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Excess recovery made by the Department is subject to verification: Supreme Court of India

Case Title: State of Uttar Pradesh & Anr. v. M/s. Vivo Mobile India Private Ltd. & Ors.

Case No: Petition(s) for Special Leave to Appeal (C) No(s). 27106/2023

Decided on:  4th January, 2024

CORAM: THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA & HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH

 

Facts of the Case

In the instant case, the scheme was between March, 2020 to August, 2020, the respondents had sought benefit or extension of the scheme only by one month, that is, September, 2020. The High Court of Judicature at Allahabad has recorded that the respondent(s) herein would be entitled to interest at the rate of 6% per annum on the amount of excess recovery of Rs.11,00,69,010/- from the date of the excess recovery to the date of its actual refund. Learned A.S.G. pleaded that there is no excess recovery made by the Department.

Issue

Whether there is excess recovery of Rs.11,00,69,010/- along with interest at the rate of 6% per annum from the date of the excess recovery to the date of its actual refund made by the Department?

Court’s analysis and decision

The Hon’ble Supreme Court of India has recorded that whether there is excess recovery of Rs.11,00,69,010/- along with interest at the rate of 6% per annum from the date of the excess recovery to the date of its actual refund made by the Department is subject to verification and in the event, there is any excess recovery, the direction of the High Court of Judicature at Allahabad shall prevail. Hence, the special leave petition is dismissed.

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Written by- Afshan Ahmad

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The Bombay HC uphelds the decision of the tribunal in reducing the penalty for multiple funds to Jaipur IPL to 15 crores from 98 crores

TITLE : The special director V Jaipur IPL Cricket Pvt. Ltd

CORAM : Hon’ble Justice K.R Shriram and Hon’ble Justice Dr. Neela Gokhale

DATE :  13th  December, 2023

CITATION : FEMA Appeal no.1 of 2020

FACTS

These appeals are filed under Section 35 of the Foreign Exchange Management Act, 1999 under the order passed by the authority of FEMA. The quantum of total penalty imposed upon the appellants which was 98.35 crores was reduced to 15 crores only. After receiving certain information, it was observed that the there was large scale irregularities in the conduct and functioning of the IPL and its franchises. In the process of bidding a certain media house submitted a bid of Rs.268 crores for a team at Jaipur and subsequently only 20 crores of it was transferred. The rest was supposed to be paid by a bidder from Mauritius. 9 Cr were transferred through foreign investments by the bidder. On the other hand, RBI refused to transfer shares from to the bidder as the person was outside India. The respondents were held to be violating the provisions of Section 6(3)(b) of FEMA and Regulation 5(1) of the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2000 and paragraph 8 of Schedule I further read with Regulation 5 of Foreign Exchange Management (Permissible Capital Account Transactions) Regulations, 2000.

LAWS INVOLVED

Section 6(3)(b) of FEMA states that the RBI Can restrict the transfer of certain securities and also regulate them.

Regulation 5(1) of the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2000 provides for the permissions that is required to allow a person outside India to make investments.

            “A person resident outside India may subscribe, purchase or sell capital instruments of an Indian company in the manner and subject to the terms and conditions specified in Schedule 1.”

 

ISSUES

  1. Whether the reduction of money to 15 crores valid?

JUDGEMENT

The court dismissed the appeal on the ground that there is nothing perverse in the tribunal order to reduce the amount to Rs.15 cr. By applying the doctrine of proportionality, the court agreed with the order of reducing the penalty amount.

Under Section 35 of the FEMA, an Appeal will lie only in regard to a question of law arising out of such order as appealed against and in the present case the there is no question of law proved by the appellant.

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Written by- Sanjana Ravichandran

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There Is No Case Of As He Approached The Court After 13 Years: Patna High Court

Citation: CWJC No.17367 of 2019

Decided On: 31-10-2023

Coram: Honourable Mr. Justice Dr. Anshuman

Introduction:

The petitioner submits that the grievances of the petitioner are very limited as the railway authorities have already issued an appointment letter and directed the petitioner to join on Class-IV post but the petitioner did not appear in the office for joining. Subsequently, the petitioner has filed CWJC No. 13981/2016 which was disposed.

Facts:

The writ was dismissed with a direction to the concerned authority that if the petitioners except Mukesh Kumar file application before the competent authority along with supportive documents for appointment on Group-C/Group-D post in Indian Railway in lieu of acquisition of their lands for construction of Road-cum-Railway Bridge over river Ganga near Digha-Sonepur, the authority shall consider their case and pass order within four months from the date of filing of such representation. Mukesh Kumar is concerned, his case was considered by the competent authority and appointment letter was issued for appointment but the petitioner did not join on Group-C/Group-D post on account of illness of his mother, who consequently died of cancer but no order on his petition for extension of the period of his joining was passed.

The specific direction was given to the authority to consider the case of the petitioner sympathetically and pass an order in accordance with law within four months. In pursuance to the same, the petitioner has been communicated a letter dated 03.06.2019, as contained in Annexure-R/E rejecting his claim being time-barred, but the authority while rejecting his claim did not consider the case of the petitioner sympathetically in the light of the direction of the Hon’ble Court.

Learned counsel for the Union of India representing Railways submits that the claim of the petitioner for employment was in lieu of acquisition of his land for construction of Road-cum-Railway Bridge over river Ganga near Digha-Sonepur has already been considered by the Railway authority and the same has been communicated to the petitioner vide letter dated 20.06.2007 which is Annexure R/A in which direction was made to him to report to the office of the Divisional Rail Manager, Personal Sonepur on 12.07.2007 along with two passport size photographs for his appointment in Grade-D category but the petitioner did not opt to appear.

Petitioner has requested for extension of time for reporting till 2009 on the grounds of his completion of engineering course. Subsequently, the Railway authority informed the petitioner vide letter dated 26.09.2007 to receive an appointment letter forthwith as according to the guidelines issued by the Rail Parishad/ Headquarter, he has to join within two years, but petitioner did not join. Thereafter, the petitioner preferred a writ petition in the year 2018 in which the Hon’ble Court was pleased to pass the order

Court’s Analysis and Judgement:

It transpires to the Court that the petitioner was entitled to appointment and was called for joining in the year 2007 itself. The petitioner was also informed that the said appointment letter is valid for two years only, but he demanded employment after the lapse of 13 years. the petitioner is a graduate engineer from the mechanical branch and has completed his study in B.Sc. Engineering in the years 2010. In this background that the petitioner is a graduate engineer and is interested to join on the Group-D post for which an offer was made to him to join 13 years back including an extension of two years from the date of the letter of joining issued in the year 2007, this Court was in the view that the petitioner has no case.

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Written By : Sushant Kumar Sharma

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Balancing Equity and Fairness: Court Quashes Harsh Penalty, Directs Reconsideration in Landmark Decision: Rajasthan High Court

Title: Shashi Bala Meena vs Punjab National Bank

Citation: S.B. Civil Writ Petition No. 7612/2015

Coram: HON’BLE MR. JUSTICE ANOOP KUMAR DHAND

Decided on: 24/05/23

Introduction:

The petitioner has filed an instant petition seeking the court’s acceptance and allowance of the writ petition. The prayer includes a request for the court to quash and set aside certain orders, reinstate the petitioner in service with consequential benefits and interest, and any other order deemed fit by the Hon’ble Court. Additionally, the petitioner seeks the award of costs in their favor.

Facts:

The petitioner, a Senior Manager at a bank, faced multiple transfers during her service and was granted three promotions with an unblemished record. Following a transfer to Alwar Branch, she sought retention due to family circumstances. Despite requests and applications for medical leave, the petitioner was relieved to join Alwar Branch. Subsequently, an expedited enquiry was initiated, and the petitioner, suffering from Arthritis, was compelled to join. The enquiry concluded swiftly, resulting in an order of compulsory retirement. The petitioner alleges a hasty and unfair process, citing medical conditions and unavailed privilege leave. The respondents argue willful absence and alternative remedies. The court emphasizes an employee’s duty to obey transfer orders but acknowledges the need for proportionality in disciplinary action, highlighting the recognized doctrine of proportionality in judicial review.

Judgement analysis:

The court, invoking the principle of rendering equitable justice, acknowledges the need for compelling circumstances to interfere with a penalty’s quantum. Emphasizing fair play in administrative decisions, the judgment considers the impact on both the employee and management, recognizing the gravity of imposing punishment affecting livelihoods. In light of the petitioner’s 25 years of unblemished service, unavailed privilege leaves, and the circumstances surrounding her transfer and subsequent compulsory retirement, the court deems the punishment harsh. It rejects cited judgments as inapplicable to this case.

Applying the doctrine of proportionality, the court quashes the impugned orders and remits the matter for reconsideration of the punishment within three months. While allowing the petition in part, the court directs the petitioner’s reinstatement without back wages from the date of compulsory retirement.

The judgment places the onus on the appropriate authority to reassess the penalty, emphasizing a balanced approach that considers the specific circumstances of the case. The decision reflects a nuanced understanding of administrative decisions affecting individuals’ livelihoods.

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Written By: Gauri Joshi

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Rajasthan High Court: Court Upholds Candidate’s Right to Marks, Orders Immediate Appointment with Full Benefits

Title: Sita Ram Jakhar vs State of Rajasthan

Citation: S.B. Civil Writ Petition No. 17796/ 2022

Coram: Justice Sudesh Bansal

Decided on: 14/03/2023.

Introduction:

The case revolves around the recruitment process initiated by the Directorate, Home Defence, Rajasthan, through an advertisement dated 18.11.2021. The recruitment is for various posts, including Constable General, Constable Bigular, Constable Drumman, and Constable Driver in different districts. The matter is under consideration by the court, with both parties presenting their arguments, and the court has examined the available material on record.

Facts:

The petitioner applied for the post of Constable General in the Rajasthan Home Guard Subordinate Service and claimed entitlement to 5 marks for a computer aptitude certificate (RS-CIT). Although he possessed the certificate, the petitioner alleged that he was not awarded the marks during the selection process, resulting in his exclusion from the final merit list.

In response to the writ petition, the respondents argued that the petitioner failed to produce the RS-CIT certificate during the document’s verification stage. The court, acknowledging the unique circumstances, allowed the petitioner to undergo a fresh document verification process. Subsequently, the Selection Board examined the RS-CIT certificate on January 12, 2023, and provisionally awarded 5 marks to the petitioner. The Board concluded that the addition of these marks placed the petitioner above the last cutoff marks in the OBC (NCL) category, making him eligible for inclusion in the final selection list.

The respondents, in their reply, mentioned that the results had already been declared, and candidates from the final merit list had received appointments. However, during the court proceedings, a representative of the Rajasthan Home Guard Service acknowledged that there was an opportunity to consider the petitioner for appointment.

The court, considering the petitioner’s eligibility for the marks and the peculiar circumstances, referred to a recent Supreme Court judgment (Food Corporation of India Vs. Rimjhim) to address the issue. The judgment discussed the importance of considering a candidate’s eligibility despite procedural lapses, emphasizing the essence of justice in such matters.

Judgement analysis:

The court, applying the legal principles laid down by the Supreme Court, acknowledged that the petitioner possessed the necessary computer aptitude qualification (RS-CIT) and was eligible for 5 marks. The court considered the proceedings of the Selection Board, which confirmed the petitioner’s eligibility and awarded him the additional marks. The court concluded that the petitioner, with the extra marks, surpassed the last cutoff in the final merit list for the Constable General Non-TSP post in the OBC (NCL) category.

As a result, the court directed the respondents to appoint the petitioner to the vacant Constable General Non-TSP position in the OBC (NCL) category immediately. The petitioner was granted all service benefits, including seniority and increments, notionally from the date of the appointment. Additionally, the petitioner was entitled to actual and monetary benefits from the date of the appointment. The writ petition was allowed accordingly, and all related applications were disposed of.

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Written By: Gauri Joshi

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