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The Bombay High Court quashes the rejection letter of teacher by the Education Department, directs them to grant the approval of his appointment as ‘Shikshan Sevak’.

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The Bombay High Court quashes the rejection letter of teacher by the Education Department, directs them to grant the approval of his appointment as ‘Shikshan Sevak’.

Title: Rajan Sahadeo Ratul v. State of Maharashtra, School Education Department

Decided on: July 3, 2023

Citation: 2023 SCC OnLine Bom 1321 : (2023) 4 Bom CR 298. Writ Petition No. 1423 of 2021

CORAM: HON’BLE JUSTICE G.S. PATEL AND HON’BLE JUSTICE NEELA K. GOKHALE
Introduction

The Bombay High Court quashed the rejection letter of a teacher and directed the management to approve his appointment as employee as ‘Shikshan Sevak’. A bench consisting of Justice G.S Patel and Justice Neela Gokhale found the appointment of employee legally valid.

Facts of the Case

The 1st Petitioner is an employee of the school and the respondent is the Deputy Director of Education, Kolhapur region. In accordance with the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (“MEPS Act”), after a vacancy arose, the school enquired about availability of surplus candidates from the management but after receiving neither a reply nor a surplus candidate nominee for appointment, the school commenced the procedure to fill up the vacancy and the 1st Petitioner joined service. The school then submitted the required proposal to the Respondent for approval of the Petitioner’s appointment as ‘Shikshan Sevak’ on 10 January 2020. The respondent rejected the proposal on the ground that the procedure of obtaining prior approval was not followed. It was argued on behalf of the petitioner, that the Respondent failed to convey to the school that the permission for selection process cannot be granted or that it has been refused for any reason and there was no communication at all regarding availability of surplus teacher of required qualifications. It is only after expiry of more than seven months, in the absence of a response of any kind, that the Management proceeded with selection procedure. The respondent however argues that this was in contravention of Government Resolution dated 6 February 2012 which mandated a ‘No Objection’ to be taken from the State Government prior to commencing of a selection procedure for filling up any vacancy, hence respondent prays for dismissal of the Writ Petition.

Court Analysis and Judgement:

The Court held that when the School Management informs the Education Department about a vacancy in its school seeking the latter’s permission for appointment, the Education Officer is expected to either forward names of suitable persons from the list of surplus teachers maintained by the Department or if no surplus teacher is available for absorption, permit the Management to appoint the teacher following regular appointment procedure. When the Education Officer does neither, the School Management is not expected to carry on with the vacancy awaiting a response from the Department indefinitely. The Court thus directed the Education Department to grant approval to appointments made by the Management in such cases and disburse the honorarium as per Rules. The court also held that the Petitioner is working in the school since 17 June 2019 and there has been no blemish on his performance. The Management was found to be well within its rights to commence the selection process in the absence of any response from the Respondents. The rejection letter dated 18 March 2020 was quashed and set aside. The Respondent was directed to grant the requisite approval to the appointment of the 1st Petitioner as ‘Shikshan Sevak’ from the date of his appointment and include his name in the Shalarth ID within a period of two weeks from the date of this order.

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Written by- Reema Nayak

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The Bombay High Court at Goa grants bail to accused for not being a flight risk, having no criminal antecedents and after considering that the trial might take a long period

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The Bombay High Court at Goa grants bail to accused for not being a flight risk, having no criminal antecedents and after considering that the trial might take a long period

Title: Joyal Graca v. State of Goa

Decided on: July 5, 2023

Citation: 2023 SCC OnLine Bom 1341

CORAM: HON’BLE JUSTICE M.S. KARNIK

Introduction

The Bombay High Court at Goa grants bail to the main accused in a murder case in bail hearing.

Facts of the Case

This is an application for bail for offences punishable under Sections 323, 427, 364, 302, 201 read with 34 of the Penal Code, 1860. There are three accused in all who have alleged to have had a fight with the deceased in a bar. It is alleged that the deceased was taken by the accused on a scooter. The dead body of the deceased was found and a murder weapon was recovered.

Court Analysis and Judgement:

The Court takes into account that the trial has commenced and 12 witnesses have been examined. However, the Court make the following observations: 1. some of the witnesses have turned hostile during the course of their examination, 2. there are no eyewitnesses to the incident, 3. the applicant has been in custody for more than 3 years and 288 days. The Court also states that considering the number of witnesses, the trial is likely to take long time to conclude. Meanwhile, there are no criminal antecedents against the applicant. The Court also finds that the applicant is a permanent resident of Goa and there is nothing on record to indicate that he is flight-risk. Therefore, the court grants him bail on a bond of the sum of Rs. 25000.

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Written by- Reema Nayak

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Bombay HC: Commission payments are allowable as business expenditures

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Title: The Indian Hume Pipe Co. Ltd. v. Commissioner of Income Tax

Decided on:  31st AUGUST, 2023.

+ INCOME TAX APPEAL NO.744 OF 2002

CORAM: G.S. KULKARNI & JITENDRA JAIN, JJ.

Facts of the Case:

This appeal consolidates disputes arising from assessment years 1986-87, 1987-88, and 1988-89, centered around a common order by the Income Tax Appellate Tribunal on January 18, 2002. The appellant, a listed limited company, specializes in manufacturing and selling R.C.C. Pipes and Steel Pipes used for water supply and drainage systems. The appellant’s return of income for the assessment year 1986-87 was selected for scrutiny assessment. The main issue revolves around the disallowance of commission payments made to various parties, amounting to Rs. 26,90,104.

Issues:

  1. Whether the commission payments made by the appellant to various parties should be treated as allowable business expenditures?
  2. Whether the Tribunal’s conclusion that the commission agents did not provide services justifying the payment of commission is based on valid and relevant material and is legally sustainable?

Contentions:

The appellant contends that the commission payments should be allowed as business expenditures, as they were made based on legally binding agreements with commission agents who rendered services to assist the appellant in securing contracts and recovering payments. The appellant points out that these commission agents were unrelated to the company and confirmed the receipt of the commissions. They argue that their case is consistent with prior assessment years and cite relevant case laws to support their contention.

On the other hand, the respondent revenue argues that the appellant failed to provide concrete evidence demonstrating the services provided by the commission agents. They assert that the Assessing Officer’s and Tribunal’s findings are based on factual analysis and should not be questioned under Section 260A of the Income Tax Act. The respondent revenue also raises the issue of the reasonableness of the expenditure, highlighting the Revenue’s role in assessing whether the commission payments were genuinely made for business purposes.

Decision:

After a comprehensive analysis, the Court finds that both the Assessing Officer and the Tribunal were unjustified in partially disallowing the commission payments. They noted that by allowing partial payments, both authorities had implicitly acknowledged the commission agents’ services. The Court further emphasized that the Revenue’s inconsistent stance and its involvement in determining the quantum of expenditure were not permissible under the Income Tax Act.

The Court ruled in favor of the appellant, emphasizing that the choice to engage commission agents for tendering and payment follow-ups is a business prerogative. They reiterate that commercial expediency should be viewed from the business’s standpoint and not from the Revenue’s perspective. Consequently, the Court allows the appellant’s appeal, emphasizing that the Revenue should maintain consistency in its approach. The decision serves as a precedent for the validity of commission payments made in commercial transactions, upholding the principles of business expediency and consistency.

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Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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Bombay High Court: Unjustified delay in submitting hard copies of appeal can attract order with costs

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Title: Kailash Patil v. Vasant S. Jadhav

Decided on: 31st AUGUST, 2023

SECOND APPEAL NO.301 OF 2023

CORAM: JITENDRA JAIN, J

Facts:

The case pertains to three appeals filed under Section 58 of the Real Estate (Regulation and Development) Act, 2016 (“RERA Act”). These appeals challenge the order of the Maharashtra Real Estate Appellate Tribunal, Mumbai (“Appellate Tribunal”) in relation to certain complaints filed by allottees against a developer/promoter. The Regulatory Authority had previously passed an order against the developer, prompting the filing of these appeals. The appellant developer had filed Appeal Nos. 301 of 2023, 303 of 2023, and 311 of 2023 online within the stipulated timeframe, challenging the order of the Regulatory Authority. However, the developer failed to file the required hard copies of the appeals and attachments within the prescribed time.

Issues:

Whether the Appellate Tribunal’s rejection of the appeals and subsequent dismissal of the restoration application were justified due to the developer’s failure to submit hard copies of the appeals and attachments?

Contentions:

The appellant developer’s main contention is that the procedural irregularity of not submitting hard copies should not deprive them of the opportunity to seek substantial justice through the appeals. They assert that the delay in complying with procedural formalities should not overshadow their right to present their case. Furthermore, the developer argues that the legal provisions and regulations led to a bonafide belief that hard copies were not required after filing online appeals. They propose that the restoration application be allowed, and the appeals be restored, subject to certain terms and conditions, including the payment of costs.

On the other hand, the respondents, who are allottees of the residential project, argue that the developer’s delay tactics and lack of diligence should not be rewarded. They emphasize that the appellant developer has failed to provide possession of the flats for over a decade, and they view the delay in the restoration application as a further attempt to prolong the resolution of their grievances. The respondents contend that the developer’s lack of diligence and accountability should be taken into account when deciding whether to restore the appeals.

Decision:

After careful analysis, the Court acknowledges that the delay in filing hard copies of the appeals was a procedural error but underscores that it shouldn’t be an insurmountable obstacle to pursuing the appeals.

The Court criticized the developer for not diligently pursuing their appeals and notes that the delay of more than 1000 days in seeking restoration of the dismissed appeals is a serious concern. However, it also recognizes the developer’s bonafide belief regarding the requirement of hard copies due to the legal provisions and regulations.

As a result, the Court allows the restoration of the appeals but imposes certain conditions. The developer is directed to deposit a specified sum as costs and make payments to the respondents within a stipulated timeframe. The hard copies of the appeals are to be submitted, and the appeals are to be restored for hearing. The decision makes it clear that the developer should not seek adjournments and emphasizes that the restoration is being granted as a last chance.

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Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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Bombay HC: Occupant rather than an owner of the insured car entitled to compensation

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Bombay HC: Occupant rather than an owner of the insured car entitled to compensation

Title: Bharti W/o Sunil Dhat and Ors. v. Navnath Dagdu Dhat and Ors.

Decided on: 28th AUGUST, 2023.

+ FIRST APPEAL NO.749 OF 2020

CORAM: S. G. CHAPALGAONKAR, J

Facts of the Case:

The appellants, original claimants, were aggrieved by the judgment and award issued on 19.09.2019 by the Motor Accident Claims Tribunal, Beed. They had filed a claim seeking compensation under Section 166 of the Motor Vehicle Act for the accidental death of Sunil Navnath Dhat. The accident occurred when the deceased was a passenger in a car driven by respondent no. 2, which collided with a roadside tree. The claimants contended that the accident was due to the negligence of the driver. They further claimed that the deceased was an engineering graduate and a government contractor with substantial income.

Issues:

Whether the deceased, as a passenger in the car owned by his father, can be considered an owner for the purpose of claiming compensation?

Whether the insurer is liable to pay compensation for the death of the deceased?

Contentions:

The appellants asserted that the car involved in the accident was insured under a private car package policy. This type of policy covers not only liability to third parties but also extends coverage to occupants of the insured vehicle. According to the claimants, the Tribunal wrongly concluded that the deceased, being a passenger in the car owned by his father, should be considered an owner for the purpose of compensation claims.

 The appellants emphasized that the deceased was an engineering graduate and a government contractor with multiple construction projects. They argued that he had a significant income and was the primary breadwinner for the family. This supported their claim for compensation. The claimants contended that the deceased’s status as an occupant of the insured car should entitle them to claim compensation, regardless of his family relationship with the car owner.

The respondent no.3-insurer, represented by Mr. Kadethankar, argued that since the car was owned by the father of the deceased, the deceased should be treated as having stepped into the shoes of the owner. This meant that the deceased was not a third party and could not claim compensation under Section 166 of the Motor Vehicle Act. The insurer emphasized that the private car package policy had specific terms and conditions, including a premium that covered occupants’ risks up to a certain limit (Rs. 1,00,000 each). They maintained that their liability was confined to the terms of the contract, and any expansion of this liability would be contrary to the agreement.

Decision:

The Bombay High Court deliberated on the matter and made the following key points:

  • Circulars issued by Tariff Advisory Committee (TAC) and Insurance Regulatory and Development Authority (IRDA) mandating insurance coverage for occupants of private cars under package policies.
  • The car in question was insured under a package policy, and thus the insurer was liable for the occupant’s death.
  • The deceased’s status as an occupant rather than an owner of the insured car, despite being a family member, entitles the claimants to compensation.

The Bombay High Court allowed the appeal, quashed the previous judgment and award, and ruled that the respondents were jointly and severally liable to pay compensation to the claimants for the accidental death of the deceased. The compensation amount was determined based on various factors, including income, future prospects, and deductions, and the court ordered the insurer to pay the specified compensation along with interest.

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Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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