SUPREME COURT

• SERVICE LAWS

B. S. Mathur and Anr. v. Union of India (Decided on 15.10.2008)

Principle of inter se seniority - Application thereof - Determination of seniority - Writ petitions filed by the directly recruited Additional District and Sessions Judges appointed to the Delhi Higher Judicial Service alongwith a prayer for quashing the Resolution dated 18.05.2007 of the Full Court of the High Court of Delhi approving the majority report of the Administrative Committee determining the seniority of the petitioners in terms of O.M. dated 03.07.1986 and also quashing the final seniority list of the officers of Delhi Higher Judicial Service

The principle of inter se seniority contained in the O.M. cannot be applied for determining the inter se seniority of the officers of DHJS for the following reasons, (i) The principle of inter se seniority contained in the O.M. of DOPT dated 3.7.1986 cannot supplant statutory Rules for determining the inter se seniority contained in the statutory Rules viz., Rule 8(2) read with Rule 7 of DHJS Rules, 1970; (ii) The pre-conditions for applicability of the principle contained in the above referred O.M. never existed in the service in question. The O.M. contemplates recruitment on yearly basis and also for maintaining year-wise record of the vacancies remaining unfilled in any particular category before they are bunched as carry forward vacancies for the next year, (iii) Rule 27 of the DHJS Rules which is a residuary provision explicitly provides that with regard to matters on which DHJS Rules are silent, help can be taken from the Rules that are applicable to the IAS officers. As specific provisions for determining the inter se seniority of the officers of DHJS have been made in the DHJS Rules, there is no question of taking any aid from any outside Rule as contained in the O.M. Further the IAS Seniority Rules, 1987 prescribed principle that is altogether different from the kind of Rota Quota principle embodied in DHJS Rules, 1970.

The majority report has also noted that though the O.M. of 1986 does not apply by recourse to Rule 27 of the DHJS Rules 1970, yet has recommended its applicability for determining the inter se seniority of the officers of DHJS on the assumption that the Central Government would be within its right to apply the said Memorandum or make similar principle for application to the members of the All India Service in future. The principle of bunching of officers appointed against carry forward vacancies and then putting them below the last officer appointed against the current vacancy of that year is not applicable to the IAS officers for determining their inter se seniority but in DHJS, the circumstances are entirely different. The appointments from 1992 to 2006 were never made from either source on yearly basis. No record was maintained regarding the unfilled vacancies available to either source on year-wise basis.

The necessary amendment relating to inter se seniority for future be made in the DHJS Rules in consonance with the directions of this Court as referred in the above-mentioned cases. Till such time the principle of "continuous length of service" i.e. date of appointment should be applied for determining the inter se seniority of the officers of Delhi Higher Judicial Service.

• CRIMINAL LAWS

Arumugam vs. State rep. by Inspector of Police, Tamil Nadu (Decided on 13.10.2008)

Exception 4 to Section 300 of the Indian Penal Code, 1860 - Applicability of the provision

To make exception 4 to section 300 it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.

The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds, which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation.

The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the `fight' occurring in Exception 4 to Section 300 IPC is not defined in the IPC. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression `undue advantage' as used in the provision means `unfair advantage'.

In the instant case in view of the factual background the appropriate conviction would be under Section 304 Part I IPC instead of Section 302 IPC.

Babloo Pasi Vs. State of Jharkhand and Anr. (Decided on 03.10.2008)

Juvenile - Presumption and determination of age - Scope and purpose of section 32 of Juvenile Justice Act, 1986 and section 49 of Juvenile Justice (Care and Protection of Children) Act, 2000 - Parameters for determining the age of the accused, claiming to be a juvenile on the date of occurrence of the incident

The scope and purpose of Section 32 of the Juvenile Justice Act, 1986 is almost pari materia with Section 49 of the Act, which defines the presumption, and determination of age. When a plea is raised on behalf of an accused that he was a "child", where Court is to entertain any doubt pertaining to age as claimed by the accused, it becomes obligatory for the Court to adjudge its correctness by holding an enquiry itself or cause an enquiry to be held and seek a report regarding the same and also if necessary, by asking the parties to lead evidence in such context.

Whenever such plea is raised, Court is under an obligation to examine such plea with care. The Court cannot fold its hands and without returning a positive finding regarding that plea, deny the benefit of the provisions to an accused. It is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. The Medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence. A hyper- technical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the same evidence, the Court should lean in favour of holding the accused to be a juvenile in borderline cases.

• CIVIL LAWS

Southern Sales and Services and Ors. Vs. Sauermilch Design and Handels GMBH (Decided on 03.10.2008)

Proceedings under Order 37 of the Code of Civil Procedure, 1908 - Interpretation of Rule 3, Sub-rule (5) of the order - Grant of unconditional leave for defending the suit

The earlier concept of granting unconditional leave when a triable issue is raised on behalf of the defendant, has been supplemented by the addition of a mandate, which has been imposed on the defendant, to deposit any amount as admitted before leave to defend the suit can be granted. The question as to whether leave to defend a suit can be granted or not is within the discretionary powers of the High Court and in the instant case in view of the facts and circumstances, such discretion was not exercised erroneously or with any irregularity warranting interference by the Apex Court.

Dharam Singh Vs. Karnail Singh and Ors. Decided On: 13.10.2008

Second Appeal - Dismissal thereof without formulation of any question of law - Correctness of the order challenged

In Ishwar Dass Jain v. Sohan Lal MANU/SC/0747/1999, the Apex Court has stated that, "Now under Section 100 CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so". Again in Roop Singh v. Ram Singh MANU/SC/0204/2000 the Apex Court expressed that the jurisdiction of a High Court is confined to appeals involving substantial question of law

The plea about proviso to Sub-section (5) of Section 100 instead of supporting the stand of the respondent rather goes against them. The proviso is applicable only when any substantial question of law has already been formulated and it empowers the High Court to hear, for reasons to be recorded, the appeal on any other substantial question of law. The expression "on any other substantial question of law" clearly shows that there must be some substantial question of law already formulated and then only another substantial question of law which was not formulated earlier can be taken up by the High Court for reasons to be recorded, if it is of the view that the case involves such question. The impugned judgment accordingly liable to be set aside and the matter was remitted back to the High Court.

• LABOUR AND INDUSTRIAL LAWS

Div. Manager, New India Assurance Co. Ltd. Vs. A. Sankaralingam (Decided on 03.10.2008)

Workmen and Continuous service - Definition thereof - Conditions precedent to retrenchment of workmen - Whether a part-time workman would be covered within the definition in Section 2(s) of the Industrial Disputes Act - Whether the workman would be entitled to the benefit of continuous service under Section 25B and the benefit of Section 25F of the Act

The definition of 'workman' as given in the Act does not make any distinction between full time employee and part time employee. It does not lay down that only a person employed for full time will be said to be a workman and that the one who is employed for part time should not be taken as a workman. What is required is that the person should be employed for hire to discharge the work manual, skilled or unskilled etc. in any industry. If this test is fulfilled, a part time employee can also be said to be a `workman'.

In the scope of Section 2(s) and Section 25B of the Act, the Apex Court has observed that a person working on a part time basis could not strictu sensu claim to be in continuous employment of the employer. Workman employed on a part time basis but under the control and supervision of an employer is a workman in term of Section 2(s) of the Act, and is entitled to claim the protection of Section 25F thereof, should the need so arise. Nothing has been pointed out that on any principle of equity, justice, good conscience or the technical interpretation of the definition of workman that a part-time workman cannot be termed as a workman is unknown to the industrial world. Non-compliance of the mandatory provisions of Section 25F of the Act would render the termination of service void ab initio.

• INTERPRETATION OF STATUTE

Interpretation of Section 9(3) of Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972 - Whether in view of the provisions contained in Part IXA of the Constitution of India, 1950 the Legislature of the State of M.P. had the requisite legislative competence therefor - Jurisdiction and authority of the Corporation to assess and recover property tax for the buildings, superstructure constructed in the market yard within the area of Municipal Corporation, Ratlam

It is well settled principle in law that the Court cannot read anything into a statutory provision, which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent. The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. In the instant case since there was no challenge at any point of time by the Appellant to the proviso to Sub-section (3) of Section 9 on the alleged ground of lack of legislative competence, the High Court could not have dealt with that issue. Even thereafter no challenge was made by the Appellant. Scope of interference in the impugned order passed by the High Court not necessary.

HIGH COURT

• TRUSTS AND SOCIETIES

Bombay High Court

Ajit Ramchandra Inamdar Vs. The Divisional Joint Registrar and Ors. (Decided on 30.09.2008) MANU/MH/0927/2008

Sections 13, 23, 152 and 154 of Maharashtra Co-operative Societies Act, 1960 - Petition challenging order passed in the Revision Application under section 154 of the Maharashtra Co-operative Socities Act, 1960 - Father of Petitioner wanted to transfer the property in the name of two sons - Housing Society informed that no such Bye-Law of the Society to admit two persons as members at a time

In the cases of Laxmi Co-operative Housing Society Ltd. v. Kantilal Champaklal Kothari and Ors. (MANU/SC/1603/1998) and Wadala Shriram Premises Co-operative Society Limited, Mumbai v. Kotecha And Co. and Ors. 2001 (4) Mh.L.J.616, it was urged that the enquiry in the appeal filed under Section 152 of the M.C.S. Act challenging order under Section 13 has to be limited, as to whether Registrar had rightly exercised his jurisdiction while passing order under Section 13 of the Act? In another case of M. Laxmi & Co. v. Dr. Anant R Deshpande and Anr. MANU/SC/0513/1972, the Apex Court has held that Court can take notice of subsequent events.Where the original relief has become inappropriate by subsequent events, the Court can take notice of such changes, if the court finds that the judgment of the Court cannot be carried into effect because of change of circumstances the Court takes notice of the same. If the property which is the subject-matter of suit is no longer available the court will take notice of such event. In the case of Hasmat Rai and Anr. v. Raghunath Prasad MANU/SC/0604/1981, the Apex Court observed that If the tenant is in a position to show that the need or requirement no more exists because of subsequent events, it would be open to him to point out such events and the Court including the appellate Court has to examine, evaluate and adjudicate the same. In the case of Govind v. Dr Jeetsingh MANU/SC/0757/1987, Supreme Court has held that whether in a particular situation the need was reasonable or bona fide must be judged from the objective view point and not merely by assertion or denial of the parties. In doing so court should take into cautious consideration all subsequent events. applying the above mentioned observations by the Supreme Court, the Court in the present case held that no different view regarding the appeals and revisions arising out of M.C.S Act can be taken. The appeal is nothing but a continuation of a original proceeding.

• TENANCY LAWS

Bombay High Court

Chembur Service Station Vs. Bharat Petroleum Corporation Ltd. (Decided On 01.10.2008) MANU/MH/0935/2008

Section 29 of Maharashtra Rent Control Act - Landlords not to cut-off or withhold essential supply or service - Agreement of Dealership, between the parties - The Respondent issued show cause notice to the Petitioner before terminating the said dealership alleging breach of terms and conditions of the agreement - Petitioner filled this Suit under the Rent Act - Existence of relationship questioned

To pass mandatory order by the Small Causes Court, by taking wrong note of Section 29 of the Maharashtra Rent Act, is not correct. The explanation need to be read in the context of landlord and tenant relationship and the essential supply or service need to be read with amenities, as required to be enjoyed while occupying the premises, which includes the uninterrupted supply of petrol pursuance to this agreement, is unacceptable. Any dispute or cause of action pursuant to the breach of terms and conditions and of such Dealership Agreement cannot be gone into by the Court under Maharashtra Rent Act. The mandatory order as passed as observed is beyond the purview of Section 29 of the Maharashtra Rent Act. Therefore, there is no reason to interfere with the order passed by the lower Appellate Court. Hence, petition was disposed.