SUPREME COURT

• CIVIL

Raja Khan Vs. U.P. Sunni Central Waqf Board and Anr. (Decided on 10.12.2010) MANU/SC/1045/2010

Refusal of Supreme Court to remove certain remarks against Allahabad High Court

Held, The Allahabad High Court has had a glorious history having produced great lawyers who were leaders in the Independence struggle. It is the largest High Court in India, and often gives leadership to all the High Courts in the country. There are presently many excellent Judges of the Allahabad High Court. These upright Judges are keeping the flag of the High Court flying high by their integrity and hard work. It is therefore totally false to say that all Judges of the Allahabad High Court are corrupt, or to construe our order dated 26.11.2010 in that manner. It is nowhere mentioned in the said order that all Judges of the High Court are corrupt. What is mentioned in the order is that there are complaints against "certain Judges", not all Judges. It has been mentioned in the order that many lawyers who are relatives of Judges are scrupulously taking care that no one should lift a finger on that account. It is clarified that many Judges in the High Court are doing the same. We can quite appreciate the anguish of some of the learned Judges of the Allahabad High Court, but we cannot overlook the fact that there are times when introspection is required, and not mere reaction. We earnestly request the Hon'ble Judges of the High Court to consider our order in that spirit. We again reiterate that there are many excellent Judges in the Allahabad High Court who are working hard and doing their duty honestly, and we have not painted everyone with the same brush.

• SERVICE

Naseem Ahmad and Ors. Vs. State of U.P. and Anr. (Decided on 10.12.2010) MANU/SC/1048/2010

Conversion of regular appointment to ad hoc appointment, without any show cause notice, Rules nowhere provide that the regular appointments can be converted into ad hoc appointments

Held, It is clear from the information furnished that the select list of the Appellants was dated 19.09.2000 whereas they were appointed by order dated 13.08.2001 i.e. within one year of the declaration of results. The order dated 19.09.2003 provides that only the appointments made after 19.09.2001 were ad hoc. As all the Appellants have been given appointment within one year of publication of select list, their services cannot be termed as ad hoc. Even if it is accepted that wait list is valid only for one year, since the Appellants were appointed well prior to the expiry of the one-year, the said objection cannot be countenanced.

Wait list gets exhausted only when all duly selected candidates are given appointments As long as the wait list was not exhausted, a fresh list could not be prepared under Rule 12 of Uttar Pradesh Subordinate Civil Courts Inferior Establishment Rules, 1995 and the process initiated by the Respondents for advertising fresh posts and canceling the wait list by making it as ad hoc is against the provisions of the Rules.

Rule 12 contemplates that the waiting list should be of "reasonable dimension" and be revised from time to time with a view to removing there from the names of such candidates who are found guilty of insubordination, misbehaviour or dishonesty in the discharge of their duties in temporary or officiating vacancies. The wait list is neither a selection list prepared with reference to specific number of vacancies notified. It is somewhat peculiar and special. The expression "reasonable dimension" used in Rule 12 of the aforesaid Rules signifies that the wait list should be a moderate one containing that number of candidates which is adequate to meet the vacancies which might be available within a reasonable period in the year of recruitment or the year succeeding thereto and this list should be in reasonable proportion to the notified vacancies.

Paramjit Singh Vs. Director, Public Instructions and Ors. (Decided on 16.12.2010) MANU/SC/1059/2010

Termination of Probationary teachers - no departmental inquiry- Penal in nature

Held, It is a settled legal position that termination of a probationer on account of his non-satisfactory performance can never be treated as 'penal'. As the termination was not penal in nature, no departmental inquiry was required to be conducted before the termination. However, that prior approval under Section 4 of Punjab Privately Managed Recognized Schools Employees (Security of Service) Act, 1979 , ought to have been obtained from the Director as it is mandatory. Even in case of termination of service of a probationer, prior approval is must. the termination was not in accordance with law because no prior approval of the Director was obtained by the Appellant-management before terminating services of the Respondent-teachers. In the circumstances, we confirm the order with regard to reinstatement of the Respondent-teachers. If the Respondent-teachers have already been relieved, they shall be reinstated but without arrears of salary in view of the fact that they have not worked and, therefore, principle of "no work, no pay" should be applied. However, so as to compensate them, if the said Respondent-teachers have already been relieved, they would be paid compensation of Rs. 25,000/- each because the order of termination was not just and legal. They shall be reinstated immediately.

• CRIMINAL

State of Himachal Pradesh Vs. Nishant Sareen (Decided on 09.12.2010) MANU/SC/1051/2010

Extent of power vested in the Government in reviewing its order granting or refusing sanction to prosecute the public servant in terms of Section 19 of the Prevention of Corruption Act, 1988.

Held, It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It seems to us sound principle to follow that once the statutory power under Section 19of the 1988 Act has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. The opinion on the same materials, thus, may keep on changing and there may not be any end to such statutory exercise. However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such course. Insofar as the present case is concerned, it is not even the case of the Appellant that fresh materials were collected by the investigating agency and placed before the sanctioning authority for reconsideration and/or for review of the earlier order refusing to grant sanction. It is clear that on the same materials, the sanctioning authority has changed its opinion and ordered sanction to prosecute the Respondent, which in our opinion, is clearly impermissible.

Kootha Perumal Vs. State Tr. Inspector of Police, Vigilance and Anti Corruption (Decided on 15.12.2010) MANU/SC/1057/2010

Challenge against conviction on the ground that previous sanction to prosecute the Appellant was not legally obtained as required under Section 19 of the Prevention of Corruption Act, 1988

Held, sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction Without such sanction the prosecution would be a nullity and the trial without jurisdiction In the instant case, the sanctioning authority has adverted to all the necessary facts proved by the prosecution in the trial. Sanction order also stated that the other materials such as copy of the FIR as well as other official documents such as the different mahazars were carefully examined and it was duly recorded that the Appellant should be prosecuted for the offences committed - Hence, the sanctioning order to prosecute the Appellant was in according with law.

• LABOUR AND INDUSTRIAL LAWS

General Manager (OSD), Bengal Nagpur Cotton Mills, Rajnandgaon Vs. Bharat Lal and Anr. (Decided on 14.12.2010) MANU/SC/1054/2010

Definition of "employee"- whether a workman employed by the contractor was a workman of the principal employer.

Held, the Industrial Court misconstrued the meaning of the terms `control and supervision' and held that as the officers of Appellant were giving some instructions to the first Respondent working as a guard, he was deemed to be working under the control and supervision of the Appellant. The principal employer only controls and directs the work to be done by a contract labour, when such labour is assigned/allotted/sent to him. But it is the contractor as employer, who chooses whether the worker is to be assigned/allotted to the principal employer or used otherwise. In short, worker being the employee of the contractor, the ultimate supervision and control lies with the contractor as he decides where the employee will work and how long he will work and subject to what conditions. Moreover the first Respondent should be denied any relief, as there is sufficient material to infer that he deliberately suppressed and misrepresented facts.

• CONSUMER LAWS

Birla Technologies Ltd. Vs. Neutral Glass and Allied Industries Ltd. (Decided on 15.12.2010) MANU/SC/1063/2010

Section 2(1)(d)(ii) of The Consumer Protection Act, 1986- Definition of Consumer

Held, In view of the findings of the National Commission that the goods sold by the Appellant to the Respondent/complainant amounted to 'goods' and that such goods were purchased for commercial purpose of earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purpose. The complaint itself was not maintainable; firstly, on the count that under Section 2(1)(d)(i), the goods have been purchased for commercial purposes and on the second count that the services were hired or availed of for commercial purposes. The matter does not come even under the Explanation which was introduced on the same day i.e. on 15.3.2003 by way of the amendment as it is nobody's case that the goods bought and used by the Respondent herein and the services availed by the Respondent were exclusively for the purpose of earning the Respondent's livelihood by means of self- employment. The complaint itself was not maintainable in toto. However, we observe that the parties may avail of the remedies available to them in accordance with law. they can claim the benefit of Section 14 of the Limitation Act to exclude the period spent in prosecuting proceedings under the Act while computing the period of limitation prescribed for such a suit.

HIGH COURTS

• ELECTION LAWS

Bombay High Court

Narsanna Naganna Arge vs. Assistant Registrar, Co-operative Societies (Decided on 08.12.2010) MANU/MH/1627/2010

Rejection of Nomination form to contest under OBC reserved category - Two different certificates were issued - Rejection originally on the ground that concerned sub-caste did not fall under OBC category

Held, the nomination was rightly rejected in the instant case. It was mentioned that allowing such undeserving persons to contest election will create hindrance in democratic set up to have proper and fair elections. The Superintendent of Police directed to conduct enquiry into the matter and if necessary to register FIR and proceed further with the investigation.

• PROPERTY LAWS

Delhi High Court

Sh. Prem Sagar Vs. Sh. Qamruddin (Decided on 14.12.2010) MANU/DE/3470/2010

Owner of Property - Determination thereof - Power of Appellate Court to interfere with the findings of Trial Court - Whether Plaintiff was the owner of the subject property and consequently his father was incompetent to enter into an agreement to sell with the Defendant

Held, power to interfere can be exercised only if the same are perverse or illegal. Merely because two views are possible on the basis of the facts which have come on record and the evidence, which has been led, would not entitle to this Court to interfere with the findings and conclusions of the Trial Court.

A decision in a civil case is based on balance of probabilities. There are always pros and cons in every case, meaning thereby, there is always something for and against each of the parties as per the evidence, which comes on record.

The balance of probabilities clearly show that the claim of Defendant in the instant case, who has paid the price of the plot, should not be defeated by the act of the Plaintiff in claiming possession of the property which was sold by father of the Plaintiff when admittedly there are no bad or strained relations between the Plaintiff son and his father. Also the agreement to sell nowhere stated that the monies paid for the property purchased in the name of the Plaintiff were not paid by the father, and in fact, the agreement to sell uses the expression "through father", an indication of the father having paid the price for the property. Appeal dismissed.

• FAMILY LAWS

Delhi High Court

Mahinder Pal Gupta and Anr. Vs. Narender Pal Mahajan and Ors. (Decided on 13.12.2010) MANU/DE/3416/2010

Whether disheritance of one or more legal heirs cast doubt on the veracity of the execution of the Will

Held, the execution and attestation of the Will was in accordance with the provisions contained in Section 63(c) of the Indian Succession Act, 1925 and as well as the provisions contained under Sections 68 to 72 of the Evidence Act, 1972.There were reasons given by the deceased for excluding Appelant out of deriving any benefit from his estate and which was well founded. Mere disheritance of one or more legal heirs does not cast doubt on the veracity of the execution of the Will or in isolation cannot be taken as a suspicious circumstance.

Thus, when reasons are supplied, keeping one or all out of the purview of the benefits of the estate by a testator, it would not mean suspicious circumstances so as to hold that the execution of the Will itself be treated as doubtful.

• CONSTITUTION

Bombay High Court

Shri Sunil S/o Baliram Maddewad vs. The State of Maharashtra, Department of Tribal Development, its Secretary and Ors. (Decided on 13.12.2010) MANU/MH/1658/2010

Rejection of Tribe Claim by The Scheduled Tribe Certificate Scrutiny Committee

Held, Committee has given personal hearing to the petitioner and thereafter passed the impugned order. It has also considered the documents produced by the petitioner before it and obtained information from the petitioner about tradition, occupation, God/Goddesses, Surnames, customs, culture, affinity etc. and came to the conclusion that the petitioner failed to prove his affinity and ethnic linkage towards "Mahadeo Koli" Scheduled Tribe. Committee also considered the Vigilance Cell report, and also enquired and obtained the information about the petitioner's affinity and ethnic linkage towards "Mahadeo Koli" Scheduled Tribe and

thereafter passed the impugned order, invalidating the tribe claim of the Petitioner, and there does not appear to be any flaw therein and the said order cannot be faulted with. Accordingly, we do not find any glaring infirmity or perversity in the impugned order

• INTELLECTUAL PROPERTY LAWS

Delhi High Court

Aktiebolaget Volvo and Ors. Vs. Kishore Purohit and Ors. (Decided on 13.12.2010) MANU/DE/3466/2010

Trademarks- Passing of Goods

Held, Plaintiffs are large multinational companies, which are using the trademark Volvo for manufacturing and selling various products particularly vehicles, and the word Volvo is an integral component of their corporate name. The name Volvo on account of its extensive use by the plaintiffs since 1915, has become associated exclusively with the plaintiff companies and the products being manufactured and sold by them.

With the passage of time, the goods sold or the services rendered by a person, including a company may acquire huge reputation in the market and certain goodwill comes to be attached to its products, on account of their being in the market for a long time, coupled with their quality. It is not permissible for another person to start selling goods, using that name and thereby enrich himself at the cost of the person, who has been using the name for a long time and has invested considerably in promoting that name and building the brand adopted by him. If a person attempts to gain riches by encashing upon the goodwill which the product of another person enjoys in the market, such attempts need to be curbed wherever the aggrieved party approaches the Court in this regard.

Shri Ashwini Kr. Chopra Vs. Union of India & Ors. (Decided on 16.12.2010) MANU/DE/3479/2010

Up gradation of the security cover

Held, The duty of the court while exercising power under Article 226 is also to see whether it can substitute the decision. It is also obligatory to see whether it suffers from any kind of unreasonableness or unfairness. Grant of security cover is within the executive domain. The authority granting the security cover after considerable lapse of time studied the ground reality and have taken a decision that the appellant need not be put in Z+ category but can be brought to Z category. The executive is in best know of when and what sort of security cover be granted to a particular person. No one can claim as a matter of legal right to be given a particular security cover. True it is, it is a part of good governance to maintain law and order, and an orderly society is the backbone of good governance. Rule of law prevails where the law and order situation is treated as the spine of administration. But when an individual requires a particular category of security, he cannot put the blame on the executive that the law and order is not maintained or his life is in danger.

• TRIBUNALS

Central Administrative Tribunal

Principal Bench : New Delhi

Shri Mahender Kumar Vs. Union of India & Ors (Decided on 08.12.2010)

The applicant, an ex-Postal Assistant under the Union Department of Posts, Ministry of Communication & IT, was dismissed on charges of obtaining appointment under the Scheduled Tribe category by a false declaration and submitting a forged certificate.

Held, The inquiry report, prove that this was a case in which the applicant had clearly not been found to be Schedule Tribe. Further, enough evidence had been found to prove his having submitted a forged Caste Certificate. The arguments now being raised to challenge the orders of the respondents, do not merit a serious consideration and given the factual matrix of the case, appear to be more in the nature of an endeavour to bring by the back door the rules and the procedures of the Evidence Act, held not to be strictly applicable in case of disciplinary proceedings. as in this case the impugned action has been taken by the respondents after a lapse of 24 years, the same could not be justified and even the applicant's defence after such a long gap has been highly prejudiced.