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Delhi High Court Order on Res Judicata Principle in Pension Dispute.

Case title: MALWATI VS. UNION OF INDIA AND ORS.

Case no:   W.P.(C) 2755/2024 & CM APPL. 11188/2024

Order on: 29.02.2024

Quorum: HON’BLE MR. JUSTICE V. KAMESWAR RAO WITH HON’BLE MR. JUSTICE SAURABH BANERJEE

Fact of the case:

In this case, Ms. Malwati, wife of late Jaipal Singh, filed a writ petition seeking various reliefs, including the release of service benefits, pension, and answers to her representation. Late Jaipal Singh had previously filed a writ petition, W.P.(C) 1107/1997, which was dismissed in default on April 28, 2011. The petition was later restored to its original number and dismissed as withdrawn when listed on May 23, 2017. Late Jaipal Singh subsequently filed another petition, W.P.(C) 6738/2018, seeking directions to the Border Security Force (BSF) to release his pending dues. W.P.(C) 6738/2018 was dismissed on July 03, 2018, as it was held that late Jaipal Singh was precluded from filing a fresh petition on the same cause of action.

Legal provisions:

Article 226 of the Constitution of India: Empowers the High Court to issue writs, including writs of mandamus, for the enforcement of fundamental rights and legal obligations.

Contentions of Appellant:

Ms. Malwati contended that she was entitled to the release of service benefits, including pension, which had accumulated in favor of her late husband, Jaipal Singh. She argued that the dismissal of her husband’s previous petitions should not affect her right to claim these benefits. Ms. Malwati sought a writ of mandamus directing the Director General of Border Security Force to release the accumulated service benefits and pension, allowing her to lead a respectable life.

Contentions of Respondents:

The respondents argued that the petition filed by Ms. Malwati was not maintainable due to the finality of the dismissal of her late husband’s previous petitions, including W.P.(C) 1107/1997 and W.P.(C) 6738/2018. They contended that Ms. Malwati’s claims were based on the same cause of action and had already been adjudicated upon.

Court Analysis & Judgement:

The Court noted the finality of the dismissal of late Jaipal Singh’s previous petitions, indicating that the matter had already been adjudicated upon and could not be reopened. Despite the merits of Ms. Malwati’s claims, the Court found her petition not maintainable due to the principle of res judicata, which prevents the same parties from relitigating the same cause of action. The Court dismissed Ms. Malwati’s writ petition on the grounds of maintainability, affirming the finality of the dismissal of her late husband’s previous petitions.

Therefore, the prayers sought by Ms. Malwati were not granted, and the petition was dismissed.

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Judgement Reviewed By- Antara Ghosh

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Delhi High Court Analyzes the Suppression of Information in CISF Enlistment.

Case Title: SHRI NOMIL RANA versus THE UNION OF INDIA AND ORS.

Case No.: W.P.(C) 7385/2018

Dated on: February 29, 2024

Coram: HON’BLE MR. JUSTICE V. KAMESWAR RAO HON’BLE MR. JUSTICE SAURABH BANERJEE

Facts:

The petitioner, Shri Nomil Rana, was enrolled in the Central Industrial Security Force (CISF) as a Constable. However, he was terminated from service due to alleged suppression of information regarding a pending criminal case against him in his Attestation Form. The petitioner contends that the criminal matter was compromised and quashed by the High Court of Allahabad before he joined the CISF, and that he did not fill out the Attestation Form himself. He argues that he would have disclosed the information if asked, despite the case being settled.

Issues framed by the Court:

  1. Whether Shri Nomil Rana suppressed material information regarding pending criminal cases against him at the time of filling his Attestation Form.
  2. Whether the termination of Shri Nomil Rana from CISF justified under the circumstances.
  3. Whether the petitioner exhausted all available departmental remedies before approaching the court.

Legal Provisions:

Section 24 of the RTI Act:  Exempts security and intelligence agencies from RTI provisions.

Section 323 IPC:  Punishment for voluntarily causing hurt.

Section 504 IPC: Intentional insult with intent to provoke breach of the peace.

Contentions of the Appellant:

The appellant contends that he was enrolled in CISF in 2014 and subsequently terminated in 2016 due to alleged suppression of information about pending criminal cases against him. However, he argues that the criminal case in question was compromised and ultimately quashed by the HC of Allahabad before his enlistment in CISF. Therefore, he asserts that there was no deliberate concealment on his part. Furthermore, the appellant argues that the Attestation Form was filled out by someone else and he merely signed it. He contends that had he been asked about the pending case, he would have disclosed it, indicating that there was no intent to suppress information. Additionally, he relies on a SC’s judgment to support his contention.

 

Contentions of the Respondent:

The respondent argued that Shri Nomil Rana was terminated from CISF due to the suppression of material information in his Attestation Form. Specifically, they contended that Rana failed to disclose two pending criminal cases against him when filling out the form. Despite one of the cases being quashed before his enlistment, the respondent asserted that Rana still had an obligation to disclose it at the time of filling the form. Moreover, the respondent highlighted that during the process of character and antecedents’ verification after Rana’s appointment, it was revealed that a criminal case was registered against him. Subsequently, the Standing Screening Committee (SSC) found Rana unfit for government service, leading to his termination following due process. Furthermore, the respondent emphasized that Rana’s attempts to challenge his termination, including filing a writ petition before the High Court of Allahabad and subsequent representations, were unsuccessful. They argued that Rana failed to exhaust all available departmental remedies before approaching the court directly.

Court’s Analysis and Judgement:

In its analysis and judgment, the court likely scrutinized the contents of the Attestation Form and considered whether Shri Nomil Rana deliberately concealed information about the pending criminal cases against him. It would have assessed the timing of the compromise or quashing of the criminal case in relation to Rana’s enlistment in CISF to determine if he was obligated to disclose it. Furthermore, the court have evaluated whether Rana had exhausted all available departmental remedies before approaching the court, as this could impact the jurisdiction of the court to hear the case. After considering all the evidence and legal arguments, the court have rendered its judgment. If the court found that Rana indeed suppressed material information and failed to exhaust departmental remedies, it might have upheld the termination from CISF. Conversely, the court determined that Rana’s actions were inadvertent or that he had exhausted all remedies, it have ruled in his favor, potentially ordering his reinstatement or other appropriate relief.

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Judgement Reviewed By- Shramana Sengupta

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Delhi High Court’s Hearing on Financial Dispute Involving Govind Radhe Real Estate and Renu Promoters.

Case Title: SHIKHA SHAH versus RENU PROMOTERS PVT LTD

Case No.: CRL.M.C. 456/2022 & CRL.M.A. 2059/2022

Dated on: FEBRUARY 29, 2024

Coram: NAVIN CHAWLA, J

Facts:

In the case “Shikha Shah vs. Renu Promoters Pvt Ltd,” the petitioner, Shikha Shah, challenged the summoning order issued by the Metropolitan Magistrate and upheld by the Principal District and Sessions Judge. The case originated from a complaint filed by Renu Promoters Pvt Ltd under Section 138 of the Negotiable Instruments Act (NI Act), 1881, alleging that Govind Radhe Real Estate Pvt Ltd (accused no.1), through its Director, Narsingh Shah (accused no.2 and Shikha Shah’s husband), sought and received a loan of Rs. 1.85 crore from the respondent. A cheque for Rs. 2.35 crore issued to repay the loan was dishonored due to the account being blocked. The petitioner, also a director in the accused company, was implicated based on her alleged consent to the issuance of the cheque. The Trial Court summoned her, and her subsequent revision petition was dismissed, prompting the current petition under Section 482 of the Cr.P.C. to challenge the summoning order.

Issues framed by the Court:

  1. Whether the complaint filed by Renu Promoters Pvt Ltd contains the basic and essential averments required to summon Shikha Shah as an accused under Section 138 read with Section 141 of the NI Act.
  2. Whether the mere allegation that the cheque was issued with the consent of Shikha Shah is sufficient to charge her with the offence under Section 138 of the NI Act.
  3. Whether the averments in the complaint meet the requirements outlined in the precedents for summoning a director of the company.

Legal Provisions:

Section 482 of the Cr.P.C: It states about the inherent powers of the High Court.

Section 141 of the NI Act:  Deals with the liability of the persons when the offence under section 138 is committed by a company.

Section 138 of the NI Act: It states about the offence of dishonouring a cheque for insufficiency of funds or exceeding the arranged amount.

Contentions of the Appellant:

The appellant, Shikha Shah, contends that the complaint against her lacks the essential averments required to summon her as an accused under Section 138 read with Section 141 of the Negotiable Instruments Act (NI Act). Specifically, she argues that the complaint does not state that she was in charge of or responsible for the conduct of the business of the accused company, Govind Radhe Real Estate Pvt Ltd. She asserts that the mere allegation that the cheque was issued with her consent is insufficient to hold her liable under the NI Act. Shikha Shah relies on the Supreme Court’s judgment in “S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla & Anr.” to support her argument that the complaint must explicitly mention her role and responsibility in the company’s affairs to substantiate the charges against her.

Contentions of the Respondent:

The respondent, Renu Promoters Pvt Ltd, contends that the complaint adequately states that Shikha Shah, as a director of the accused company, was in charge of and responsible for its business conduct. They argue that the complaint also specifies that the dishonored cheque was issued with Shikha Shah’s consent, satisfying the requirements of Section 141 of the NI Act. The respondent relies on the Supreme Court’s judgment in “S.P. Mani & Mohan Dairy v. Dr. Snehalatha Elangovan,” which distinguishes between liability under Sub-section (1) and Sub-section (2) of Section 141. They maintain that these averments justify the Trial Court’s decision to summon Shikha Shah and that the legal notice sent to the accused was jointly replied to without any denial from Shikha Shah regarding her consent to the cheque issuance.

Court’s Analysis and Judgement:

The Hon’ble HC analyzed and noted that the complaint lacked specific allegations that Shikha Shah was in charge of or responsible for the conduct of the company’s business, which is a necessary requirement as per the Sc’s ruling in “S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla & Anr.” The Court also considered the judgment in “S.P. Mani & Mohan Dairy v. Dr. Snehalatha Elangovan,” emphasizing that a director can be held liable if the offense was committed with their consent, connivance, or due to their neglect. However, the complaint only vaguely mentioned Shikha Shah’s consent without detailed assertions of her role or responsibility. Consequently, the Court found the complaint deficient in meeting the statutory requirements and quashed the summoning order against Shikha Shah.

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Judgement Reviewed By- Shramana Sengupta

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Delhi High Court Enforces Notional Promotion for Eligible Retired Employees.

Case Title: MINISTRY OF HOME AFFAIRS & ANR v. SHRI JAGMINDER SINGH & ANR.

Case No.: W.P.(C) 4605/2024

Dated on: MARCH 28, 2024

Coram: REKHA PALLI J., RAVINDER DUDEJA J.

Facts:

In this case, the Ministry of Home Affairs challenged an order from the Central Administrative Tribunal. The Tribunal had directed the Ministry to consider promoting two retired employees, Jagminder Singh and another person, to a higher administrative grade. The promotion should be considered from the date they were eligible, even though they had already retired. The Tribunal stated that if they were eligible, they should receive the promotion on paper, with all related benefits, but not an actual promotion since they were no longer in service. The Ministry argued that the employees, having retired before the promotion committee meeting, should not be considered for promotion. They cited a guideline that says consideration of retired employees for promotion is not a right. However, the Tribunal and the High Court emphasized that if the promotion was due while the employees were still in service, they should be considered, despite the delay in holding the promotion meeting. The Court upheld the Tribunal’s decision, dismissing the Ministry’s petition and granting them six weeks to comply with the order.

Issues framed by Court:

  1. Whether the Office Memorandum (OM) dated 12.10.1998 grants a vested right to superannuated employees to be considered for promotion.
  2. Whether the respondents, who had superannuated before the Departmental Promotion Committee (DPC) meeting, should still be considered for promotion to the Senior Administrative Grade (SAG) for the period when they were in service.
  3. Whether the delay in holding the DPC meetings, which led to the respondents’ non-consideration for promotion while in service, impacts their right to be considered for promotion post-retirement.
  4. Whether the employer’s delay in convening the DPC should result in the respondents being deprived of their right to be considered for promotion that was due while they were still in service.
  5. Whether it is within the employer’s discretion to consider or not consider superannuated employees for promotion based on the OM and the guidelines from the Department of Personnel and Training (DoPT).

Legal Provisions:

Article 226 of the Constitution of India: Power of High Courts to issue writs for the enforcement of rights under Part III of the Constitution and other purposes.

Contentions of the Appellant:

The Ministry of Home Affairs argued that the Tribunal’s order was incorrect because it failed to recognize that the guidelines (Office Memorandum dated 12.10.1998) as it does not guarantee retired employees the right to be considered for promotion. They contended that since the respondents had already retired before the promotion committee met, they were rightly not considered for the promotion. The Ministry emphasized that the guidelines only allow for the possibility of considering retired employees, but do not make it an obligation. They also pointed out that the respondents had not challenged the guidelines themselves. Therefore, they believed the Tribunal was wrong to direct them to consider the respondents for promotion for the year 2013 when they were already retired by the time the promotion committee convened in 2016.

Contentions of the Respondent:

The respondents, Jagminder Singh and another retired employee, argued that they should have been considered for promotion to a higher administrative grade (SAG) when they were still in service. They pointed out that the Ministry’s delay in holding the promotion committee meeting caused them to miss out on this promotion. According to them, an Office Memorandum (OM) from 12.10.1998 supports their case, stating that employees who were eligible for promotion while in service should still be considered even if they retired before the promotion meeting took place. They believed that they were unjustly excluded from promotion, even though they met all the requirements during their service period. They cited a previous similar case where the court had ordered promotions on a notional basis for retired employees. Based on this, they asked the court to uphold the Tribunal’s order and grant them the promotion with all related benefits, at least on paper.

Court’s Analysis & Judgement:

The Hon’ble HC analyzed the situation by looking at the guidelines and the facts of the case. It found that the rules require considering eligible employees for promotion even if they have retired by the time the promotion meeting happens. The delay in holding the promotion meeting should not prevent these employees from being considered if they were eligible while still in service. The court noted that not considering them would be unfair and arbitrary. The court also referenced a similar previous case where the same principle was applied. Ultimately, the High Court agreed with the Tribunal’s decision that the retired employees should be considered for promotion on paper, with all related benefits, but not an actual promotion since they are no longer working. The court dismissed the Ministry’s petition and gave them six weeks to follow the order.a

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Judgement Reviewed By- Shramana Sengupta

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Delhi High Court Mandates Reasoned Order in Meritech-BSNL Tender Case.

Case title: MERITECH SOFTWARE PVT. LTD versus BHARAT SANCHAR NIGAM LTD.

Case No.: W.P.(C) 4568/2024 & CM APPLs. 18725/2024, 18727/2024

Dated on: MARCH 28, 2024

Coram: HON’BLE THE ACTING CHIEF JUSTICE HON’BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA

Facts:

Meritech Software Pvt. Ltd. filed a writ petition challenging the disqualification of its bid by Bharat Sanchar Nigam Ltd. (BSNL) for a tender related to RF Tools and Testers. The disqualification was based on Clause 4.1.7, which pertains to bidders sharing a land border with India. Meritech contended that this clause was misapplied as it is a 100% Indian-owned company and not an agent of Lenovo or OnePlus. The disqualification was allegedly due to quoting Lenovo and OnePlus products, but Meritech argued these were merely hardware elements, not finished products. BSNL acknowledged the cryptic nature of the disqualification and agreed to reconsider the petition as a representation, promising a detailed decision within ten days.

Issues faced by the Court:

  1. Whether Clause 4.1.7 of the tender document, which disqualifies bidders who share a land border with India, was correctly applied to the Petitioner, Meritech Software Pvt. Ltd., an Indian manufacturer.
  2. Whether the Respondent, BSNL, provided sufficient and valid reasons for disqualifying Meritech’s bid, especially given that the rejection order was non-speaking and lacked detailed reasoning.
  3. Whether BSNL correctly inferred that Meritech was acting as an agent for Lenovo and OnePlus, given that Meritech proposed to use Lenovo and OnePlus products as hardware elements, not as finished products.
  4. Whether the Petitioner’s offer to provide alternative hardware from Dell and Samsung without altering the bid price was appropriately considered by BSNL.

Contentions of the Appellant:

Meritech Software Pvt. Ltd., the appellant, contended that its bid for a BSNL tender was wrongly disqualified under Clause 4.1.7, which applies to bidders sharing a land border with India. As a 100% Indian-owned company, Meritech argued that this clause was inapplicable. They asserted that the disqualification was due to a misinterpretation, as they are not agents of Lenovo or OnePlus, despite quoting their products. These products were only hardware components, not finished products. Meritech also highlighted their willingness to substitute these with alternatives like Dell and Samsung without changing the bid price. They claimed the rejection was non-speaking and lacked sufficient reasoning.

 

Contentions of the Respondent:

In paragraph 7 of the judgment, the learned senior counsel for the Respondent, Bharat Sanchar Nigam Ltd. (BSNL), contends that the decision to disqualify Meritech Software Pvt. Ltd. is based on the facts of the case and is legally tenable. However, he acknowledges that the reasoning provided in the impugned order is cryptic. He also states that BSNL is willing to treat the present writ petition as a representation and decide on it by issuing a detailed, reasoned order.

Court’s Analysis & Judgement:

The Court disposes of the writ petition by directing the Respondent, BSNL, to treat the present writ petition as a representation. BSNL is ordered to decide on the matter by issuing a reasoned order in accordance with the law within ten days. The Court also notes that if the Petitioner, Meritech Software Pvt. Ltd., is aggrieved by the decision taken by BSNL, they are at liberty to file appropriate proceedings in accordance with the law. The rights and contentions of both parties are left open for future consideration.

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Judgement Reviewed By- Shramana Sengupta

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