0
click to view the judgement

“Supreme Court Upholds High Court’s Bail Grant to Businessman in UAPA Case Linked to Maoist Funding”

blog , , , , , , ,

Case title: Union of India v. Mrityunjay Kumar Singh @ Mrityunjay @ Sonu Singh

Case no: Criminal appeal no. 2024 @ Special leave petition (Criminal) No.2024 @ Diary no. 27308 of 2023.

Dated on: May 10

Quorum:   Hon’ble Justice Mr. Pamidighantam Sri Narasimha and   Hon’ble Justice Mr Aravind Kumar.

Facts of the case:

On 22.11.2019, at about 8.00 PM, the patrolling party of Chandwa Police Station during their routine patrol had stopped at Lukuiya More where the banned terrorist organization CPI (Moist) fired indiscriminately at them resulting in the death of four (4) police personnel. The arms and ammunitions of the martyred police personnel was looted and after raising slogans the moist fled away. One of the home guards, Dinesh Ram, who escaped unhurt rushed to Chandwa Police Station and lodged a complaint which resulted in lodging FIR against 18 named and few unknown persons. The Central Government directed the NIA to take up investigation whereby FIR was re-registered for the offences under IPC, Arms Act and Unlawful Activities (Prevention) Act. The Respondent herein is one of the people apprehended who preferred appeal against the order of the Special Judge, NIA. The Union of India is now challenging High Court of Jharkhand, Ranchi order dated 30.01.2023 whereby the respondent appeal was allowed, and bail was extended thereby setting aside the order passed by the Special Judge, NIA, Ranchi.  

Issues:

Whether High Court was right in enlarging the bail of the Respondent?

Legal provisions:

Sections 120(B), 121, 121(A), 122, 147, 148, 149, 302, 307, 353, 395, 396 and 427 of IPC and under Sections 10, 13, 16, 17, 18, 20, 21, 38, 39 and 40 of UAP Act and under Sections 25(1B)(a), 26, 27 and 35 of the UAPA Act.

Contentions of the appellant:

The respondent was a key partner of a construction firm M/s Santosh Construction and was closely associated with Regional Commander of CPI-Maoist Ravindra Ganjhu and provided financial as well as logistics support for the terrorist activities. The respondent managed the terrorist fund by showing dubious entries and investments in his company/firm’s accounts. The respondent is directly connected to the incident which led to the killing of four (4) police personnel of the Jharkhand Police. The search at the house of the respondent resulted in recovering unaccounted cash of Rs.2.64 crores for which there was no justifiable explanation. There are other three (3) cases registered against the respondent which gives sufficient grounds to reject the bail. The respondent and his associates are threatening the life of the complainant and pressurizing him to withdraw the case. The respondent is an influential person and would try to threaten or influence witnesses.  

Contentions of the respondent:

The conditional bail was granted on 30.01.2023 and even after lapse of more than 1 year and 3 months, there is no allegation of violation of bail order. The prosecution is seeking for setting aside the impugned order for the reason that respondent is involved in three (3) cases apart from the case registered by NIA. The case registered by Chandwa PS has resulted in acquittal and in the case No.108 of 2015, the respondent has been enlarged on bail by the High Court of Jharkhand. In the case No.4 of 2020, the respondent has been granted anticipatory bail by the High Court of Jharkhand. The purported criminal antecedent did not sway the mind of High Court while considering the prayer for grant of bail. The pendency of three (3) other cases would have no bearing for the continuation of the bail order granted in favour of the respondent.   


Courts analysis and judgement:

The High Court has scrutinized the entire material on record and has recorded a finding that name of the respondent did not figure in the initial FIR registered or in the statements of witnesses and most of the statements did not mention the respondent’s name. It is well settled position that an accused cannot be detained under the guise of punishing him by presuming the guilt. In Vaman Narain Ghiya v. State of Rajasthan, it was been held that the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on the presumption of guilt. The broad probability of accused being involved in the committing of the offence alleged will have to be seen. In NIA v. Zahoor Ahmad Shah Watali, it was held that it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to opine that there are reasonable grounds for believing that the accused is “not guilty” of the alleged offence. The satisfaction to be recorded is that there are reasonable grounds for believing that the accusation against such person is “prima facie” true. The court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. The court must take into account the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence. In an order granting bail, reasoning should demonstrate application of mind. In Puran v. Rambilas it was held that at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken. In Jayendra Saraswathi Swamigal v. State of T.N. it was held that the considerations to be weighed by the court while granting bail in non-bailable offences and they are — the nature and seriousness of the offence; the character of the evidence; circumstances peculiar to the accused; possibility of non-securing the presence of accused at the trial; apprehension of witnesses tampering; the larger interest of the public or the State. The elaborate examination or discussion of evidence is not required. The Court is only expected to record a finding of the probabilities of the involvement of the accused in the commission of an offence. The respondent has been ordered to be enlarged on bail by the High Court on 30.01.2023 upon conditions. The prosecution has no case that the stipulated conditions have been violated. In the absence of a strong prima facie case of violation of the bail order, it would not be appropriate to reverse or set aside order after a lapse of fifteen (15) months. In Himanshu Sharma v. State of Madhya Pradesh, it was held that considerations for grant of bail and cancellation of bails are different and if conditions of bail is misused or bail was granted in ignorance of statutory provisions or bail was obtained by playing fraud then bail granted to the accused can be cancelled. The arguments that the respondent is involved in three (3) other cases and by considering that the respondent has been enlarged on bail or is on anticipatory bail would reflect that respondent having been enlarged on conditional bail and the conditions stipulated have not been violated and the appellant not seeking for cancellation of the bail till date are prime reasons for not entertaining this appeal.There is no other overwhelming material on record to set aside the order granting bail which outweighs the liberty granted by the High Court under the impugned order. Hence, interference is not warranted. However, to allay the apprehension of the prosecution, the prosecution can seek for cancellation of the bail in the event any of the conditions being violated by the respondent. The observations made is restricted to the consideration of the prayer for bail and the jurisdictional court shall not be influenced by any of the observation above. Subject to the above observations, the appeal stands 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”.

Judgement reviewed by- Parvathy P.V.
Click here to read the judgement




 

0

Deposition of witness in the absence of accused when can be used under Section 299 CrPC- SC

blog , , , ,

Case title: Sukhpal Singh v. NCT of Delhi

Case no: Criminal Appeal No(S). 55 Of 2015

Dated on: 07th May 2024

Quorum: Justice B.R. Gavi and Justice Sandeep Mehta

Facts of the case:

This appeal is against the judgment passed by the High Court of Delhi against the conviction order passed by the Additional Sessions Judge. The trial Court convicted the accused appellant for the offence under Section 302 of the Indian Penal Code and sentenced him to life imprisonment and fine of Rs.2000/- (in default further rigorous imprisonment for six months). The accused appellant was married to Usha and had three children. Due to matrimonial strife, the appellant left his wife Usha and started residing at his village. Bhajan Pura Police Station received wireless message on 20th May 1990 and upon visit of police officials, Delhi it was found that Usha w/o the appellant was found lying dead with abrasions, scratches and other injury marks. The police officials claim to have recovered a handwritten note from the crime scene indicating that the Appellant was the killer of Usha. The prosecution examined Ashok Kumar Pathak who is residing in the immediate vicinity of House where the victim was residing with her husband, the accused and three children. The witness stated that, four days prior to the alleged occurrence of the incident, accused visited Usha and quarreled with her. On the next day, Usha’s sister, Sudha took the three children and went to her house. On 19th May 1990, prior to the incident, he had seen the spouses talking but the next morning since there was no noise he went to their house and found Usha lying dead. Sukhpal was not present.  The statement of Ashok Kumar Pathak was taken as a complaint and based on which FIR was registered under Section 302 IPC. The postmortem report showed cause of death as “Asphyxia resulting from manual strangulation”. A confession letter was found. The Investigating Officer collected two letters purportedly written by the accused appellant from the employer. The accused appellant fled from the crime scene. Efforts were made to trace him but later he was declared to be a proclaimed offender and a charge sheet was filed under Section 299 CrPC. The accused appellant was apprehended on 9th August 2000. His specimen handwritings were obtained and thereafter, the confession note along with admitted handwritings collected from the employer were sent to FSL for comparison. The handwriting expert opined that handwriting of confession letter/note was that of the accused appellant. The Trial court by relying on circumstantial evidence, convicted the accused appellant vide judgment dated 6th March, 2003. The appeal preferred by the accused appellant in the High Court of Delhi was rejected by Division Bench of High Court vide judgment dated 7th January 2010 holding that the confession note written by the accused appellant proved his culpability in the crime. The accused appellant has challenged the above judgment affirming his conviction and sentence through this appeal by special leave.

Issues:

Whether the Accused Appellant is guilty of crime charged under Section 302 IPC and Section 299 Crpc?

Legal provisions:

Section 302 IPC- Murder.  

Contentions of the appellant:

The trial Court as well as the High Court committed grave factual error by holding that complainant Ashok Kumar Pathak was examined on oath in proceedings under Section 299 CrPC. This finding is contrary to the record because the statement of complainant Ashok Kumar Pathak relied upon by the trial Court and the High Court is actually the statement recorded by the SHO, under Section 161 CrPC. The confession note is a fabricated piece of evidence because the prosecution did not make any attempt to get the two admitted documents compared with the confession note. The handwriting expert’s report and the testimony of the handwriting expert is not reliable, since the expert did not give any opinion after comparing the admitted writings with the confession note (Exhibit PW-12/E). The evidence of Sudha is totally unreliable and not trustworthy and deserves to be discarded. The possibility of Usha having been murdered by some other person cannot be ruled out. The case is based purely on circumstantial evidence. The entire chain of incriminating circumstances leading to the guilt of the accused was not established by clinching evidence and hence conviction of the accused appellant is unsustainable and should be set aside.

Contentions of the respondent:

The chain of incriminating circumstances is complete in all aspects thereby pointing towards the guilt of the accused. The statement of Ashok Kumar Pathak recorded as PW-1 during proceedings under Section 299 CrPC was rightly relied upon as admissible and reliable piece of evidence. The non-examination of Ashok Kumar Pathak during trial is not a deliberate as the witness could not be traced by the prosecuting agency in spite of best efforts. The prolonged abscondence of the accused is the why Ashok Kumar Pathak could not be examined. The evidence of Ashok Kumar Pathak established the presence of accused appellant with Usha on intervening night of 19th/20th May, 1990, where after, Usha was found murdered and the accused was found absconding. The testimony of Usha’s sister Sudha establishes that the accused appellant used to quarrel with Usha suspecting her infidelity and there were repeated altercations between the spouses. The report submitted by the handwriting expert, proves that the handwriting on the confession note recovered from the crime scene matched with the handwriting on the two admitted documents collected from the employer and specimen handwritings of the accused appellant to the police. The prosecution has proved the case against the accused appellant through convincing chain of incriminating circumstantial evidence.

Courts analysis and Judgement:

The counsel representing the appellant criticized the findings of the trial Court and the High Court by stating that both the Courts erred in holding that the statement of complainant Ashok Kumar Pathak had been recorded on oath in the proceedings under Section 299 CrPC. The Section 161 CrPC statement of complainant Ashok Kumar Pathak was exhibited by the Investigating Officer whereas was never examined in the witness box. The submission so made is without any foundation. The accused appellant was absconding and could not be arrested. The Investigating Officer made all possible efforts such as procurement of arrest warrant, attempt to serve the same at the village of the Appellant. The proceedings of proclamation and attachment were undertaken under Sections 82 and 83 CrPC but still the appellant was not traceable. The trial Court declaring the accused appellant to be an absconder and gave permission to proceed with the trial under Section 299 CrPC. This order was never questioned too. Apart from Ashok Kumar Pathak, three more witnesses, were also examined on oath in proceedings under Section 299 CrPC. Hence, the submission for the appellant that Ashok Kumar Pathak was never examined on oath in proceedings under Section 299 CrPC have been made out of sheer ignorance and without ascertaining the correct position. The deposition of any witness taken in the absence of an accused may be used against him if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured. In Nirmal Singh v. State of Haryana it was mentioned that “before recording the statement of the witnesses produced by the prosecution, the court must be satisfied that the accused has absconded or that there is no immediate prospect of arresting him, as provided under the first part of Section 299(1) of the Code of Criminal Procedure. The statement of Ashok Kumar Pathak gives proof that the accused appellant Sukhpal was married to Usha(deceased). There was marital strife between the spouses on suspicion of infidelity of Usha. The accused suspected infidelity of Usha imputes a strong motive to the accused for her murder. In view of the above discussion, the prosecution has established the following links in the chain of incriminating circumstantial evidence: – (i) Motive; (ii) Last seen together; (iii) Medical evidence (iv) Confessional note; (v) Abscondence for nearly 10 years; (vi) Wrong explanation in his statement under Section 313 CrPC; (vii) Failure of the accused to explain death of his wife when only the accused and deceased were present. The view taken by the trial Court and the High Court in convicting and affirming the conviction of the accused appellant for the charge of committing murder of Usha is confirmed. The impugned judgments do not suffer from any infirmity warranting any interference. Hence, the appeal fails and is hereby dismissed. The appellant’s bail bonds are cancelled. The Appellant shall surrender before the trial Court within the next 60 days to serve the remainder of the sentence.

“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”.

Judgement reviewed by- Parvathy P.V.
Click here to read the judgement




0

Supreme Court Supports Minimum Mark Criteria for Interviews, Emphasizing Written Exam Alone Insufficient for Merit Determination

blog , , ,

Case title: Abhimeet Sinha and Ors v. High Court of Judicature at Patna and Ors.

Case no: Writ petition No.663/2021, No.735/2021, No.1073/2022, No.1146/2022, No.785/2023 and No.251 of 2016

Dated on: 06th May 2024

Quorum: Justice Hrishikesh Roy

Facts of the case:

Writ petitions were filed under Article 32 challenging the constitutionality of the Rules wherein minimum qualifying marks was stipulated in the viva voce test for appointment to the District Judiciary in the States of Bihar and Gujarat respectively, which according to the Writ petitioners violated fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India. The writ petition 251 of 2016, relates to the recruitment of District Judge direct from Bar Examination (2015), and the recruitment process is governed by the Bihar Superior Judicial Service Rules, 1951. The prayer was to strike down Clause 11 of Appendix of Bihar Superior Judicial (Amendment) Rules 2013 and to set aside the selection for Bihar Superior Judicial Service. The other connected Writ Petitions relate to the recruitment to the post of Civil Judge in Gujarat. The writ petitioners challenged Rule 8(3) of the Gujarat State Judicial Service Rules apart from that, to prepare a fresh list to be based written examination and interview marks, irrespective of the cut-off prescribed.   

Issues:

i) Whether the prescription of minimum marks for viva voce is in 
contravention of the law laid down by in All India Judges (2002)? 
ii) Whether prescription of minimum marks violates Articles 14 and 16 of the Constitution? 
iii) Whether selection process in Bihar is vitiated due to moderation of marks and corrective steps in the Bihar Selection process?  
iv) Whether non-consultation with the Public Service Commission for selection to the post of Civil Judge would render the Gujarat Rules,2005 void?  

Legal provisions:

Writ Petition under Article 32 of the Constitution- Has been instituted in order to challenge the constitutional validity of Section 15 of the Hindu Succession Act, 1956 on the ground that there is a discrimination in the devolution of the estate of a woman who dies intestate, in comparison with the rules for devolution where a male has died intestate.  

Contentions of the appellant:

The selection process is vitiated as it is in contravention of the law laid down in All India Judges (2002) where subject to modifications in the judgment, all other recommendations of the Shetty Commission, were accepted. As per the Commission, for selection of judicial officers the interview segment shall carry 50marks without any minimum cut-off marks for the reason that the prescription of minimum marks in the viva-voce test is arbitrary and unreasonable. The writ petitioners have better aggregate score (written and viva-voce combined) but are deprived of selection as they failed to secure the qualifying marks in the interview. The interview marks are arbitrarily awarded which is why the Shetty Commission recommended for doing away with the cut-off of marks, in the viva-voce. The fairness of the process ie by resorting to moderation and the relaxation of aggregate marks is clearly admitted. Hence, it was submitted that Court should order on the faulty selection process but should also allow appointment on the basis of the aggregate score, thereby not enforcing on the cut-off marks bar, in viva. The final result was declared on 8.4.2016 but the Selection and Appointment Committee continued issuing corrigendum, publishing, interviews till September 2016. If Patna High Court wanted candidates from a larger pool, due to large number of vacancies, then they ought to have relaxed qualifying marks in the interview. The interview board members had access to the written marks and therefore they could disqualify a meritorious candidate arbitrarily, by awarding them less than the qualifying marks. The amendment of were done only with the consultation of the High Court but not with the Gujarat Public Service Commission which violates Article 234 of the Constitution of India. Denial of appointment because of below par score in the viva-voce, is discriminatory.  

Contentions of the respondent:

The High Court, to make the best selection can enforce a stricter criterion than what was prescribed by the Shetty Commission. The procedure suggested by the Shetty Commission is only recommendatory and should be construed as guidelines only. The objective of Patna High Court was to ensure the selection of meritorious judicial officers and maintain the standard of the District Judiciary. The writ petitions at the instance of the unsuccessful candidates is not maintainable. The High Court can evolve its own procedure under Articles 233,234 and 235 of the Constitution. Further, it was mentioned that the Internal Board members did not have access to the marks in the written test while conducting viva voce.  

Courts analysis and Judgement:

It is argued by that by participating in the recruitment process, the writ petitioners cannot turn around and challenge the recruitment process. The writ petitioners argued that estoppel is not applicable when the arbitrariness affects fundamental rights under Articles 14 and 16 of the Constitution. The Supreme Court in Dr. (Major) Meeta Sahai Vs. Union of India that “The candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.” In Shayara Bano v Union of India, the Supreme Court noted that a legislation can be struck for being arbitrary ie if it is “irrational, capricious without an adequate determining principle”. The issue to be examined is whether the vice of arbitrariness is attracted for the Rules which prescribes qualifying marks for the viva voce test. The issue raised by the writ petitioners to prescribe minimum marks for viva voce is not uncommon and the precedents suggest that it depends on the nature of the post and the extent of weightage given to viva voce. The Governor is under no compulsion to consult the Public Service Commission in case the Commission does not wish to be consulted which is in consonance with the proviso to Article 320(3) of the Constitution. Hence, the concerned Gujarat Rules cannot, be declared to be void. With the foregoing discussion, the conclusions arrived are: The Prescription of minimum qualifying marks for interview is permissible and this is not in violation of All India Judges (2002) which accepted certain recommendations of the Shetty Commission. The validity challenge to Clause 11 of the Bihar Rules, 1951 and Rule 8(3) of the Gujarat Rules, 2005 prescribing minimum marks for interview are repelled. The impugned selection process in the State of Bihar and Gujarat are legally valid. iv) The non-consultation with the Public Service Commission would not render the Gujarat Rules, 2005 void. The Writ petitions are, accordingly, dismissed without any order on cost.  

“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”.

Judgement reviewed by- Parvathy P.V.
Click here to read the judgement


 

0

Decision to fill vacancies from the additional list, is state’s prerogative- Delhi High Court.

blog , , , , , ,

Case title: Dr. Shashi Bhushan v. University of Delhi and Anr.

Case no: W.P.(C) 4949/2024 & CM APPL. 20278/2024

Dated on: 05th April 2024

Quorum: Hon’ble Mr. Justice Tushar Rao Gedela.

Facts of the case:

A Mandamus writ petition under Article 226, of the Indian constitution,1950 has been filed against the Respondents by the Petitioner to appoint him as a Assistant Professor in the Department of Geography at the Respondent’s College. Mr. Chimni, appearing for the petitioner submits that the petitioner had participated in the recruitment process for the post of Assistant Professor of the Department of Geography, Kalindi College, University of Delhi. He says that the petitioner was the first candidate in the waitlist. There was a candidate named Ms Usha Rani who was at Sl. No.1 in the list of selected candidates was offered the appointment and had consequently joined the College at the Geography Department as an Assistant Professor. But, she had resigned from the Respondent’s College and joined another College with the same post. He says that the post of the assistant professor allotted for the scheduled caste was left vacant after the resignation of Ms. Usha Rani. He submits that as the petitioner is the first candidate in the waiting list he had the right to be offered with the appointment to the said vacant post. As, that was not done the following writ petition was filed.

Issues:

Whether a Candidate placed in waiting list be offered appointment upon resignation of the candidate who joined the post and later resigned?

Legal provisions:

Article 226 of the Indian Constitution- Power of High Courts to issue certain writs. 


Contentions of the appellant:

Mr. Chimni the counsel appearing for the petitioner says that the Petitioner had participated in the recruitment process for the Assistant Professor of the Department of Geography, Kalinidi College, University of Delhi. After the selection the petitioner was the first in the candidate list, he submits that a candidate named Ms. Usha Rani had also participated for the same and she was selected and started working in the said department. But, this said candidate resigned from the Respondent’s College subsequently and had gotten a new job with the same post. He says that the post of the Assistant Professor allotted for the scheduled caste was vacant after the resignation of the candidate. He submits that as the petitioner was the first candidate in the waiting list had a right to be offered with the appointment with the said post. Mr. Chimni says that the respondent is under the obligation to reserve the waitlisted panels on the basis of the selection, particularly when the incumbent had just resigned leaving the post vacant. The respondent had addressed that he would fill up the vacant position by selecting from the waitlist. Mr. Chimni says that the same has been violated.  

Contentions of the respondent:

Mr. Mathur states that the university had clearly stated that an offer to the Assistant Professor in the waitlisted candidate category created on the resignation of the candidate who had joined to the said post, and later resigned, it would again have to be advertised for such vacant post following the processes and procedures that are envisioned under the directives of the university. In Sudesh Kumar Goyal vs. State of Haryana and Others reported in (2023) 10 SCC 54, the Supreme Court held that a person cannot seek a right against a vacancy caused due to the resignation of the selected candidate. If a selected candidate joins and the resigns, it creates a fresh vacancy that must be filled through a fresh advertisement and selection process. With this case as precedent in the present case also the petitioner seeks offer from the vacancy on the resignation of the previously selected candidate. Mr. Mathur says that the petitioner has no cause of action.  

Courts analysis and judgement:

According to the Selection committee under clause 7 (4-a) of Ordinance XVIII of the university offers a appointment to the post of Assistant Professor to the waitlisted candidate when there is a vacancy that has been created by the resignation of the candidate who joined the post and later resigned. In such cases, it requires to issue a fresh advertisement following the processes and due procedures of the University. The candidates can be given appointment to the said post if the selected candidate did not join in the given timeframe. Thus, the said post which has fallen vacant due to any reasons cannot be filled from the position in the waitlist. If the Resignation of selected candidate. Death/VRS/Resignation of an employee, Post has fallen vacant due to the incumbent appointment at any other higher position/principal etc. In Subha B. Nair v. State of Kerala A decision on the part of an employer whether to fill up the existing vacancies or not is within its domain. On this limited ground in the absence of discrimination or arbitrariness, a writ court ordinarily would not interfere in such matters. Further, Mandamus cannot be issued to direct the Government or the State to fill up certain or all vacancies. The discretion to fill or not to fill vacancies lies with the Government. When a selected candidate in the final selection list has only a right of consideration, then the candidates who are in wait list would not even have that right, which is subject to rules/notification issued. The petitioner could not establish that he has derived the right from any rule/statute or an ordinance. Hence, the position that arises from all the above decisions is that the duty to fill up vacancies from waiting list can arise only on the basis of a mandatory rule. If no such mandate exists, the decision to fill all the vacancies from the Additional List, is left to the State. However, it needs to be added that State cannot act arbitrarily, and its action can be judicially reviewed. It is clear that the petitioner has no ground to maintain the writ petition. Consequently, the writ petition is 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”.

Judgement reviewed by- Parvathy P.V.
Click here to read the judgement




0
delhi high court

Delhi High Court upholds EC Commissioner order for compensation to parents of deceased employee by upholding that the deceased person was an “Employee”

blog , , , , , , ,

Case title: M/S Madras Trading Co v. Ramjeet @ Ramjeet and Anr

Case no: FAO 119/2017 & CM APPL. 9580/2017, CM APPL. 28069/2018

Dated on: February 13th, 2024

Quorum: Hon’ble Mr. Justice Dharmesh Sharma

Facts of the case:

The appellant herein is a proprietorship concern run by Mr. Sukhpreet Singh, and it is engaged in a small business of sale of air conditioners and spare parts. The respondents were the claimants before the Employee Commissioner and are the legal heirs/parents of the deceased. The claimants filed Statement of Claims before the Commissioner on 27.07.2015, stating that that their deceased son Tata, was employed with the appellant as an AC Mechanic at a monthly wage of Rs. 15,000/-. On 30.04.2014, Sh. Tata was sent by the appellant to do AC repair work wherein the AC compressor burst resulting in fatal injuries and his death at the age of 25 years. An FIR was registered on 01.05.2014 at P.S. Kirti Nagar, on statement of coworker Sh. Sanjay Kumar who along with the deceased had gone to carry out work when the accident occurred. He stated that both of them were employed with the appellant firm and are entitled for compensation of Rs. 20,00,000/- along with penalty of 50% and interest @12% per annum, payable from the date of the incident till realization. The appellant on 09.12.2015 replied by denying the “employer-employee‟ relation and objected for non-enclosure of any documents/proofs to prove such employer- employee relationship. The learned Commissioner framed the following issues “(i) whether the employee – employer relationship exists between the parties? – (ii) Whether accident resulting into death of the deceased is caused out of and during the course of employment and if so, to what amount of death compensation, the dependents of the deceased are entitled to? (iii) Relief, if any? The learned Commissioner decided in favor of the claimants/respondents by holding that the claimant’s evidence was reliable and sufficient in proving the events. However, the respondent firm (appellant herein), failed to prove that there exists no employer- employee relationship. The learned Commissioner held that the claimants are entitled to compensation of Rs. 8,67,640/- along with simple interest @12% per annum w.e.f. 29.07.2015. Hence, this appeal.

Contentions of the appellant:

The learned Commissioner finding is perverse. The “employer-employee‟ relation between the deceased and the appellant firm, was decided solely on the FIR by completely ignoring the contradictions in the testimony of the claimants during cross-examination. An FIR is not a piece of substantive evidence as it requires corroboration through documentary, circumstantial or oral evidence. It is contended that apart from the “Control Test‟, “Integration Test‟ also needs to be considered such as the power to select and dismiss, to pay remuneration, deduct insurance contributions and the “mutual obligations‟ between the employer and the employee as well. The only evidence put forth by the respondents/claimants is a photocopy of the visiting card of the appellant. The testimony of respondent No.1 as well as of Sanjay Kumar was inconsistent. The appellant firm is not engaged in the business of AC repair but is a small proprietorship concern engaged in the sale of Air Conditioners and that they have not employed any persons.  

Contentions of the respondent:

The order passed by the learned Commissioner is well reasoned and has been passed after a thorough consideration of the pleadings of the parties and the materials placed on the record. The grounds taken by the appellant in the present appeal are misconceived and baseless. There is no substantial questions of law involved.

Issues:

Whether the Respondents are entitled to claim compensation under the EC Act?  

Legal provisions:

Compensation Claim under EC Act- Workers can file claims for compensation directly with the Commissioner or through a lawyer.  

Courts analysis and Judgement:

An appeal under Section 30 of the EC Act lies to the High Court from the following orders of a Commissioner ie (a) an order awarding as compensation; (aa) an order awarding interest or penalty (b) an order refusing to allow redemption of a half- monthly payment; (c) an order providing for the distribution of compensation among the dependents of a deceased employee, or disallowing any claim of a person alleging himself to be such dependents; (d) an order allowing or disallowing any claim for the amount of an indemnity under Section 12 (2). It is further provided by way of a proviso that no appeal lies against any order unless a “substantial question of law‟ is involved in the appeal. In the case of North East Karnataka Road Transport Corporation vs. Sujatha, the Supreme Court considered the scope and ambit of Section 30 of the EC Act as to what would constitute “substantial question of law‟, the question such as “whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any relationship of employee and employer, what was the age and monthly salary of the employee, how many are the dependants of the deceased employee the extent of disability caused to the employee due to injuries suffered in an accident, whether there was any insurance coverage obtained by the employer to cover the incident, etc. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his employment and he/his LRs sue(s) his employer to claim compensation under the Act” The aforementioned questions are essentially the questions of fact and, therefore, to be proved with the aid of evidence. Once they are proved either way, the findings recorded thereon are regarded as the findings of fact.” The learned Commissioner has given a categorical finding that the deceased workman suffered fatal injuries during the course of his employment with the appellant. The reliance by the Commissioner on the contents of the FIR and statement of co-worker cannot be faulted. The proceedings under the EC Act are summary in nature and hence strict adherence to provisions the Indian Evidence Act, 1872 cannot be applied. There are grounds by which it can be presumed that the facts were truthfully revealed regarding the circumstances which resulted in the fatal accident and was correctly incorporated by the Investigating Officer. The claimants are from poor background who are illiterate and ignorant. The Visiting card in possession is sufficient to show the connection of the appellant as an employer with the Respondent’s deceased son. Once the Claimants had laid the basic foundation to the claim, the onus then shifted upon the appellant to disprove the fact that there existed no employer-employee relationship between the parties. The appellant could have even summoned and examined the co-worker Sanjay Kumar to disprove the relationship of employer and employee. The plea of respondent No.1 acknowledging that he did not know the proprietor of the appellant can be taken considering the background of the parents. There is no apparent reason for the Investigating Officer to have fabricated the FIR or for the co-worker Sanjay Kumar to have given a false statement soon after the accident. In view of the foregoing discussion, the impugned order does not suffer from any patent illegality, perversity or incorrect approach adopted in law. The present appeal is dismissed with exemplary costs of Rs. 25,000/- which be paid to the respondents No. 1 and 2 in equal share within one month from today, failing which they shall be entitled to claim the same with interest @ 9% per annum from the date of this order till realization. The pending applications also stand disposed of accordingly.  

“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”.

Judgement reviewed by- Parvathy P.V.

Click here to read the judgement





















 

1 2 3 … 27