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Delhi High Court’s Ruling on APARs and Government Guidelines for Promotions   

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Case Title: Nirmal Kumar Chawdhary v. Union of India 

Date of Decision: September 25, 2023 

Case Number: W.P.(C) 6885/2021 

Coram: Hon’ble Mr. Justice V. Kameswar Rao and Hon’ble MR. Justice Anoop Kumar Mendiratta  

 

Introduction 

 

The case involves a petitioner, Nirmal Kumar Chawdhary, challenging an order passed by the Central Administrative Tribunal (CAT) in Original Application (O.A.) No. 4437 of 2017. The petitioner sought promotion to the post of Grade IV in Pay Band 4, arguing that he was unjustly denied promotion by the Departmental Promotion Committee (DPC) due to a below benchmark Annual Performance Appraisal Report (APAR). 

 

Factual Background 

 

The petitioner, Nirmal Kumar Chawdhary, filed an O.A. in the CAT seeking promotion to the Grade IV position with a particular pay scale. The DPC had recommended the names of 39 officers for promotion, but Chawdhary was not among them due to below benchmark APAR ratings for the preceding five years. Specifically, his APAR for the second half of 2013-2014 was rated as “Good,” which did not meet the “Very Good” or above benchmark required for promotion. Chawdhary contended that he was not informed of this adverse grading in the APAR, making it impermissible for the DPC to rely on it for the promotion decision. 

 

Legal Issues 

 

  1. Whether the petitioner’s promotion deferral due to the below-benchmark grading in one of his APARs was justified?
  2. Whether the non-communication of the below-benchmark grading in the APAR of the petitioner’s second half of 2013-2014 was valid?

 

Contentions 

 

The petitioner argued that the DPC wrongly considered an un-communicated below benchmark APAR in making its promotion decision, which was contrary to established legal principles. He also contended that the delay in communicating the below benchmark grading rendered it invalid, citing government instructions. The petitioner relied on the Supreme Court and High Court judgments to support his position.  

   

On the other hand, the respondent argued that the DPC was justified in not promoting the petitioner based on the below benchmark APAR. They asserted that the rejection of the petitioner’s representation did not affect the validity of the APAR and that, in accordance with government instructions, the grading must be communicated before promotion considerations. 

 

Observation and Analysis 

 

The High Court noted that the rejection of the petitioner’s representation against the below benchmark APAR grading was communicated after the dismissal of the O.A. by the CAT. While considering this rejection, the Court analyzed various judgments, including those from the Supreme Court and the CAT, regarding the validity of APARs in the context of promotions. 

 

The Court emphasized the importance of communication of grading and the need for reasoned rejection of representations. It also referred to government guidelines specifying the treatment of APARs when certain reports were missing or unavailable. 

 

The Court referred to guidelines in Chapter 54 of the Manual on Establishment and Administration for Central Government Offices, emphasizing that if one or more CRs or APARs have not been written or are not available for any reason, the Departmental Promotion Committee (DPC) should consider CRs of the years preceding the period in question or CRs of a lower grade to complete the required number of CRs for assessment. 

 

Decision and Conclusion 

 

The High Court set aside the CAT’s order and directed the respondent to re-consider the petitioner’s promotion case. The Court instructed the respondent to follow government guidelines, which stipulated that APARs must be considered for a specified number of years and that the absence of certain reports required alternative considerations. The Court ordered the respondent to calculate the petitioner’s promotion on a notional basis and recalculate retiral benefits accordingly, with no interest on arrears. The respondent was given three months to comply with these directions.  

 

In conclusion, the High Court found in favor of the petitioner and ordered a re-evaluation of his promotion case based on relevant government guidelines and principles established in previous judgments. 

 

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.” 

 

Written by – Ananya Chaudhary 

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Delhi Court Upholds Interim Mandatory Injunction in a Recent Jurisdiction and Lien Dispute Case   

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Case Title: COGOPORT PRIVATE LIMITED v. STRIDES PHARMA SCIENCE LIMITED & ORS 

Date of Decision: 22nd September 2023 

Case Number: FAO(OS) (COMM) 163/2023 

Coram: Hon’ble Mr. Justice Suresh Kumar Kait and Hon’ble Ms. Justice Neena Bansal Krishna 

 

   

Introduction 

 

This case involves an appeal under Section 13(1A) of the Commercial Courts Act, 2015, challenging an order allowing an interim mandatory injunction. The plaintiff, COGOPORT PRIVATE LIMITED, sought the release of goods from the defendant, STRIDES PHARMA SCIENCE LIMITED, which were withheld due to a payment dispute. The appeal challenges the jurisdiction, locus standi, and validity of the injunction. 

 

Factual Background 

 

The plaintiff, a pharmaceutical company, engaged defendant No. 1 to deliver life-saving medicines to New York. The consignment was forwarded through defendant No. 3. Upon reaching New York, the goods were withheld on the defendant’s instructions due to a payment dispute. The plaintiff’s consignment contained perishable items worth USD 642,609. 

 

Legal Issues 

 

The case raised several legal issues:  

 

  1. Jurisdiction of the court to entertain the suit. 
  2. Locus standi of the plaintiff to file the suit. 
  3. Validity of the defendant’s right to withhold the goods. 
  4. The appropriateness of granting an interim mandatory injunction.

 

Contentions 

 

  • The appellant argued that the court lacked territorial jurisdiction, citing agreements that excluded Delhi’s jurisdiction.  
  • They questioned the plaintiff’s locus standi due to the absence of privity of contract.  
  • The appellant claimed the right to withhold goods due to an unpaid invoice.  
  • The plaintiff argued that the extraordinary circumstances justified the interim mandatory injunction. 

 

Observation and Analysis 

 

The court found that the plaintiff had locus standi as the consignor, and the jurisdictional arguments were unfounded. The court also questioned the appellant’s right to withhold goods based on an unpaid invoice and found no privity of contract with the plaintiff. It observed that the goods were withheld to leverage other litigations, causing harm to the plaintiff. 

 

Decision of the Court 

 

  1. The court had jurisdiction to entertain the suit as the appellant had its office in Delhi, within the territorial jurisdiction of the court. None of the other respondents contested the jurisdiction. 

   

  1. The plaintiff had the locus standi to file the suit since it was the consigner of the goods and had title until delivery was made to the consignee. The lack of a direct contract with the appellant did not negate the plaintiff’s right to initiate the suit. 

   

  1. The appellant’s exercise of lien on the goods was found to be without statutory basis. The appellant’s reliance on an unpaid invoice dated after the goods arrived was deemed inequitable. 

 

  1. The court upheld the grant of an interim Mandatory Injunction to the plaintiff, as the equities favored the plaintiff. The perishable nature of the goods and demurrage charges being incurred justified the injunction.

 

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.” 

 

Written by – Ananya Chaudhary 

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Delhi High Court Grants Bail to Chartered Accountant Accused of Money Laundering 

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Case Title: Manish Kothari (Presently in JC) v. Director of Enforcement, Ministry of Finance, Dept. of Revenue Headquarter Investigation Unit 

Date of Decision: 22nd September 2023 

Case Number: Bail Application 2341 of 2023 

Coram: Hon’ble Mr. Justice Dinesh Kumar Sharma 

 

Introduction 

   

This case revolved around a bail application filed under Section 439 read with Section 167(2) and Section 482 of the Criminal Procedure Code (Cr.P.C.) by Manish Kothari, the petitioner, who was in judicial custody. The petitioner sought bail in connection with CT Case No. 13/2022-ECR/KLZ0/41/2020 dated 25/09/20 under the Prevention of Money Laundering Act, 2002 (PMLA). 

 

Factual Background 

  

The petitioner’s bail application had been previously dismissed by the Special Judge on 09.06.2023. The dismissal was primarily based on the ground that the petitioner failed to meet the threshold of Section 45 of the PMLA. The trial court had held that the petitioner actively assisted co-accused individuals in converting illicit funds into legitimate money and was involved in money laundering. 

 

Additionally, the trial court considered the case a serious economic offense, emphasizing that the petitioner could not be treated differently under the proviso clause of Section 45 of the PMLA, which deals with the share of an accused in the tainted money. The trial court was of the opinion that the petitioner’s role was connected to a substantial amount, approximately Rs. 48 Crores, attributed to the co-accused Anubrata Mondal and his daughter Sukanya Mondal. 

 

Legal Issues 

   

  1. Whether the petitioner meets the criteria for bail under Section 45 of the PMLA? 
  2. Is there sufficient evidence to establish the petitioner’s involvement in money laundering? 
  3. Are the statements recorded under Section 50 of the PMLA admissible as evidence?

 

Contentions of the Petitioner 

   

  • The petitioner’s counsel argued that the petitioner is a law-abiding citizen and a qualified chartered accountant with no prior criminal record.  
  • The petitioner provided professional services to Anubrata Mondal and his family, primarily related to income tax filing.  
  • The petitioner’s role was limited to filing income tax returns and was not involved in any illegal activities.  
  • The prosecution’s case is based mainly on statements of co-accused individuals, which contain contradictions and should not be relied upon.  
  • The petitioner’s arrest grounds were not supplied to him, violating his rights. 

 

Arguments by the Prosecution 

   

  • The prosecution argued that the petitioner played a significant role in managing the finances of Anubrata Mondal and his family in connection with the proceeds of crime generated from illegal activities like cross-border cattle smuggling.  
  • They alleged that the petitioner helped in projecting tainted money as untainted and participated in the creation of benami assets and companies for laundering the proceeds of crime.  
  • The prosecution emphasized the seriousness of economic offenses and the need to treat them differently. 

 

Observation and Analysis 

   

The court observed that at the bail stage, it should consider the probability of the accused’s guilt and whether they are likely to commit further offenses while on bail. The court should not conduct a detailed examination of evidence or make definitive findings of innocence.  

   

The petitioner’s role as a chartered accountant primarily involved tax-related services. The court noted that the allegations against the petitioner did not involve activities beyond the scope of his profession. The veracity of the prosecution’s case and the shifting of blame by co-accused should be evaluated during the trial. 

 

Decision of the Court 

   

The court granted bail to the petitioner, considering the principles of broad probabilities and the prima facie nature of the case. The bail was granted with specific conditions, including surrendering the passport, providing contact information, and refraining from tampering with witnesses or engaging in criminal activities. 

 

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.” 

 

Written by – Ananya Chaudhary 

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Delhi High Court’s Verdict: Denied! British Director’s Travel Plea Amid Money Laundering Charges 

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Case Title: Mandhir Singh Todd v. Directorate of Enforcement 

Date of Decision: 21st September 2023 

Case Number: CRL.M.C. 289/2023 

Coram: Hon’ble Mr. Justice Dinesh Kumar Sharma 

 

 

Introduction 

   

This case involves a petition filed by Mandhir Singh Todd, a British citizen of Indian origin, seeking the setting aside of an impugned order dated 11th October 2022 issued by the Central District Court Tis Hazari. The order had declined Todd’s application to set aside a Look Out Circular (LOC) issued against him and to permit him to travel to London for medical treatment related to his rare eye condition. 

 

Factual Background 

   

Mandhir Singh Todd is a director in two Indian companies dealing with luxury cars. HDFC bank had provided credit facilities to these companies based on financial documents provided by Todd, and a Deed of Hypothecation was executed. Subsequently, it was discovered that Todd had submitted forged documents to obtain these facilities, leading to substantial losses for the bank. Further investigation revealed several fraudulent practices, including misrepresentation of stock, diversion of sale proceeds, and acquiring proceeds of crime amounting to 115 crores. 

 

Legal Issues 

 

  1. Whether the petitioner should be granted permission to travel to London for medical treatment? 
  2. Should the Look Out Circular (LOC) issued against the petitioner be set aside or suspended?

 

Contentions of the Parties 

   

Petitioner (Todd’s Arguments): 

  • Todd argued that he needed to travel to London for rare medical treatment unavailable in India.  
  • He had already undergone eye surgery twice for his condition.  
  • He was willing to provide additional sureties, surrender family passports, and appear via video conference when needed.  

     

Respondent (ED’s Arguments): 

  • The accused is involved in a money laundering case with substantial proceeds of crime.  
  • There is a risk of him fleeing the country, and India does not have extradition treaties with certain countries where he has properties.  
  • The treatment sought was available in India. 

 

Observation and Analysis 

   

The court considered the seriousness of the allegations, the availability of treatment in India, and the risk of the accused fleeing the country. It referenced previous judgments and upheld the lower court’s decision, emphasizing the importance of balancing an individual’s right to travel with the prosecution’s right to ensure trial attendance. 

 

 

Decision and Conclusion 

   

The High Court of Delhi upheld the lower court’s decision, dismissing Todd’s petition. It concluded that the treatment he sought was available in India, and there were serious allegations against him, making it crucial for him to attend trial. Todd’s request to set aside the Look Out Circular and travel to London was denied. 

 

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.” 

 

Written by – Ananya Chaudhary 

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Delhi High Court Denies Relief to Nigerian National in NDPS Case   

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Case Title: Kenechukwu Joseph v. The State 

Date of Decision: September 21, 2023 

Case Number: BAIL APPLN. 352/2023 

Coram: Hon’ble Mr. Justice Dinesh Kumar Sharma 

 

Introduction 

 

This case revolves around a bail application filed by Kenechukwu Joseph under Section 439 of the Code of Criminal Procedure (Cr.P.C.). The petitioner seeks bail in a case registered under Section 21(c) of the NDPS Act (Narcotic Drugs and Psychotropic Substances Act) and Section 14 of the Foreigners Act. The petitioner alleges that he was falsely implicated in a drug-related case and has been in custody since January 16, 2020.  

 

Factual Background 

 

On January 16, 2020, the special staff office received a secret tip-off regarding the transportation of narcotics substances. Acting on this information, a team was formed, and a trap was set near Hotel Radisson Blu, Paschim Vihar, Delhi. The petitioner, Kenechukwu Joseph, a Nigerian national residing in Delhi, was apprehended. During a search, a poly bag containing 140 grams of cocaine was found in his possession. Two samples of 5 grams each were extracted, and the remaining 130 grams were seized. Subsequently, the case was registered under the NDPS Act, and the investigation commenced. 

 

Legal Issue 

 

The primary legal issue in this case revolves around the petitioner’s eligibility for bail under Section 37 of the NDPS Act, which pertains to offenses being cognizable and non-bailable. 

 

   

Contentions 

 

The petitioner’s counsel argued that the petitioner was falsely implicated, citing discrepancies in the arrest location and contradictions in the prosecution’s version of events. They also raised concerns about tampering with the narcotics samples and the sealing of evidence. The petitioner had been in custody for over three years, and only a fraction of the witnesses had been examined, making a lengthy trial likely.  

   

The state’s counsel opposed the bail application, asserting that the petitioner was found in possession of a commercial quantity of cocaine. They also highlighted the petitioner’s non-resident status and lack of a permanent address in India, raising concerns about potential absconding. 

 

Observation and Analysis 

 

The court observed that Section 37 of the NDPS Act imposes strict conditions for granting bail in cases involving commercial quantities of narcotics. It requires a court to be satisfied that the accused is not guilty and is unlikely to commit further offenses while on bail.  

   

The court cited precedents indicating that procedural lapses, such as issues with sampling and sealing of evidence, should be assessed during trial, not during bail hearings. Non-compliance with these procedures may affect the probative value of evidence but does not automatically vitiate the trial. 

 

Decision and Conclusion 

 

The court concluded that the petitioner was not entitled to bail at this stage. The issues related to sampling, contradictions, and tampering should be examined during the trial. Given the seriousness of the charges and the quantity of narcotics involved, the court found no grounds to grant bail to the petitioner. Thus, the bail application was dismissed. 

 

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.” 

 

Written by – Ananya Chaudhary 

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