Director not liable if company check dishonored: Top court

Director not liable if company check dishonored: Top court 

21.12.2024

New Delhi : Supreme Court on Friday ruled that if a person repays a personal loan through a check signed by him as a director of a company, then he would not be liable to be prosecuted under Section 138 of the Negotiable Instruments Act if the check bounced. A man took a personal loan of ₹7 lakh and returned the amount through a check drawn on an account of Shilabati Hospital, Kolkata, of which he was a director. The check bounced and the creditor had initiated proceedings under Section 138 of the Act. HC quashed the proceedings and the creditor appealed in SC. A bench of Justices JB Pardiwala and R Mahadevan said Section 138, being a penal provision, has to be strictly construed and a man could face prosecution only if the cheque, issued by him from an account maintained by him, gets dishonored. It said since the check was drawn from the hospital's account, the man as director cannot be prosecuted under the NI Act. There are as many as 36 lakh check bouncing cases pending in various courts as of 2023. Writing a detailed judgment analyzing the provision threadbare, Justice Pardiwala said, “Section 138 of the NI Act clearly postulates that the check returned for insufficiency of funds should have been drawn by a person on an account maintained by him.” "It will amount to doing violence to the language of the statute if Section 138 of the Act is interpreted to mean that even if a person draws a check on an account not maintained by him, he shall be liable if the check is returned for insufficiency of funds. Such an interpretation will lead to absurd and wholly unintended results,” he said.

Madhya Pradesh HC Orders Removal Of Registrar, Chairman Of Nursing Registration Council Due To Alleged Illegality In Recognizing Colleges

Madhya Pradesh HC Orders Removal Of Registrar, Chairman Of Nursing Registration Council Due To Alleged Illegality In Recognizing Colleges

Anukriti Mishra

16 Dec 2024 7:17 PM

LIVE LAW 

While hearing a plea on alleged irregularities and illegalities in the process of granting recognition to nursing colleges in the state, the Jabalpur bench of the Madhya Pradesh High Court directed the state government to "forthwith" remove the Registrar and Chairman of Madhya Pradesh Nursing Registration Council (MNRPC).

In doing so, the court said that there was "every likelihood" of the officers trying to tamper with the material if allowed to continue on the said posts. It also said that responsible officers having unblemished service career should be appointed instead in their place.

The division bench of Justice Sanjay Dwivedi and Justice Achal Kumar Paliwal observed, “on the face of delicacy of the issue and noticing various irregularities committed earlier in granting recognition to the Nursing Colleges, we cannot allow such officers who were involved in the earlier process of granting recognition to hold such important posts inasmuch as there is every likelihood that such officers would, not only try to save their skin but also of other functionaries, try to tamper with the material. We despise such effort and find that it is nothing but an attempt to foil the endeavours made by the court for obviating the irregularities and illegalities in the process of granting recognition.”

The court was hearing the applications filed by the counsel for petitioner seeking removal of the Registrar and the Chairman of the MPNRC.

In the first application, the counsel for petitioner claimed that Anita Chand, the current Registrar of MNRPC used to be a member of inspection committee which had submitted a false report on March 4, 2022 and on the basis of that false report, a nursing college in Bhopal was granted recognition which was later-on cancelled. On the basis of the inspection report for session 2021-22, the Court had placed the Registrar, MPNRC under suspension as the said report was found incorrect. The counsel for the petitioner has filed the inspection report to point out that against some of the Inspectors, who were part of the inspection team, departmental enquiry has been initiated and submitted that it is therefore, not proper to posit Chand to hold such an important post of Registrar, MPNRC since she might tamper the material evidence which can be used against the erring officers, who had committed illegality.

Further, in the other application, the counsel for the petitioners sought the removal of Dr. Jiten Chandra Shukla from the post of Chairman of MPNRC. It was alleged that Shukla was holding the post of Director, MPNRC at the relevant point of time when several irregularities were committed by the council in granting recognition to the Nursing Colleges. While hearing the PIL, the court had earlier directed the CBI to conduct inspection of the nursing colleges to which recognition had been granted. Thereafter, in the report of CBI it was found that there were number of colleges which were not suitable because of non-fulfilling the requisite criterion yet the recognition had been granted. The report was submitted by the CBI and the court has been monitoring the cases and enquiry is still continued incessantly.

On December 5, the Court had directed the respondents to submit their reply to these applications explaining as to why such persons have been placed on important posts of Registrar and Chairman, MPNRC and had also orally instructed for their removal. However, instead of doing so, the respondents presented a copy of order issued by the Directorate Medical Education, wherein, a committee consisting of three members had been constituted to inspect and submit a report after analysing the complaints made against Anita Chand and after inspecting the Nursing Colleges.

The court however said, “We are not satisfied with the constitution of committee by the Director with the approval of Commissioner, Public Health & Medical Education.”

Thus, the court directed the Principal Secretary of the Public Health and Medical Education to forthwith remove Anita Chand from the post of Registrar and Dr. Jiten Chandra Shukla from the post of Chairman of MPNRC and "instead appoint some responsible officers, having unblemished service career, in their place". The court also directed the Chief Secretary to take cognizance in the matter and ensure compliance of the High Court's order.

The matter has been listed for further hearing on December 19.

Case Title: Law Students Association Vs The State Of Madhya Pradesh And Others, WP No. 1080 of 2022

Counsel for Petitioners: Adv. Alok Vagrecha and Adv. Vishal Baghel

Counsel for Respondents/State/MPNRC: Shri Prashant Singh, Advocate General, Shri Bharat Singh, Additional Advocate General and Shri Abhijeet Awasthi, Deputy Advocate General

Is coconut oil hair oil or edible oil? SC solves old puzzle

Is coconut oil hair oil or edible oil? SC solves old puzzle 

‘Specification And Packaging Hold Key To Categorisation’

Dhananjay.Mahapatra@timesofindia.com 19.12.2024

New Delhi : A three-judge bench of Supreme Court on Wednesday solved a 20-year old riddle that plagued levying of excise duty — whether pure coconut oil is to be classified as an edible oil or under cosmetics as hair oil? This question had got a split verdict from the bench of the then CJI and Justice R Banumathi. While Justice Gogoi, who retired as CJI in Nov 2019, was of the view coconut oil in small packaging was appropriately classified as edible oil, Justice Banumathi opined that coconut oil packed in small containers are to be classified as hair oil. 

A bench of CJI Sanjiv Khanna, and Justices Sanjay Kumar and R Mahadevan, aware of the dual use of coconut oil in different parts of the country, said the classification would depend on the branding of the oil as edible to meet the criteria under food safety regulations, and conform to a different criterion under Drugs and Cosmetics Act to be classified as hair oil. Writing the judgment, Justice Kumar rejected argument of revenue dept that pure coconut oil should invariably be classified as hair oil and said, “We are of the opinion that pure coconut oil sold in small quantities as ‘edible oil’ would be classifiable as edible oil”. 

Revenue dept had said the bunch of appeals involved Rs 160 crore in terms of excise duty, penalties, redemption fine and interest. SC said, “The fact that such edible coconut oil was sold in smaller containers would not, by itself, be indicative of it being packaging of a kind fit for use as ‘hair oil’.” “One may choose to buy one’s cooking oil in small quantities, be it for economic or for health reasons or due to inclination to use fresh oil in food preparation, and the smaller size of the packaging of such oil cannot be taken to mean that it is to be used as ‘hair oil’ without any pointer to that effect, be it by way of a label or literature or by any other indication that it is to be used as ‘hair oil’,” it said. 

“Small-sized containers are common to both ‘edible oils’ and ‘hair oils’. Therefore, there must be something more to distinguish between them for classification of such oil, other than size of the packaging,” the bench said.

He fights the small battles on principle

He fights the small battles on principle 

Sachin.Sharma@timesofindia.com 19.12.2024

Vadodara : The Rs 1,500 case! His case earned this title, but it didn’t deter or frustrate  him until he won it. It was not the first time this man has won such a case. He earlier won a case over the poor quality of a Rs 950 raincoat and approached the forum for a warrant when he was not compensated. Janmejay Moghe, an insurance advisor from Vadodara, first approached the consumer forum in 2019, when he bought a raincoat for Rs 950 after downpours caused floods in the city. The raincoat had holes and was faded. Moghe returned to the shop the next day for a replacement, but the shopkeeper showed him a placard declaring: “Goods once sold will not be replaced or returned”. The shop agreed to change the raincoat only after Moghe showed them the bill that said goods could be replaced within three days. But all the raincoats in the shop were of poor quality and he asked for a refund. When the shop did not give him one, Moghe approached the consumer forum in 2019, which decided the case in his favour in July 2021, ordering a refund with interest and Rs 500 towards his expenses and an equal amount as compensation for the mental agony caused. 

Moghe returned to the court for the same matter in 2022 after he did not receive the money. When the shop did not comply with the order, a warrant was issued. The shopkeeper coughed up Rs 2,290 and the case was closed. While Moghe was fighting it out over the Rs 950 raincoat, his car met with an accident on Dec 18, 2020. He got it towed to the workshop and repaired. While the insurance company paid the repair charges, it did not recompense Rs 1,500 for the towing. Moghe was surprised, as he knew the minutiae of claims, being an insurance agent himself. “I have never seen this charge being denied,” he said. It was time for the insurance agent to move the consumer forum for his own claim. “The insurer did not turn up or even furnish a reply,” he said. The forum eventually passed an order in Moghe’s favour recently, granting him Rs 1,500 for the towing charges, Rs 500 for as compensation for the harassment caused and Rs 1,000 for legal expenses.

 “It is not a question of small amounts, but that of merchants or companies taking us for granted. Despite patient representations and asking for only what is due, they seem to ignore us,’’ he said

Tenant cannot dictate how best a landlord can use a property, says HC

Tenant cannot dictate how best a landlord can use a property, says HC

Abhinav.Garg@timesofindia.com 18.12.2024

New Delhi : A tenant cannot dictate how best a landlord can use his property, the Delhi High Court has said, coming to the rescue of a senior citizen couple seeking eviction of their tenant. Allowing the plea of ​​the landlord, who is mostly bedridden, the court in a recent order, cited Supreme Court rulings to point out that a "tenant cannot dictate the terms of use of a property to a landlord," adding that the " landlord is the best judge of his requirements. It is not for the courts to dictate in what manner and how a landlord should live.” 

It was dealing with a plea filed by a distraught couple seeking eviction of a tenant living in a portion of the premises. The tenancy started in 1989 and continued until 2003, but the tenant continued to stay, arguing that there is enough space in the house for the landlord to accommodate his divorced daughter or his staff. The landlord challenged a rent controller court's decision to decline relief on the ground that enough proof about their medical condition was not provided. Justice Tara Vitasta Ganju disagreed with the decision of the trial court and noted that the "records available also show that the petitioner filed substantial documents in support of its contentions, which included medical documents along with photographs of the condition of the petitioner and his wife, the divorce decree of the daughter of the petitioner as well as her provisional employment certificate."

Appearing for the landlord, advocates Sanjay Katyal and Devika Mohan submitted that the petitioner is 80 years old. and served in the Indian Army from 1966 to 1972 and is a 1971 war veteran. They informed the court that he suffers from various ailments such as Parkinson's, pulmonary fibrosis, among others, which has left him bedridden and dependent on others for his day-to-day. -day activities. They submitted that the wife too is 76 years old and suffering from critical ailments. "This court has also reviewed the photographs which are available on the record, reflecting the condition of the petitioner and his wife, which is pitiful. The photographs also reflect the fact that the senior citizens require round-the-clock care. Clearly, in such a situation, the attendants and medical staff would require to stay within the premises, and thus, this court finds no reason to question the bona fides of the petitioner," the HC observed, giving six months' time to the tenant. to vacate the premises and hand over peaceful possession

HC orders removal of MP Nursing Registration Council chief & secy over college affiliations

HC orders removal of MP Nursing Registration Council chief & secy over college affiliations 

TIMES NEWS NETWORK  14.12.2024  BHOPAL

Bhopal : A division bench of MP high court on Friday ordered the removal of chairman of MP Nursing Registration Council (MPNRC), Jiten Chandra Shukla and secretary, Anita Chand stating that they were themselves involved in the nursing college affiliations in one way or the other and their appointment on the key positions in MPNRC was unacceptable. 

Taking exception to the reply of the state govt that director, medical education has constituted a three-member committee to examine the complaints against Chand despite the court's oral order to remove her and Shukla from the post, the bench of Justice Sanjay Dwivedi and Justice A K Paliwal, seized of a petition over a large number of fake nursing colleges operating in MP, asked the principal secretary, medical education, to remove the two officials in question forthwith and also directed the office of advocate general to forward a copy of the order to the chief secretary for compliance. 

Petitioner in the case, president of Law Students' Association, Vishal Baghel, has moved two applications seeking removal of Chand and Shukla levelling specific charges against them about their involvement in the scam relating to recognition to fake nursing colleges in the state in large numbers and prayed the court to order their removal from the key positions in MPNRC as they can influence the evidence regarding the scam. Anita Chand was a member of the inspection committee which had submitted a false report on March 4, 2022 on the basis of which RKS Nursing college in Bhopal was given recognition though it was later cancelled, he said. Similarly, the application for removal of Jiten Chandra Shukla said that he was the director of MPNRC when several irregularities were committed in granting recognition to the nursing colleges. 

After hearing these applications, the court directed the respondents to submit their reply  explaining as to why such persons have been placed on important posts of registrar and chairman, MPNRC and orally instructed for their removal. The court, however, noted that instead of doing so, the respondents showed a copy of order dated Dec 2, 2024 issued by the directorate medical education, wherein, a committee consisting of three members had been constituted to inspect and submit a report after analysing the complaints made against Anita Chand and inspecting the nursing colleges. The judges while stating that they were not satisfied with the constitution of the committee by the director with the approval of commissioner, public health & medical education and said, "We cannot allow such officers who were involved in the earlier process of granting recognition to hold such important posts in as much as there is every likelihood that such officers would, not only try to save their skin but also of other functionaries, try to tamper with the material. “We despise such effort and find that it is nothing but an attempt to foil the endeavours made by the court for obviating the irregularities and illegalities in the process of granting recognition.

In view of the above, we direct the principal secretary of the public health and medical education to forthwith remove Anita Chand from the post of registrar and Dr Jiten Chandra Shukla from the post of chairman of MPNRC and instead appoint some responsible officers, having unblemished service career, in their place," said the order.

Pension Rules Prevailing When Voluntary Retirement Is Sought Apply To Govt Officer, Not Rules As On Expiry Of Notice Period: MP High Court

Pension Rules Prevailing When Voluntary Retirement Is Sought Apply To Govt Officer, Not Rules As On Expiry Of Notice Period: MP High Court

Anukriti Mishra

10 Dec 2024 3:32 PM

The Indore bench of the Madhya Pradesh High Court recently held that in cases of voluntary retirement, the Pension Rules as on the date of application of voluntary retirement shall be applicable and not the Rules prevailing on the date of expiration of the notice period of the government servant.

A single judge bench of Justice Vijay Kumar Shukla observed, “In case of voluntary retirement of an employee, the Rules prevailing on the date of application/notice under Rule 42(1)(a) will be applicable and not the Rules prevailing on the date of expiration of notice period.”

The court said, “The amendment in Rule 42 & 42-A of Pension Rules shall operate prospectively and not retrospectively.”

The issue raised before the court was “Whether in the case of voluntary retirement of an employee, the Rules on the date of application/notice under Rule 42(1)(a) of Pension Rules or the Rules prevailing on the date when one-month notice period expires would be applicable?”.

The court thus, referred to the provisions of Rule 42 of M.P. Pension Rules 1976. It inferred that the entire scheme of Rule 42 provides that once a notice in prescribed proforma is given, there is a specific bar of sub-rule (2) of Rule 42(1)(a) and the same cannot be withdrawn by the government servant without the approval of the competent authority.

The court said, “If the notice of voluntary retirement is not withdrawn before the date indicated in the said notice of voluntary retirement, it will automatically become operative from the date indicated in the notice of voluntary retirement and the Government Servant would be retired voluntarily from the date of his choice indicated in the said notice.”

The court further observed, “The intention of the Rule making authority is to confer an absolute and indefeasible right to the government servant to get voluntarily retire after completing qualifying services from the date on his choice indicated in the aforesaid notice.”

The present petition was filed seeking quashing of orders by which the application of the petitioner for voluntary retirement as per the unamended Rule of 42-A of M.P. Civil Services Pension Rules, 1976 prevailing at the time of the submission of the application was rejected.

The petitioner was appointed to the post of Assistant Surgeon/Insurance Health Officer in Directorate Employee State Insurance Services on an ad-hoc basis in 1985. The services of the petitioner were regularised in 1987. The petitioner submitted an application for voluntary retirement and served a notice on March 21, 2006.

On April 7, 2006 Rule 42 and 42-A of the Pension Rules were amended and as per Rule 42(1)(a) the minimum qualifying service for seeking voluntary retirement was raised from 15 years to 20 years. Further Rule 42-A was amended and earlier the qualifying service was increased with such period that would take an employee to the date of superannuation subject to a capping that the total service does not exceed 33 years.

However, after the amendment, as per Rule 42-A, a period of up to 5 years could only be added in the qualifying service, with a capping that the total service does not exceed 33 years. A formal order was issued accepting the application for voluntary retirement of the petitioner though no such formal order of acceptance was required to be passed under Rule 42 of Pension Rules. The Pension Payment Order (PPO) of the petitioner was prepared in 2009 where the total qualifying service of the petitioner was taken as 20 years 4 months and 5 days in contravention of Rule 42-A of the Pension Rules existing at the time of submission of application for voluntary retirement and issuance of notice Form 28.

The counsel for the petitioner submitted that the application of the petitioner for voluntary retirement/Notice form 28 shall be governed by the unamended provisions of Rule 42 and 42-A of Pension Rules as the amendment came into force on 07.04.2006. The said amendment would not be applicable retrospectively as an indefeasible right for seeking voluntary retirement under Rule 42 of Pension Rules has already vested on the date of filing of application itself.

The counsel for the respondents argued that in the application for voluntary retirement, the petitioner had intended the date of voluntary retirement w.e.f. 20.04.2006 and prior to the expiration of the notice period, the amendment had come into effect, therefore, the amended rules shall govern the application for voluntary retirement. It was further argued that the judgments relied upon by the petitioner were not applicable to the facts of the present case as in the present case, the amendment in the Rules had come into effect prior to expiration of notice period.

The court referred to a coordinate bench's decision in Dr. Umesh Chandra vs. State of M.P. & Ors. wherein it was held that the amended Rules cannot be made applicable with retrospective effect by which the period of service for voluntary retirement was enhanced to 25 years in place of 20 years.

The court held that the amendment in Rule 42 & 42-A of Pension Rules shall operate prospectively and not retrospectively.

The petition was thus, allowed and the orders were quashed.

“The respondents are directed to re-determine and add period of 10 years 2 months and 10 days w.e.f. 21.03.2006 to 31.05.2016 in the qualifying service of the petitioner and as a consequence to revise the pension, gratuity and other retiral benefits.”, the Court said.

Case Title: Dr. Yogesh Shah Versus Principal Secretary State Of M.P. And 4 Ors. And Others,

WRIT PETITION No. 5019 of 2012

Unauthorized Absence From Service, Sufficient Ground For Dismissal, Tripura High Court Upheld Employee's Termination

Unauthorized Absence From Service, Sufficient Ground For Dismissal, Tripura High Court Upheld Employee's Termination

Namdev Singh

10 Dec 2024 3:36 PM

A single judge bench in the High Court of Tripura, composed of Justice T Amarnath Goud ruled that the petitioner's unauthorized absence was a sufficient ground for his termination from the service as he was given sufficient opportunities to respond.

Background facts of the case

The petitioner (Employee) was appointed as a deputy secretary in the Tripura board of secondary education. He filed a writ petition under article 226 of the constitution of India, requesting for arrear pay and current salary along with the interest starting from the date of 13 July 2021. The employee claimed that he was rightfully present from 13.07.2021 to 31.07.2021, 16.12.2021 to 25.04.2023 and from 28.04.2023, asserting that he was reportedly marked absent despite attentively working on these days. Subsequently he issued a memorandum explaining his position to the authorities. In spite of this a disciplinary committee was set up , finding him guilty of grave irregularities and further recommended for his removal leading to his termination. The employee challenged the termination order on the grounds of Article 14 and violation of natural justice.

It was contended by the employee that the termination order which was passed was conflicting with the principles of natural justice. He argued that despite the submission of his explanation in the form of memorandum, the same was disregarded by the respondent- authorities. Also he claimed that no necessary opportunity was given to him for proper explanation and the issuance of show cause notice by the respondent was given without conducting a proper enquiry and was further violative of Rule-10 of Tripura Board of Secondary Education, 1982 (TBSE) Rule.

On the other hand, it was contended by the respondent firstly, that the employee was without authorization, absent from the dates presented above. Secondly, the respondent argued that proper opportunity was given to the employee before the issuance of notice. Also that fair chance of hearing was again given before the committee, and the rules and regulation of TBSE was followed on the date of passing. Thirdly, the opportunity to personally appear was also given to the employee, before the termination order.

Findings and observation of the court

It was observed by the court regarding the question of unauthorized absence on 13.07.2021 to 31.07.2021, 16.12.2021 to 25.04.2023 and from 28.04.2023, the employee failed to adequately provide sufficient evidence to determine that he was present during those days, such as affidavits, colleagues or attendance records including that he was present on those days. This lack of evidence led the court to conclude that he was not attending on those days.

The case of Krushnakant B. Parmar v. Union of India and Another (2012) was relied upon by the court wherein the Supreme Court held that absence from duty due to compelling circumstances beyond the employee's control, such as illness or hospitalization, cannot be considered willful. While such absence may amount to unauthorized absence, it does not automatically qualify as misconduct.

The D.K. Yadav v. J.M.A. Industries Ltd. (1993), as well as State of Orissa v. Dr. (Miss) Binapani Dei and Another cases were also relied upon by the court wherein the Supreme Court held that natural justice requires that no adverse action be taken against the affected individual without informing them and providing a fair opportunity to respond. Even administrative orders involving termination of employment, must comply with procedural fairness under Article 14 of the Constitution.

Further the case of Life Insurance Corporation of India v. Om Prakash was relied upon by the court wherein the Supreme Court held that an employee abandoning service without informing the employer and securing alternate employment cannot claim relief for termination based on procedural lapses. The Court emphasized that such conduct disentitles the employee from relief under Article 226 of the Constitution, as procedural deficiencies do not override clear evidence of abandonment and misconduct.

It was found by the court that the employee was given more than two opportunities for his explanation including personal hearing before the final order, leading to court concluding that the Rule 10 of TBSE was followed.

It was held by the court that employee was on unauthorized absence from the service which is a sufficient ground for termination as he was given multiple opportunities to respond. Therefore, the court dismissed the writ petition, upholding the employee's termination.

Case no. : WP(C) No. 797 of 2023

Counsel for the petitioner: P. Roy Barman, Sr. Advocate; S. Bhattacharjee, Advocate; K. Nath, Advocate

Counsel for the respondent: D. Sarma, Addl. G.A. ; Ratan Datta, Advocate

Entire Service Record, Character Rolls & Confidential Reports Of Employee Need To Be Considered Before Passing Order Of Premature Retirement : Chhattisgarh High Court

Entire Service Record, Character Rolls & Confidential Reports Of Employee Need To Be Considered Before Passing Order Of Premature Retirement : Chhattisgarh High Court

Namdev Singh

10 Dec 2024 10:00 PM

A single judge bench of the Chhattisgarh High Court comprising of Justice Rakesh Mohan Pandey, while deciding writ petition held that the Government should form opinion that the government employee needs to be compulsorily retired from service only after considering the entire service record, character rolls & confidential reports.

Background Facts

The petitioner was appointed as a daily-rated employee under the respondent. On 29.01.2005, the employee was appointed on the post of Driver against the sanctioned post. On 11.06.2012, the nomenclature of the post of the employee was changed from Driver to Driver (Heavy Vehicle). Thereafter, the petitioner was extended the benefit of the 5th pay-scale as recommended by the committee.

A criminal case was registered against the employee for the commission of offences punishable u/s 186, 294, 353 and 506 of IPC. Ultimately, it was settled between the parties and an acquittal order dated 11.06.2010 was passed. A departmental inquiry was instituted against the employee in 2009, in which punishment of stoppage of one increment with cumulative effect was inflicted upon him.

The employee obtained ACRs from 01.04.2011 till 31.03.2017. He had not completed seven years of regular service, but was compulsorily retired from service on account of attaining 50 years of age vide order dated 17.11.2017.

Aggrieved by the same, the employee filed the writ petition challenging the order dated 17.11.17. He prayed to direct the respondent to re-instate his service with all consequential benefits under the department.

It was contended by the employee that the respondent authorities failed to assess the ACRs of the entire service while passing the order of compulsory retirement. He further submitted that his conduct remained good during his service career and there were no complaints against him.

It was further contended by the employee that the he was inflicted with punishment of stoppage of one increment with non-cumulative effect and the order is under challenge before the appellate authority. He argued that the order of punishment cannot be made the basis for the punishment of compulsory retirement.

On the other hand, it was contended by the respondent that the employee was compulsorily retired as he attained 50 years of age and his overall ACRs were below average. They also submitted that the overall conduct of the employee was taken into consideration by the reviewing committee while passing the order of compulsory retirement. The respondent also mentioned about the departmental inquiry and the criminal case, which was registered against the employee.

Findings of the Court

It was observed by the court that Fundamental Rule No. 56(2)(a) states that if a government servant has completed 20 years of service or has attained 50 years of age, in that case, the State can take the decision to compulsorily retire such an employee. According to this circular, it would not be necessary to communicate the adverse remarks to such government servant. It was observed by the court that the overall grade of the employee was average or below average.

The case of Baikuntha Nath Das & Anr. Vs. Chief District Medical Officer, Baripada & Ors. (1992) was relied upon by the court, wherein the Supreme Court held that an order of compulsory retirement is not a punishment. The government have to consider the entire record of service before taking a decision in the matter, attaching more importance to record of and performance during the later years. An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration.

The case of State of Gujarat and another Vs. Suryakant Chunilal Shah, (1999) was also relied upon, wherein Court held that mere involvement of the employee in a criminal case would constitute sufficient ground for compulsory retirement.

The case of Nand Kumar Verma Vs. State of Jharkhand & Ors. (2012) was relied upon by court where it was held that the employee cannot be prematurely retired from service by selectively taking into consideration the service record for certain years. Therefore the track record and service record should be taken for complete service period and premature retirement can only be ordered based on the sufficient or relevant material.

Further the case of S. Ramachandra Raju Vs. State of Orissa, (1994) was also relied upon by the court wherein it was held that in case of compulsory retirement, the government employee is entitled to draw all retiral benefits including pension. The Government should form the opinion that the government employee needs to be compulsorily retired from service only after considering the entire service record or character rolls or confidential reports.

It was observed by the court that the un-communicated adverse remarks cannot be made a basis to disturb the finding recorded by the competent authority. Also that an order of compulsory retirement is not a punishment and does not have any stigma attached to it.

It was held by the court that the decision with regard to compulsory retirement was taken by the State authorities in public interest. With the aforesaid observations, the writ petition was dismissed.

Case No. : WPS No. 2547 of 2020

Counsel for the Petitioner : Manoj Kumar Sinha, Advocate

Counsel for the Respondents : Suyash Dhar Badgaiya, Dy.G.A

SC: Maintenance to wife will get priority over claim of creditors

SC: Maintenance to wife will get priority over claim of creditors

Dhananjay.Mahapatra@timesofindia.com 11.12.2024

New Delhi : In a significant decision, Supreme Court on Monday ruled that maintenance payable to the estranged wife and children would get priority over claims of secured, financial and operational creditors over the assets of a husband’s firm facing proceedings under the Insolvency and Bankruptcy Code. A bench of Justices Surya Kant and Ujjal Bhuyan refused to buy the excuse of the husband that he was not earning well to pay the huge arrears of interim maintenance fixed by the SC for his estranged wife and children and that his diamond factory was run ning in loss. 

“We direct that the charge of arrears of maintenance, payable to the respondents, shall have preferential right over the assets of the appellant, over and above the rights of a secured creditor or similar right holders under the insolvency framework,” it said. It ordered, “Wherever such proceedings are pending, that forum is directed to ensure that the arrears of maintenance are released to the respondents forthwith. No objection of any secured creditor, operational creditor or any other claim shall be entertained opposing the entitlement of the respondents for maintenance.” 

The bench justified its order by giving priority to maintenance over claims of creditors by saying, “Right to maintenance is commensurate with the right to sustenance. This right is a subset of the right to dignity and a dignified life, which in turn flows from Article 21 of the Constitution of India. “In a way, the right to maintenance being equivalent to a fundamental right will be superior to and have overriding effect than the statutory rights afforded to financial creditors, secured creditors, operational creditors or any other such claimants encompassed within the waterfall mechanism under the Insolvency and Bankruptcy Code, 2016, or similar such laws.”

The SC said if the husband failed to pay arrears of maintenance to the wife, the family court “shall take coercive action against the husband and, if so required, may auction the immovable assets for the purpose of recovery of arrears of maintenance”

Ayurvedic/AYUSH Doctors Can't Seek Parity With Medical Doctors : Supreme Court Reiterates

Ayurvedic/AYUSH Doctors Can't Seek Parity With Medical Doctors : Supreme Court Reiterates

Debby Jain

10 Dec 2024 12:47 AM

While dismissing a special leave petition, the Supreme Court recently reiterated that Ayurvedic/AYUSH doctors cannot seek parity with medical doctors. The order was passed noting the qualitative distinction between the academic qualifications and standard of imparting of the respective degree courses.

"we are satisfied on facts that the Ayurvedic or AYUSH doctors serving in the State of Kerala, having regard to the qualitative distinction in the academic qualifications and the standard of imparting respective degree courses, cannot seek parity with medical doctors", said a bench of Justices Surya Kant and Ujjal Bhuyan.

In making the aforesaid observations, the bench referred to the Court's earlier decision in State of Gujarat And Ors. v. Dr. P.A. Bhatt And Ors., where it was held that allopathy doctors and doctors of indigenous medicine cannot be said to be performing equal work so as to be entitled to equal pay.

Reference was also made to the decision in Central Council for Research in Ayurvedic Sciences and Another v. Bikartan Das and Others, where it was observed that an employee of CCRAS, ( Central Council for Research in Ayurvedic Sciences)

Ministry of AYUSH was not automatically entitled to demand parity in superannuation age with AYUSH doctors, just because he treated OPD and IPD patients.

Case Title: DR. SOLAMON A v. THE STATE OF KERALA, SLP(C) No. 3946/2023

Strict Liability On Railways To Compensate Kin Of Deceased Who Fell From Train After Mistakenly Travelling Beyond Destination: Karnataka HC

Strict Liability On Railways To Compensate Kin Of Deceased Who Fell From Train After Mistakenly Travelling Beyond Destination: Karnataka HC

Mustafa Plumber

10 Dec 2024 12:37 AM

The Karnataka High Court has upheld an order of the Railway Tribunal granting compensation to the claimants of a deceased passenger who had fallen from the train after mistakenly travelling beyond his destination station.

Justice H P Sandesh dismissed an appeal filed by South Western Railways, challenging the order dated December 28, 2010, granting compensation of Rs 4 lakh along with interest to A Mohan.

He said, "The deceased might have fallen while trying to get down and in that process he could have received injuries, which the fact is in line with the statement of witnesses and also the post mortem report. The fact that the deceased was travelling in the train is not in dispute, but only mistakenly he traveled beyond destiny and also the Apex Court in the Prabhakaran's case also held that principles of strict liability applies, the defendant has to pay damages for injury caused to the plaintiff, even though the defendant may not have been at any fault"

He added “Section 124(a) of the Railway's Act, casts a strict liability on the railway even if the deceased died due to his own fault and the railway is liable to pay compensation. Even travel beyond his destiny, the same cannot be ground to discard the claim of the claimants.”

On February 14, 2009 the deceased had purchased one journey ticket from Whitefield to Kuppam and boarded the train Mysore-Tirupati passenger.

Since, the train was heavily crowded and that when the train reached Kuppam railway station due to the incoming and outgoing passengers the deceased could not get down at Kuppram station but tried to reach the doorway and in the meantime due to sudden jerk and jolt of the train travelling between Kuppam and Mallanur railway station, he accidentally slipped and fallen down from the train, sustained serious injuries and died on the spot.

The railways raised a sole contention that the deceased is not a bonafide passenger and the deceased was holding a ticket to travel from Whitefield to Kuppam and his body was lying beyond Kuppam railway station and that itself shows that the deceased is not a bonafide passenger. Hence, the claimants are not entitled for any compensation.

The bench referred to Apex court judgment in the case of Union of India V/s Prabhakaran Vijayakumar and other (2008) wherein it was held that since the provisions for compensation in the railways act is a beneficial piece of legislation, it should receive a liberal and wider interpretation and not a narrow and technical one. The passenger who has traveled beyond his destination in such a situation would be covered within the definition of the passenger with a valid ticket.

The court observed, “With the advance of industrialization, the Laissez Faire Theory was gradually replaced by the theory of the Welfare State, and in legal parlance there was a corresponding shift from positivism to sociological jurisprudence and the Court has to take note of liberal approach and the same was taken note of by the Railway Tribunal.”

It said that in Prabhakaran Vijayakumar's case it was also held that even if a passenger travel's beyond his destiny, the same cannot be ground to discard the claim of the claimants. In view of the same the court found no error in the Tribunal's order in allowing the claim and granting compensation to the deceased's kin.

Accordingly it dismissed the appeal.

Appearance: Advocate H Shanthi Bhushan for Appellant.

Citation No: 2024 LiveLaw (Kar) 503

Case Title: UnIon of India AND A Mohan & ANR

Case No: MISCELLANEOUS FIRST APPEAL NO.2556/2011

Benefit Should Be Given To Candidate And Not Employer, If Advertisement Stipulates Vague Qualification Criteria: Madhya Pradesh High Court

Benefit Should Be Given To Candidate And Not Employer, If Advertisement Stipulates Vague Qualification Criteria: Madhya Pradesh High Court

Anukriti Mishra

1 Dec 2024 12:30 PM

The Madhya Pradesh High Court has held that if an advertisement gives vague and ambiguous meaning with a possibility of varying interpretations about the qualification criteria of a post, the benefit should always be given to the candidate and not the employer.

The single-judge bench of Justice Sanjay Dwivedi observed, “Any advertisement creating ambiguity in regard to the qualification and taking shelter of the same, denial of liberty to the candidate, in my opinion does not seem to be proper. It is expected from the authority to make the clause clear and if prescribed qualification in the advertisement gives vague and ambiguous meaning emanating varying interpretations about the qualification criteria, the benefit should always be given to the candidate but not to the employer.”

In the present case, the petitioner had challenged the action of the respondents as they were not allowing the petitioner to participate in the interview which was scheduled pursuant an advertisement.

The counsel for the petitioner submitted that as per the requirement of advertisement, a retired Assistant Engineer having 15 years of experience on the post of Assistant Engineer, out of which 10 years of field experience is the necessary requirement and the petitioner fulfils the said criteria but was not called for interview. The petitioner contended that respondents had wrongly interpreted the clause and denied the petitioner the chance to appear for the interview.

As per the submission made by counsel for respondents, an application was submitted by the petitioner giving details therein that he had worked as an Assistant Engineer for 11 years 9 months and 27 days which fulfils the requirement. However, as per the respondents' counsel, the said period was not the total period worked on the post of Assistant Engineer but it includes the period when the petitioner has performed the duties of Assistant Engineer not in a substantive capacity but holding the additional charge of that post. He further submitted that the petitioner at the time of retirement was performing the duties as Executive Engineer and therefore, as per the rider imposed in the condition, the petitioner was disqualified as not entitled to apply under the said clause because at the time of retirement, he was performing his duties as Executive Engineer.

In order to determine whether the petitioner was wrongly denied or he was to be called for interview, the Court interpreted the said clauses of the advertisment. From bare reading of Clause 1, the court found that the requirement is that the candidate should be retired Assistant Engineer with the Civil Degree. Further, Clause 2 indicated that the 15 years' experience of working as Assistant Engineer which does not mean that the candidate must have substantively held the post of Assistant Engineer.

The court observed, “This is not disputed as the petitioner worked as an Assistant Engineer for a period of 15 years, although, in the later period of his service, he worked as an Incharge Executive Engineer but that cannot be a ground to deny the claim of the petitioner because it was a higher qualification for the petitioner to hold the post of In-charge Executive Engineer because he was substantively promoted to the post of Assistant Engineer…The basic object of the clause can be interpreted that the requirement was of experience of 15 years as an Assistant Engineer and merely because petitioner being an Assistant Engineer performed his duties for some period as In-charge Executive Engineer, it cannot be a disqualification for the petitioner.”

The court then looked into the exclusion clause which indicates that “any candidate who has retired from the higher post than that of Assistant Engineer (कायुरत रर्हत र्हयु)”. However, the petitioner was never promoted to the post of Executive Engineer and this exclusion clause would not be applicable to him because he retired as an Assistant Engineer although he was In-charge Executive Engineer at the time of retirement. “There is a drastic difference in the first part of the qualification and the part of exclusion clause.”, the Court said.

Thus, the court inferred that the petitioner having an experience of Assistant Engineer for more than 15 years and retired from the post of Assistant Engineer but not from the post of Executive Engineer, was wrongly declared ineligible to participate in the interview. “His qualification of working on higher post of Executive Engineer cannot be treated to be a disqualification for him.”, the Court said.

The court further observed that the said advertisement lacked in “clarity, precision and is couched in a language which keeps the candidates guessing as to its true impact cannot be countenanced in law.”

Therefore, the court allowed the present petition directing the respondents to accept the application of the petitioner and arrange a fresh interview for him in which he may be called and thereafter final decision be taken for selecting him to the post.

Case Title: Birendra Singh Yadav Versus The State Of Madhya Pradesh And Others, Writ Petition No. 31629 OF 2024

Certificate Issued By Private University Based On Off-Campus Course Run By Its Franchisee Not Legally Valid: Madhya Pradesh High Court

Certificate Issued By Private University Based On Off-Campus Course Run By Its Franchisee Not Legally Valid: Madhya Pradesh High Court

Anukriti Mishra

5 Dec 2024 5:50 PM

The Madhya Pradesh High Court while dismissing a petition relating to recruitment for post of accountant held that any certificate issued by a private university on the basis of an off-campus course run by its franchisee cannot be said to be legally valid.

A single-judge bench of Justice Gurpal Singh Ahluwalia observed, “…since the Maharshi Mahesh Yogi Vedic Vishwavidyalaya, Madhya Pradesh was not entitled to run off-campus course through franchisee, therefore, any certificate issued by Maharshi Mahesh Yogi Vedic Vishwavidyalaya, Madhya Pradesh on the basis of off-campus course run by its franchisee cannot have any legal sanctity. Under these circumstances, this Court is of considered opinion that the Rajya Shiksha Kendra did not commit any mistake by declaring petitioners No.1 to 3 as disqualified for the post of Accountant.”

As per the factual matrix of the case, the petitioners had applied for post of Accountant through recruitment examination conducted by Professional Examination Board. However, the petitioners were declared disqualified through an order passed by the Commissioner, Rajya Shiksha Kendra, Bhopal. Thereafter, the present petition under Article 226 of the Constitution was preferred.

The minimum qualification of the said exam was: (i) Graduation Degree in Commerce with minimum 50% of marks; (ii) Diploma in Computer awarded by any University/Open University recognized by UGC or D.E.O.A.C.A. level of diploma or certificate regarding Modern Office Management issued by Govt. Polytechnic College.

The counsel for petitioners submitted that they had obtained Post Graduate Diploma in Computer Application (PGDCA) Course from Maharshi Mahesh Yogi Vedic Vishwavidyalaya, Madhya Pradesh and thus they are qualified for the post of Accountant. They were declared selected and were posted in District Morena in Block Sabalgarh, Porsa and Ambah. It was argued that petitioner No.1 was declared disqualified for having obtained PGDCA diploma from private college, by doing off campus course whereas petitioners No.2 and 3 were declared disqualified for having DCA Diploma from a private college by doing off campus course.

It was further submitted that since Maharshi Mahesh Yogi Vedic Vishwavidyalaya, Madhya Pradesh, is a recognized university having its territorial jurisdiction over entire State of M.P., therefore, rejection of PGDCA diploma course obtained from a franchisee of Maharshi Mahesh Yogi Vedic Vishwavidyalaya, Madhya Pradesh is bad in law.

On the contrary, the counsel for the respondents referring to a circular dated 09.08.2014 issued by University Grants Commission (UGC), submitted that no University whether Central, State, private or deemed, can offer its programmes through franchisee arrangement with private coaching institutions even for the purpose of conducting courses through distant mode. It was further submitted that the petitioners have obtained PGDCA/DCA courses by pursuing their studies in MY-0109: II TECH Institute, Gwalior, which is an off campus course run by franchisee of Maharshi Mahesh Yogi Vedic Vishwavidyalaya, Madhya Pradesh, therefore, it is not a recognized one.

The issue before the court was “whether private universities can run off campus courses through franchisees or not?”. To address the issue, the court referred to the UGC circular dated 09.08.2014 filed by respondents.

The court observed, “It is clear that adequate advertisement was given by UGC to all the persons who wanted to prosecute their PGDCA/DCA courses by informing them well in advance that any off-campus course done from a franchisee is not a recognized one.”

Thus, the court concluded that Maharshi Mahesh Yogi Vedic Vishwavidyalaya, Madhya Pradesh was not entitled to run off-campus course through franchisee, therefore, any certificate issued by the aforesaid college on the basis of off-campus course run by its franchisee cannot be said to be valid.

Accordingly, court affirmed the order passed by the Commissioner, Rajya Shiksha Kendra, Bhopal, thereby vacating the interim order through which the petitioners were continuing in service. Petition was hence, dismissed.

Case Title: Vinay Yadav And Others Versus The State Of Madhya Pradesh And Others, Writ Petition No. 5824 of 2017

Case Summary: MADRAS HIGH COURT

 Case Summary: MADRAS HIGH COURT 

Case Title: Olincy Helena vs The National Testing Agency

Case Number: W.P.(MD)No.17893 of 2024

Date of Judgment: 1 August 2024

Judge: Honourable Mr. Justice G.R. Swaminathan

Background:

The petitioner, Olincy Helena, represented by her mother, O. Beatus Princy, filed a writ petition seeking a directive from the court to change her community status from General Category (OC) to Other Backward Class (OBC) in her NEET (UG) 2024 application. She had mistakenly declared herself as belonging to the OC category instead of OBC, which resulted in her not qualifying for a medical seat as her score was below the OC cut-off but above the OBC cut-off.

Reason for Denial of Relief:

The court refused to grant relief for the following reasons:

1. Error on the Part of the Petitioner: The petitioner had the opportunity to correct her community status in her application both before and after the examination, but she failed to do so.

2. Legal Precedent: The court referenced a previous ruling (W.A.(MD)No.739 of 2019) which established that requests to change communal category after the declaration of results are not permissible as they could affect the All India merit ranking list.

3. Inability to Contradict Established Judgments: The court reiterated that it could not depart from the earlier judgments, where similar petitions were dismissed due to the inability of the petitioner to rectify their status within the given opportunities.

4. Sympathetic Dismissal: The court, while expressing sympathy, noted that the petitioner could not seek a declaration that contradicted the Information Bulletin's guidelines, which clearly stated that such changes could not be made after the declaration of results.

Conclusion:

The writ petition was dismissed, and no costs were awarded. The court, however, encouraged the petitioner to reapply in the next academic year, ensuring careful reading of the prospectus and guidelines before submitting the application.

Telangana High Court summons tahsildar in fake certificate case

Telangana High Court summons tahsildar in fake certificate case

The case revolves around Singotam Vennela, an aspiring MBBS/BDS student who sought admission in a medical college in the State for the academic year 2023-24.

Published: 01st November 2023 08:46 AM |

By Express News Service

HYDERABAD: A division bench of the Telangana High Court, comprising Chief Justice Alok Aradhe and Justice NV Shravan Kumar, has issued a bailable warrant directing R Manjula, the tahsildar of Alampur mandal in Jogulamba Gadwal district, to appear before the court on November 10 for her alleged involvement in the issuance of a fake residential certificate to an MBBS aspirant.

The case revolves around Singotam Vennela, an aspiring MBBS/BDS student who sought admission in a medical college in the State for the academic year 2023-24. Vennela challenged the decision of the Kaloji Narayana Rao University of Health Sciences to reject her request for local candidate status.

The tahsildar issued a residential certificate stating that the student had been a resident of Door No. 23-43, Alampur, Jogulamba Gadwal district, Telangana, for the past 18 years. However, the court had raised serious doubts regarding the authenticity of the certificate, prompting an investigation into the veracity of the petitioner’s claim of being a local candidate.

During the previous court proceedings, the bench had directed Manjula to explain the issuance of the controversial certificate within two weeks. Despite the clear directive, the tahsildar failed to respond to the court directive. Expressing its disappointment and concern over the tahsildar’s non-compliance with the court’s directive, the division bench issued a bailable warrant for her appearance in court on November 10.

MATERNITY LEAVE NOT JUST ABOUT CHILD RRIGHTS AMICUS TELLS HC

 

UGC Final year Exam Vs States protest