#JUSTICE Archives - Page 4 of 6

29 Nov

Madras High Court Asks Centre to Reconsider Enhancing Retirement Age Of Coast Guard Staff To 60 Years For All Ranks.

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Madras High Court Asks Centre to Reconsider Enhancing Retirement Age Of Coast Guard Staff To 60 Years For All Ranks.

Title : Lakshmichandra Harishchandra Sharma v. Union of India

Case No. : W.P.No.415 of 2021

Decided on : 23.11.2023.

CORAM : THE HON’BLE MR. SANJAY V. GANGAPURWALA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

Introduction

Writ Petition is filed under Article 226 of the Constitution of India, praying to issue a Writ of Declaration to declare Rule 20(1) of the Coast Guard (General) Rule 1986, relevant SRO 76 dated 19 April 1999 and the impugned decision of the 1 st respondent in No.14(14)2020-D(CG) communicated to the 2 nd respondent dated 21.07.2020 fixing the retirement age as 57 for Commandant as null and void and non est in law and consequently direct the respondents to fix the retirement age of the petitioner as 60 years at par with Deputy Inspector General of Indian Coast Guard instead of 57 years with all consequential service and other attendant benefits.

Fact of the Case

These writ petitions are filed by the petitioners, who were members of the Coast Guard with two limbs of prayers. Firstly, they challenge the constitutional validity of Rule 20(1) of Indian Coast Guard Rules, 1986. Secondly, they challenge the order passed by the Government of India, Ministry of Defense, dated 21.07.2020, refusing to enhance the age of retirement of the members of the Coast Guard up to the level of commandant also to be 60 years from 57 years.

Case Analysis and Judgment

In the result we dispose of the writ petitions with the following directions:

The impugned order of the first respondent bearing reference No.14 (14/2020 – DCG), dated 21.07.2020 shall stand set aside and the matter shall be reconsidered by the first respondent in view of the reasonings contained supra in the Judgment;
It would also be open for the petitioners to make such representation in detail and bringing forth such material before the first respondent within a period of three weeks from the date of receipt of a copy of the order and thereafter, the first respondent shall reconsider the issue in accordance with law, within a period of four months therefrom;
No costs. Consequently, the connected miscellaneous Petitions are closed.

https://www.livelaw.in/pdf_upload/lakshmichandra-harishchandra-sharma-v-union-of-india-506797.pdf

29 Nov

“Apex Court Overturns Labour Court Decision: Upholds Employer’s Position on Workman’s Engagement and Onus of Proof.”

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Title: Shambhu Lal vs Union Of India

Citation: D.B. Civil Writ Petition No. 14655/2022

Coram: HON’BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA

Decided on: 17/05/23

Introduction:

The writ petition challenges the judgment dated 12.07.2022 from the Central Administrative Tribunal, Jaipur Bench. In this judgment, the Tribunal dismissed the Original Applications (‘OAs’) filed by the petitioners. The OAs contested the verbal termination orders dated 30.06.1992/01.07.1992.

Facts:

The writ petition challenges a judgment from the Central Administrative Tribunal, Jaipur Bench, dated 12.07.2022, which dismissed Original Applications (‘OAs’) filed by the petitioners contesting their verbal termination orders dated 30.06.1992/01.07.1992. The petitioners argue that the Tribunal erred in fact and law, asserting that the termination was malicious. They claim that the recruitment advertisement issued on 23.03.1991 was for short-term positions on sanctioned posts, not contractual employment. The petitioners allege no prior notice before termination, having worked more than 240 days in the twelve preceding months. They argue that since posts were available until 31.12.1993, terminating their services before this date is illegal.

The case history involves previous litigations, including a writ petition in 1992, an industrial dispute leading to a negative award in 2012, and subsequent writ petitions dismissed in 2017. The Division Bench granted liberty to the petitioners to challenge the termination order, leading to the filing of OAs before the Tribunal, ultimately dismissed on 22.07.2022.

Judgement analysis:

In this case, the Labour Court found a violation of Section 25-F of the Industrial Disputes Act, directing the reinstatement of the workman with 50% back wages. The employer’s writ petition challenging this decision was dismissed by the High Court, which upheld the award. The employer appealed to the Apex Court, arguing that both the Labour Court and the High Court erred in relying on factually and legally erroneous premises. The employer contended that the workman was engaged on a casual basis with daily wages for specific work and a specified period, falling under Section 2(oo) (bb) of the Act. The employer claimed that the details in this regard were undisputedly filed. The Apex Court, referencing precedents, held that the relief granted by the Labour Court and the High Court cannot be maintained.

Additionally, the Apex Court emphasized that the onus regarding working for more than 240 days rests on the workman, citing precedent. The Court allowed the appeal filed by the management, overturning the decisions of the Labour Court and the High Court.

The judgment concludes by stating that, based on the discussions, there is no case favoring the petitioners. The writ petition is dismissed as devoid of merit. This analysis highlights the Apex Court’s scrutiny of factual and legal aspects, emphasizing the employer’s position regarding the nature of the workman’s engagement and the onus of proof on the workman.

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Written By: Gauri Joshi

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27 Nov

“Equitable Jurisprudence Prevails: Court Upholds Fairness and Consistency in Granting Employee Benefits”

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Title: Secretary Administration Rajasthan Rajya Vidyut Prasaran Nigam

Limited vs Rashtriya Bijali Karmachari Union (INTUC) Rajasthan

Citation: S.B. Civil Writ Petition No.8015/2017

Coram: HON’BLE MR. JUSTICE ASHOK KUMAR GAUR

Decided on: 24-01-23

Introduction:

In this case, the petitioner, who is the employer, has filed a writ petition challenging the award dated 02.12.2016 issued by the Industrial Tribunal in Jaipur. The petitioner’s counsel argues that the Industrial Tribunal was tasked with adjudicating the claim of the respondent-workman concerning his entitlement to a basic salary of Rs.595 on 19.04.1985. The central question is whether the employee is entitled to relief if the specified salary was not paid.

Facts:

In this case, the petitioner-employer challenges an award issued by the Industrial Tribunal, Jaipur, dated 02.12.2016. The petitioner argues that there is a jurisdictional error by the Industrial Tribunal in granting relief to the petitioner by holding him entitled to a basic salary of Rs.580/- per month, as no such reference was made for this specific relief. The petitioner contends that the Industrial Tribunal exceeded the scope of the reference, and such an act is impermissible in the eyes of the law. It is emphasized that the respondent-workman did not pray for the relief of a basic salary of Rs.580/- per month, and there were no pleadings supporting such a claim. The petitioner relies on the Bombay Gas Company Ltd. V. Gopal Bhiva case, stating that the Industrial Tribunal lacks the competence to go beyond the terms of the reference.

However, the respondent-workman argues that the Industrial Tribunal’s award does not warrant interference under Article 227 of the Constitution of India. It is asserted that the relief granted is incidental, permissible under Section 10(4) of the Industrial Disputes Act, 1947. The respondent contends that the Industrial Tribunal rightly considered the principle of equal pay for equal work concerning similarly situated employees and molded the relief accordingly.

The court, after hearing both parties, finds that the respondent-workman’s claim for a basic salary of Rs.595/- per month was rejected, and the Industrial Tribunal, after analyzing evidence, justified the grant of a basic salary of Rs.580/- per month based on the salaries of similarly situated employees. The court concludes that the Industrial Tribunal did not exceed its jurisdiction, and the relief granted was within the scope of the reference. The petitioner’s arguments regarding jurisdictional error and lack of pleadings are rejected, and the court upholds the Industrial Tribunal’s award.

Judgement analysis:

In this judgment, the court rejects the submissions of the petitioner’s counsel, emphasizing that if the court has already settled a controversy regarding entitlement to a particular pay scale for similarly situated employees, it would be unfair to deprive the respondent-workman of the benefit simply because he was not a party in the earlier litigation before the High Court.

The court acknowledges that the Industrial Tribunal considered relevant factors, including pleadings and evidence, in reaching the conclusion that the respondent-workman was entitled to the granted relief. It emphasizes that the award took into account the settled issue regarding the pay scale in question. The court distinguishes a cited judgment (Suresh Chandra vs. General Manager, Raj. State Bridge & Construction Corporation) where the Labour Court’s jurisdiction was deemed to be exceeded. In the present case, the court finds that if the respondent-workman raised a dispute, and the Labour Court, after reference by the State Government, found the relief justified based on the treatment of similarly situated employees, it did not exceed its jurisdiction.

As a result, the court dismisses the writ petition, and no costs are awarded. The judgment underscores the principle of fairness and consistency in granting benefits to employees based on settled issues and comparable cases.

Written By: Gauri Joshi

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27 Nov

Madras High Court regarding the issue Person in Unauthorised Occupation Of Land Cannot Claim Protection Under Article 19, 21 If Eviction As Per Law.

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Madras High Court regarding the issue Person in Unauthorised Occupation Of Land Cannot Claim Protection Under Article 19, 21 If Eviction As Per Law.

Title : Gunasekaran v. State of Tamil Nadu

Case No. : W.P.No.3002 of 2018

CORAM : THE HON’BLE MR.SANJAY V.GANGAPURWALA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

Decided on : 23.11.2023.

Introduction

The petitioner seeks declaration that Section 6 of the Tamil Nadu Land Encroachment Act, 1905 [for brevity, “the Act of 1905”] is void and violates Articles 14, 19(1)(e) and 21 of the Constitution of India.

Fact of the Case

Mr.M.Elango, learned counsel for the petitioner, submits that Section 6 of the Act of 1905 is arbitrary, discriminatory and unreasonable. Right to shelter is a fundamental right under Article 21 of the Constitution of India. The impugned Section 6 of the Act of 1905 takes away the right of residence of the petitioner and other persons. Learned counsel for the petitioner submits that by virtue of the operation of Article 13 of the Constitution of India, the impugned Section 6 of the Act of 1905 is deemed to be void. The Act of 1905 is a pre-constitutional Act and is not in conformity with the fundamental rights guaranteed under Part III of the Constitution of India. The Governor has not granted any approval to the Act of 1905 after the Constitution came into force.

Case Analysis and Judgment

Once the Constitution Bench of the Apex Court has upheld the constitutional validity of the Act of 1905, and more particularly the same provision assailed by the petitioner, it will not be permissible to again consider the challenge to the same. The petitioner could not remotely show a semblance of right over the subject writ property. The procedure has been followed while evicting the petitioner. In the light of the above, the writ petition deserves to be dismissed and is hereby dismissed. There will be no order as to costs. Consequently, W.M.P.No.3670 of 2018 is closed.

Written by Nimisha Sunny

25 Nov

A Order Has To Be Set Aside If It Goes Against The Principle Of Natural Justice: Patna High Court

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Citation: CWJC No.4833 of 2020

Decided On: 16-10-2023

Coram: Honourable The Chief Justice And Honourable Mr. Justice Rajiv Roy

Introduction:

The petitioner is aggrieved with the proceedings taken by the Income Tax Officer, Ward 6(4), Patna. Notice dated 24.09.2018 is issued under Section 148 of the Income Tax Act, 1961, as against the assessee, who is assigned to the Income Tax Officer, Ward 2(3), Jamshedpur. Admittedly, the assessee is assigned to Income Tax Officer, Ward 2(3), Jamshedpur before which Officer, she also filed the Income Tax returns for the Assessment year 2016- 17, as is evident from. No further proceedings were taken by the Assessing Officer, who was the Income Tax Officer, Ward 2(3), Jamshedpur.

Facts:

The petitioner was then issued with notice dated 24.09.2018, in reply to which the petitioner specifically filed response dated 01.03.2019, along with supplementary counter affidavit. The petitioner questioned the jurisdiction and raised specific contentions against the allegations in the notice under Section 148. The petitioner specifically pointed out that there could be no proceedings taken by the Income Tax Officer, Ward 6(4) Patna.

The learned Standing Counsel for the Income Tax Department referred to Section 124(3) and also the consolidation of matters done by the Joint Commissioner of Income Tax, Range – 6, Patna, who has overall jurisdiction of State of Bihar and the State of Jharkhand. It is also specifically pointed out that the land, subject to a development agreement, based on which the notice was issued under Section 148 was located within the State of Bihar.

The Joint Commissioner seems to have transferred the file of the Assessee to the Income Tax Officer Ward 6(4) Patna, on the ground that the property in relation to which the addition is threatened, was located within the State of Bihar, that too inside the boundaries of Patna. Court, specifically noticed that Section 127 which clothes the Principal Director General, Director General, the Principal Chief Commissioner, Chief Commissioner or Commissioner to transfer any case from one or more Assessing Officers sub- ordinate to him, whether with or without concurrent jurisdiction to any other Assessing Officer or Assessing Officers also sub- ordinate to him. However, the specific mandate in Section 127 is that the Assessee should be given a reasonable opportunity of being heard in the matter wherever it is possible to do so.

Court’s Analysis and Judgement:

There is no circumstance brought on record which made the extension of such an opportunity, which is also the statutory mandate, to be impossible in the facts of the present case. Obviously, the transfer was done behind the back of the petitioner. Court found no reason to uphold the order of assessment, which was passed pursuant to a notice issued on the wrong premise of a transfer made by the Commissioner without following the principles of natural justice, which is specifically made a mandate in the provision enabling such transfer. Hence, the assessment order passed and find the notice was set aside.

Written by- Sushant Kumar Sharma

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