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If an accused from the very beginning of the relationship has made a promise of marriage without any intention to fulfil that promise and in place of such assurance that the accused would marry her, she gave her permission for sexual intercourse with the accused, then that consent does not amount to true consent. It shall fall within the ambit of the misunderstanding of reality. This auspicious judgment was passed by the High Court of Orissa in the matter of Rinku Pradhan vs State of Odisha and another. [BLAPL/6629/2020] by Honourable Justice S.K. PANIGRAHI.

The petitioner has filed the “instant application under Section 439 of Cr. P.C. seeking bail in connection with alleged commission of offences punishable under Sections 376(1)/313/294/506 of the Indian Penal Code and Sections 66(E) and 67(A) of the Information Technology (Amendment) Act, 2008”.

The petitioner met with the claimant at the relative’s house and later reached her by telephone and tricked her into love with him. They formed an intimate friendship and the petitioner maintained a physical tie to her promising marriage. The plaintiff was pregnant twice due to an intimate arrangement, which was aborted by the petitioner after he gave her medication. The claimant requested the petitioner to marry her on 22.01.2020, but then he refused to let the families of the plaintiff meet the family members of the petitioner to get their permission for such a wedding. But they still rejected the invitation for marriage. The family of the claimant fixed her marriage elsewhere with no solution. The petitioner, however, posted the complainant’s images alongside his subtitle claiming that the complainant’s character was not decent. The petitioner further mentioned that the complainant had a relationship with him but was marrying someone else. 

This led to a breakdown in the marriage of the claimant and its defamation of society. The petitioner has even threatened to viral lewd Facebook images and to abduct and execute her. 

Relying on the Anurag Soni vs. the State of Chhattisgarh, the court stated that “if an accused from the very beginning has given a promise of marriage without any intention to fulfil that promise and in lieu of such promise that the accused will marry her, she gave her consent for sexual intercourse with the accused, then such consent would not amount to valid consent. It shall come within the ambit of the misconception of fact under Section 90 of IPC. Thus, such consent shall not excuse the accused from the charges for the offence of rape under Section 375 of IPC.”

While dismissing the petition court further stated with regards to Sections 66A and 69A of the IT Act “that Information that may be grossly offensive or which causes annoyance or inconvenience are undefined terms which take into the net a very large amount of protected and innocent speech.” 

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For qualification as a government teacher, B.Ed. Degree with Non-Marathi subject of methodology will not erode the value of Post Graduate Degree in Marathi since qualification for teaching and services is based on set provisions, rules, and guidelines. This auspicious judgment was passed by the High Court of Sikkim in the matter of ASHOK S/O UDHAV KOTHAWALE V. THE STATE OF MAHARASHTRA & ORS. [WRIT PETITION No. 10565 of 2015] by Honourable Justice N. J. Jamadar.

This writ petition is filed to challenge the judgment and order passed by the learned Presiding Officer, School Tribunal, Solapur upholding the termination of his service by the School as valid.

The petitioner after appraisal of the qualification and credentials as well as his performance in the interview was appointed as a Shikshan Sevak and he joined the post. After his joining the proposal of selecting the petitioner and another candidate, who was selected through the Scheduled Tribe category, was sent for further consideration. However, the Education Officer selected the other candidate and refused to select the petitioner relying on the directive previously issued by the Director of Education. However, the petitioner argued this refusal was unjustified since he was appointed against a clear vacancy after duly following regular selection process.

In his petition at Division Bench the Court observed that “Prima-facie, the petitioner possessed the requisite qualification for appointment as Teacher to teach Marathi. However, since during the pendency of the said petition he was terminated.” Thus, “It would be appropriate for the petitioner to challenge the order of termination before the School Tribunal.”

He filed an appeal before the School Tribunal assailing the legality, propriety, and correctness of the termination order to which the Tribunal on basis of the material on record and submissions found the termination to be legal and valid.

Consequently, the Aurangabad Bench of the High Court of Bombay relied on Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977 and Schedule-B of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 and observed that “It would be naive to expect a person, who is totally uninitiated into a particular discipline, to impart training in that discipline merely because he happens to be a graduate. However, this principle cannot be stretched to such an extreme that the authorities decline to take into account the fact that the candidate possesses higher qualification of post-graduation in that discipline.”

Thus, the Court held, that the School Tribunal had fallen into an error in reading the requirement of graduation for fulfilling the criteria of qualification for appointment. Additionally, the second ground was also considered, “a weak foundation of disqualification since not opting for Marathi as the subject of methodology of school-subject while pursuing B.Ed. is not acceptable since he has basic knowledge of the primary subject at graduation or post-graduation level.”

Thus, the Court held that the “Order of termination stands rejected and should be set aside and the aggrieved petitioner should be reinstated in service with effect from 12th of October 2013 with all the consequential benefits and 40% (forty percent) back-wages from the date of termination till the date of reinstatement.”

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Discriminating against a person at all stages and holding him responsible for an uncommunicated order is not legally permissible. Merely taking a decision and passing it and keeping it in the file without publishing it or communicating it to the petitioner will not be a valid reason for not regularising him in accordance with the orders of the Apex Court. This auspicious judgment was passed by the Orissa High Court in the matter of RAJIB LOCHAN MAHANTA V. VICE-CHANCELLOR, UTKAL UNIVERSITY & ORS. [WRIT PETITION (C) NO. 6213 OF 2014] by Honourable Dr. Justice DR. Justice B.R.Sarangi.

This writ petition is filed for seeking direction to remove discrimination against the petitioner and instead regularize him in the Group-D post so as to claim consequential services and financial benefits as due and admissible to him at par with similarly situated persons, whose services have already been regularized as opposed to him.

The factual matrix of this case relates to another case, Dhrubananda Mishra and others vs. Vice-Chancellor 77 (1994) CLT 70, where the petitioners sought two directions from the Court; first pertained to regularization of service and the second was to pay them equal to that of their counterparts in regular service. The Division Bench of this Court held that regularization is ordered for those who had completed five years of continuous service. This judgement was confirmed by the Apex Court also in SLP (C) No. 9240 of 1993.

Thus, the university formed a list for regularising the class-IV cadre but the petitioner was not regularized, though the one standing just above the petitioner was regularized so he filed a writ petition, W.P.(C) No. 7391 of 2006 which was disposed with a direction to the State Government to take a decision on the proposal given by the University within a period of fifteen days. During this period several other petitions were filed in the court, all of which were disposed with a similar direction, yet the petitioner, who has completed five years’ service and is disallowed further service, has still not been regularised.

The court relied on Parikhit Mallik v Vice-Chancellor, Utkal University OJC No.13005 of 1999 and Prafulla Kumar Barik & Ors W.P.(C) No.6567 of 2006 and also acknowledged all the evidence and documents submitted by the Petitioner to substantiate his allegation of discrimination against him for not regularising him.

The Court observed that “The ban so imposed on recruitment of work charged employees and NMRs is only applicable to the fresh engagement but not for regularization of services. Therefore, the petitioner has been discriminated in all the times even though he made his grievances time and again and consequentially, he faced disengagement.”

Also, the court considered the order passed in Mohan Kumar Muduli W.P.(C) No.13254 of 2014 case and iterated that, “Mohan Kumar Muduli and Sarbeswar Gochhayat, who was appointed after the cutoff date and disengaged along with the petitioner were regularized and allowed to equal pay with equal work. Admittedly, both are juniors to the petitioner and were engaged after the cut-off date and yet the petitioner was not regularised.” Also, the Court agreed that, “the same was not communicated to the petitioner nor any opportunity of hearing was given to him while disengaging the petitioner from service.” Therefore, this termination is not valid.

Thus, the Court held that “The cumulative effect of factual and legal aspects is that the petitioner has been discriminated at all stages and for the reasons best known to the authorities the services of the petitioner have not been regularized, though services of similarly situated persons and the persons engaged after him have been regularized long. As it appears, the petitioner has only been victimized by the uncommunicated order of the syndicate disengaging him from service.” Thence, the court quashed this order and ordered that the petitioner shall be “regularized forthwith with all consequential benefits as due and admissible to him at par with his counterparts.”

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An order or detention is not a curative or reformative or punitive action, but a preventive action, the avowed object of which is to prevent the anti-social and subversive elements from imperiling the welfare of the people or the security of the nation or from disturbing the public tranquility or from indulging in white collar offenses. This was held in Banka Sneha Sheela v. State of Telangana[W.P.No.20146 of 2020] in the High Court for the State of Telangana by division bench consisting of Justice A.RAJASHEKER REDDY AND JUSTICE Dr. SHAMEEM AKTHER.

Facts are that the detainee is a Stock Market Trader with five criminal cases filed against him wherein charge-sheet is not filed and he had been granted bail. Habeas corpus petition has been filed by wife of detainee, challenging the detention order of Commissioner of Police under Section 3(2) Telangana P.D. Act.

The counsel for the petitioner contended that no incriminating material is present that the detainee had cheated the public. Detainee is alleged to be a ‘White Collar Offender’, thus can be tried and convicted under the Penal Code. There is no need to invoke the preventive detention laws which affect the fundamental right under Article 21 of the Constitution.

The court in order to highlight the legal parameters for testing the validity of ‘preventive detention’ and ‘Public order’ which is distinct from ‘law and order’ made reference to the Supreme Court judgement in Commissioner of Police & Others Vs. C.Anita, wherein the following observations were made, “The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression “law and order” is wider in scope in as much as contravention of law always affects order, “public order” has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of “law and order” and “public order” is one of the degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order.”

Considering the precedent and the facts of the case court held that, the modus operandi of the detainee in the alleged offenses, to collect money form gullible public and fraud which was committed in quick succession would certainly disturb the public peace and tranquility. Personal liberty of an individual, can also be taken away by following the procedure established by law, when it is used to jeopardize the public good and not merely private interests. Thus dismissing the Writ petition.

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The dismissal order shall be focused solely on telephone communication recorded, which, therefore, would amount, against the dictum established by the Supreme Court, to offending Article 21 of the Indian Constitution. Therefore, a judicial judgment cannot isolate the reason for dispensation from the enquiry on the basis of a registered telephone discussion. This auspicious judgment was passed by The High Court of Chhattisgarh, in the Matter of Toman Lal Sahu S/O Panth Ram Sahu Vs State of Chhattisgarh [WPS No. 5287 of 2012] By Honorable Justice Justice Goutam Bhaduri.

The pleas of the petitioners who were dismissed from service without there being any departmental enquiry, merely on the basis of CD transcriptions of the conversation (with a criminal). Significantly, the orders of dismissal were passed in the back-drop of involvement of the petitioners with a hardcore criminal and the petitioners were in a telephonic conversation with him to extend some favour and the said conversation was converted in a CD.

The court stated that “since the services were terminated on the basis of the telephonic/mobile conversations by invoking power under Article 311(2) Clause (b), as such, no departmental inquiry was held.” Further, when the said dismissal order was subject to departmental appeal, the same was also affirmed in the appeal. The challenge in the petitions before the Court, therefore, was to the dismissal orders passed by the respondent State Respondents. It was alleged by the petitioners that the source of CD was not disclosed and the alleged telephonic conversation, which was converted into CD, which recorded the conversation was also not supplied to the petitioners.

The court observed that the “orders didn’t disclose the fact as to how the voices of the petitioners were identified and it was clarified as to whether proper assistance of any officer was taken to identify the voice of the petitioners or the criminal in question. The Court also noted that the compact disk was not sent for examination to any expert or to any Forensic Science Laboratory and that the telephones or the mobiles in which the voice of conversation was recorded were not produced in original.”

Noting that Section 65-B of the Evidence Act lays down certain procedure to be followed about the admissibility of the electronic record, the Court remarked, “When a question comes to fore that whether any valid procedure or statutory mandate was followed to dispense with the departmental enquiry which proceeded on the premises of a telephonic recorded statement, the obvious answer would be in negative.”

By disposing of the petition, the respondents were given the liberty to hold the departmental inquiry against the petitioners by giving them the proper opportunity of hearing and following the procedure of rules of natural justice and thereafter may pass appropriate orders.

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