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A vote cast by a member of the Legislative Assembly will not be considered invalid, consequent upon his/her disqualification arising out of a conviction. The Supreme Court bench consisting of Hon’ble Chief Justice S A Bobde, J. A S Bopanna and J. V Ramasubramanian decided on the matter of Pradeep Kumar Sonthalia v. Dhiraj Prasad Sahu @ Dhiraj Sahu & Anr. [Civil Appeal No. 611 of 2020], which was an election petition questioning the validity of  a vote caste by a member who later faced conviction.

The biennial elections for 2 seats in the Council of States from the State of Jharkhand was conducted on 23.03.2018 wherein a total of 80 members of the Legislative Assembly cast their vote. One Shri Amit Kumar Rao cast his vote at 9.15 AM and was later convicted at 2.30 PM of various offences on the same day. The Election Petitioner was declared defeated with a total of 2599 value of votes whereas the candidates who were duly elected had secured 2601 and 2600 value of votes. Pradeep Kumar Sonthalia (petitioner) lodged an objection requesting the Returning Officer to declare Shri Amit Kumar Rao’s vote invalid on the basis of his conviction. An Election Petition was filed by the defeated candidate in the High Court who dismissed the same inspite of deciding majority of the issues in favour of the petitioner and refused to grant any relief to the election petitioner, primarily on the ground that “the election to the Council of States by a system of proportional representation by means of single transferable vote, is a highly complex, technical issue and that it is not possible for the Court to find out whether the election petitioner could have won the election, if that one vote had been rejected”.

Two main issues were framed by the SC – Whether the vote cast by Shri Amit Kumar Rao was to be treated invalid on account of the disqualification suffered by the voter under Article 191(1)(e) of the Constitution of India read with Section 8(3) of the Representation of the People Act, 1951 by virtue of his conviction? Ans if yes, then whether the petitioner was entitled to be declared as duly elected automatically?

The SC pointed out the conditions for disqualification along with the period of disqualification of a vote by relying on the case of Saritha S. Nair v. Hibi Eden [SLP (C) No. 10678 of 2020]. The court found that the interpretation to be given to the expression “the date” in Section 8(3) of the Representation of People Act, 1951 would have bearing upon the interpretation to be given to the date of happening of any one of the events of disqualification. The court finally held that the vote caste by Shri Amit Kumar Rao was rightly treated as a valid vote and holding otherwise would “create endless confusion and needless chaos”.

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Merely because an order has been passed by the Ld. CCJD and JMFC, Renapur allowing the application of the Petitioner made by way of a claim under Section 13(3) of the Birth and Death Registration Act, 1969 for change of date of birth to 12.03.1966, such change at this stage is impermissible. This judgment was delivered by division bench of Vacation Court comprising Hon’ble Justice S.S. Shinde and Justice Abhay Ahuja at Bombay High Court in the matter of Prabhakar Yashwant Salve v. The Chief Engineer and Ors. [WP. No. 99753 of 2020].

The petitioner in this present Writ Petition has alleged that in the year 2018-2019, Petitioner discovered that the date of birth mentioned in his School Leaving Certificate and S.S.C. Board Certificate was not correct. He therefore, made an application before the Gram Panchayat Office of his district, where upon a certificate of non-availability of birth and death dated 12.10.2020 as well as another certificate dated 31.01.2019 was issued to the Petitioner by Gram Panchayat Office. Petitioner then preferred an application by way of a claim under Section 13(3) of Birth and Death Registration Act, 1969 before the Court of J.M.F.C. at Renapur contending the non-availability of his date of birth entry. the learned CJJD and JMFC, Renapur allowed the application made by the Petitioner.

The court observed that “Though Petitioner relies on the order passed by the Learned CCJD and JMFC, Renapur allowing the claim of the Petitioner made under Section 13(3) of the Birth and Death Registration Act, 1969 and consequent birth certificate dated 27.12.2019 for change of date of birth to 12.03.1966, there is no material on record to indicate that the said document had been produced before the employer at the time of joining employment. In that background, the service record maintained by Respondent No. 1 discloses that the date of birth indicated in the document is 02.12.1962 which has been furnished by the Petitioner himself.”

The court while deciding upon the matter held that “in accordance with the decision of the Supreme Court in the Bharat Coking Coal Ltd. and Ors. v. Shyam Kishore Singh 2020 (3) SCC 411, Petitioner’s prayer for change in date of birth in the service register and consequential change of date of retirement cannot be entertained at the far end of service after accepting the same to be correct during the entire service. Moreover, the Petitioner’s counsel has not brought to the notice of this Court the relevant provision which enables JMFC to entertain the proceedings which were initiated by the Petitioner. In this view of the matter, we do not find any merit in the contentions raised in the Petition. Writ Petition is accordingly dismissed. Rule is discharged. There will however, be no order as to costs.”

 

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A teacher who is entitled to promotion under the “Career Advancement Scheme” (CAS) scheme can gain benefits from the same only from the entry of service of such incumbent into the University. The Supreme Court bench consisting of J. Ashok Bhushan, J. Subhash Reddy and J. M R Shah, quashed the judgement decided by the Karnataka High Court in the case of Registrar Karnataka University & Anr. v. Dr. Prabhugouda & Anr. [Civil Appeal No. 8088 of 2020].

The University (appellant) had invited applications for promotion, from eligible Assistant Professors, Associate professor and Professor under CAS to which the respondent applied and got promoted to the position of a Professor from an Associate Professor with effect from 28.10.2013. The respondent filed a writ petition in the High Court claiming that he had completed 3 years of service in the cadre of Associate Professor previously and thus, he should have been considered for promotion under CAS from 01.01.2009 instead of 28.10.2013. the learned judge allowed the appeal and was of the view that his previous service in affiliated colleges were also to be considered for the purpose of promotion under CAS. Aggrieved, the appellants filed the present appeal to the SC, arguing that the date submitted by the respondent as the effective date of promotion for the post of the professor cannot be considered as he was not in the employment of the University then. Further that he was supposed to be on the rolls of ‘constituent college’ and not ‘affiliated college’ to be considered for the type of promotion he was seeking.

The SC referred to the Preamble, Clause 12, Clause 13 and Clause 17 of the CAS and made it clear that the term ‘college’ infact meant only constituent and not affiliated college and hence, the University cannot be expected to order promotion for the period when the respondent was working in an affiliated college. The SC further stated that “the incumbent teacher, who is entitled for promotion under the scheme, is to be given benefit only from the entry of service of such incumbent into the University. Though the earlier service is to be counted for the purpose of giving benefit of promotion, but effective date for all purposes is only from the date of entry of first respondent into the University service, i.e, 28.10.2013. The University is not expected to grant promotion, covering the period, anterior to the entry of service of the first respondent into University. As such, we are of the view that the University has rightly given the benefit of promotion from 28.10.2013”.

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The limitation would begin to run when the affected person has the knowledge of the decision. The date when the order was passed cannot be solely determined by referring to the date when the same was signed by the ITAT. It was further found that under Section 254 (3) of the Act, the law stipulates that the ITAT shall send a copy of the order passed by it to the assesses and the Principal Commissioner. Rule 35 of the ITAT Rules also requires that the orders are required to be communicated to the parties was stated in the case of Pacific Projects Limited V. Asstt. CIT [W.P. (C) 2080/2020 & CM APPLs.7346-7347/2020]

Hon’ble Mr. Justice Manmohan Hon’ble Mr. Justice Sanjeev Narula stated that Section 254(2) of the Act has undergone certain amendments. However, there is no dispute that the provision still retains the distinctive two parts as observed by the Supreme Court. It emerges that the Section and the Rule mandates the communication of the order to the parties. Thus, the date of communication or knowledge, actual or constructive, of the orders sought to be rectified or amended under Section 254(2) of the Act becomes critical and determinative for the commencement of the period of limitation.

The writ petition has been filed challenging the order dated 29th July, 2019 passed by the ITAT dismissing the miscellaneous application filed by the petitioner/assessee under Section 254(2) for recall of the ex-parte order dated 01st. The ITAT in its order dated 29 September, 2017 whereby the matter was remanded to the Assessing Officer to decide the matter afresh after examining all documents, including additional evidences as well as books of accounts, bills and vouchers, etc.

The appellant/assessee that it had changed its address and shifted to 301-307, 3rd Floor, Plot No. 9, DDA Service Centre, Rohini, Delhi-110085 from Safeway House, D-4, Commercial Complex, Prashant Vihar, New Delhi-110085 w.e.f. 15th November, 2008 and this fact had been mentioned in the appeal filed by the assessee in Form No. 35 against the order dated 02nd 4. On the last date of hearing, learned counsel for the respondent had taken time to obtain instructions. December, 2018 passed by the DCIT, Circle 14(1) New Delhi.

This Court is also of the view that the ITAT has erroneously concluded that the miscellaneous application filed by the petitioner was barred by limitation under Section 254(2) of the Act inasmuch as the petitioner had filed the miscellaneous application within six months of actual receipt of the order. If the petitioner/assessee had no notice and no knowledge of the order passed by the ITAT, it cannot be said that the limitation would start from the date the order was pronounced by the Tribunal.

The court held that “the course adopted by the ITAT at the first instance, by dismissing the appeal for non-prosecution, and then compounding the same by refusing to entertain the application for recall of the order, cannot be sustained.”

Moreover, the order dated 29th July, 2019 was quashed.

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A single cartridge without firearm is a minor ammunition which is protected under clause (d) of Section 45 of the Arms Act. The possession of the ammunition if unconscious and there was no arm with the accused and there was no threat to anyone, the FIR is quashed, was referred by the Delhi High Court, in case of Manab Kumar Singh v. State & Anr. [CRL.M.C. 485/2020].

Hon’ble Mr. Justice Suresh Kumar Kait stated that the possession of the ammunition in the present case was unconscious and there was no threat to anyone at the airport.

The petitioner is having valid Armed License No.01-01/2016, PS-Belhar, UID No.051421000057422017 issued in his name and same has been verified from District Arms Magistrate, Banka, Bihar. The said Arms License is valid till 2021. The petitioner purchased one N.P. Bore (0.32 Bore) Revolver No.FG.78796 from Field Gun, Kanpur (U.P.). The photocopy of the Arms License is annexed with the petition as Annexure-P4 (colly) and petitioner had purchased 40 bullets of .32 bore on 19.04.2017 from Capital Gun House, Patna, Bihar and the said purchase was entered into his arms licence.

Moreover, Petitioner was travelling from Delhi to Patna by Jet Airways Flight No.9W 121, STD 16:15 hours vide Seat No.38B. During physical checking of his handbag,01 live and 04 empty fire cartridges of 325 mm Caliber, engraved on the bottom of all the cartridges “32 S & W.L.” were recovered.

The concerned CISF personnel informed the local police in this regard and petitioner was brought to IGI Airport Police Station, where an FIR No.319/2018 dated 19.06.2018 under Section 25 Arms Act was registered against the petitioner.

It was contended that the alleged bullets remained in his bag inadvertently and he did not have the knowledge that the cartridges have been left in the bag and he came to know about the same at the Airport only when the same were detected by the security personnel during screening of his hand bag. The petitioner duly explained the situation and apprised the investigating officer that it is a case of inadvertent mistake and sheer over-sightedness. The petitioner did not have any intention or requisite mens rea to carry the said cartridges for harming anybody else, the petitioner was let off after sometime.

However, the petitioner seeks quashing of FIR No. 319/2018 dated 19.06.2018 registered at Police Station – IGI Airport, New Delhi and all proceedings emanating therefrom. The present petition is filed under Section 482 Cr.P.C.

The court stated that in the case in hand, it is not the case of the prosecution that there was any fire arm recovered from the petitioner or there was any threat to anyone at the Airport. Therefore, in the present case, the possession of the ammunition was 5 unconscious and there was no threat to anyone.

The court held that the FIR No. 319/2018 dated 19.06.2018 registered at Police Station – IGI Airport, New Delhi and all proceedings emanating therefrom are hereby quashed. The petition was allowed.

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