SUPREME COURT

• CIVIL

Airports Authority Vs. Rajiv Ratan Pandey (Decided on 17.08.2009) MANU/SC/1463/2009

Dispute as to transfer of the appellant on grounds that the order of transfer has been issued against the transfer policy inasmuch as it provides that the inter-regional transfers shall not be made before the incumbent completes at least five year tenure in that region; that the official shall not normally be transferred within region second time unless all others in that cadre have done one turn of out of region transfer; that except in cases where operational/administrative reasons warrant, transfers shall normally be avoided and transfer when made shall be in accordance with the seniority at the station in the region -  Whether the order of transfer suffers from strong mala-fides despite that in the entire petition, there is not even whisper of mala-fides against the Authority?

As per a catena of decisions in a matter of transfer of a government employee, scope of judicial review is limited and High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing. This is so because the courts do not substitute their own decision in the matter of transfer. In the present case, High Court fell into a grave error in staying the transfer order which, if allowed to stand, may cause prejudice to the administrative functioning of the appellant.

Pannyar Vs. State of Tamil Nadu (Decided on 17.08.2009) MANU/SC/1462/2009

Criminal - Sections 302, 392 and 397 and Evidence Act Section 114 - Appellant challenges his conviction for the offence under sections 302, 392 and 397 of the Indian Penal Code - Whether the allegations subsequent conviction based on circumstantial evidence are erroneous in law?

The circumstance given by the senior counsel of the state is insignificant, particularly because the blood group is not tested upon and secondly, it is actually absurd thing that the accused would keep on wearing the same blood stained clothes for 12 days. Both the Courts below have erred in convicting the accused of the offences under Sections 302 and 392 read with Section 397 of IPC. The accused shall be released forthwith unless required in any other case.

Amar Nath Shukla Vs. State of Uttaranchal (Decided on 11.08.2009) MANU/SC/1435/2009

Criminal - Sections 147, 323 and 436 of the Indian Penal Code 1860 and Section 313 of the Criminal Procedure Code 1973- Argument with regard to whether a Court can compound an offence which is non-compoundable in nature under Section 436 of the IPC on basis of a compromise arrived at between the parties?

The Court cannot compound the offence on the basis of the said compromise inasmuch as the offence punishable under Section 436 IPC is non-compoundable nor can the Court direct the courts below to compound the offence based on the compromise. However, considering the nature of allegations leveled against the appellant and the period of sentence already undergone and the subsequent developments wherein an amount was given by the appellant to the widow as a solatium and ever since the compromise, parties are living in peace and maintaining very cordial relations with each other, the Court is of the considered opinion that interest of justice would be met by maintaining the conviction of the appellant under Section 436 IPC and reducing the sentence to that of the period already undergone by him. He shall be forthwith released unless required in any other case.

G.V. Sreerama Reddy Vs. Returning Officer (Decided on 11.08.2009) MANU/SC/1436/2009

Election - Representation of the People Act, 1951 - Sections 81, 81(1), 86(1) and 116A of Limitation Act ; Evidence Act,  Section 100(1) and 101of Civil Procedure Code (CPC) - Dispute is with regard to dismissal of election petition on grounds of lack of proper presentation in terms of Section 81(1) of the Representation of People's Act 1951- Whether the election petition as presented was in accordance with Section 81(1) of the Act and whether the High Court was right in dismissing the same as it was not presented by the candidate or elector?

As per Sub-section (1) of Section 81, election petition is to be presented by any candidate or elector relating to the election personally to the authorized officer of the High Court and failure to adhere such course would be contrary to the said provision and in that event the election petition is liable to be dismissed on the ground of improper presentation. Since, the High Court has correctly dismissed the election petition, the civil appeal fails and the same is dismissed with no order as to costs.

Halappa Vs. State of Karnataka (Decided on 13.08.2009) MANU/SC/1454/2009

Criminal - Section 4 of the Probation of Offenders Act, 1958, Sections 34, 324 and 504 of the Indian Penal Code and Section 360 of the Code of Criminal Procedure - In view of the absence of previous conviction and criminal record and having regard to their age, character and antecedents and circumstances in which the offence was committed - Whether it is expedient that the benefit of the Probation of Offenders Act, 1958 and Section 360 of the Code of Criminal Procedure ought to have been extended to the appellants ?

 Learned Magistrate considered it unnecessary to extend them the benefit of probation, in view of the enmity between the families of the accused and the complainant - However, the Court fails to see how such enmity is relevant for considering probation - Having regard to the circumstances of the case, nature of the offence, character of the offenders, the learned Magistrate ought to have secured the report of the Probation Officer and then passed appropriate order, taking note of Section 4 of the Act The appeal is allowed in part.

HIGH COURTS

• CRIMINAL

DELHI HIGH COURT

Ram Murthi Vs. State (Decided on 11.08.2009) MANU/DE/1581/2009

Narcotics Drugs Psychotropic Substances Act - Sections 15, 42, 43, 50 and 57; Criminal Procedure Code (CrPC) - Section 313 - Dispute as to the conviction and sentencing of the appellant under Section 15 of the Narcotics Drugs Psychotropic Substances Act and sentencing of R.I. for 10 years and to pay a fine of Rs. 1,00,000/- (Rupees One Lakh) and in default to further undergo SI for six months. Whether failure of the investigating agency to join public witnesses at the time of search vitiates the proceedings.

The present case was covered by the powers available to Police under Section 43 of the NDPS Act Any officer of any of the departments may seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance and detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and, if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.

• LABOUR AND INDUSTRIAL

BOMBAY HIGH COURT

Bhangar Bros Vs. Engineering Works Union (Decided on 11.08.2009) MANU/MH/0689/2009

Company / Constitutional Laws - Companies Act 1956 Section 11A, Constitution of India Articles 226 and 227 - Challenge with relation to the Part-II award passed by the Labour Court whereby Labour Court was pleased to hold that the punishment awarded by Enquiry Officer was not just, fair and proper and the punishment of dismissal of workman given by the petitioner herein was disproportionate to the misconduct which was alleged against the workmen and, secondly, the order of termination was quashed and set aside - The said punishment was modified with the punishment of reprimand with loss of wages till their termination and, thirdly, the petitioner herein was directed to reinstate the workmen with continuity of service and full back-wages - Whether the Labour Court has committed an error of law?

Labour Court has committed an error of law which is apparent on the face of record. Labour Court, at the highest, could have considered that where the charges levelled against the workmen having been proved, whether the order of dismissal has been passed on the basis of the said misconduct which was alleged against the concerned workmen. Instead of doing that, Labour Court has clearly reappreciated the findings of Enquiry Officer and has come to its conclusion in Part-II award which is impugned in this Petition.

• SERVICE

BOMBAY HIGH COURT

M.B. Motwani Vs. UCO Bank, formerly known as United Commercial Bank, constituted and functioning under the provisions of Banking (Acquisition and Transfer of Undertakings Act 5 of 1970 as amended by Banking Laws Amendment Act, 1985) and Ors. (Decided 30.07.2009) MANU/MH/0624/2009

Petitioner-employee was due to attain superannuation on 1st August, 1991 - However, before his superannuation, Petitioner-employee was served with a show causenotice and terminated from service on ground of alleged misconduct -Petitioner challenged dismissal on ground that no charge sheet was served upon him on or till the date of superannuation but was served subsequently - Whether the Termination from service in case wherein charge sheet was served upon him subsequently was sustainable

Held, the Supreme Court in UCO Bank v. Rajendralal Capoor has held that departmental proceedings shall be deemed to have been initiated only with service of the charge sheet - In the present case, as no charge sheet was served upon the Petitioner till the date of his superannuation, no disciplinary proceedings could be deemed to have been commenced against him in law - Petition allowed.