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Court Seeks Governments Response on Plea Seeking Gender Neutral Toilets across State: Madras High Court

The Madras HC has directed the State to respond to a plea seeking gender impartial public toilets across educational institutes, at bus stops, railway stations, airports & such other public places. and also directed the State counsel to seek instructions & respond to the petition in a week. This was seen in the matter of Case Title: Fred Rogers v. The Chief Secretary & others, Case No: WP 2499 of 2023 presided over by the bench of Acting Chief Justice T Raja & Justice Bharatha Chakravarthy.

FACTS OF THE CASE

The court was hearing a plea filed by transgender person. The petitioner claimed that though transgender persons in the state are given the choice to choose toilets of their own identified gender, in real life they are harassed- verbally, physically & sometimes sexually, incase they try to use the same.

Advocate Arun Kasi, appearing for the petitioner, presented that gender impartial toilets will not only help the gender non-confirming. Non-binary, queer & other communities but will also help the disabled children/parent who need help of others (sometimes from opposite genders) for using the toilets.

The petitioner also presented that such gender impartial toilets would encourage broad & remove the stigma surrounding gender non- conformity. It was argued that providing public toilets to all members of the society is one of the duties of the govt.

Finding the prayers to be reasonable, the court asked the State why relevant steps are not being taken to take on this issue. To this, the State responded that raising gender impartial toilets would require time. However, the State also said that it is not against the idea.

JUDGEMENT

The court then propsed that till the time gender impartial washrooms are rasied, some of the existing public toilets could be transform into gender impartial toilets.

“We do not have a gender impartial toilet even in our HC premises. While such toilets must be raised, in the meantime, if some of the existing public toilets are reserved to be used only by trans persons, their problem can be solved,” the court noted. The court adjourned the matter by a week directing the State counsel to seek instructions.

JUDGEMENT REVIEWED BY YAKSHU JINDAL.

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The Karnataka High Court under Justice M Nagaprasanna in M/s Allengers Medical Systems Ltd And State of Karnataka (Writ petition No. 17634 of 2022) has said that the authority responsible for requesting tender is only permitted to revoke a bid before it has been awarded and before the contract has been executed. Except in cases of tender condition violations, it is illegal to withdraw or cancel the tender once the award has been announced.

FACTS

The petitioner claims to be a registered Company under the Companies Act, 1956 and is in the business of procurement of medical and allied equipments. The 2nd respondent/ Karnataka State Medical Supplies Corporation Limited (hereinafter referred to as ‘the Corporation’ for short) issues a notice inviting tenders for procurement of 100mA Portable X-ray machines, ICU Cots and Syringe Pump. It was to be a two cover tender, in terms of the Karnataka Transparency in Public Procurement Act, 1999. The issue in the lis concerns only item No.2 in the Tender i.e., 100mA Portable X-ray machines. The petitioner finding itself eligible, submits the tender in terms of the tender along with another tender. On the Tender Scrutiny Committee declaring the petitioner to be the successful bidder, the petitioner was called for negotiations with regard to the final price and the petitioner reduced the price from Rs 19,34,640/- to Rs 18,95,947/- and the award of contract was notified in the favour of petitioner. Pursuant to the notification of 5 award, an agreement was also signed between the parties and thereafter, a demand draft for supply of 165 Portable X-ray machines of 100mA was submitted by the petitioner for issuance of purchase order and a separate agreement for such purchase was also entered into between the parties. In spite of all these, no purchase order was issued as was required, in terms of the tender. It is at that juncture, the petitioner knocked the doors of this court with the present petition. This Court initially directed the learned Additional Government Advocate to secure instructions as to what has become of the tender. After issuance of notice the petitioner is communicated a cancellation of tender order, in terms of its electronic mail communication. It is then this Court has passed a detailed order restraining the respondents from re-tendering and reserved liberty in the respondents to issue purchase order in favour of the petitioner. Therefore, the matter, with the consent of parties, was heard.

FINDINGS

The bench said if there are corruption charges against officers of the Tender Scrutiny Committee, it is for the appropriate authority to take action. It cannot result in cancellation of a valid order. “A notice inviting tender can be withdrawn or cancelled only upto a particular stage. Once it crosses the said stage, any unilateral cancellation would be an arbitrary exercise of power.”

Article 14 mandates that every action of the State should pass through the golden thread of Non-Arbitrariness and therefore the Corporation is a satte under Article 12 of the Constitution of India.

 

 

 

JUDGEMENT

The cancellation of Tender would amount to Arbitrary exercise of power and violative of Article 14 of the Constitution of India and therefore Writ Petition is allowed and the communication dated 03-11-2022 of the 2nd respondent stands quashed.

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JUDGEMENT REVIEWED BY VAISHNAVI SINGH

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The Karnataka High Court under Justice Anant Ramanath Hegde in Ameena Afroj And State of Karnataka & others (Writ petition No. 200032 of 2023) has said that the Administrative Tribunal established under the Administrative Tribunals Act 1985 has the authority to hear all cases ‘concerning recruitment,’ including all decisions made between the date a notice inviting applicants for government job openings was published and the orders of appointment.

FACTS

The issue, in this case, is pertaining to the petitioner’s caste and income and the same is outside the purview of the Administrative Tribunal (for short ‘Tribunal’). This issue has to be considered only by this Court in the exercise of power under Article 226 of the Constitution of India. Assuming that the Tribunal has got the jurisdiction to deal with this matter under Section 15 of the Act, the alternative remedy by itself will not oust the jurisdiction of the High Court under Article 226 of the Constitution of India. The present writ petition is to enforce the petitioner’s fundamental right under Article 14 of the Constitution of India as the persons who are similarly placed, are classified in the 2-B/KA-HK category. The petitioner is questioning the discrimination and infringement of her fundamental right under Article 14 of Constitution of India.

FINDINGS

The court said “The expression ‘recruitment’ and ‘matters 10 concerning recruitment’ found in Section 15 (1) (a) are not defined in the Act. Thus, the Court has to apply the plain grammatical meaning attached to the above-said expressions, unless such exercise leads to absurdity” In addition to the expression ‘recruitment’ found in Section 15 (1) (a) in the Act, to remove any ambiguity or difficulty in interpreting the word ‘recruitment’ or to eliminate the scope for misinterpretation, the Parliament itself has used the expression, ‘matters concerning recruitment’ in Section 15 (1) (a) of the Act. Said expression undoubtedly has a wider connotation than the expression ‘recruitment’. When the word recruitment itself is wide enough to cover the act or the process involved in the recruitment, the expression, ‘matters concerning recruitment’ found in Section 15 (1) (a) of the Act, leads to only one conclusion that the decision taken in processing the application for the post is a decision relating to recruitment or the matters concerning to recruitment. In the present scheme of our Constitution, recruitment under the State is governed by the reservation policy of the State. The process involves reserving a certain specified percentage of seats based on reservation policy. Thus, the employer is under obligation to process the applications for recruitment based on criteria fixed under the reservation policy. While processing the applications for the posts, if a decision is taken to classify the applicant in a particular category, as happened in the case of the petitioner, ‘the decision taken’ is indeed a decision taken in the process of recruitment.

JUDGEMENT

For the aforementioned reasons, the court dismissed the petition calling it as non-maintanable. The petitioner is at liberty to approach the Tribunal constituted under the Administrative Tribunals Act 1985. The Registry is directed to return the annexures to the writ petition, after retaining the xerox copy if requested by the petitioner.

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JUDGEMENT REVIEWED BY VAISHNAVI SINGH

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The Karnataka High Court under Justice Shivashankar Amarannavar in Thotlegowda v. State of Karnataka (Criminal petition No. 165 of 2012) has said that the death of the convict does not discharge his liability from paying fine and compensation imposed by court. It can be recovered from the property which goes to his legal heirs after his death and they are legally liable for the payment of the fine.

FACTS

The accused has filed this appeal challenging the judgment of conviction and order of sentence dated 26.12.2011 passed in Spl.case No. 94/2008 by the Additional Sessions Judge and Special Judge, Hassan, whereunder the appellant accused has been convicted for the offence punishable under Section 135 and 138 of Indian Electricity Act, 2003 (for short hereinafter referred to as `the Act’) and sentenced to pay fine of Rs.24,204/- for the offence under Section 135 of the Act and sentenced to pay fine of Rs.5,000/- for the offence under Section 138 of the Act.

FINDINGS

The court referred to Section 394 of Criminal procedure Code, which deals with abtement of appeals, said “An appeal from a sentence of fine will not abate on the death of the appellant.” It added, “In the present case appellant has been sentenced to pay fine only and therefore on the death of the appellant the appeal will not abate.” The legal heirs of the appellant are not interested in making any such application for a continuation of appeal, according to the representation made by the accused’s attorney, which the court noted.

JUDGEMENT

The court said “The appellant died on 06.04.2019 and no such application is filed by his near relatives to continue the appeal. Learned counsel for the appellant submits that the legal heirs of the appellant are not interested in making any such application. Hence, the property of the appellant which goes to his legal heirs after his death is legally liable for payment of the fine amount. Hence, in view of the death of the appellant, the appeal is dismissed. The trial Court is directed to initiate proceedings to recover the fine amount imposed on the accused from his estate which is inherited by the legal heirs of the appellant on his death.”

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JUDGEMENT REVIEWED BY VAISHNAVI SINGH

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The Karnataka High Court under Justice M Nagaprasanna in M Prakash And Vinayaka & ANR (Writ Petition No. 20269 of 2022) has said that lawful orders passed by Judicial Authorities are required to be scrupulously enforced by the Police and failure to do constitutes a constitutional tort arising out of breach of a fundamental right of access to justice for victims of crime. Such a violation constitutes grave misbehaviour and willful neglect of duty, both of which call for the imposition of severe punishment. These flagrant acts of official neglect by law enforcement agencies are intolerable.

FACTS

The petitioner alleges that the 1st respondent forcibly broke open the doors of residence of the petitioner, thieved many articles in the house which were home appliances, fitness equipment, vehicle keys among other valuable articles. The reason for the alleged incident, according to the narration was that, the petitioner had filed a civil suit, which was seeking partition of the family properties. Based upon the said incident, the petitioner registered a private complaint before the jurisdictional Magistrate invoking Section 200 of the Cr.P.C. for offences punishable under Sections 380, 503, 410, 414, 425, 442, 451 read with Section 34 of the IPC. The learned Magistrate directs registration of the complaint in PCR, registered by the petitioner on reference being made of the matter to the Cottonpet Police Station for investigation under Section 156(3) of the Cr.P.C.Though the Cottonpet Police received the certified copy of the order, the crime was not registered. Even after repeated reminders the registration of complaint was not done. The crime comes to be registered only on 18-10-2022 after about 5½ months of reference being made by the learned Magistrate directing investigation to be conducted and a report to be submitted under Section 156(3) of the Cr.P.C. It is in that light the petitioner has knocked the doors of this Court seeking transfer of investigation to the hands of any other police officer or agency owing to the fact that the Station House Officer of the Police Station showing no interest in registering the crime even. The petitioner would allege that the Station House Officer is hand in glove with the 1st respondent/accused and therefore, seeks transfer of investigation to any other Police Station.

FINDINGS

The bench said that “Law requires that, when the Magistrate directs investigation to be conducted under Section 156(3) of the Cr.P.C., the investigation has to commence immediately and for the investigation to commence, a FIR should be registered without any loss of time.”

“The Apex Court clearly holds that, when a Magistrate directs investigation under Section 156(3) of the Cr.P.C., FIR should be registered. It is the duty of the officer in-charge of the police station to register FIR regarding the cognizable offences disclosed in the complaint. It should be registered even if the Magistrate does not say in so many words, while directing investigation. The aforesaid action of registration of crime with an inordinate delay would disclose culpable negligence on the part of the Law Enforcement Agency in compliance with the lawful order passed by the learned Magistrate under Section 156(3) of the Cr.P.C. for registration of FIR and for investigation into the cognizable offences. Lawful orders passed by the judicial authority are required to be scrupulously enforced by the police. Failure to do so, constitutes a constitutional tort arising out of breach of a fundamental right of access to justice for victims of crime. Such breach amounts to serious misconduct”

JUDGEMENT

The petition was disposed off and the Director General and Inspector General of Police were ordered to hold a departmental enquiry against the said officer in-charge of the police station

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JUDGEMENT REVIEWED BY VAISHNAVI SINGH

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