, IPC with Section 113B, Evidence Act, comprehensive picture emerges if married woman dies in unnatural circumstance at her matrimonial home within 7 years from her marriage and allegations of cruelty or harassment upon such married woman for or in connection with demand of dowry by husband or relatives of husband, case would squarely come under "dowry death" — There shall be presumption against husband and relatives — No evidence to show any cruelty or harassment for or in connection with demand of dowry — This deficiency in evidence proves fatal for prosecution case — Mere evidence of cruelty and harassment not sufficient to bring application of Section 304B, IPC — It has to be shown in addition such cruelty or harassment was for or in connection with demand for dowry — Prosecution failed to prove that aspect, conviction cannot be maintained — Indian Penal Code, 1860 — Sections 304B, 34 — Dowry Prohibition Act, 1961 — Sections 3, 4 — Evidence Act, 1872 — Sections 113B, 113B Explanation.
Specific Performance of Contract —
Suit for Specific Performance of Agreement of Sale — Discretionary jurisdiction
of Court — Appellant, owner of property, entered into agreement in respect
of self-same property — Respondent offered to buy and appellant agreed to
sell said property for sum of Rs. 45,000/- — Respondent No. 1 allowed to
continue to remain in possession of premises in question as tenant and not in
part performance of agreement for sale — By virtue of default clause, in
event of commission of any breach on part of respondent, appellant entitled to
forfeit entire amount of advance — No uncertainty or vagueness in terms
of default clause — Appellant had entered into agreement for sale with others
also — With view to defeat lawful claim of respondent No. 1 he raised plea
of having executed prior agreement for sale in respect of self-same property in
favour of his son-in-law who never claimed any right thereunder or filed suit
for specific performance of contract — Rise in price of immovable property
by itself not a ground for refusal to enforce lawful agreement of sale —
Impugned order passed by Courts below decreeing suit upheld — Specific Relief
Act, 1963 — Section 20.
Service Law — Regularisation of Employees — Entitlement of benefit — Non-renewal of contract of respondent No. 1’s services — Termination of service — Respondent’s claim for regularisation rejected — Purported scheme of State not made in terms of Art. 162 of Constitution but by way of circular letter dated 23.1.2001 — Respondent No. 1 not appointed upon compliance of constitutional scheme as adumbrated in Articles 14, 16 of Constitution — No advertisement issued nor Employment Exchange notified in regard to existing vacancies prior to appointment of respondent No. 1 — Terms and conditions of services of employees of appellant-Corporation, body constituted and governed under Punjab Warehousing Corporation Act, are governed by provisions thereof and rules framed thereunder — Said terms and conditions could be altered by reason of amendment of rules only — This Court fails to understand under what circumstances State issued Circular dated 23.1.2001 — Policy decision of State cannot be extended to statutory Corporation unless permitted to do so by statute — No order under Art. 162 of Constitution can be made by way of alterations or amendments of said rules — A ‘fortiorari’ if recruitment rules could not be amended by issuing notification under Art. 162 of Constitution, same cannot be done by way of circular letter — Scheme of regularisation could only be in respect of such employees whose appointments were irregular and not illegal — Impugned judgment unsustainable and set aside — Constitution of India, 1950 — Arts. 14, 16, 162, 309 Proviso — Punjab Warehousing Corporation Act, 1957.
Interpretation of Statutes — Only because parties did not use terminology which they should have, would not mean ingredients for satisfying requirements of statute are absent.
Precedent — Pleadings must be construed reasonably — Contention of parties in their pleadings must be culled out from reading same as a whole — Devasahayam (D) by LRs. v. P. Savithramma and Ors., VII (2005) SLT 459.
Precedent — Equality of opportunity is not simply matter of legal equality — Its existence depends not merely on absence of disabilities but on presence of abilities — Where there is inequality of fact, legal equality always tends to accentuate it — Dr. Pradeep Jain & Ors. v. UOI.
Education/Constitutio-nal Law — Reservation of 27% for OBCs — Challenge against constitutional validity of provisions in Central Educational Institutions (Reservation in Admission) Act, 2006 on ground of equality and equal opportunity — Stay process of implementation of Act — That baseless figure of 27% cannot be pressed into service for introducing statute having wide ramifications — No methodology laid down for determining socially and educationally backward classes because castes alone should not be made basis for identification — That non-exclusion of creamy layer also affected validity of statute — Observations made regarding Mandal Commission Report — Need for periodical identification of backward citizens and survey of entire population on basis of acceptable mechanism — Census in 1931 may have relevance but not determinative factor — Concept of creamy layer cannot be prima facie considered to be irrelevant — In Indra Sawhney case underlying principles identified are identification of class, held affirmative by using castes as proxy — Differentiation or classifications for special preference must not be unduly unfair for persons left out of favoured groups — Possibility of increase in seats in absence of reservations could have gone to general category — If stand of ASG that exercise not intended to be undertaken immediately and increase would be staggered for 3 years accepted, it could not be explained why firm data not evolved first to undertake exercise thereafter — Further creamy layer rule is necessary bargain between competing ends of caste based reservations and principle of secularism — It is part of constitutional scheme — Cases to be examined in detail whether stand of UOI that creamy layer rule is applicable to only Art. 16(4) and not Art. 15(5) is based on any sound foundation, more so because lists relatable to Art. 16(4) form foundational base for Art. 15(5) — Desirable to keep in hold operation of Act relating to Section 6 thereof for OBCs category only and not SCs and STs candidates — Permissible for respondent-UOI to initiate or continue process for determining on broad based foundation ‘OBC’ notwithstanding pendency of cases before this Court and without prejudice to issues involved — Central Educational Institutions (Reservation in Admission) Act, 2006 — Sections 2(c), 2(g), 3(iii), 5(1)(2), 6 — National Commission for Backward Classes Act, 1993 — Section 11 — Constitution of India, 1950 — Arts. 14, 15, 15(4), 15(5), 16, 16(4), 341, 342.
Criminal Law — Murder, Knowledge to Cause Death — Alteration in conviction — No ground made out — Considering nature of weapon used by accused (axe) and vital part of body of deceased (head) chosen by accused, intention of accused was to cause death of deceased — PW 4 doctor in his deposition stated injury No. 1 was sufficient in ordinary course of nature to cause death of victim — Both Courts rightly held case covered by Section 302, IPC — No infirmity in impugned orders — Indian Penal Code, 1860 — Section 302.
Arbitration Law — Appointment of Arbitrator — Dissolution of partnership firm — Effect of — Arbitration clause does not come to an end — If dispute arisen during life-time of deceased partner, his L.Rs. would be entitled to take proceedings under Section 20 of Arbitration Act, 1940 — In view of provisions of Section 46 read with Section 48 of Partnership Act as well as Section 40 of Arbitration and Conciliation Act, application for appointment of Arbitrator under arbitration clause of partnership deed liable to be allowed — Chief Justice erred in overlooking said provisions — Appellant being only son of his deceased mother, undisputedly partner in partnership firm with respondent especially where dispute concerning partnership affairs arisen already during her life-time — Partnership deed clearly recites all disputes touching affairs of partnership firm referable to Arbitrator and dispute regarding accounts of partnership firm is dispute touching affairs of firm — Appellant possessed legal and enforceable right to invoke arbitration clause and moved application under Section 11 of Arbitration Act before High Court for appointment of Arbitrator — Word ‘party’ used in partnership deed does not exclude legal heirs, legal representatives, etc. as being canvassed by respondents — Right to sue survives with appellant as legal representatives of deceased and he is entitled to invoke Clause 13 of partnership deed — Parties cannot be compelled to take recourse to in Civil Courts — Partnership Act, 1948 — Sections 46, 47, 48 — Arbitration and Conciliation Act, 1996 — Sections 2(1)(a), 11, 35, 40 — Arbitration Act, 1940 — Section 20.
Labour Law — Reinstatement with full back wages — Factors to be considered — Termination of service of respondent appointed as daily wager — Not completed 240 days of continuous work in 12 months — Industrial dispute raised by respondent after period of 5 years — Relief of reinstatement with full back wages would not be granted automatically only because it would be lawful to do so — Relevant factors viz., whether appointment made in terms of statutory rules and delay in raising industrial dispute, to be taken into consideration — Interest of justice would be met if impugned judgments substituted by award of compensation for sum of Rs. 75,000/- in favour of respondent — U.P. Industrial Disputes Act, 1947 — Section 6N.
Service Law — Employer and employee relationship — Tests for ascertaining relationship of employer and employee — Well known Test for ascertaining relationship are viz. functional test, control test or organisational test etc. — However, for determination of relationship of employer and employees separate test to be applied having regard to factual matrix involved in case — Scheme for rehabilitation of disabled people — Infrastructure provided by Central Government to be utilised by State Government with intent to continue project — Employees offered salary of Rs. 660/- in scale of 660-1100-50-5600 — Employees alleged they being employees of Central Government, terms and conditions of services applicable to Central Government should apply — Tribunal held applicants were employees of Central Government though their salary paid as per scale of State Government — Said finding upheld by High Court — Employees do not become employees of Central Government only because project conceived by it or that it gave directions from time-to-time — No evidence adduced by parties before Tribunal for determination of relationship of employer and employee — Tribunal without applying decisions of this Court held respondents are employees of Central Government — Findings of Tribunal and High Court unsustainable — Even if State thinks fit to close down project, services of employees working in Rehabilitation Centres to continue — Directions issued accordingly.
Co-operative Societies — Writ Petition — Maintainability — Writ petition maintainable against Co-operative Society if it is established mandatory statutory provision of statute violated.
Criminal Law — Murder of daughter aged 1½ years by strangulation by accused-appellant suspecting fidelity of his wife — Post-mortem report shows probable cause of death might be due to asphyxia due to suffocation — No reason to disbelieve prosecution case as it is consistent with medical evidence — Wife of accused eye-witness to incident — There is direct evidence in case — She stated her husband was not allowing her to give milk and feed to her child and killed her child by pressing her neck — Her evidence credible and corroborated by post-mortem report and other evidence on record — Post-mortem report shows injuries on neck, cheek and eyes of child and doctor stated probable cause of death might be asphyxia due to suffocation — No reason to interfere with impugned judgment of High Court — Indian Penal Code, 1860 — Section 302.
Service Law —Promotion to Post of Assistant Accounts Officer — Malpractice — Re-evaluation — Independent inquiry not required for sending papers for revaluation — Principles of natural justice — Principles applicable to mass malpractice equally applicable to such cases where it is found variations even in test checks results in considerable change in marks — That forms basis for testing correctness of allegations — High Court not justified in holding that respondents were entitled to notice before sending papers for revaluation or direction for revaluation unauthorised — Corporation was acting on basis of allegations of malpractice which as later events proved was not wrong — High Court’s conclusions indefensible and set aside.
Criminal Law — Common Intention, Cruelty, Abetment of Suicide — Three dying declaration — Reliability — Deceased alleged to have poured kerosene on her person and set herself ablaze — She sustained 79% burns and succumbed to injuries — Cause of death was septicimea as result of infected burns — Three dying declarations allegedly given by deceased different from each other — Not safe to uphold conviction of appellant and appellant given benefit of doubt — In first dying declaration nothing alleged against appellant rather it shows appellant tried to save his wife — In subsequent dying declaration deceased stated she poured kerosene on her in person and set herself ablaze because she was angry with her husband — In view of different dying declarations conviction of appellant held unsustainable — Prosecution not proved appellant’s guilt under Section 306, IPC of abetting suicide beyond reasonable doubt — Judgments of High Court and Trial Court quashed — Indian Penal Code, 1860 — Sections 306, 498A.
Judicial Review — Scope of — Quantum of punishment imposed in disciplinary proceedings — Court will not normally substitute its own conclusion on penalty — If punishment imposed by Disciplinary Authority shocks conscience of Court, Court would mould relief giving direction to Disciplinary Authority or shorten litigation in rare case — Impose appropriate punishment with cogent reasons in support there on.
Interpretation of Statutes — Court should not add or delete words in statute.
Land Acquisition — Award — Limitation — Award to be made within 2 years from date of publication of declaration under Section 6 of Land Acquisition Act — Failure to adhere to this time-frame fatal to award, as provision of Section 11A mandatory — Any subsequent corrigendum to said declaration under Section 6 is of no consequence — Extension of period as mentioned in Section 11A Explanation in computing period of 2 years, is period during which any action or proceeding to be taken in pursuance of said declaration stayed by order of Court is excluded — Impugned award quashed — Impugned judgment set aside — Land Acquisition Act, 1894 — Sections 4, 6, 11A, 11A Explanation.
Specific Performance of Contract —
Discretionary jurisdiction — Exercise of — Suit for Specific Performance
of Sale Agreement — Limitation — Notice — No time fixed for
performance of contract — Appellant in possession of suit land — First
defendant was friend of second defendant — First defendant may or may not
be aware about agreement entered by and between respondents but he cannot raise
plea of absence of notice of deed of sale which was registered document —
Possession of suit land by appellant also stands admitted — Registration
of document as well as possession constitute notice as evident from Section 3,
Transfer of Property Act — Father-in-law and wife of respondent No. 1 acting
as his agents — They would be deemed to have notice of registration of document
as also possession of appellant — Respondent No. 1 did not file suit within
prescribed period but waited for more than 2 years from date of execution of deed
of sale — Even if suit not barred by limitation on that account, Court should
have refused to exercise discretionary jurisdiction under Section 20 of Specific
Relief Act — Respondent No. 1 aware that second defendant was refusing to
execute agreement of sale — They had notice that defendant No. 1 refused
to perform his part of contract — Appellant was in possession of said land
and made improvement on suit land — This was within notice of respondent
— Discretionary jurisdiction under Section 20 of Specific Relief Act not
be exercised — Defendant No. 1 directed to refund sum of Rs. 7,700/- with
12% interest thereon from date of payment till date of realisation — Specific
Relief Act, 1963 — Section 20.
Taxation (Commercial Tax) — Tower Cranes — Eligibility to claim benefit under Notification dated 31.3.94 — High Court observed by no stretch of imagination “Tower Crane” would be considered as industrial input for use either as ‘component part’ or as ‘raw material’ of any other goods and dismissed appeal — Meaning of expressions ‘industrial inputs’ ‘component parts’ and ‘raw material’ — Conditions required to be satisfied by dealer effecting sale of machinery of all kinds to industrial unit to claim reduced rate of tax under notification — Crane is hoisting machine used to lift and move heavy loads — Tower Crane is one such crane mostly used to construct high rise buildings — High Court rightly observed Tower Cranes cannot be considered as industrial inputs for use either as component part or as raw material of any other goods — Karnataka Sales Tax Act, 1957 — Sections 8A(5)(a), 24(1).
Criminal Law — Dishonour of Post-dated
Cheque on Presentation — Compensation/imposition of fine — Powers
of Court — Power of Court to impose fine may or may not be limited, it is
not in dispute power to award compensation is not — Purpose of imposition
of fine to be considered with regard to factors envisaged under Section 357, Cr.P.C.
— Respondent-partner, alone could not have taken out any money from bank
— But he allegedly did so and post-dated cheque given by him dishonoured
on presentation — Basic question which arises for consideration is whether
in peculiar facts and circumstances of case, this Court can delve deep into matter,
to find out culpability of respondent and pass judgment of acquittal in his favour
— This Court should not do so — As Section 377, Cr.P.C. has no application
— Further respondent not preferred any appeal against conviction —
Complainant categorically stated in his complaint petition his claim was for Rs.
12 lacs, which amount withdrawn by respondent from bank in contravention of terms
and conditions of partnership, he accepted his liability to extent of Rs. 7,00,000/-
— Had respondent shown cheque issued not in discharge of debt but by way
of security pending determination of his liability by auditor, matter would have
been different — No case for grant of substantial sentence made out —
Interest of justice would be subserved, if respondent directed to pay compensation
of Rs. 7 lacs instead and fine of Rs. 5,000/- as directed by High Court —
Negotiable Instruments Act, 1881 — Section 138 — Criminal Procedure
Code, 1973 — Sections 29(2), 357(3), 377.
Constitutional Law — Scheduled Castes and Scheduled Tribes — Claim of benefit of Scheduled Caste to exercise and enjoy all fundamental rights, constitutional rights and statutory rights as members of Scheduled Caste — Challenge against enactment of Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002 — Act is enacted by competent Legislature i.e. Parliament — Normally Court would not grant interim relief against legislative action — Once Act enacted and brought into force, interim relief of interfering with action taken in pursuance of legislation may not be granted — Act already implemented and came into force — Persons belonging to certain Scheduled Castes treated under impugned Act, as members of Scheduled Tribes — Grant of interim relief may create complications — Member of particular Scheduled Caste now treated under impugned legislation as member of Scheduled Tribes may be able to claim certain benefits as member of Schedule Tribe under Act — At the same time he cannot claim benefits as member of Scheduled Caste also — Serious questions of law raised by petitioners, petition deserves to be admitted — Grant of interim relief would prevent legislation to operate — Act is of 2002 and came into force in January 2003 whereas petition under Article 32 of Constitution filed by petitioners in this Court in July 2006 — Interim relief as prayed for by petitioners cannot be granted at this stage — Constitution of India, 1950 — Articles 14,19, 21, 32, 330, 332, 335, 341(2) — Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002.
Contract — Tender — There can be no implied terms so far as Government is concerned — Terms can be claimed to be implied by parties to contract — Government by contract cannot be compelled to grant permission — Statutory parameters to be kept in view.
Doctrine of Fairness — Just as principles of natural justice ensure fair decision where function is quasi-judicial doctrine of fairness evolved to ensure fair action when function is administrative — But said principle cannot be invoked to amend, alter or vary expressed terms of contract between parties.
Principles relating to implied terms — Position regarding — Discussed in Chitty on Contracts and Halsbury’s Laws of England.
Setting Aside Ex parte Order — Limitation — Recovery of Amount — Summons served on appellant not accompanied by copy of plaint and other documents — Learned Judge did not address itself question as to how defendant, in absence of copy of plaint and other documents, would be able to file his written statement — Court further committed manifest error as it failed to take into consideration summons having been served upon appellant after date fixed for his appearance, it was obligatory on its part to fix another date for his appearance and file written statement and direct plaintiff to take steps for service of fresh summons — Further summons not duly served upon appellant as provisions of Order 9 Rule 2, CPC or Order 9 Rule 6(1)(c), CPC not complied with — Second part of Article 123, whereof applicant would be deemed to have knowledge of passing of ex parte decree would be date from which limitation begins to run, attracted and not first part — Impugned judgments unsustainable and set aside — Directions issued — Civil Procedure Code, 1908 — Order 5 Rule 2, Order 9 Rule 6(1)(c), Order 9 Rule 13 — Limitation Act, 1908 — Article 123.
Service Law — Banking Service — Pension — Grant of — Respondent No. 1 was award staff at time of retirement on medical grounds in 1993 — Appellant-Bank in its affidavit before High Court categorically stated benefit of exercising option for pension cannot be extended to employees who retired on medical grounds with simultaneous appointment of dependents on compassionate grounds — Respondent No. 1 cannot take benefit of letter dated 20.9.93 received by him from Chief Manager of appellant-bank, treating him as voluntarily retiree from service of Bank w.e.f. 1.11.93 under Pension Regulations as nomenclature of words ‘voluntarily retired’ used in said letter will not change status of respondent No. 1 from award staff to any other category of employee of appellant-Bank — Regulation 29 not attracted in this case — Respondent No. 1 having retired as award staff not entitled to grant of pension under Pension Regulations — Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 — Section 19(2)(f) — Union Bank of India (Employees’) Pension Regulations, 1995 — Regulation 29.