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Delhi High Court Dismissed the Writ petition and upheld the verdict of the tribunal on the ground of DDA Authority and uniformity for the purpose of selection

Title: KULDEEP KUMAR MALHOTRA AND ORS. versus DELHI DEVELOPMENT AUTHORITY AND ORS.

Date of decision: July 14, 2023

+ W.P.(C) 9319/2023, CM APPLs. 35472/2023, 35473/2023 & 35474/2023

AND

+ W.P.(C) 9320/2023, CM APPLs. 35480/2023, 35481/2023 & 35482/2023

UMA SHANKER BHARTI versus DELHI DEVELOPMENT AUTHORITY AND ORS

CORAM: HON’BLE MR. JUSTICE V. KAMESWAR RAO

HON’BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA

Introduction

Delhi High Court Dismissed the Writ petition and upheld the verdict of the tribunal. whereby the Tribunal has dismissed the O.A. filed by the petitioners herein being bereft of any merit.

Facts of the case

The petitioners in this case are ex-servicemen who left the Indian Army after serving their regular term.

After their retirement, they were employed as Typists/Clerks on a contract basis at various times throughout the years 2010–2012 by the respondent, the Delhi Development Authority (abbreviated as “DDA”).

The letter of appointment stated that the contract may be cancelled at any moment, but the original term of employment was extended from six months to one year on a consolidated salary.

The petitions have been submitted in opposition to the termination notice of June 7, 2022. The O.A. also included a remedy for the cancellation of the policy dated December 5, 2018. The petitioners’ argument before the Tribunal was that they were bound by a policy that was announced on December 30, 2017, which stated that the age restriction would not be greater than 65 years, while they were employed as Typist/Clerk. There was a clause, nevertheless, that stated that even this age restriction of 65 may be eased in the public interest under meritorious and extraordinary circumstances.

The policy for 2018 was also contested on the grounds that it was released without the permission of a competent authority. Apart from that, they argued that the respondent DDA could not have violated the law established by the Supreme Court in the case of State of Haryana v. Piara Singh, (1992) 4 SCC 118, by implementing the policy of 2018. In that case, the Court categorically held that contractual employees cannot be replaced by another group of contractual employees, which the respondent intends to do by implementing the policy of 2018.

The respondents’ position, however, was that the petitioners had no authority over the appointment when they appeared before the Tribunal. This is especially true in light of the conditions outlined in their initial contract, which stated that their services might be terminated at any moment.

Apart from that, the contract employees can’t be hired for an indefinite amount of time because they were hired for a specific task. Additionally, the policy, which is general in nature and applies to everyone, cannot be challenged because the DDA is a government organisation. The Supreme Court’s ruling in the matter of Harsh Ajay Singh v. Union of India, W.P.(C) 11011/2022 has been relied upon.

The Tribunal rejected the O.As. filed by the petitioners.

Analysis of the court

The petitioners, who are ex-service members who resigned from the Indian Army, were first hired by the DDA for a six-month stint as typists/clerks. They lasted for approximately 12 years in accordance with that. According to the DDA’s 2017 guideline, their engagement may have lasted another 65 years. The DDA is within its rights to implement the new policy it has set for the employment of consultants and advisors, which includes engagement as typists and clerks.

The DDA claims that the policy is necessary to draw in new talent. Aside from that, they contend that the petitioners are not prohibited from being hired as consultants or advisors if that is what is deemed appropriate. If such is the case, it cannot be argued that the DDA’s policy, which mandates the engagement of consultants/advisors every five years, is arbitrary given that their attention has not been given. The petitioners’ reliance on the Piara Singh decision (above) is not appropriate given the facts of these instances since the engagement complies with the 2018 policy and is not, therefore, a temporary appointment. In other words, it is an ongoing process whosoever found fit for being engaged, shall be engaged and everyone will have equal opportunity for engagement.

The DDA actually created the 2018 policy, and it is within its rights to do so for the purpose of allowing the engagement of Consultants/Advisors. They support their claims with the fact that the Indian government has established one. In that regard, this approach has created uniformity for the selection of consultants and advisors.  We concur with the Tribunal’s judgement as stated in paragraphs 21 through 24, which we have copied above. These writ petitions and associated applications are dismissed in light of the conversation we just had.

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Delhi High Court set aside the Show cause notice and allowed the writ of mandamus as DG’s displeasure is not a penalty stated in Rule11 of the CCS (CCA) Rules, 1965

Title: RAJDEEP CHOWDHARY Versus UNION OF INDIA AND ORS.

Reserved on: April 25, 2023

Pronounced on: July 14, 2023

+ W.P.(C) 8135/2019

CORAM: HON’BLE MR. JUSTICE SURESH KUMAR KAIT

     HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

Introduction

Delhi High Court set aside the Show cause notice and allowed the writ of mandamus directing the promotion of petitioner to the post of Deputy Commandant, if found eligible.

Facts of the case

The petitioner asserts that while employed by the 66th Battalion of the BSF as Assistant Company Commandant, he was also administratively searching for two more platoon jobs. An FIR with the number 306/2012, under Sections 8/221/29/25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) was filed in Jaisalmer, Rajasthan on August 8, 2012, alleging the arrest of four civilians in Jaisalmer City with 8 kg of heroin and $4.35 million in Indian currency that had been smuggled from Pakistan during the previous night of August 4, 2012, to August 5, 2012.

Inspector General (IG) (Head Quarter), BSF, Jodhpur directed a staff court of inquiry to look into how the heroin entered the specified region. Nothing indicated any carelessness or laziness on the part of those in charge.

The Deputy Inspector General (DIG) SHQ, BSF advised the IG (HQ) that the investigation was finished and that no one should be held accountable until the investigation is over or the incidence has been verified by the police in light of the aforementioned inquiry report dated 6.11.2012.

The IG (HQ) on 30.05.2013 advised action against the petitioner for his involvement in failing in appropriate dominance, disregarding the report dated 06.11.2012 and suggestion of the DIG (SHQ) dated 10.12.2012. The petitioner herein was one of six BSF employees who were subject to the disciplinary process, and the DIG, BSF, recorded evidence against them on December 14, 2013.

After reviewing the material, the relevant DIG wrote his observations dated 09.04.2015 and noted that there was no evidence to support the accusation brought against the petitioner.

In the current appeal, the petitioner expresses his unhappiness about receiving a show cause notice from the DIG on May 12, 2016, even though the DG had already made the statements indicated above on April 9, 2015.

Analysis of the court

This Court notes that a staff court of inquiry was launched against the petitioner and other BSF officials in response to the filing of FIR No. 306/2012 under Sections 8/221/29/25 of the NDPS Act, and in an opinion dated November 6, 2012, it was determined that no one in charge acted carelessly or laxly.

Being dissatisfied with the recommendations, the IG recommended action against the petitioner and ROE and Addl. ROE were recorded. Although the petitioner was advised to be dismissed for the relevant offence in the Court of Enquiry dated 10.12.2012 and Recommendations dated 09.04.2015, he was still served with a Show Cause Notice dated 12.5.2016 for a preliminary intended transfer of the DG’s dissatisfaction. The petitioner submitted a response on May 18, 2016, in response to the aforementioned Show Cause Notice from May 12, 2016, and on June 24, 2016, he submitted a request asking for a promotion from April 1, 2014. However, the petitioner’s 18 May 2016 reply to the aforementioned Show Cause Notice of 12 May 2016 was denied by decision dated 22 July 2017 and he was informed of the DG’s “Displeasure”.

Now, the issue that has to be decided by this Court is whether the petitioner may be denied the promotion owing to the DG’s “displeasure”, especially after the case brought against him has been recommended to be dropped. This Court has reviewed the Minutes of DPC Meeting dated 19.02.2014 and 19.02.2015, where the “pendency of ROE” and not “displeasure” is cited as the grounds for continuing the petitioner’s case.

The petitioner bases his argument on the ruling in O.P. Nimesh (Supra), in which the petitioner, a DIG (Medical) in the BSF, requested promotion to the rank of IG (Medical) effective the day his subordinate received promotions. In the aforementioned matter, this Court made notice of two reasons for consideration: first, the DPC had indicated that the petitioner had received two grades below benchmark in the DPC’s APAR for the year 2012–2013; second, the DG’s “displeasure” statement was also cited in detail.

Both the petitioner in O.P. Nimesh (Supra) and the petitioner in front of this court have cited an OM from the Ministry of Home Affairs dated March 27, 2015, which states that “displeasure” is not a penalty stated in Rule 11 of the CCS (CCA) Rules.

In O.P. Nimesh (Supra), this Court held that “displeasure” was not a barrier to the petitioner’s promotion there and ordered the respondents to hold a review DPC and evaluate the petitioner’s case in accordance with the rules because the aforementioned OM dated 27.03.2015 had already been notified when DPC in the said case was held on 15.07.2015.

In our perspective, the petitioner was originally given the all-clear in 2012 itself. However, disciplinary process against the petitioner started on June 8, 2013, and the DIG made statements stating on April 9, 2015 that there was no proof shown against the petitioner based on the evidence presented. Reading through copies of the minutes from the DPC meetings on 19.02.2014 and 19.02.2015 reveals that his case was not taken into consideration for promotion because of the phrase “Due to pending ROE.”

Relevantly, the petitioner received the DG’s “displeasure” via a show cause notice from the DIG on 12.05.2016. In his reply on 05.06.2016 to the aforementioned Show Cause Notice from 12.05.2016, the petitioner conveyed the DG that there was no direct or indirect implication against him in the FIR in question. However, vide order dated 22.07.2016, the DIG rejected petitioners request dated 24.06.2016 conveying him DG’s “displeasure”.

The OM dated 27.03.2015, which specifies that “displeasure” is not a penalty stated in Rule11 of the CCS (CCA) Rules, 1965, has previously been made known. Moreover, “displeasure” has not been recorded against the name of the petitioner in the minutes of meetings that were conducted on February 19 and 20, 2014 and 2015, respectively. Additionally, respondents have not proven that the petitioner’s APARs in 2014 and 2015 fell short of the benchmark, which would have prevented him from being promoted.

The DPC played a significant role in assessing the cases of applicants for promotion, as observed by the Honourable Supreme Court and this Court in a number of rulings. A applicant’s overall effort, performance, and assiduity must also be taken into consideration in addition to the APARs for the pertinent years, particularly when a candidate is being overlooked while his or her juniors are receiving promotions.

In our considered opinion, petitioner case stood deferred for promotion in the years 2014 and 2015 due to pendency of ROE and having been given clean chit, he deserves to get promotion from the date it actually became due to him. 

In view of above-said, the present petition is allowed. In the light of OM dated 27.03.2015, the Show Cause Notice dated 12.05.2016 and order dated 22.07.2016 conveying “displeasure” by the respondents, are set aside. Naturally, if the petitioner meets the requirements, he will be elevated from Assistant Commandant to Deputy Commandant with effect from April 1, 2014, the date his juniors were promoted, and will get all related perks.

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Written By – Shreyanshu Gupta

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Delhi High Court granted bail to the petitioner who was imprisoned for more than seventy days.

Title: Prabhakar Reddy vs State of Delhi (Govt. of NCT)

Date of decision: 13th July, 2023

+ BAIL APPLN. 2025/2023

CORAM: HON’BLE MR. JUSTICE AMIT BANSAL

Introduction

The complaint of Mr. Vivek Rana, an authorised representative of DMI Finance Private Limited (hence “complainant company”), which asserted that M/s P dot G Constructions Private Limited violated the law, led to the registration of the current FIR.

Through its directors, who included the petitioner and his wife, [hereinafter “borrower company”], obtained a loan from the complainant business for Rs. 35,000,000/- according to a first-term loan agreement dated August 18, 2015. On January 27, 2017, the parties additionally agreed to a Second Term Loan Agreement, under the provisions of which an additional sum of Rs. 17,00,000 was approved.

The parties signed a Memorandum of Settlement on January 3, 2017, which was exchanged. According to the terms of the agreement, the borrower firm allocated the complaint company the receivables from a number of identified sold units as well as rights to a number of identified unsold flats.

The lawsuit claims that the accused individuals shifted title and control of several residences that were allocated to the complainant without the complainant’s knowledge. Additionally, it is claimed that the loan money was misappropriated and utilised for other projects, resulting in the complainant’s unlawful loss of Rs. 52,000,000.

The borrower company’s forensic audit report, which was acquired from Brahmayya & Co. Chartered Accountants, showed that bank and cash receipts recorded in the internal Cash Relationship Management data of the borrower company were not accounted for in the books of accounts. The inquiry also showed that the defendants personally took the money from the different house buyers and used it for their own or other initiatives. The inquiry revealed that the accused individuals misappropriated the receivables and failed to deposit them in the Escrow Account in violation of the terms and conditions of the assignment agreement with the lenders.

By rulings dated May 26, 2023, and June 2, 2023, respectively, the learned Chief Metropolitan Magistrate and the learned Additional Sessions Judge both rejected the petitioner’s bail requests.

Analysis of the court

The petitioner’s primary domicile is in Chennai, and he solely does business there. The investigating authorities have already taken the petitioner’s passport. The petitioner is therefore unlikely to elude justice. Additionally, the petitioner is no longer a director of the borrower firm, making it less likely that she would tamper with the evidence or sway any witnesses.

When the investigation against the petitioner is already finished and a chargesheet has been filed, granting bail based only on the fact that the petitioner’s wife is the subject of the inquiry is inadmissible. At this point, the Supreme Court’s ruling in Sanjay Chandra v. CBI, (2012) 1 SCC 40 (Refer para 21-22 & 42), may be cited.

It would not be wise to imprison the petitioner indefinitely in light of the extract above, the likelihood that the trial in the matter will take some time, and the assurance given on behalf of the petitioner that he will continue to cooperate in the investigation qua his wife as well. The petitioner has already been detained for seventy days.

Due to the aforementioned factors, this Court determines that the petitioner should be granted bail in the current instance. The petitioner is therefore ordered to be freed in exchange for a personal bond in the amount of Rs. 1,00,000 and one surety in an amount equal to that, subject to the satisfaction of the Trial Court and additionally subject to conditions.

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Delhi high Court dismissed the appeal by National Insurance Co. Ltd. challenging the compensation.

Title: National Insurance Co. Ltd. vs Chitra & Ors.

Date of decision: 13.07.2023

+ MAC.APP. 1056/2016

CORAM: HON’BLE MR. JUSTICE NAVIN CHAWLA

Introduction

Delhi high Court dismissed the appeal by National Insurance Co. Ltd. challenging the compensation granted by the Motor Accidents Claims Tribunal, in MACT Case No.402/2010, titled Chitra v. Mufid Khan & Ors.

Facts of the case

The first respondent in this case submitted the aforementioned Claim Petition, claiming that she, her husband, Dharmender, and daughter, Dristi, were travelling back from the home of a relative on October 31, 2010, at around 9:25 p.m., in a two-wheel scooter with the registration number DL 6ST 7734. An HR 55H 5499-registered truck rear-ended the motorcycle. The accident-related injuries to respondent no. 1 were severe, and a 60% impairment with regard to the right lower limb was determined as a result. In actuality, she had her right leg amputated below the knee.

Based on the aforementioned fact, the learned Tribunal determined in the impugned award that the respondent no. 1 in this case suffered injuries in the collision as a result of the truck’s driver’s reckless and careless operation. Regarding the amount of the compensation due to respondent No. 1, the learned Tribunal determined that she had not been able to establish that she was a contributing member of the family. Therefore, in order to determine the income loss, the learned Tribunal granted the compensation using graduate minimum wages. Regarding the respondent number 1’s age, it is undisputed that he or she was 26 years old when the accident occurred.  On the question of disability, the learned Tribunal considered 60% of the disability to the whole body for the purpose of calculation of the future loss of income/gratuitous services. It is challenging this head of compensation that the present appeal has been filed.

Analysis of the court

The learned Tribunal’s conclusion that the first respondent, who worked at home, had her right leg amputated below the knee is uncontested. Therefore, such harm would have serious repercussions for a homemaker, especially given the stratum to which respondent No. 1 belongs. It would undoubtedly hinder her capacity to do her housework, hence the contested award, which assigns her a 60% overall impairment, cannot be faulted.

Hon’ble High Court before arriving at the conclusion refers to several judicial precedents as, Arun Kumar Agrawal v. National Insurance Co. Ltd., (2010) 9 SCC 218(refer para 62-63), Jitendra Khimshankar Trivedi v. Kasam Daud Kumbhar, (2015) 4 SCC 237 (refer 10), Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343(refer para 9-14 and para 19).

The Supreme Court has reemphasized that “what is to be seen as emphasised by decision after decision, is the impact of the injury upon the income generating capacity of the victim” in Sidaram v. Divisional Manager, United India Insurance Co. Ltd., (2023) 3 SCC 439. There cannot be a simple formula for blindly using maths to determine the severity of the loss of a limb (a leg or an arm) in connection to the victim’s job, vocation, or company.

Applying the aforementioned guidelines to the facts of the current case, the respondent no. 1’s contribution to the household cannot be questioned just because she was a housewife. She made her own unique contributions to the home. She would be expected to perform physical housekeeping as a homemaker in addition to providing emotional support and other types of assistance to the family members. Her capacity to conduct the strenuous physical task she would have been undertaking otherwise would be seriously hampered by losing her leg. I do not believe that the fact that respondent No. 1 was given money for the installation of an artificial limb justifies reducing the functional impairment.

Particularly in light of the social strata to which respondent no. 1 belongs, where she is expected to physically conduct all housework, respondent no. 1 would not be able to discharge the duties of a homemaker in a proper manner. Her impairment would undoubtedly limit her capacity to carry out these tasks.

The first respondent, CM Appl. No. 7812/2023, has submitted her medical records and prescription, dated 14.02.2023, from NKS Super Specialty Hospital, which recommends changing the prosthesis. It is obvious that the responder no. 1 continues to experience the effects of the accident.

therefore, find no merits in the present appeal. The same is accordingly dismissed.

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Delhi High Court Dismissed the appeal and upheld the verdict of Customs, Excise and Service Tax Appellate Tribunal (‘the CESTAT’)

Title: PR. COMMISSIONER, CENTRAL EXCISE AND CGST-DELHI SOUTH

                                                                        versus

                                    BLACKBERRY INDIA PRIVATE LIMITED

Date of Decision: 12.07.2023

+ SERTA 7/2023 and CM Nos. 34149/202 & 34150/2023

CORAM: HON’BLE MR. JUSTICE VIBHU BAKHRU

    HON’BLE MR. JUSTICE AMIT MAHAJAN

Introduction

Delhi high Court Dismissed the petition filed under Section 35G of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 and upheld the verdict of the CESTAT in order No.ST/A/51150/2022- in Service Tax Appeal No. 50281/2022 Blackberry India Private Limited v. Commissioner of Central Tax / Excise.

Facts of the case

The respondent (hereinafter referred to as “BlackBerry India”), which provides business auxiliary services, was registered with the Department for the purpose of paying service tax. BlackBerry India had made complaints regarding return of $8,55,34,345 worth of unused CENVAT Credit. The aforementioned Credit was built up as a result of several input services, including security, labour, sponsorship, legal consulting, etc., that BlackBerry India used to provide Business Auxiliary Services as an output service. BlackBerry India stated that its services were outsourced to a client in another country.

The Adjudicating Authority published a Show Cause Notice on January 22, 2020, proposing to reject BlackBerry India’s claim on the grounds that the services BlackBerry India provided looked to be provided in India. BlackBerry India disputed that the services rendered to BlackBerry Singapore were services as an intermediary. The adjudicating authority determined that BlackBerry India’s services were Business Auxiliary Services as defined by Section 65(19) of the Finance Act of 1994 (hereinafter referred to as “the Act”) and that they were taxable services for the time period prior to July 1, 2012. the BlackBerry solution, which includes handheld devices, accessories, software, and other relevant services, had been delivered by BlackBerry India in accordance with the provisions of the aforementioned Agreement. Additionally, BlackBerry India has carried out a number of marketing and promotion tasks as detailed in Schedule A to the Agreement. The adjudicating authority determined that the aforementioned services would come under the 2012 Place of Provision of Services Rules’ definition of intermediate services in Rule 2(f). The Adjudicating Authority said that BlackBerry India served as a middleman while BlackBerry Singapore provided services to its Indian clients.

The Adjudicating Authority determined that Rule 3 of the Export of Service Rules, 2005 applied to the benefit of export services for the time period previous to 1.07.2012, but that this did not apply to services covered under Section 65(105)(zzb) of the Act. BlackBerry India’s claim for CENVAT Credit for the time frame previous to 01.07.2012 was therefore unjustifiable. BlackBerry India filed an appeal with the Appellate Authority after being upset by the Order-in-Original dated 31.08.2020. The Appellate Authority, however, denied the aforementioned appeal since it identified no flaws in the Adjudicating Authority’s original Order-in-Original dated 31.08.2020.

BlackBerry India preferred an appeal before the learned CESTAT. The argument that BlackBerry India was neither an agent nor involved in the planning or facilitation of the delivery of the services in question was recognised by the learned CESTAT. The 2012 Place of Provision of Services Rules’ Rule 2(f) defines an intermediate, and the knowledgeable CESTAT determined that BlackBerry India did not meet this definition. The argument that BlackBerry India was neither an agent nor involved in the planning or facilitation of the delivery of the services in question was recognised by the learned CESTAT. So, according to the 2012 Place of Provision of Services Rules’ Rule 2(f), BlackBerry India was not an intermediate, according to the knowledgeable CESTAT. The learned CESTAT had examined the Agreement and had concluded in favour of the Blackberry India and over-turned the decision of the appellate authority.

Analysis of the court

The hon’ble court held that, an intermediary only arranges or facilitates the provision of services, as is clear from the word. In this instance, the services provided by BlackBerry India to BlackBerry Singapore pursuant to the Agreement were not those that enabled the use of services from another vendor. BlackBerry India was expected to deliver the promotional and marketing services, technical marketing help, and other associated services as an independent service provider. These services were not arranged or made possible by BlackBerry India or any other vendor.

It is also pertinent to make reference to the Central Board of Indirect Taxes and Customs’ circular from the 20.09.2021. Although the aforementioned Circular was issued in relation to the Goods and Services Tax, it notes that the definition of “intermediary” in Section 2(13) of the Integrated Goods and Services Tax Act, 2017, was taken from Rule 2(f) of the Place of Provision of Services Rules, 2012, and provides an explanation of the concept in question.

The Circular makes it clear that BlackBerry India cannot be regarded as an intermediary with regard to the services it provides under the Agreement. The Court had also considered a similar question albeit in the context of refund of input tax credit under the Integrated Goods and Services Tax Act, 2017 in M/s Ernst and Young Limited v. Additional Commissioner, CGST Appeals-II, Delhi and Anr.: W.P.(C) 8600/2022, decided on 23.03.2023 and M/s Ohmi Industries Asia Private Limited v. Assistant Commissioner, CGST: W.P.(C) 6838/2022, decided on 29.03.2023. In our opinion, the aforementioned rulings completely address the dispute that the Revenue is attempting to bring up in this appeal.

The Adjudicating Authority was clearly wrong to conclude that the services covered by Section 165(105)(zzb) of the Act were not included in the definition of export of taxable services under Rule 3(1) of the Export of Service Rules, 2005. The learned CESTAT has correctly decided that all services are under the purview of Export of Taxable Services, with the exception of those explicitly stated in Rule 3(1) of the Export of Services Rules, 2005. Clearly, the adjudicating authority misinterpreted the aforementioned rule.

In light of the foregoing, we determine that the current petition does not raise any significant legal issues. Therefore, the current appeal is denied.

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