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Delhi High Court Upholds Tribunal’s Directive on Grade Pay Decision for Petitioners

CASE TITLE – Union of India & Anr. v. Tapash Basak & Ors.

CASE NUMBER – W.P.(C) 716/2015, CM APPLs. 5955/2020, 44178/2023 & 53675/2023

DATED ON – 27.05.2024

QUORUM – Justice V. Kamshwar Rao & Justice Rajnish Bhatnagar

 

FACTS OF THE CASE

This petition has been filed by the petitioners challenging the order dated March 17, 2014 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in the Original Application being OA No.3882/2012 (‘OA’, for short) filed by the respondents herein, whereby the Tribunal has disposed of the OA. The case of the respondents before the Tribunal was that, they are civilian ministerial staff of Secretarial Service with the Director General of Security (‘DGS’, for short) under the Cabinet Secretariat (‘CS’, for short) of four units (a) Special Service Bureau now Sashastra Seema Bal (‘SSB’, for short), (b) Aviation Research Centre (‘ARC’, for short), (c) Special Frontier Force, (‘SFF’, for short) and (d) Chief Inspectorate of Armament (‘CIOA’, for short). These four units had a common and combined DGS (Secretarial Service) promulgated on November 4, 1975. The personnel did not belong to any particular organisation, i.e., SSB, ARC, SFF and CIOA but were merely posted in any one of the organisations. The trifurcation of four organizations took place in 2001. Before trifurcation, the secretarial staff of these four organisation were part of one secretarial service, i.e., DGS (Secretarial Service). The case of the respondents before the Tribunal was that, they have been discriminated and put in disadvantageous position, vis-à-vis their counterpart in ARC/SFF, though all belong to the same cadre, it is due to sheer luck the counterparts got posted in ARC and SFF and therefore, there is a violation of Articles 14 and 16 of the Constitution of India resulting in infringement of fundamental rights of the respondents. One of the pleas of the respondents was also that, on the promulgation of the Recruitment Rules for SSB Secretarial Service Rules in the year 2006 and on implementation of the 6th Central Pay Commission, the Assistants / Personal Assistants of SSB have been given grade pay of ₹4,200/- in PB-2 as admissible to the personnel of non-secretarial service whereas some of the counterparts in ARC & SFF were given grade pay of₹4,600/- in PB-2 as admissible to the personnel of Secretariat Organisation vide CS order dated June 18, 2012. It is also stated that the counterparts of the respondents in other two organisations are also enjoying 15% special allowance by virtue of sheer luck based on their posting in the divided units which benefit is not available to the respondents as they are in SSB by default.

 

ISSUE

Whether the employees of the SSB Secretarial Service be granted the same grade pay as their counterparts in ARC and SFF who perform similar functions.

 

CONTENTIONS BY THE PETITIONERS

The submission of the Learned CGSC appearing for the petitioners, is that the trifurcation policy was upheld by the Supreme Court in Union of India v. Suresh Kumar Nayak. She submitted that the nature of work, job and responsibilities attached to various posts in different cadre of four services or three services after trifurcation has not been compared anywhere and therefore the question of grant of same pay and allowances, including 15% special allowance, at par with ARC/SFF secretarial/ministerial service from the date of trifurcation does not arise. She submitted that, on November 20, 2006, after notification of SSB (Secretarial Service), the employees of SSB (Secretarial Service) were covered under the category of “non secretarial” staff and were dismembered from the combined seniority list of erstwhile DGS (Secretarial Service) by way of having their own statutory recruitment rules promulgated on November 20, 2006. As they are governed by their own statutory Recruitment Rules, they cannot seek any parity with the employees of ARC and SFF. The Learned CGSC stated that the restructuring of a cadre in a department is done in accordance with its own functional requirement and cadre strength. Therefore, the relief prayed for by the respondents for cadre restructuring in SSB in proportion, with Secretarial / Ministerial service of SSB is devoid of merit. According to her, 6th CPC recommendation has granted grade pay of ₹4,800/- in PB II and grade pay of ₹5,400/- in PB-III after 4 years, to those employees of Ministerial / Secretarial posts, which have historical parity with CSS/ CSSS services. However, with trifurcation and formulation of revised Recruitment Rules, SSB (Secretarial Services) bears no parity with CSS/ CSSS cadres as on date.

 

CONTENTIONS BY THE RESPONDENTS

The Learned Senior Counsel appearing for respondent Nos. 25, 53, 83 & 91 stated that the respondents had previously filed an OA 3882/2012 which was pending before the Tribunal seeking parity in pay as is being granted to employees of ARC and SFF. Pending adjudication, in another OA namely P.C. Chinhara (supra), the Tribunal held that the SOs and the PSs in the SSB (Secretarial Service) be granted the same pay at par with their counterparts in ARC and SFF. The petitioner No.1 challenged the judgment in the said OA before this Court, which was dismissed vide order dated November 18, 2010. He submitted that the respondents are seeking nothing but the parity in pay with those employees of ARC and SFF, who had previously been working with the respondents and performing the same functions. He also submitted that the Assistants in the ARC and SFF are placed in PB-II with grade pay of ₹4,600/-, whereas the respondents are still stagnating at grade pay of ₹4,200/-, despite the fact that the SOs and the PSs consequent to the judgment passed by this Court in P.C. Chinhara (supra), have already been granted parity with SOs and PSs of ARC and SFF and at ₹4,800/- in PB-II and ₹5,400/- in PB-III vide order dated January 04, 2017. He further submitted that there had always been a parity in pay between the employees of ARC and SFF and at the time of trifurcation in the year 2001, all the Assistants under DGS (Secretarial Services) were in the pay scale of ₹5500-175-9000/- (5th CPC). Today, the respondents cannot be denied the grade pay of ₹4,600/- as being enjoyed by their counterparts. The Learned Counsel for the other remaining respondents submitted that the respondents should have been given promotion or should have been considered for promotion at least from the date of promotion of their juniors. He stated that the respondents have been discriminated and put into disadvantageous position whereas their counterparts who were in ARC and SFF are continuing to get their Fast Track Promotion.

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble High Court of Delhi noticed that the Tribunal has remanded the matter back to the petitioners to take an informed decision on the benefits that can be granted to the respondents herein, and since the matter has been narrowed down to grant of grade pay of ₹4,600/- they were of the view that the impugned order passed by the Tribunal need no interference. And stated that the petitioners must decide the issue as per the directions of the Tribunal. The Hon’ble High Court of Delhi also stated that, the decision taken by the petitioners must keep in mind, the fact that the SOs / PSs have been granted grade pay of ₹4,800/- with a further grade pay of ₹5,400/- after completion of four years and also the fact that the said grade pay of ₹4,800/- is two stages above grade pay of ₹4,200/-, which the petitioners are drawing. And hence, disposed of the petition, by granting the petitioners three months time to take decision for the reasons stated by the Tribunal and convey the decision thereof to the respondents, who if aggrieved can seek such remedy as available to them in law, and held that they could not allow these applications.

 

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Judgement Reviewed by – Gnaneswarran Beemarao

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Exploring Remedies for Insurance Disputes: Understanding the Legal Remedies  

 

 

Exploring Remedies for Insurance Disputes: Understanding the  Legal Remedies

ABSTRACT

Insurance disputes arise when there is a disagreement between the insured and the insurer regarding policy terms, claims, or coverage. To address these disputes, several legal remedies are available, designed to protect the interests of policyholders and ensure fair treatment by insurance companies. One primary legal remedy is filing a lawsuit. Policyholders can sue their insurer for breach of contract if the insurer denies a legitimate claim or fails to fulfill its policy obligations. Courts can award damages to compensate for the loss incurred due to the breach. In some jurisdictions, policyholders may also claim punitive damages if the insurer’s conduct is found to be particularly egregious. Another common remedy is arbitration. Many insurance policies include arbitration clauses that require disputes to be resolved through arbitration rather than litigation. Arbitration is typically faster and less formal than court proceedings, and the arbitrator’s decision is binding and enforceable. Mediation is a less adversarial alternative where a neutral third party helps both sides negotiate a mutually acceptable resolution. While mediation is not binding, it often leads to a quicker and less costly settlement. Administrative remedies are also available through state insurance departments or regulatory agencies. Policyholders can file complaints against insurers with these agencies, which can investigate and, if necessary, impose penalties or require corrective actions against the insurer. In addition, some jurisdictions provide for statutory remedies, such as the right to attorney’s fees, interest on delayed payments, or additional damages under consumer protection laws. These remedies incentivize insurers to handle claims promptly and fairly. Policyholders should also consider the possibility of class action lawsuits when numerous individuals face similar disputes with an insurer. This can be an effective way to address widespread issues and achieve collective redress. the legal remedies for insurance disputes include litigation, arbitration, mediation, administrative complaints, and statutory protections. These mechanisms aim to ensure that policyholders receive the benefits they are entitled to and that insurance companies adhere to fair practices.

KEYWORDS –

Insurance Disputes, Legal Remedies, Claim Denial, Breach of Contract, Bad Faith, Arbitration, Mediation, Litigation, Insurance Claim Appeal, Policyholder Rights, Declaratory Judgment, Consumer Protection Laws, Regulatory Complaint Punitive Damages, Compensatory Damages, Reformation, Rescission, Insurance Fraud, Coverage Dispute, Settlement Negotiation, Class Action Lawsuit, Policy Interpretation, Subrogation, Equitable Relief, Dispute Resolution, Clause Notice of Loss, Proof of Loss, Legal Counsel, Insurance Commissioner, State Insurance Department.

 

INTRODUCTION

In India, insurance is provided in the form of an indemnity agreement between the insurance company and the client. The majority of insurance disputes are often civil, but they can sometimes be criminal in nature because they Centre on a contractual term and how it should be interpreted, as well as the coverage’s extent. Insurance may be effectively viewed as a social tool that functions with other social structures to diminish the financial risk that might result from the loss of life or property. It is a tool that aggregates enough exposure units so that the sum of their individual losses may be predicted. In order to guarantee the recovery of a significant unpredictable financial loss which may happen to him owing to the occurrence of some specified uncertain event, the insured person willingly agrees to incur a little financial loss i.e. the regular payment of the premium amount. Today, this action is seen as a crucial component of a person’s effort toward prudent fiscal planning and risk mitigation. In India, the rate of insurance penetration is among the world’s lowest, and almost 80% of the population lacks life insurance. There are 57 insurance companies in the Indian insurance market; 24 are engaged in the life insurance sector, and 34 are non-life insurance companies. LIC is the only company in the public sector that provides life insurance. In the non-life insurance business, there have been 6 public sector insurers. In addition to these, General Insurance Corporation of India is the only national reinsurer (GIC Re). Agents (corporate and individual), brokers, surveyors, and third-party administrators handling health insurance claims are other market participants in India. The size of the insurance market in India is enormous, and it is expanding at a speed of 15-20 per cent every year. The Insurance Act of 1938, as revised from time to time, and the Insurance Regulatory and Development Authority Act of 1999, which created IRDA, the statutory supervisor of the market, are the main laws that govern the insurance industry. An important turning point in India’s history of insurance regulations was the creation of the IRDA. The purpose of this Act is to both guarantee the interests of the insured as stated in its preamble and to encourage the industry’s orderly growth. In fact, these two pieces of legislation have established the legal framework under which the insurance sector must operate going forward. Other organizations and self-regulatory bodies play important roles in the implementation of this fundamental legislative framework, in addition to IRDA.

Insurance Litigation Process in India

India does not use the jury system. The judge decides on all claims, and the norms of pleading and evidence are fairly similar to those used in other countries. Most insurance plans have provisions addressing venue and the contract governing law. The clause which specifies the courts that will have the authority to resolve any disagreements that might develop with the policy. However, since parties cannot exclude the jurisdiction of a court with territorial jurisdiction and grant the same to a court without it, any court with territorial jurisdiction generally can hear a case. The details regarding the policy’s or contract’s relevant and governing law are provided in the governing law clause***. Foreign law cannot be chosen as the policies governing legislation by two Indian parties. Indian courts can resolve any argument relating to how to interpret the jurisdiction and controlling law provision. Section 44-A of CPC 1908, when read in conjunction with Section 13, governs the acceptance and enforcement of foreign judgements and decrees in India. In the case of “reciprocating territories” or other territories, a foreign judgment that is conclusive under Section 13 of the Code may be implemented by instating execution proceedings under Section 44-A read with Order XXI of the CPC, 1908, or by instituting a civil suit on the judgment. If the insurance does not contain a jurisdiction clause, the issue may be decided by any court to whom jurisdiction has been granted in accordance with the Code of Civil Procedure, 1908. The civil court or consumer court in which the problem is determined relies upon the cost of the dispute and the geographical regulations of the defendant’s coverage company’s office, in which the reason of motion for the dispute arose. Both civil courts and consumer forums have territorial and pecuniary jurisdiction.

Legal Remedies Available in Case of Insurance Disputes

Insurance disputes can arise for a variety of reasons, including claim denials, delayed payments, underpayments, and policy cancellations. When such disputes occur, policyholders have several legal remedies at their disposal. This article outlines the primary legal avenues available to individuals and businesses facing insurance disputes:

  1. Reviewing the Insurance Policy

Before taking any legal action, policyholders should thoroughly review their insurance policy. Understanding the terms, conditions, and exclusions is crucial, as these documents serve as the foundation for resolving disputes. In many cases, disputes arise from misunderstandings or misinterpretations of policy language.

  1. Internal Appeals Process

Most insurance companies have an internal appeals process designed to resolve disputes without litigation. Policyholders should take advantage of this process by submitting a formal appeal to the insurer, including all relevant documentation and evidence supporting their claim. This step is often a prerequisite before pursuing external legal remedies.

  1. State Insurance Department Complaints

If the internal appeals process does not yield a satisfactory result, policyholders can file a complaint with their state’s insurance department. State insurance regulators oversee insurance companies and enforce compliance with state laws and regulations. They can investigate complaints, mediate disputes, and sometimes even impose penalties on insurers for unfair practices.

  1. Alternative Dispute Resolution (ADR)

Alternative Dispute Resolution methods, such as mediation and arbitration, offer a less formal and often quicker way to resolve insurance disputes compared to court litigation.

  1. Mediation: This involves a neutral third-party mediator who facilitates negotiations between the policyholder and the insurer to reach a mutually acceptable resolution. Mediation is non-binding, meaning either party can still pursue litigation if the mediation fails.
  1. Arbitration: In arbitration, a neutral arbitrator hears evidence and arguments from both sides and then makes a binding decision. Arbitration can be quicker and less expensive than court proceedings, but the parties typically must abide by the arbitrator’s decision.
  2. Litigation

When all other avenues fail, policyholders may file a lawsuit against their insurance company. Litigation is often the last resort due to its time-consuming and costly nature. However, it can be necessary for resolving complex disputes or when significant amounts of money are involved.

  1. Breach of Contract: The most common legal basis for an insurance dispute lawsuit is breach of contract. The policyholder must prove that the insurer failed to fulfill its obligations under the policy terms.
  2. Bad Faith Claims: If an insurer’s actions are particularly egregious, policyholders can sue for bad faith. Bad faith claims arise when insurers deny benefits without a reasonable basis, fail to investigate claims properly, or unreasonably delay payments. Successful bad faith claims can result in the policyholder receiving compensation beyond the original claim amount, including punitive damages.
  3. Declaratory Judgment: In some cases, policyholders seek a declaratory judgment from the court to interpret the insurance policy’s terms. This can clarify the rights and obligations of both parties without waiting for an actual breach to occur.
  4. Class Action Lawsuits

In situations where multiple policyholders are affected by similar issues with an insurer, a class action lawsuit may be appropriate. Class actions can be an efficient way for individuals with smaller claims to pool resources and challenge large insurance companies. Successful class actions can lead to significant settlements or changes in the insurer’s practices.

  1. Seeking Assistance from Insurance Attorneys

Navigating insurance disputes can be complex, and legal representation can be invaluable. Insurance attorneys specialize in these types of disputes and can offer expert advice, negotiate with insurers, and represent policyholders in court if necessary.

Limitation Period for Filing an Insurance Claim:

The way of evaluating the limitation period for insurance claims is given under Article 44(b) of the Limitation Act 1963, which expresses that time is to be determined from ‘the date of the event causing the misfortune, or where the case on the arrangement is denied either part of the way or completely, the date of such rebuttal’. The recommended limitation period for filing a case in the civil court or mediation is three years, while the limited time frame for documenting a case in the consumer court is two years.

Judicial Interpretation

  1. Janina Construction Company v. The Oriental Insurance Company Limited and Ors. I (2022) CPJ119(SC)

Policy type- Motor Insurance Policy

The insurer repudiated the insured’s claim in toto on the ground that there was a delay in informing the insurance company regarding the theft of the vehicle. The condition in question mandated the insured to give immediate notice to the insurer of the accidental loss/damage but was given by the insured after a lapse of 5 months from the loss. Relying on Gur Shinder Singh v. Shriram General Insurance Co. Ltd. and Anr. 2020 (11) SCC 612, the Supreme Court observed since the FIR was lodged immediately on the next day of the occurrence of theft of the vehicle by the insured and the vehicle could not be traced out, a delay of about five months in informing and lodging the claim with the insurer would not be fatal. The Court held that when the insurer has repudiated the claim only on the ground of delay, and the claim of the insured was not found to be not genuine, the insurer’s repudiation could not be sustained.

  1. Jacob Punnen and Ors. v. United India Insurance Co. Ltd. I (2022) CPJ87(SC)

Policy type- Medical Insurance Policy

The Supreme Court rejected the insurer’s argument that the consumer was under an obligation to inquire about the terms of the policy, and any changes that might have been introduced, in the standard terms. The state of the law as observed was that an insurer was under a duty to disclose any alteration in the terms of the contract of insurance, at the formation stage or as in this case, at the stage of renewal. The insurer cannot be heard to say that the insured was under an obligation to satisfy itself, if a new term had been introduced. In the facts of the case, the Court observed that medical or health insurance cover becomes crucial with advancing age; the policy holder is more likely to need cover; therefore, if there are freshly introduced limitations of liability, the insured may, if advised properly, and in a position to afford it, seek greater coverage, or seek a different kind of policy. Further, most policies – health and medical insurance policies being no exception, are in standard form. One who seeks coverage of a life policy/a personal risk, such as accident or health policy has little choice but to accept the offer of certain standard term contracts. Therefore, relying on the IRDA (Health Insurance) Regulations, 2016, the Court observed that it is the insurer’s obligation to inform every policy holder, about any important changes that would affect her or his choice of product.

3.Khatema Fibers Ltd. v. New India Assurance Company Ltd. and Ors. IV (2021) CPJ1(SC)

Policy type- Standard Fire and Special Perils

In the instant case, the Supreme Court observed that in cases where the insurance company admitted the insured’s claim, to the extent of the loss as assessed by the surveyor, the jurisdiction of the special forum constituted under the Consumer Protection Act, 1986 is limited. To establish deficiency, the insured should be able to establish, that the surveyor did not comply with the code of conduct in respect of his duties, responsibilities and other professional requirements as specified by the Regulations made under the Insurance Act, 1938. The Court finally held that a Consumer Forum which is primarily concerned with an allegation of deficiency in service cannot subject the surveyor’s report to forensic examination of its anatomy. Once it is found that there was no inadequacy in the quality, nature and manner of performance of the duties and responsibilities of the surveyor, in a manner prescribed by the Regulations as to their code of conduct and once it is found that the report is not based on ad hocism or vitiated by arbitrariness, then the jurisdiction of the Consumer Forum to go further would stop.

4.Reliance Life Insurance v. Rekhaben Nareshbhai Rathod – Supreme Court litigation.

This case was about a basic principle of insurance law: if the insured does not reveal important information when signing an insurance contract, the insurer can reject policy claims.

CONCLUSION

In the complex landscape of insurance, disputes are an unfortunate but inevitable reality. These disagreements can arise from various sources, including coverage denials, claim delays, disputes over policy interpretation, and disagreements regarding the extent of damages. When these conflicts emerge, policyholders often find themselves in a vulnerable position, grappling with financial strain, emotional stress, and uncertainty about their rights and recourse. Fortunately, the legal system provides avenues for resolution in the event of insurance disputes, offering a range of remedies designed to protect policyholders and ensure fair treatment. These remedies serve as crucial safeguards, balancing the interests of insurers and insured parties while upholding the principles of justice and accountability. One of the primary legal remedies available to policyholders facing insurance disputes is litigation. Through civil lawsuits, aggrieved parties can seek judicial intervention to enforce the terms of their insurance policies, challenge wrongful denials or delays, and pursue compensation for damages incurred. Litigation offers a formalized process for presenting evidence, arguing legal interpretations, and obtaining a binding resolution from a court of law. While litigation can be time-consuming, costly, and emotionally draining, it remains a potent tool for holding insurers accountable and securing just outcomes. Alternative dispute resolution mechanisms also play a Crucial role in resolving insurance disputes outside of traditional courtroom proceedings. Mediation, arbitration, and negotiation offer policyholders and insurers the opportunity to engage in constructive dialogue, facilitated by neutral third parties, with the goal of reaching mutually acceptable settlements. These approaches can offer advantages such as faster resolution times, reduced expenses, and greater flexibility in crafting creative solutions tailored to the specific circumstances of each case. The legal landscape offers a diverse array of remedies for policyholders grappling with insurance disputes. From litigation and alternative dispute resolution to regulatory oversight and contractual mechanisms, these remedies serve as essential safeguards, ensuring that insured parties have access to fair treatment, timely resolution, and meaningful recourse when conflicts arise. By understanding their rights and options under the law, policyholders can navigate insurance disputes with confidence, secure in the knowledge that the legal system stands ready to uphold their interests and enforce accountability within the insurance industry.

Written By: Hari Raghava JP

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Mere newspaper cuttings does not amount to proof of sharing commercial expertise: Bombay HC upholds Tribunal’s decision.

 

CASE TITLE – Hindustan Export & Import Corporation Private Limited v. The Deputy Commissioner of Income Tax

CASE NUMBER – Income Tax Appeal No. 225 of 2002

DATED ON – 07.05.2024

QUORUM – Justice K.R. Shriram and Justice Dr. Neela Gokhale

FACTS OF THE CASE

The Appellant is a private limited company. An agreement was executed on 2nd February, 1987 by and between Appellant and M/s. Arianespace France (“Arianespace”), the shareholders of which, it is stated, are all Government-controlled companies belonging to European Space Agencies and unconnected with Appellant. The main business of Arianespace was to launch satellites and place them in orbit above the Earth. Arianespace was desirous of reducing its costs by placing bulk orders on its subcontractors based on information about launch business worldwide, collected from its international network of consultants. It is Appellant’s case that it was one such consultant of Arianespace appointed under the said agreement. The agreement was revised and extended on 10th December, 1987, 20th February, 1990 and 12th March, 1993. As per the latest agreement, the Appellant was obliged to provide information to Arianespace regarding current regulations and market conditions in India. A lumpsum consideration was agreed upon and was revised upwards from time to time. The duration of the last agreement was up to 31st December 1996. Appellant received a sum of Rs.75,11,850/- from Arianespace during the relevant year being AY 1995- 96. After deducting 20% towards the expenditure, Appellant claimed a deduction of Rs.30,40,740/- under Section 80-0 of the Act in its return of income filed for AY 1995-96. The Assessing Officer (“AO”) in his assessment order dated 25th March, 1998 refused the deduction on various grounds including a) the information provided by the Appellant under the said agreement comprised only of newspaper cuttings freely available and hence, cannot be treated as ‘information concerning commercial knowledge and experience’; b) there were no written reports of any analysis; c) Appellant had no experience in Satellite business; and d) there was nothing to indicate that the information was utilized outside India. The appellant challenged the assessment order before the Commissioner of Income Tax (Appeals) which appeal was dismissed by an order dated 18th March, 1999. The aggrieved Appellant preferred an appeal to the Income Tax Appellate Tribunal (‘ITAT’), which also confirmed the non-allowance of deduction under Section 80-0 of the Act by its order dated 8th November, 2001.

ISSUE

Whether on the facts and in the circumstances of the case and in law the Tribunal ought to have allowed the deduction under Section 80-0 of the Income Tax Act, 1961?

LEGAL PROVISIONS

Section 80-0 of the Income Tax Act of 1961, which prescribes the conditions to be fulfilled for an Indian person or Enterprise to claim deductions in respect of royalties, etc from foreign enterprises.

CONTENTIONS BY THE APPELLANT

It was Appellant’s case that the information required to be sent in terms of the agreement was sent to Arianespace regularly by post and assessments and analyses were discussed orally at personal meetings with representatives of both sides to maintain confidentiality of information.  The Senior Counsel appearing for the Appellant stated that the rejection of the Appellant’s claim under Section 80-0 of the Act is perverse and completely contrary to the facts of the case. According to him, the Appellant had received fees in consideration for furnishing information concerning commercial knowledge and for rendering technical services and the Tribunal ought to have appreciated the absence of written reports on account of confidentiality of information. Relying on the provision of Section 80- 0 of the Act existing at the relevant time, he also submitted that the Section only required approval of the Chief Commissioner of Income Tax (‘CCIT’) to the agreement executed. The approval of the CCIT was granted after referring to the agreements furnished to him and was for ‘Assessment Years 1991-92 onwards till income under the agreement accrues fully subject to a disallowance of 20% of the payment as attributable to services rendered in India.’ The appellant pointed out that firstly, an agreement existed, secondly, fees have been paid to it by Arianespace for valuable commercial information which the company used outside India, thirdly, the fees received by Appellant were in convertible foreign exchange, which were all requirements of the provision. Once, there exists approval by the CCIT for all subsequent years the AO is bereft of his powers to re-examine and reconsider the approval while passing the assessment order.

CONTENTIONS BY THE RESPONDENT

The Respondent contests the Appeal on the ground that the mere sharing of newspaper cuttings does not amount to information concerning industrial, commercial, or scientific knowledge, experience or skill which is a pre-condition to seek deduction under Section 80-0 of the Act. Appellant has been unable to provide any analysis, report or assessments purportedly furnished to Arianespace and hence, Appellant is not eligible for deduction under Section 80-0 of the Act. The crux or the basis of the income allowed as a deduction under Section 80-0 must be necessarily determined by the Assessment Officer on the facts of each case. The lead counsel for the Respondent submits that the approval of the CCIT is qualified and always subject to any amendment to the provision of the Act and subject to legal conditions.

COURT ANALYSIS AND JUDGEMENT

From the contents of the communications of Appellant with the CCIT, two things stood clear, firstly, the information sought by Arianespace was to be collected from a vast number of user departments and secondly that analysis and interpretation of the information was done at quarterly meetings between the parties. It was based on these two pivotal clarification statements that the CCIT approved the agreement. Admittedly, the agreements were extended from time to time, albeit with a revised scope of work, however, the Appellant insisted that the approval once accorded operated for all subsequent AY’s from 1991-1992 till the existence and continuity of the agreement. During the assessment proceedings of AY 1995- 1996, the Appellant in its response dated 12th March, 1988 to a query posed by the AO stated that while newspaper articles are regularly sent, the evaluation and assessment projects are orally discussed over the phone and when they meet officials of Arianespace in India or France. It informed the AO that no reports were prepared by it and neither Appellant nor Arianespace maintained any record of any telephonic conversations nor any meetings convened as per its claim. It was in these circumstances that Appellant’s claim of deductions under Section 80-O was rejected by the AO. The Court was unable to accept the contention of the Appellant. Approval was accorded by the CCIT on the basis of specific statements made by the Appellant that information to be shared pursuant to the agreement was collected and collated from User Departments and analysis and assessments were to be done during quarterly meetings. They Court further mentioned that Newspaper cuttings are not precluded from being shared as information but by themselves they do not constitute any commercial expertise. And also were of the view that the AO is well within his rights to request Appellant to furnish proof of sharing the information with Arianespace for which approval was granted by the CCIT and from the replies of Appellant to the AO, it was quite clear that Appellant had not provided material to Arianespace as represented by it before the CCIT while seeking approval as newspaper cuttings are not information collected or collated from User Departments. And thus, they had no hesitation in accepting the decision of the AO in rejecting this claim of the Appellant. The Court iterated that according to the letter dated 27th March, 1992, by which the CCIT granted approval for the deduction, it was mentioned in paragraph 4 that the grant of deduction and the amount eligible will be assessed by the AO at the time of assessment and the approval granted is also subject to any amendments in the said Act from time to time.  The Court held that the Appellant simply failed to act in aid of its intent disclosed in the application form, based on which approval was granted and that the AO cannot be accused of reviewing or revoking approval granted by the CCIT in the present matter. As the AO simply seeks to verify as to whether the Appellant has acted in terms of the approval granted by the CCIT. And the AO is well within his rights so to do and has not overstepped his jurisdiction. The Court also endorsed the decision of the ITAT and held that the appeal cannot be entertained and was accordingly dismissed.

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The High Court upheld the wakf tribunal’s decision to take the respondent’s land off the wakf board.

Case title: Sayyed Moinuddin vs Pratap Singh,

Case no.: Civil Revision Application No.3 Of 2021

Decided on: 14.02.2024

Quorum: Hon’ble Justice S.G Mehare

 

FACTS OF THE CASE:

The current application is based on the order of the Maharashtra State Wakf Tribunal. The respondent had filed a suit before the Maharashtra State Wakf Tribunal in Aurangabad, seeking a declaration that the orders of the Chief Executive Officer of the Maharashtra State Wakf Board, including Survey Gut No.66 in the Book/register of Waqf, maintained by the Board and passed by the C.E.O., pursuant to the so-called entry in the concerned Gazette, are time-barred, hollow, inactive, in-executable, null and void, and not binding on the respondent’s rights. The order, which included the property Gut No. 66 in the Board’s Waqf Book/Register, is quashed and set aside. Furthermore, the declaration has been sought that the Board’s C.E.O.’s order directing the respondents to remove his possession from the suit land is invalid in law. A perpetual injunction prohibiting the applicants from interfering with their ownership and peaceful possession of the Suit land Survey No.66 was also requested.

ISSUE:

Was the Suit not maintainable under Section 54 (4) of the Wakf Act 1995?

LEGAL PROVISIONS:

Section 54 of the Wakf Act 1995 addresses the removal of encroachment on waqf property. Section 54(4) of the Act 1995, prior to its amendment, has been discussed. It allows the person who is dissatisfied with the C.E.O.’s orders to file a lawsuit. Its proviso clause prohibits the person in possession from filing a suit under the said section if the Mutalwali allowed him to possess the land as a lessee, licensee, or through a mortgage.

APPLICANTS CONTENTION:

They claimed that the order under Section 54 was issued following the 2013 amendment. As a result, the suit was not maintainable. The suit against such orders should have been filed within 60 days. As a result, the suit was time-barred. The issue of the plaintiff’s locus to file suit was not framed, despite being specifically requested in an application. While deciding on the application, it was discovered that the applicants could effectively argue their point. That was the subject of cross-examination for the witness. However, the learned Tribunal did not address that important issue. It is a good reason to refer the case back to the learned Tribunal. The respondents have admitted the Muntakhab. But it was a composite Muntakhab. If the Muntakhab is composite, the law presumes that the lands included in it are service Inam lands. The Suit land was a service Inam property. The learned Tribunal made no mention of any of the case law on which they relied.

RESPONDENTS CONTENTION:

The respondents emphasised that the suit land was the Inam land. His forefathers were tenants since 1925. They’ve been protected tenants since 1979, and he was granted occupancy certificates. Before publishing the Government Gazette, the Survey Commissioner did not give notice, did not go through the revenue record, and automatically included the Suit land in the Gazette as a Wakf property. The registration was approved on the basis of Muntakhab. Nobody was looking after or maintaining the Suit land. The order abolishing Inam and the tenancy rights was never challenged. As a result, the Tribunal has correctly decided not to consider or disturb it.

COURT ANALYSIS AND JUDGEMENT:

The court ruled that the Tribunal’s orders holding the respondent tenant in the suit land were never challenged. The Board’s jurisdiction under Section 54 of the 1995 Act prevented it from interfering with the respondebt’s rights under the aforementioned orders. It stated that the learned Tribunal had framed the issues based on controversial facts and addressed each and every point raised for consideration. It appears that the learned Tribunal has considered each party’s submissions, discussed the evidence, and recorded the correct findings. The challenged orders are free of illegality and infirmity. As a result, there is no reason to interfere. Applications have been dismissed.

 

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The tribunal did not direct the use of a waitlist to fill vacancies in Permanent commission: Delhi High Court.

Case title: Maj Vishal Vs Union Of India And Ors.

Case no.: W.P.(C) 15908/2023

Decided on: 08.02.2024

Quorum: Hon’ble Justice V. Kameswar Rao, Hon’ble Justice Saurabh Banerjee

 

FACTS OF THE CASE:

The current writ is based on an order of the Armed Forces Tribunal. The petitioner is a Short Service Commissioned Medical Officer who has joined the Army Medical Corps. It was the petitioner’s case that, in recent years, a number of vacancies have been created for the grant of Permanent Commission to SSC Officers, and according to a letter from the Ministry of Defence dated September 3, 1998, 115 vacancies in the category of PC were to be filled by SSC Officers in the Armed Force Medical Corps. The petitioner was eligible for the PC, so he participated in the selection process, and his case was heard at the DPC in June 2012. The results were released in November of 2012. The petitioner was ranked 53rd on the merit list, but only 15 candidates were appointed as PCOs following the DPC in June 2012. In March 2014, similarly placed SSC Officers, who were also dissatisfied with the respondents’ action of filling only 15 vacancies instead of 50, approached the Tribunal, citing Major Mallikarjun’s case. It is sufficient to state that the Tribunal decided the OA on October 15, 2015, holding that the reduction of vacancies from 50 to 15 is illegal and that the 50 vacancies must be filled. The respondents were asked to fill 50 vacancies, but only 33 were filled, leaving 17 vacant. The petitioner filed a petition in tribunal, which was dismissed.

PETITIONERS CONTENTION:

The petitioner’s counsel contends that the Tribunal’s order is erroneous because the respondents have no right to refuse the grant of PC to a candidate who is on the panel or on the waitlist if vacancies exist. If a vacancy is not filled due to reasons such as unwillingness, invalidation, death, or resignation, candidates on the waiting list will be considered for the position. The respondents had a responsibility to operate a waiting list because 17 vacancies remained unfilled. They argued that it is a travesty of justice to overlook qualified candidates for PC and let them go to waste.

RESPONDENTS CONTENTION:

They contended that the Tribunal granted relief in the case of Major Mallikarjun solely on the basis of “legitimate expectations” of the top 50 candidates whose selection had already been approved by the previous DGAFMS, because the applicants were ranked among the top 50. They He also stated that the judgement was for the applicants and not an order in rem. It was extended to the top 50 candidates based on the Tribunal’s observations. In contrast, the petitioner was not on the Merit List’s top 50 and chose not to pursue the matter until 2017.

COURT ANALYSIS AND JUDGMENT:

The court held that, in light of the Tribunal’s decision in Major Mallikarjun S Biradar, the Tribunal correctly rejected the petitioner’s OA. Furthermore, this Court believes that because the upper age limit for PC is 30 years and the petitioner has used up his last chance in December 2012, no PC direction can be issued. Furthermore, the maximum service period for granting PC to an SSC Officer should be 9 years and 6 months, while the petitioner already served for more than 13 years.

The petitioner approached the Tribunal to state that the waitlist needs to be operated because the vacancies resulting from the Tribunal’s directions in Major Mallikarjun S. Biradar have not been provided. The court held that the petitioner could not have filed the OA on the basis of the direction provided by the Tribunal in Major Mallikarjun S. Biradar because no such direction had been given by the Tribunal.

The court stated that the issue of operating a waitlist is not relevant in light of the Tribunal’s decision in Major Mallikarjun S Biradar, which has reached finality and is no longer res interga. Furthermore, the petitioner’s claim is based on the Tribunal’s decision in Major Mallikarjun S Biradar, which makes no mention of the need to operate a list larger than 50. As a result, the applicants received relief because they were among the 50 candidates found to be qualified for permanent commission on merit. Therefore, the petition is dismissed.

 

 

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