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Delhi High court upholds the fundamental right of a disabled person and prevents the transfer of the petitioner to another State.

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Title: Bhavneeth Singh v IRCON international Limited

Citation: W.P.(C) 12404/2022 & CM APPL.  No. 37256/2022

Dated on: 15.12.2023

Corum: Justice Chandra Dhari Singh

 Facts of the case

In the present case the petitioner Mr. Bhavneeth Singh is orthopedically handicapped person with 70% disability and works under IRCON international a company incorporated by the central government (Ministry of Railway) under companies act 1956, who are the respondents. The respondent no. 1 is a leading turnkey construction company in public sector and 86% of its shares are held by the Ministry of Railways. On 15th December 2017, the petitioner joined as Deputy Manager HRM at Human Resource Management Department in the respondent’s corporate office. The petitioner joined the respondent’s office on 15.12.2017 but was subsequently transferred by march 2020.

Aggrieved by this promotional transfer the petitioner filed a complaint through e-office before the competent authority which was later the petitioner’s request to consider his candidature for promotion was dismissed.  

It is also submitted by the petitioner that another employee at the respondent’s corporate office -one Mr. Sanddep Sharma who suffers from 50% visual disability was also transferred, but later realised the legal and the legitimate rights of the disabled person according to the persons with disability act 2016, Mr Sharma was transferred back to Delhi.

But the same rights could not be availed by petitioner Mr. Bhavneeth Singh who is under the supervision of the para medical officer and has to wear a knee length prosthetic known as an Ankle Foot Orthosis (AFO) in his left leg. Additionally, he is also under the supervision of doctors from Fortis hospital, Noida for more than a decade where He has to undergo MRI tests of C- Spine, L-spine and other diagnostic tests as and when prescribed, and other Orthopaedic counterparts to keep a track of degenerative changes taking place in the petitioner’s spine in particular and therefore the said transfer can act as an embargo in his regular medical treatments. Due to these reasons petitioner wanted to exercises his rights through section 20 of the rights of the disabled persons act 2016 and challenged his transfer which he contended was mad with mala-fied intention rather than an administrative function.

Legal Provision

This present case mainly involves Section 20 Right of Persons with Disabilities Act, 2016, which states that Government establishment shall ensure that there is discrimination against any person with disability in any matter relating to employment and the appropriate Government may frame policies for posting and transfer of employees with disabilities. Therefore, the intention of the legislation in enacting the afore discussed legislation was to assimilate physically disabled persons in mainstream, however the respondents’ actions are contrary to the same.

The key objective of the said section is to ensure that there is no discrimination against the persons with disabilities and they are being equally given the opportunity like any enabled person.

Court analysis and decision

The hon’ble court allowed the writ of the petitioner and passed its verdict on behalf of the petitioner. The court in this matter is of the view that due to the medical conditions and ongoing medical treatment of the petitioner, Mr. Singh must not be transferred into another state by the respondent’s office and they must not create any further obstacles for the petitioner’s treatment.

The court is also of the view that the respondents have infringed and violated article 14 (right to equality) of the Indian constitution and have failed to recognised the special needs of the petitioner and posted him to a place lacking medical facilities and set aside the transfer of the petitioner to Chhattisgarh branch office.

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Written by- Namitha Ramesh

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Application for grant of NOC should to be dealt with according to the rules in force at the date of disposal of the application: Kerala High Court

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Case Title: A.H. Sheriff v. State of Kerala & Ors. 

Case No: WP(C) No. 33324 of 2023

Decided on:  3rd January, 2024

CORAM: THE HON’BLE MR. JUSTICE MURALI PURUSHOTHAMAN 

Facts of the Case

The petitioner submitted Ext.P1 application dated 28.05.2019 before the District Collector for more than four years for grant of No Objection Certificate (NOC) for quarrying granite from revenue puramboke land. Ext.P5 Government Order bringing comprehensive guidelines for grant of NOC for mining of minerals from Government land was issued on 28.01.2021. The application of the petitioner was rejected by Ext.P4 order dated 21.09.2023, much after the issuance of guidelines in Ext.P5.

The case of the petitioner is that his application has to be considered on the basis of the law prevailing at the time of submission of the application and Ext.P5 order issued subsequently cannot be relied upon to reject the application. The learned Senior Government Pleader would contend that the petitioner has no vested right to have his application considered applying any particular provision and that he has not approached this Court before issuance of Ext P5 order, seeking a direction to consider his application for NOC.

Issues

  1. Whether the application for grant of NOC has to be dealt according to the law prevailing at the time of submission of the application or rules in force at the date of disposal of the application?
  2. Whether the applicant of NOC has a vested right to have an application for grant of NOC to be dealt with in a particular way, by applying particular provisions?

Court’s analysis and decision

The Hon’ble High Court of Kerala has relied on State of Tamil Nadu v. M/s. Hind Stone and Others [(1981) 2 SCC 205: AIR 1981 SC 711] while dealing with this writ petition. In Hind Stone case, the Hon’ble Supreme Court has held that the action of the Government in keeping applications for lease pending for long and later, rejecting them by applying a rule made subsequently, is not open to challenge. The Court observed that no one has a vested right to the grant of lease and none can claim a vested right to have an application for grant of lease to be dealt with in a particular way, by applying particular provisions and that in the absence of any vested right, the application has necessarily to be dealt with according to the rules in force as on the date of disposal of the application despite the fact that there is long delay since the making of the application.

Though there is inordinate delay on the part of the District Collector in considering Ext.P1 application for grant of NOC for mining of minerals from Government land, since during the pendency of the application Ext.P5 Government Order has been issued providing comprehensive guidelines for grant of NOC, the application of the petitioner has to be considered in the light of Ext.P5. Ext.P5 Government Order is not under challenge in this writ petition. There is no direction sought for and obtained by the petitioner from this Court for an early consideration of Ext.P1 application before issuance of Ext.P5 Government Order. As held by the Hon’ble Supreme Court, the petitioner has no vested right to seek Ext.P1 application to be considered by applying the procedure as applicable before the issuance of Ext.P5.

The writ petition fails and is, accordingly, dismissed.

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Written by- Afshan Ahmad

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Karnataka High Court orders Biological Father to pay maintenance for the child Born out of an extra Marital affair, but quashes allegation against cheating and Criminal Intimidation

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Title: Shri. Raghvendraraddi Shivaraddi Naduvinamani v State of Karnataka & ors.

Citation: Criminal Petition No. 100721 of 2023

Decided On: 20.10.2023

Corum: Justice M Nagaprasanna

 Facts of the Case

The Complainant and Petitioner the claimed to be in Relationship since 2018 engaging in physical intimacy, but the complainant later married to another Ramkrishna Kadligondi (who was not the petitioner) in June 2021. Due to the disruptions in marriage the complainant had moved out of her husband’s residence and shifted back to her maternal home. While she was rescinding at her parent’s place, the petitioner allegedly lured her back into starting a relation and expressed all his intentions of being with her and promised her of marriage upon her Divorce with Ramkrishna Kadligondi. As a consequence of this extra marital affair of the complainant, she discovers that she is pregnant with a child.

 Later upon the petitioner’s discovery of the pregnancy of the complainant the petitioner denies in the relation between him and the complainant and further claims that he will get married to another who is not the complainant and further went ahead and did the same. The complainant also submits to the court that the two were in love and had promised to get married but due to the complications in their relationship and the strained relation between complainant and her husband the petitioner also threatened to reveal about the relation between the complainant and the petitioner to her husband and if he did revel about the same her husband would even take her life away.

Upon the Forensic reports it was found that the child the complainant bore is of the petitioners. The complainant aggrieved by this filed and complainant of cheating and rape against the petitioner.

Legal Provision

Complaint is filed against the petitioner under sections 376, 506, 417, 420 of the Indian Penal Code which provides for the offence of Rape, Cheating and Criminal Intimidation respectively. The court considered the issue as to whether the offence of rape could be met and whether the offence of cheating must be considered.

Court Analysis and Judgement

The Hon’ble High Court upon observing the materials placed on record including the Charge Sheet and the DNA report held that the act did not amount to the offence of rape and quashed the offence punishable under 376 of IPC, but upheld the proceedings against the Petitioner for Offences under 417, 420, and 506 of the IPC.

The court quashed the offence of rape in the complaint on the fact that both the parties were educated adults who entered into such a physical relationship with consent. The court also placed reliance on the judgement of the Hon’ble Supreme Court in the case of Shambhu Karwar v. State Of Uttar Pradesh And Another (2022 SCC Online SC 1032) and held that the offence under Section 376 of the IPC cannot be laid against the petitioner and permitting further proceedings to continue would become an abuse of the process of the law.

However, the Hon’ble High Court upheld and permitted proceedings against the Petitioner for offences of Cheating and Criminal Intimidation under sections 506, 417 and 420 of the IPC.

The Court in order to protect the interests of the innocent child born out of the relationship took into record the DNA Report which states that the Petitioner and Complainant are the biological parents of the child and ordered the petitioner to pay maintenance to the child at Rs.10,000/- p.m., from the date of receipt of a copy of the order, till conclusion of the trial.

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High Court of Karnataka overturned an acquittal in a cheack dishonour case, convicting the accused under sec 138 of NI act imposing fine and simple imprisonment.

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Title: Smt H Bhagyalakshmi v Smt Cheluvamma

Citation: CRL.A No. 2104 of 2018

Decided on: 15.12.2023

Corum: Justice S Rachaiah

 Facts of the case

The accused in the present case was an acquaintance of the complainant- a teacher who lent the appellant a sum of Rs. 2.5 Lacks towards the appellants granddaughter’s education and other family necessities. The complainant paid for the same through two instalments of 30,000 each and paid through check the remaining 1,90,000 by the way of cash upon the request of appellant in the presence of three witnesses. However even after the lapse of one year the amount was not repaid back to the complainant.

Upon the complainant insist to repay the said amount, the accused in the month of June 2017 issued a cheque and asked the complainant to present the same for encashment. When the said cheque was presented for encashment, it came to be dishonoured as “could not be proceeded due to alteration”

Subsequently the complainant served legal notice to the appellant in spite of which the amount was not returned nor was a response given to the legal notice. Hence, it constrained the complainant to lodge a complaint against the accused before the Jurisdictional Magistrate.

Legal Provision

The Accused was convicted under Section 138 of Negotiable instrument act which imposes Punishment upon dishonour of checks for insufficiency of funds but was paid compensation through section 357-A of Code of Criminal Procedure (CrPC) to compensate victims of crime who have suffered loss or injury due to this that crime.

Issue

i)Whether the finding of the Trial Court in recording the acquittal of the accused for the offence punishable under Section 138 of N.I Act is justified?

ii) Whether the appellant has made out grounds to interfere with the said findings?

Court analysis and decision

The High Court of Karnataka considering various Precedents, allowed the appeal and set aside the order given by the Trial court which came to the conclusion that the cheque has been altered, however there is no such averment in the endorsement of the bank. In the absence of such averment, the Trial Court continued the recording of the acquittal on the same ground which appears to be not proper and perverse.

The court all ordered for the conviction of the appellant under section 138 of the negotiable instrument act for a period of one year and imposed a fine amount of Rs. 3 Lacks.  However, the court also awarded compensation for the complainant a sum of Rs. 2,90,000 and a balance of Rs. 10,000 which must be adjusted towards the exchequer of the state later through Sec 357-A CrPC which establishes the government compensation scheme for the victim.   

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The writ petition of a medical practitioner was quashed and his clinic was seized on the grounds of noncompliance with the regulations of the Medical Endorsement Act.

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Title: Sri. DR.  Annaiah. N v State of Karnataka and ors.

Citation: WP No. 23267 of 2023

Decided: 20.10.2023

Corum: Justice M. Naga Prasanna

 

Introduction

The Karnataka high court quashed the writ petition filed by the petitioner Sri Annaiah who had approached the court through article 226 and 227 of the constitution of India, praying to set aside an order against him which rejected his application necessary for setting up private medical practise according to the private Medical Establishment act 2007. Justice NagaPrasanna after while delivering his judgment considering various precedents similar in nature and clear review of private medical establishment act 2007.

 

Brief facts of the case

The petitioner Sri Annaiah is a medical practitioner who insists to have completed his community medical service course (CMS-ED) and obtained a Certificate from the Central Paramedical Education Board, Mumbai as prescribed by the World Health Organization guidelines. Through these accreditations, the petitioner established a clinic named “Sangeetha Clinic” in Bangalore and asserted to have been practicing for years.

The Karnataka Private Medical Establishments Act, 2007, passed by the Karnataka government, went into force in 2008. Anyone planning to open a private medical practice must apply for registration under this Act. The online application submitted by the petitioner to get this approval was rejected on the ground that the petitioner’s qualification was insufficient to meet the requirements of this act.

The core issue revolves around the interpretation of the Act’s provisions, particularly the definition of a “Medical Practitioner” as per Section 2(k), which specifies qualifications for practicing different systems of medicine. The petitioner argued that the Act should not differentiate between medical practitioners and that there are precedents where directions were issued for considering cases of practitioners not in the mainstream of medicine.

In contradiction the government argued that the petitioner was practising allopathy without any necessary qualifications in relation to the endorsement rejecting the application.

 Courts observation and analysis

The High Court of Karnataka quashed the writ petition filed by the petitioner on the grounds that the petitioner did not have necessary requirements to practise medicine privately and is not eligible to obtain the required government approval needed for setting up of the practise.

In the light of the aforesaid facts the court also held that there was no fault on the mandate of the statute with the endorsement issued to the petitioner rejecting his application for registering under this act.

The endorsement also notices that the clinic of the petitioner would be seized and the seizure would be axiomatic, as it is a consequence of non-registration of the clinic by a doctor who has no qualification.

 

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Written by – Namitha Ramesh

 

 

 

 

 

 

 

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