Supreme Court

• Service Laws

Diljit Singh Bedi Vs. Shiromani Gurudwara Prabhandhak Committee, Sri Amritsar (Decided on 03.05.2011) MANU/SC/0545/2011

Termination from Services — Challenge against thereto — Appellant/Assistant Seceretary Shiromani Gurudwara Prabhandhak Committee (SGPC) resigned due to allegation of defaming the committee, his resignation was accepted by the President but was quashed by the Executive Committee and subsequently the Executive Committee terminated the Appellant from service - High Court upheld the Order of the Committee — Hence this appeal —  Whether the Appellant had resigned from the post of Assistant Secretary of the SGPC or whether his services were terminated by the Executive Committee of the SGPC

Held, Only the Executive Committee of the SGPC has the statutory power under Section 69 of the Act, to remove any employee of the SGPC. Therefore the acceptance of the resignation of the Appellant by the President of the SGPC is of no legal consequence. Thus, it was not a case of resignation from service by the Appellant but of termination of service of the Appellant by the Executive Committee of the SGPC.

Whether the termination of service of the Appellant by the Executive Committee of the SGPC was legally valid?

Held, the order issued by the Secretary, SGPC did not state the reasons for the decision of the Executive Committee to relieve the Appellant from service - As per Rule 4 of the Service Rules an employee of the SGPC can be dismissed from service for bad character only after the charges of misconduct are established in an inquiry conducted by an inquiry committee - Thus, without a finding in an inquiry that the Appellant was guilty of conduct which had defamed the SGPC, the High Court could not have taken a view in the impugned order that the Appellant had brought a bad name to the SGPC and he had been rightly relieved from service. Appellant to be reinstated but will not be entitled to backwages as he had offered to resign.

S. Thilagavathy Vs. State of Tamil Nadu and Ors. (Decided on 06.05.2011) MANU/SC/0562/2011

Reinstatement pursuant to Discharge from Service —  Appellant filed two petitions challenging her transfer order and assailing her reinstatement on grade II post of Organizer-cum-Tailoring Instructress and not on grade I post of Organizer- cum-Tailoring Instructor — Single Judge dismissed the petitions filed refusing to hold that she was entitled to be reinstated on grade I subsequently, Division Bench also dismissed the appeal — Whether the High Court was justified in dismissing the appeal of the Appellant

Held, the Appellant in our considered view ought to have taken steps in the High Court by way of a review petition before the Division Bench wherein it was open to the Appellant to point out the error that her appeal has not been dealt with at all one way or the other by the Division Bench and this was a factual error on the part of the Division Bench. Although it is quite possible to infer under the circumstance, that the Division Bench has impliedly dismissed the writ appeal by a non-speaking order, in view of the observation of the single Judge that the plea of the Appellant on this count was an afterthought on the part of the Appellant claiming reinstatement on grade I post, since she had discharged duties on grade II post for a long period of three years. Appellant can approach the Division Bench by way of a review petition pointing out the error apparent on the face of the record to the effect that her appeal has not been dealt with at all and has been dismissed without indicating any reason whatsoever. Appeal dismissed

• Criminal Laws

Shaji and Ors. Vs. State of Kerala (Decided on 03.05.2011) MANU/SC/0544/2011

Conviction — Challenge against thereto — Trial Court convicted the A -1 to A - 4 for offences charged under Section Sections 143, 147, 148, 342, 449 and 302 read with Section 149of Indian Penal Code, 1860 ( IPC) while acquitting the other 2 accused - High Court subsequently upheld the Order of conviction —  Hence this Appeal —  Whether the prosecution has established the conviction of the remaining accused - Appellants under Sections 302/149 Indian Penal Code

Held, Statement witnesses identified all the accused but has not attributed to any of the accused other than A - 1 . Absolutely, there is no reference to the role of other accused. Even the Investigation Officer examined as PW -14 had not mentioned any thing about the role of other accused except A - 1. Before convicting accused with the aid of Section 149 Indian Penal Code , the Court must give clear finding regarding nature of common object and that the object was unlawful. In the absence of such a finding as also any overt act on the part of the accused persons, mere fact that they were armed would not be sufficient to prove common object. In the instant case ingredients of Section 149 IPC have not been fulfilled or established by the prosecution insofar as the accused other than A-1. Death caused due to the death injury was caused by A-1. Hence the the appeal insofar as Appellant No. 1 (A - 1) is concerned, is dismissed as not pressed and Appellant Nos. 2- 4 (A -2 to A - 4) are concerned, the conviction and sentence under Sections 302/149 Indian Penal Code are set aside.

Scope and Applicability of Section 149 of Indian Penal Code, 1860 — Whether the Courts below committed an error in convicting these Appellants under Section 302 by applying the provision of Section 149 Indian Penal Code

Held, Section 149 prescribes for vicarious or constructive criminal liability for all members of an unlawful assembly where an offence is committed by any member of such an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object. It is, however, not necessary that five or more persons must be convicted before a charge under Section 149 can be successfully brought home to any members of the unlawful assembly. It may be that less than five persons may be charged and convicted under Section 302/149 if the charge is that the persons before the Court along with others named constituted an unlawful assembly; the other persons so named may not be available for trial along with their companions for the reason, for instance, that they have absconded. Hence, if there is any material that they were members of the unlawful assembly, the conviction under Section 302 can be based with the aid of Section 149.

Sushil Suri Vs. C.B.I. and Anr. (Decided on 06.05.2011) MANU/SC/0563/2011

Quashing of Chargesheet — High Court declined to quash the chargesheet against the Appellants/Directors of the company for offences punishable under Sections 120B, 420, 409, 468 and 471 of the Indian Penal Code, 1860 (IPC) — Whether on facts in hand, the High Court was correct in law in declining to exercise its jurisdiction under the said Section 482 of Code of Criminal Procedure, 1973

Held, bare reading of the Chargesheet, shows that the allegations against the Appellant as also the co-accused is that the Company, acting through its directors in concert with the Chartered Accountants and some other persons: conceived a criminal conspiracy and executed it by forging and fabricating a number of documents and on the strength of these false documents, PSB parted with the money by issuing pay orders & demand drafts in favour of the Company and the accused opened six fictitious accounts in the banks to encash the pay orders/bank drafts issued by PSB in favour of the suppliers of machines, and in the process committed a systematic fraud on the Bank (PSB) and obtained pecuniary advantage for themselves. Additionally, by allegedly claiming depreciation on the new machinery, which was never purchased, on the basis of forged invoices etc.; the accused cheated the public exchequer as well. Having regard to the modus operandi adopted by the accused , it is not a fit case for exercise of jurisdiction by the High Court under Section 482 of the Code of Criminal Procedure as also by this Court under Article 142 of the Constitution of India. The accused had not only duped PSB, they had also availed of depreciation on the machinery, which was never purchased and used by them, causing loss to the exchequer, a serious economic offence against the society. In the final analysis, Court hold that merely because the dues of the bank have been paid up, the Appellant cannot be exonerated from the criminal liability. Therefore, the Chargesheet against the Appellant cannot be quashed. Appeal Dismissed

• Constitutional Laws

The Joint Action Committee of Airlines Pilots Associations of India and Ors. Vs. The Director General of Civil Aviation and Ors. (Decided on 03.05.2011) MANU/SC/0543/2011

Validity of Circular — Questioned thereof —  Appellants challenged the Validity of Circular issued by the Director General of Civil Aviation, (`DGCA'), Respondent No. 1 dated 29th May, 2008, to the effect that Civil Aviation Requirements (CAR) had been kept in abeyance - High Court dismissed the Petition — Hence this appeal — Whether order dated 29th May, 2008, keeping the CAR 2007 in abeyance could be passed without following the procedure prescribed in CAR dated 13th October,2006

Held, the authority who has been vested with the power to exercise its discretion alone can pass the order. Even senior official cannot provide for any guideline or direction to the authority under the statute to act in a particular manner. It cannot be said that the Circular dated 29th May, 2008 was either issued illegally or without any authority. Admittedly, the DGCA is competent to issue special directions and the same had been issued by him, though may be with the consultation of some other authorities. In view of the fact that the source of power exists, there is no occasion for the Court to link the exercise of power to another source which may invalidate the exercise of power. The DGCA has ample power to issue such instructions or directions in exercise of its power under the Rule 133A read with  Rule 29C of the Rules 1937. Appeal, is accordingly dismissed.

HIGH COURTS

• Law of Education

DELHI HIGH COURT

University of Delhi Vs. Varun (Decided on 04.05.2011) MANU/DE/1714/2011

Denial of Admission —  Eligibility Criteria —  Respondents herein were denied provisional admission by the Appellant on ground that they did not fulfill the eligibility criteria on the cut-off date - Single Bench of the High Court held that the Respondents herein are entitled to a confirmation of their provisional admission and allowed them to appear in the semester exam — Whether the Order granted by the Single Bench Valid

Held, Appellant/University had not clarified, that eligibility must be acquired at the main examination and not the supplementary.. Further, University should not scrutinize the cases of provisional admissions by the cut-off date and bring an end to the issue the day next. It is not a case where wholly ineligible persons or persons who have obtained admission by dubious means would continue as students of the University of Delhi in the Faculty of Law. It would be contrary to public interest if two seats would go a begging. Appeals Dismissed

• Service Laws

LAL BABU Vs. Govt. of NCT of Delhi and Anr. (Decided on 05.05.2011) MANU/DE/1726/2011

Denial of Appointment — Misrepresentation — Petitioner was selected for appointment in the SC/ST category but subsequently he was informed that there were no vacancies available for the said post in the reserved category —  Petitioner after 17 years made enquiries under RTI and found out that he was misrepresented by that there were no vacancies — Hence this appeal — Whether the Petitioner can be granted appointment to the same post or any other alternate post of the same status in the present company

Held, DESU is no longer in existence since 1997 and its successor Delhi Vidyut Boart (DVB) has since the year 2002 been unbundled. The various functions being performed by DESU have since been transferred to several undertakings. The version of the Petitioner of approaching the Respondent DESU during the said 17 years cannot be accepted. As aforesaid, there is no DESU now for the last nearly 13 years and the question of the petitioner approaching any such office did not arise. The long delay of 17 years is found to be fatal and enough to disentitle the Petitioner from any relief.

• Criminal Laws

BOMBAY HIGH COURt

Hanma @ Hanmanta Ishvarappa Budane, Koli Vs. The State of Maharashtra (Decided on 03.05.2011) MANU/MH/0632/2011

Conviction based on Circumstantial Evidence — Challenge against thereto — Additional Session Judge convicted the Appellant under Section 302 of Indian Penal Code, 1860 —  Whether the Order of conviction correct and justified

Held, Circumstance should be of a conclusive nature and must have a definite tendency of incriminating the accused. The circumstance so proved should form a complete chain which should exclude every hypothesis of the innocence of the accused and should unerringly point to the guilt of the accused. The circumstance, therefore, proved should be capable of drawing an inference that the accused and the accused alone has committed the offence. The evidence led by the prosecution in support of the aforesaid circumstances is incapable of inference to be drawn that it is the accused and the accused alone who had killed his wife. Therefore, Appellant accused would be entitled to be given the benefit of doubt. Appeal allowed

• Law of Customs

Patna High Court

Commssioner of Customs Vs. Amar Kishore Prasad (Decided on 04.05.2011) MANU/BH/0435/2011

Seizure of Gold Bars — Confiscation —  Section , 123, 130 of the Customs Act, 1962 — Deputy Commissioner of Customs, held the seized gold to be contraband gold smuggled in India and ordered confiscation which was upheld by Commissioner of Customs (Appeals) — Tribunal in appeal held that Customs Department had failed to establish that the seized gold was contraband gold smuggled into the territory of India and hence allowed the appeal — Whether the Tribunal was correct in setting aside the Order of Commissioner of Customs (Appeals)

Held, owner failed to prove that he had procured the seized gold from his customers at Raxaul. Section 123 of the Act, inter alia, provides that the burden of proof that the seized goods are not the smuggled goods lies on the person who claims to be the owner of the goods seized. Thus, the burden to prove that the seized gold was not smuggled lay upon the Owner. The Tribunal has erred in shifting the onus of proof upon the Customs Department. The Tribunal has also erred in holding that the statement given under Section 108 of the Act once retracted was not admissible in evidence. The fact that there was tampering of the marks and numbers of the seized gold bars coupled with the fact that the owner thereof could not disclose the source of acquisition should necessarily lead to an inference that the seized gold bars were of foreign origin, smuggled into the territory of India. Hence Appeal Allowed

TRIBUNAL

• Direct Taxation Laws

ITAT MUMBAI

ITO (IT) Vs. Shri Mahavirchand Mehta (Decided on 04.05.2011) MANU/IU/0353/2011

Benefit of DTAA —  Appellant resident of UAE claimed short term capital gain cannot be brought to tax in India in view of Article 13(3) of the Indo-UAE DTAA — CIT(Appeals) held assessee  entitled for the benefit of DTAA between India and UAE —  Hence this appeal —  Whether CIT(Appeals) erred in holding that the assessee is entitled for the benefit of DTAA between India and UAE and accordingly, the assessee is not liable to pay any tax on the short term capital gain and long term capital gain earned from the transfer of securities in India

Held, India-UAE Treaty' provides an exemption from capital gains tax in India to residents of UAE. An individual who is not liable to pay tax under the UAE law cannot claim any relief from the only tax on income which is payable in India under the agreement and that "the provisions of the Double Taxation Avoidance Agreement do not apply to any case where the same income is not liable to be taxed twice by the existing laws on both the Contracting States". Expression 'liable to tax' in the contracting state as used in Article 4(1)of Indo-UAE-DTAA does not necessarily imply that the person should actually be liable to tax in that contracting state and that it is enough if other contracting state has right to tax such person, whether or not such a right is exercised. Order CIT(A) confirmed appeal revenue dismissed.