#BOMBAY HIGH COURT Archives - Page 9 of 12

5 Jun

CHALLENGING THE DISQUALIFICATION OF A VILLAGE PANCHAYAT MEMBER: BOMBAY HIGH COURT

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INTRODUCTION

The High Court of Bombay: passed a judgement on 06 June 2023. In the case of NIKHIL UTTAM UNDRE Vs STATE OF MAHARASHTRA AND OTHERS THE SECRETARY AND ORS IN WRIT PETITION NO. 12614 OF 2022 which was passed by a single bench comprising of HONOURABLE SHRI JUSTICE N. J. JAMADAR, a village panchayat member from Manjri (Khurd), Tal. Haveli, District Pune found himself facing disqualification under section 14(1)(j-3) of the Maharashtra Village Panchayats Act, 1959. The disqualification was imposed based on allegations of encroachment on government land. The legality, propriety, and correctness of the disqualification were challenged through a writ petition under Article 227 of the Constitution of India. This blog post aims to provide an overview and analysis of the key arguments presented by the parties involved in the case, along with relevant case laws.

FACTS

The petitioner, who had been elected as a member of the village panchayat in 2001, was accused of encroaching on Gaothan land belonging to the village panchayat. The dispute application was filed by a respondent, alleging that the petitioner and his family members had committed unauthorized construction and encroachment. The District Collector initially dismissed the application, stating that the complainant had failed to prove the encroachment. However, on appeal, the Additional Divisional Commissioner overturned the decision, holding that the petitioner had indeed incurred disqualification.

ARGUMENTS PRESENTED

The petitioner’s counsel argued that the Additional Divisional Commissioner erred in relying on documents not presented before the District Collector. They contended that there was no substantial evidence to support the finding that the property in question was government-owned Gaothan land. The counsel emphasized that democratic principles should not be undermined by unseating a democratically elected member based on mere conjectures.

Another crucial point raised by the petitioner’s counsel was that the Additional Divisional Commissioner disregarded the petitioner’s claim of residing separately from his father and grandfather, which was evidenced by a separate ration card. They highlighted a factual error in the determination of when the petitioner’s name was removed from the original ration card.

On the other side, the counsel for the respondent supporting the disqualification argued that the entries in the Inquiry Register clearly established that the petitioner’s house was located on Gaothan land. They contended that in the absence of individual proprietary title documents, all lands automatically vested in the State Government. They further relied on the Supreme Court’s decision in Janabai vs. Additional Commissioner and Others (2006) 3 SCC 542, which supported the disqualification based on encroachment.

LEGAL ANALYSIS

Section 14(1)(j-3) of the Maharashtra Village Panchayats Act, 1959, provides the grounds for disqualification of a village panchayat member. It states that a person shall be disqualified if they commit encroachment on government land or public property. This provision aims to prevent conflicts of interest and ensure that those responsible for acting against encroachments do not themselves engage in such acts. The term “person” has been interpreted to include legal representatives and family members of the person whose qualification is in question.

The Division Bench of the High Court, in the case of Devidas s/o. Matiramji Surwade vs. Additional Commissioner, Amaravati (2003) 2 Mh.L.J. 318, held that disqualification extends to legal heirs, agents, assignees, or transferees of the person who committed the encroachment. The Supreme Court later affirmed this interpretation in the Janabai case.

CONCLUSION

In this case, the disqualification of the petitioner as a village panchayat member based on allegations of encroachment on government land has been challenged through a writ petition. The arguments put forth by both parties revolve around the sufficiency of evidence and the interpretation of relevant legal provisions. It remains to be seen how the Court will weigh the evidence and apply the law to arrive at a just decision.

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JUDGEMENT REVIEWED BY VETHIKA D PORWAL, BMS COLLEGE OF LAW

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5 Jun

ANALYSIS OF A JUDGMENT ON UNFAIR LABOUR PRACTICES: BOMBAY HIGH COURT

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Blog #BOMBAY HIGH COURT, #Industrialrelations, #labourlaw, #primelegal

INTRODUCTION:

The High Court of Bombay: passed a judgement on 06 June 2023. In the case of THE BHATIYA GENERAL HOSPITAL AND ANR Vs HANMANT ANANDRAO RAJE AND ORS IN WRIT PETITION NO. 11048 OF 2022 which was passed by a single bench comprising of HONOURABLE SHRI JUSTICE N. J. JAMADAR in the realm of industrial relations, disputes often arise between employers and employees regarding fair treatment, benefits, and working conditions. Resolving such disputes requires the application of relevant laws and a fair assessment of the facts at hand. This blog examines a recent judgment in which the issue of unfair labour practices was deliberated upon and offers an analysis of the legal aspects involved, including pertinent case laws.

BACKGROUND:

The case in question involves a petition filed under Article 226 of the Indian Constitution, challenging a judgment and order passed by the Industrial Court in Mumbai. The court declared the employers to be engaged in unfair labour practices under Items 5, 9, and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (the Act, 1971). The petitioners were directed to cease engaging in unfair labour practices, quash certain communications, and grant medical, monetary, and leave benefits to the complainants. The employers, a general hospital and its Chief Executive Officer, filed a writ petition in the higher court seeking redress. The petitioners contended that the respondents, who were initially appointed as workmen, were subsequently promoted to supervisory and managerial positions. The employers claimed that the complainants’ duties had evolved to encompass technical and operational responsibilities, which did not fall under the purview of workmen. Consequently, the employers issued a communication to rectify an error that had resulted in the complainants receiving benefits intended only for workmen. However, the respondents alleged that the changes in their service conditions were unjustified, amounting to unfair labour practices.

ANALYSIS OF THE JUDGMENT:

The primary issue before the court was whether the respondents could still be classified as workmen, despite their promotions to supervisory and managerial positions. The court examined the definition of “workman” under section 2(s) of the Industrial Disputes Act, 1947 (the Act, 1947) and section 3(5) of the Act, 1971. It was crucial to determine the nature of the work performed by the complainants and whether it fell within the scope of the managerial, administrative, or supervisory roles that were excluded from the definition of workman.

The court found that the complainants’ duties continued to be technical and operational in nature, lacking the characteristics of supervisory or managerial control. The work performed by the complainants aligned with the definition of workman under both Acts. Moreover, the court considered the complainants’ length of service and their membership in a registered trade union, which further supported their classification as workmen.

The court then turned its attention to the employers’ claim that the changes in the complainants’ service conditions were necessary to rectify an inadvertent mistake. It held that the communication issued by the employers, altering the benefits and emoluments of the complainants, constituted unfair labour practices under Items 5, 9, and 10 of Schedule IV of the Act, 1971. The court further emphasized that any changes in service conditions should be accompanied by proper notice to the employees, which was lacking in this case.

LEGAL ANALYSIS:

The judgment relied on various provisions of the Acts governing labour relations. The definition of “workman” under section 2(s) of the Act, 1947 and section 3(5) of the Act, 1971 formed the cornerstone of the court’s analysis. It highlighted that the nature of the work performed by an employee, rather than their job title, is determinative in classifying them as workmen. The judgment also underscored the importance of providing notice to employees before implementing changes in service conditions to avoid unfair labour practices.

CASE LAWS:

Air India Ltd v. United Labour Union & Ors., (1997) 6 SCC 125: In this case, the Supreme Court of India emphasized that the test for determining whether an employee falls within the definition of workman is the nature of the duties performed and not their designation or nomenclature.

Management of IFFCO v. Workmen, (1995) 2 SCC 785: The court held that when considering whether an employee is a workman, the primary focus should be on the nature of the duties performed rather than their title or designation.

CONCLUSION:

The analysed judgment provides valuable insights into the interpretation and application of laws governing unfair labour practices and the determination of an employee’s classification as a workman. It underscores the importance of considering the actual nature of an employee’s duties in determining their legal status. Employers must exercise caution in implementing changes to service conditions and ensure compliance with labour laws to avoid unfair labour practices and potential legal consequences.

JUDGEMENT REVIEWED BY VETHIKA D PORWAL, BMS COLLEGE OF LAW

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2 Jun

CHALLENGING A CHANGE IN DATE OF BIRTH AT THE FAG END OF SERVICE: BOMBAY HIGH COURT

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Blog #BOMBAY HIGH COURT, #primelegal, #writpetition

INTRODUCTION

The High Court of Bombay bench at Aurangabad passed a judgement on 30 May 2023. In the case of GAJANAN B. RABDE VS THE CHIEF ADMINISTRATIVE OFFICER, MAHARASHTRA JEEVAN PRADHIKARAN & ANR IN WRIT PETITION NO.9744 OF 2023 which was passed by a single bench comprising of HONOURABLE SHRI JUSTICE G.S. KULKARNI, the court examined a petition filed by an employee of Maharashtra Jeevan Pradhikaran, who sought a change in his date of birth from June 4, 1965, to August 26, 1966, at the end of his service tenure. The petitioner based his request on a domicile certificate and a birth certificate obtained shortly before his retirement. This blog post will analyse the judgment and discuss the court’s reasoning behind dismissing the petition.

FACTS

The petitioner had joined the respondent’s employment on January 4, 1990, declaring his date of birth as June 4, 1965, based on his school leaving certificate. In support of his claim, the petitioner presented a domicile certificate issued on April 30, 1990, which stated his date of birth as August 26, 1966. The petitioner also claimed to have submitted application on May 7, 1990, requesting a change in his date of birth. However, the respondents disputed the existence of this application.

The petitioner, just before his retirement, obtained a birth certificate dated January 12, 2022, which indicated his date of birth as August 26, 1966. The certificate, however, was registered on December 13, 1993, several years after the petitioner’s birth and after he had already joined the employment. Relying on this birth certificate, the petitioner submitted a fresh application on February 24, 2023, seeking a change in his date of birth.

THE PETITIONER’S ARGUMENTS

The petitioner’s counsel argued that the respondents should consider the documents submitted by the petitioner, including the birth certificate, and make the necessary modifications in the service record. They contended that the petitioner was initially unable to provide a birth certificate and relied on the school leaving certificate. However, now that a birth certificate was available, it should be accepted. The counsel also relied on a previous case where a similar change in date of birth was accepted.

THE RESPONDENT’S ARGUMENTS

The respondent’s counsel opposed the petition on various grounds. Firstly, they argued that the petitioner should not be allowed to approach the court at the fag end of his service seeking a change in his date of birth. They claimed that the petition was barred by principles of delay and laches since the petitioner had not pursued his application for change of date of birth for a period of almost 33 years.

The respondents also raised objections to the validity of the birth certificate obtained by the petitioner, as it was registered 27 years after his birth, contrary to the provisions of the Registration of Births and Deaths Act, 1969. They also disputed the existence of the petitioner’s representation/application dated May 7, 1990, as it was not on record.

COURT’S ANALYSIS AND DECISION

After considering the arguments and examining the documents and precedents, the court dismissed the petition. The court noted that the petitioner had filed the petition after a significant delay of almost 33 years. Even if the petitioner had made an application in 1990, he did not take any steps to pursue it during that lengthy period. The court found it peculiar that the petitioner had only sought a change in his date of birth at the end of his service tenure.

The court emphasized that a person cannot be permitted to sleep over their rights and approach the employer for changes in the date of birth at the fag end of their career. It referred to several Supreme Court judgments that had consistently held that such changes could not be allowed in the final stages of employment. The court cited the principle that employees should not be allowed to seek alterations in their date of birth after remaining silent.

JUDGEMENT REVIEWED BY VETHIKA D PORWAL, BMS COLLEGE OF LAW

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2 Jun

EQUIVALENCE OF DISTANCE EDUCATION DEGREES: BOMBAY HIGH COURT

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Blog #BOMBAY HIGH COURT, #primelegal, #writpetition

INTRODUCTION

The High Court of Bombay bench at Aurangabad passed a judgement on 30 May 2023. In the case of NIHAL ANANDRAO TANDEKAR VS THE NUCLEAR POWER CORPORATION OF INDIA AND ORS. IN WRIT PETITION NO.14319 OF 2023 which was passed by a single bench comprising of HONOURABLE SHRI JUSTICE G.S. KULKARNI, the court addressed a case concerning the eligibility criteria for a job application and the recognition of degrees awarded through distance education. The petitioner, who intended to apply for the position of Deputy Manager (C & MM), faced rejection of their application based on the contention that their MBA degree obtained from a distance learning institution was not acceptable. The court examined the issue and rendered an important decision that has far-reaching implications for the recognition of degrees awarded through distance education.

BACKGROUND

The petitioner possessed a graduation degree in engineering and an MBA degree in Materials Management obtained from Madhya Pradesh Bhoj (Open) University, Bhopal, a recognized distance education institution. However, their application was rejected by the respondent, who refused to acknowledge the petitioner’s distance education degree as a valid qualification for the position. The petitioner argued that there is no distinction between full-time degree courses and degrees awarded by open and distance learning institutions (ODL).

RECOGNITION OF DISTANCE EDUCATION DEGREES

To support their contention, the petitioner’s counsel referred to a notification issued by the University Grants Commission (UGC) on October 14, 2013. This notification stated that degrees awarded by ODL institutions are at par with those awarded by conventional universities/institutions. Furthermore, the UGC circular dated May 5, 2004, explicitly mentioned that degrees awarded by open universities should be treated as equivalent to the corresponding degrees awarded by traditional universities in the country.

COURT’S DECISION

The court upheld the petitioner’s argument and emphasized that the UGC, as an expert body, has the authority to determine the equivalence of degrees. It acknowledged that degrees awarded by universities conducting full-time courses are now considered equal to those conferred by open universities under distance education, as recognized by the UGC. The respondent, through their counsel, agreed with this position and undertook to permit the petitioner to submit their application for the position.

The court accepted the respondent’s undertaking and disposed of the petition, directing the respondent to allow the petitioner to complete the necessary formalities for participation in the selection process. The participation of the petitioner, however, would be considered on its own merits by the respondent.

JUDGMENT

This judgment holds significant implications for the recognition and acceptance of degrees obtained through distance education. By acknowledging the UGC’s notification, the court affirms the equivalence of degrees awarded by distance education institutions and traditional universities. This decision ensures that candidates with degrees earned through distance education are not unjustly discriminated against in employment opportunities.

The judgment sets a precedent for other cases involving the recognition of distance education degrees. It reinforces the idea that the mode of education should not undermine the value or legitimacy of the degrees awarded. As long as the degrees are granted by recognized institutions and comply with UGC specifications, they should be considered on par with those obtained through conventional full-time courses.

CONCLUSION

The recent judgment exemplifies the court’s recognition of the equivalence of degrees awarded by distance education institutions. By relying on the UGC’s notification, the court has reaffirmed the importance of providing equal opportunities to candidates with degrees obtained through distance education. This decision serves as a crucial step towards ensuring that individuals pursuing education through non-traditional means are not disadvantaged in their professional pursuits. It also emphasizes the need for a progressive approach in recognizing the evolving landscape of education and the diverse modes of learning available to students.

JUDGEMENT REVIEWED BY VETHIKA D PORWAL, BMS COLLEGE OF LAW

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1 Jun

UNDERSTANDING COMPENSATION AND EVIDENCE ON LAND ACQUISITION: BOMBAY HIGH COURT

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Blog #BOMBAY HIGH COURT, #firstappeal, #primelegal

INTRODUCTION:

The High Court of Bombay bench at Aurangabad passed a judgement on 04 May 2023. In the case of BALAWANT S/O RABHAU SHINGARE … VS THE EXECUTIVE ENGINEER IN FIRST APPEAL NO.253 OF 2015 which was passed by a division bench comprising of HONOURABLE SHRI JUSTICE V. V. KANKANWADI and HONOURABLE SHRI JUSTICE ABHAY S. WAGHWASE Land acquisition is a legal process involving the compulsory purchase of private property by the government for public use. Disputes often arise when landowners challenge the compensation awarded to them for their acquired land. In this analysis, we will examine a specific judgment, Land Acquisition Reference Nos. 497 of 2012 and 498 of 2012, which revolves around the construction of a godown by the Maharashtra State Electricity Board (M.S.E.B.). The case involves arguments regarding compensation and evidence presented by both parties.

FACTS:

The land in question is situated in the village of Shekapur, Osmanabad, and was acquired by the government for the construction of a godown. The land acquisition process commenced with a notification under Section 4 of the Land Acquisition Act on September 15, 1993, although possession had already been taken through negotiation on March 25, 1992. The Special Land Acquisition Officer awarded compensation to the landowners on June 25, 1996. Dissatisfied with the awarded amount, the landowners filed a reference under Section 18 of the Land Acquisition Act, seeking enhanced compensation.

The landowners claimed that they were not given the opportunity to present evidence during the acquisition proceedings and that the award was declared ex-parte or arbitrarily. They argued that no rent or damages were paid for the possession taken prior to the notification. Additionally, they contended that the market price of the land in 1992-1993 was higher than the price calculated by the Special Land Acquisition Officer. The landowners emphasized the location of the acquired land, its potential for non-agricultural use, and its proximity to residential, educational, and commercial areas. They sought an enhancement of compensation to Rs. 100 per square foot.

The respondents, representing the government, asserted that the claimants were given a fair opportunity to present their case and support their claim. They argued that the evidence presented by the claimants was insufficient. The Special Land Acquisition Officer had already considered the prevailing market value, land quality, fertility, and topography. The respondents claimed that the compensation awarded was adequate, considering the rural nature of the acquired land. They requested the rejection of the reference.

JUDGMENT:

After considering the arguments and examining the evidence, the reference Court allowed the references filed by the claimants. The Court held that the claimants were entitled to enhanced compensation at the rate of Rs. 100 per square foot. Additionally, the court awarded a 30% solatium and a 12% additional component on the enhanced amount. Interest at a rate of 9% from the date of acquisition until September 15, 1994, and at a rate of 15% from September 16, 1994, to June 25, 1996, was also granted under Section 34 of the Land Acquisition Act.

CONCLUSION:

In the case of Land Acquisition Reference Nos. 497 of 2012 and 498 of 2012, the landowners successfully challenged the compensation awarded to them for their acquired land. The court recognized the potential value of the land for non-agricultural use and its location in relation to residential, educational, and commercial areas. The judgment emphasized the need for fair compensation based on market value and awarded enhanced compensation to the claimants. This case highlights the importance of considering relevant evidence and factors when determining compensation in land acquisition cases.

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