SUPREME COURT

• SERVICE LAWS

Union of India and another Vs. B. Kishore (Decided on 06.04.2011) MANU/SC/0343/2011

Service - Compassionate appointment - Entitlement - Respondent's wife died while she was in service and Respondent has obtained terminal benefits of his wife from department - Respondent subsequently made an application for compassionate appointment - Appellant department rejected Respondent's claim on the ground that he was not considered to be in 'indigent circumstances' - Respondent challenged Appellant's decision before High Court - High Court directed Appellant to include Respondent's name in the list of candidates waiting for appointment on compassionate basis - Whether Respondent was entitled to be appointed under compassionate appointment scheme

Held, Appellant has rejected Respondent's claim on the basis of clause 7 of Office Memorandum dated 9-10-1998 since Respondent was not indigent - Respondent went abroad and stayed there for four years and thereafter filed application for compassionate appointment - Though Respondent might have been struggling for financial upliftment, he could not be described as an indigent or destitute - Respondent's case clearly did not come under revised and consolidated scheme formulated by Office Memorandum dated 9-10-1998, that had come into force when his case came up for consideration before High Court - Even otherwise and without any reference to Office Memorandum, case of respondent did not meet or satisfy basic object and purpose of appointment on compassionate grounds - Further,Respondent was already beyond the age of superannuation and there was no question of his appointment on compassionate ground or on any other grounds - High Court, therefore, was in error in passing impugned Order - Appeal allowed

Local Administration Department and Anr. Vs. M. Selvanayagam @ Kumaravelu (Decided on 05.04.2011) MANU/SC/0339/2011

Service - Compassionate appointment - Failure to claim within reasonable time - Whether Respondent was entitled to be appointed under compassionate ground

Held, in case of an employee dying in harness one of his eligible dependents was given a job with sole objective to provide immediate support to family which may suddenly find itself in dire straits as a result of death of bread winner - However, an appointment made many years after death of employee or without due consideration of financial resources available to his/her dependents and financial deprivation caused to dependents as a result of his death, simply because claimant happened to be one of dependents of deceased employee would be directly in conflict with Articles 14 and 16 of Constitution and hence, bad and illegal - Respondent made application on attaining majority after 7 years and 6 months of his father's death and in such case, appointment should not be said to sub-serve basic object and purpose of scheme - Respondent claimed his stake only on the ground that his father was an employee of appellant Municipality and he had died while in service - In facts of case, appellant authorities were right in holding that family of deceased employee had been able to tide over first impact of his death - Respondent, therefore, did not come under scheme of compassionate appointments and hence impugned Division Bench order unsustainable in law - Appeal allowed.

• LABOUR AND INDUSTRIAL LAWS

S.B.I. Vs. Hemant Kumar (Decided on 06.04. 2011) MANU/SC/0344/2011

Labour and Industrial - Domestic enquiry - Violation of principles of natural justice - Respondent Cashier-cum-Clerk allegedly misappropriated cash from appellant bank - Respondent was charge-sheeted and enquiry proceedings were initiated - Since respondent was absent on various dates of hearing, enquiry officer passed ex parte order holding that respondent was guilty of charges - - Respondent raised an industrial dispute subsequent to dismissal of Departmental appeal against ex parte order - Industrial Tribunal directed reinstatement of respondent holding that departmental enquiry suffered from violation of principles of natural justice - High Court upheld Tribunal order in appellant's writ petition - Whether there was any violation of principles of natural justice in instant case

Held, principles of natural justice should not be stretched to a point where they would render in-house proceedings unworkable - Respondent had not appeared for enquiry on two earlier dates and he was absent on third appointment day also - Respondent adopted dilatory tactics and in-house proceedings should be conducted expeditiously and without any undue loss of time - Tribunal's observation that three barren dates in an in-house proceeding did not amount to delay, was unfortunate - Further, respondent had already tendered two admissions of guilt in writing and one orally before management witness and there was hardly anything that could be said on his behalf to repel charges - Tribunal's findings, therefore, were wholly unreasonable and perverse and High Court, unfortunately, did not consider matter properly - Hence, impugned orders of Tribunal and High Court were set aside - Appeal allowed.

• CRIMINAL LAWS

Rukia Begum Vs. State of Karnataka (Decided on 04.04.2011) MANU/SC/0335/2011

(a) Criminal - Appeal against acquittal - Scope of interference by High Court

Held, High Court while hearing appeal against the judgment of acquittal was possessed of all the power of appellate court and nothing prevented it to appraise evidence and come to a conclusion different than that of the Trial Court but while doing so it should bear in mind that presumption of innocence was further reinforced by acquittal of the accused by the Trial Court - View of the Trial Judge as to the credibility of the witness must be given proper weight and consideration - There must be compelling and weighty reason for the High Court to come to a conclusion different than that of the Trial Court - Appeals disposed of.

(b) Criminal - Conviction to be based on circumstantial evidence

Held, in a case based on circumstantial evidence the circumstances from which an inference of guilt was sought to be drawn were to be cogently and firmly established - Circumstances so proved must unerringly point towards the guilt of the accused - It should form a chain so complete that there was no get away from the conclusion that the crime was committed by the accused and none else - Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence - However, no hard and fast rule could be laid to say that particular circumstances were conclusive to establish guilt - It was a question of appreciation of evidence which exercise was to be done in the facts and circumstances of each case - Appeals disposed of.

• CUSTOMS LAWS

Siddachalam Exports Private Ltd. Vs. Commissioner of Central Excise, Delhi-III (Decided on 01.04.2011) MANU/SC/0347/2011

Customs - Confiscation - Penalty - On the basis of market enquiries, Assistant Commissioner issued a show cause notice to the Appellant alleging that the Freight On Board value of the goods covered under the shipping bills had been grossly mis-declared by artificially inflating it, thereby rendering them liable for confiscation under Section 113(d) of the Customs Act, 1962 and imposed penalty under Section 114 of the Act - On appeal, Commissioner dropped the proceedings against the Appellant and allowed the duty drawback as claimed by the Appellant - Tribunal allowed the appeal filed by the revenue and denied claim of duty drawback of the Appellant - Whether order of the tribunal could be upheld?

Held, neither the Commissioner nor the Tribunal had dealt with the matter as per the procedure prescribed under the Act - At the threshold, instead of first determining the value of the goods on the basis of contemporaneous exports of identical goods, the Revenue erroneously resorted to a market enquiry - If for any reason, data of contemporaneous exports of identical goods was not available, the procedure laid down in Rues 5 to 8 of the Customs Valuation (Determination of Price of Imported Goods) Rules 1988 was required to be followed and market enquiry could be conducted only as a last resort - Hence, orders passed by the Tribunal and the Commissioner set aside - Matter remitted back to the adjudicating authority for fresh consideration in accordance with law - Appeal allowed.

• SALES TAX LAWS

Pepsico India Holdings Ltd. Vs. Commissioner of Trade Tax, Lucknow, U.P. (Decided on 05.04.2011) MANU/SC/0338/2011

Sales Tax - Interest on delayed payment of tax - Whether Appellant was liable to pay interest on the tax due under Section 8 (1) of the Uttar Pradesh Trade Tax Act from the date the tax was due or under Section 8 (1B) of the Act from the date of the assessment order and demand notice?

Held, once it had been confirmed that the tax was payable under the Act, the same becomes payable from the date when it was due and not from the date when the judicial verdict was pronounced (unless and until, the court specifies a particular date from which it shall be payable) - Hence, Appellant was liable to pay interest on the tax due under Section 8 (1) of the Act from the date the tax was due - Appeal dismissed.

• CONSTITUTION LAWS

Suraz India Trust Vs. Union of India (UOI) and Anr.(Decided on 04.04.2011) MANU/SC/0336/2011

Constitution - Review of nine Judges' Bench decision - Reference by two Judges' Bench - Scope

Held, Constitution Bench of Supreme Court in Pradip Chandra Parija and Ors. v. Pramod Chandra Patnaik and Ors. AIR 2002 SC 296, while dealing with a similar situation held that judgment of a co-ordinate Bench or larger Bench was binding - However, if a Bench of two Judges concluded that an earlier judgment of three Judges was so very incorrect that in no circumstances it could be followed, proper course for it to adopt was to refer matter to a Bench of three Judges setting out, reasons why it could not agree with earlier judgment and if, then, Bench of three Judges also came to conclusion that earlier judgment of a Bench of three Judges was incorrect, reference to a Bench of five Judges was justified - Since instant matter required to be heard by a larger Bench as matter had earlier been dealt with by a three Judges Bench and involved very complicated legal issues, matter placed before Chief Justice of India for appropriate directions - Ordered accordingly.

• COMMERCIAL LAWS

Glodyne Technoserve Ltd. Vs. State of M.P. and Ors. (Decided on 04.04.2011) MANU/SC/0304/2011

Commercial - Rejection of bid - Validity - Appellant was disqualified from consideration, in view of the fact that along with the Tender documents it had filed a copy of the ISO 9001:2000 certificate of the previous year, instead of the current year - Whether appellant's bid documents were rightly rejected? - Appellant submitted that on the date of submission of the Bid, it had a valid and active ISO 9001:2000 certification, but that through inadvertence the expired certification of the previous year had been filed along with the bid papers

Held, introduction of the Corrigendum completely changed the provision in the Bidder's Response Form relating to submission of the Quality Certificate in the form of an active ISO 9001:2000 certification - As per Clause 9 of Section 7.1.1 of the Request for Proposal a tenderer was required to produce along with the bid document a copy of the Quality certificate which was valid and active on the date of submission of the bid and it did not enable a bidder to withhold the copy of such Quality Certificate - Appellant claimed to have a valid and active ISO 9001:2000 certification which it did not submit along with the Bid documents, may be due to inadvertence, but whether such explanation was to be accepted or not lay within the discretionary powers of the authority inviting the bids - Decision taken to reject the Technical Bid of the Appellant could not be said to be perverse or arbitrary - Appeal dismissed.

HIGH COURTS

• SERVICE LAWS

DELHI HIGH COURT

Trilok Singh and Amrik Singh (Lovely) Vs. Union of India (UOI) and Ors. (Decided on 07.04.2011) MANU/DE/1105/2011

Service - Withdraw of Police Medal for gallantry - Petitioners filed writ petition challenging the award of the police medals to the Respondents 3 and 4 on the ground that relevant material was not placed before the President of India - Whether writ petition filed by the Petitioners could be allowed and police medal granted to the Respondents 3 and 4 for gallantry could be withdrawn?

Held, the medal was liable to be forfeited only 'when the holder was guilty of disloyalty, cowardice in action or such conduct as in the opinion of the President brings the force into disrepute' - Neither Respondent 3 nor Respondent 4 had, subsequent to the award of the Police Medals, committed any act that would attract the above clause concerning forfeiture - Moreover, citation of police medals reflect the application of mind by several authorities in a hierarchical manner up to the Prime Minister and the President of India - Therefore the only ground of challenge that required to be examined was whether the material relevant for the decision of the President was placed before the President - In the instant case, it cannot be held that the material placed before the decision-making authority was not relevant to the grant of Police Medals to Respondents 3 and 4 - It was also not possible to conclude that the failure to consider certain other materials like the order granting bail to the Petitioner's families or the CFSL reports vitiated the decision to award Police Medals to Respondents 3 and 4 - Hence, police medal granted to the Respondents 3 and 4 for gallantry could not be withdrawn - Writ petitions dismissed.

DELHI HIGH COURT

G.D. Wazir Vs. Union of India (UOI) and Ors. ( Decided on 01.04.2011)

Service - Termination - Misconduct - Challenged - Petitioner-Constable was terminated from service for misconduct in his capacity as a member of the Force under the Act - Appeal filed against said order was dismissed - Revision petition filed against said order was also dismissed - Hence, the instant petition - Whether Petitioner was rightly dismissed from service?

Held, the testimony of witness No.3 established misconduct alleged - Within the parameters of quality of evidence required to sustain an inference of fact at a domestic inquiry, the evidence on record justified the inference drawn by the Inquiry Officer - Moreover, Petitioner had chosen not to co-operate at the inquiry and not to cross-examine the witnesses of the prosecution - Thus, there was no option but to accept the version of the prosecution - Hence, Petitioner was rightly dismissed from service - Petition dismissed.

• CRIMINAL LAWS

BOMBAY HIGH COURT

Babu Hanmanta Marlla @ Kalay Vs. State of Maharashtra and Deputy Commissioner of Police ( Decided on 06.04.2011) MANU/MH/0455/2011

Criminal - Externment order - Challenged - Whether the impugned order of externment was passed by the Externing Authority without giving an opportunity to the Petitioner to be heard

Held, it was crystal clear that sufficient opportunity had been given to the Petitioner even at the stage of enquiry before the Assistant Commissioner of Police and also thereafter before the Externing Authority - As such there was no merit in the submission advanced on behalf of the Petitioner that the order passed under Section 59 of the Mumbai Police Act was against law and was liable to be quashed - Moreover the said order was for only three months externment - Nothing to intervene in said order in writ jurisdiction - Petition dismissed.

• CONSUMER PROTECTION LAWS

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

The Regional Manager Central Warehousing Corporation Vs. Ch. Laxminarayana (Decided on 30.03.2011) MANU/CF/0099/2011

Consumer Protection - Medical Claim - Denial - Challenged - Respondent, a retired employee of the Petitioner corporation, preferred a medical bill for Rs. 1,33,678/- towards reimbursement of medical expenses incurred for the treatment of his dependent son - Petitioner rejected said claim on the ground that son of the Respondent took treatment only after the date of retirement of the Respondent - District Forum allowed complaint filed by the Respondent and directed Petitioner to pay Rs. 1,33,678/- along with interest @ 9% p.a. - State Commission dismissed appeal filed against said order - Hence, the instant appeal - Whether order of the District Forum as affirmed by the State Commission could be upheld?

Held, the procedure followed by the opposite parties in the matter of settlement on medical bills submitted by the Respondent for treatment of his son shows that the Petitioner failed to follow the due process of law - The entire enquiry was conducted behind the back of the Respondent - No notice had ever been given to the Respondent - Moreover, Petitioner failed to produce any proof that the son of the Respondent was otherwise employed on the date of treatment - Hence, order of the District Forum did not suffer from any infirmity - Appeal dismissed.

Niranjan Kumar Yadav Son of Shri Mittal Pd. Yadav Vs. National Insurance Company Limited (Decided on 29.03.2011) MANU/CF/0098/2011

Consumer Protection - Vehicle insurance - Repudiation of claim - Challenged - Complainant purchased an impugned vehicle which was insured with respondent (Insurance Company) and was registered in the name of the Complainant - Impugned vehicle was allowed to be used by the local MLA during the elections where the impugned vehicle was attacked and set on fire allegedly by the supporters of another political party - Complainant made a claim under the insurance policy but with futile results - District Forum dismissed appeal filed against said order on the ground that there was a violation of the terms and conditions of the insurance policy relating to the usage of the vehicle - State Commission confirmed the order of the District Forum - Hence, the instant revision petition - Whether order of the District Forum as affirmed by the State Commission could be upheld?

Held, claim of the complainant that the registration of the impugned vehicle was pending before the Registering Authority loses all credibility as it was held by the State Commission that if permanent registration cannot be done for the delay of the office of the registering authority then it must have temporary registration - Complainant failed to show any temporary registration number - Complainant also failed to show any receipt of the application for registration to prove that he had applied for registration before the mishap - Hence, impugned order of the State Commission upheld - Revision petition dismissed.

• DIRECT TAXATION LAWS

ITAT CUTTACK

Asst. Commissoner of Income-tax Vs. Metro Builders (Orissa) Pvt. Ltd. ( Decided on 04.04.2011) MANU/IF/0031/2011

Direct Taxation - Assessment Year 2006-07 - Whether the Learned CIT(A) was justified in deleting the entire disallowance made under Section 40(a)(ia) of the Income-tax Act,1961 at Rs. 21,35,467 instead of Rs. 8,90,520

Held, on careful analysis of the order of the learned CIT(A) in the light of rival submissions of both the parties and the provisions contained under Section 40(a)(ia) of the Act, it was found that the assessee had deducted the TDS against payments made to the parties and remitted the same to the Department within this year - Portion of the payments that remained due to the parties relating to the expenditure as shown as part and parcel of work-in-progress could be examined in the subsequent year of the assessment when the said expenditure would be claimed in the Profit and Loss account against the income - It was evident from record that the balance payments to the parties are made in the subsequent year after deducting the TDS and accordingly they were paid also - Therefore, disallowance of the expenditures claimed by the assessee were not sustainable for legal scrutiny -Thus payments made during the year were made after deducting the TDS which was also paid to the Department in time and the balance of the amounts were paid to the parties in the next following year making TDS and paid to the Department in the next year - Hence Departmental Appeal devoid of merit - Dismissed.