2019 SCC Vol. 3 April 7, 2019 Part 3

Service Law — Appointment — Eligibility conditions/criteria — Cancellation of appointment — Non-fulfilment of eligibility criteria: In this case, appellant was working as Management Trainee and/or Assistant Company Secretary. The Supreme Court held that word “as” used in advertisement should be given literal meaning. Respondents, who were authors of advertisement and best judge to interpret usage of “as” specifically stating that intention was that applicant must have been appointed as Company Secretary and functioned as such for five years to be eligible for appointment. Hence, held, appellant’s appointment as Management Trainee cannot be equated and/or considered appointment “as” Company Secretary. When said period is excluded, appellant fails to fulfil stipulated eligibility criteria. Further held, submission by appellant that by performing duties as “Management Trainee” she was also performing some duties of “Company Secretary” and hence, said period should be counted to adjudge her eligibility liable to be rejected since such meaning would be changing eligibility criteria as stated in advertisement. It was further held that no interference with impugned order upholding appellant’s termination order was called for. [Ritu Bhatia v. Ministry of Civil Supplies, Consumer Affairs & Public Distribution, (2019) 3 SCC 422]

Entertainment, Amusement, Leisure and Sports — Entertainers/ Performers, Rights of — Dance performances in hotels/restaurants — Regulation by law: Impugned provisions of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 (12 of 2016) and Rules thereunder, though permitting dance performances, introduced certain regulatory measures and impossible licence conditions such that, not a single establishment could be issued licence under impugned legislation. Such impossible, vague, unreasonable, irrational, arbitrary and invalid provisions and licence conditions set aside. However, certain other provisions, though challenged, upheld. [Indian Hotel & Restaurant Assn. (AHAR) v. State of Maharashtra, (2019) 3 SCC 429]

Arbitration and Conciliation Act, 1996 — S. 15(2) and Sch. V: Appointment of a substitute arbitrator in contravention of the arbitration agreement, not permissible. Appointment/nomination of a retired employee a party to the agreement (the State herein) as an arbitrator cannot be assailed merely because arbitrator is retired/prior employee of one of the parties. Position of law obtaining for the period both prior to and post amendment of 2015, clarified. [State of Haryana v. G.F. Toll Road (P) Ltd., (2019) 3 SCC 505]

Service Law — Recruitment Process — Eligibility criteria/conditions — Acquisition of prescribed qualification after cut-off date — Validation of — Circumstances envisaged: In this case impugned judgment set aside selection and appointment of appellants as JEs who had put in service of nearly two decades on ground that they were not eligible for appointment since they had acquired prescribed qualification after cut-off date. Affirming correctness of reasoning of Division Bench that eligibility of candidates must be decided with reference to qualification possessed as on cut-off date, nevertheless held, interest of justice would require interference with impugned judgment considering long years of service put in by appellants and since they had already been selected and working, had not participated in subsequent three selections and now had become age-barred. Besides, as far as petitioner is concerned, more than efflux of time, fact was that he cannot secure selection because of his low marks even if appellants were ousted. [Rakesh Bakshi v. State of J&K, (2019) 3 SCC 511]

Penal Code, 1860 — Ss. 302 and 201 or Ss. 304 Pt. I and 201 [S. 300 Exception 1]: In this case, deceased was throttled to death with towel and dead body was burnt to conceal offence. It was held that everything occurred in fraction of a minute, depriving accused of power of self-control, conviction altered from Ss. 302 and 201 to Ss. 304 Pt. I and 201. [Nawaz v. State, (2019) 3 SCC 517]

Civil Procedure Code, 1908 — Or. 22 R. 4(2) — Impleadment of all legal heirs of the deceased defendant in appeal — When not necessary: If out of all the legal representatives, majority of them are already on record and they contest the case on merits, it is not necessary to bring other legal representatives on record for the reason that the estate and the interest of the deceased devolved on the legal representatives is sufficiently represented by those who are already on record. [Vijay A. Mittal v. Kulwant Rai, (2019) 3 SCC 520]

Kumaun and Uttarakhand Zamindari Abolition and Land Reforms Act, 1960 — S. 10(e): Asami/Sirdari right i.e. entitlement to take or retain possession of occupied land, held, cannot arise on the basis of forged/surreptitious revenue record entries. Entries in the revenue record ought, generally, to be accepted at their face value but presumption of correctness can apply only to genuine, not forged or fraudulent, entries. [Dharam Singh v. Prem Singh, (2019) 3 SCC 530]

Customs — Confiscation/Detention — Confiscation and redemption: Confiscation and redemption of restricted goods (as contrasted with prohibited goods) imported without requisite permission, on payment of fine, permissible. [Commr. of Customs v. Atul Automations (P) Ltd., (2019) 3 SCC 539]

Civil Procedure Code, 1908 — Or. 39 R. 2-A and Or. 21 R. 32(5) — Disobedience of temporary injunction — Punishment for: Violation of order of injunction was serious matter. Unless there is clear evidence showing party wilfully violated court order, he cannot be punished. There must be parity of treatment when parties similarly situated are accused of violating temporary injunction. [Ramasamy v. Venkatachalapathi, (2019) 3 SCC 544]

Service Law — Pay — Parity in pay/Pay scale — Claim to — Nature and Burden of proof: Employees claiming parity must prove that their nature of duties were similar but they were unjustly treated by arbitrary action or discriminated against. [Punjab State Power Corpn. Ltd. v. Rajesh Kumar Jindal, (2019) 3 SCC 547]

Civil Procedure Code, 1908 — Or. 9 R. 9 — Application for restoration of suit: Application for restoration of suit was dismissed on ground of continuous absence in court but as continuous absence, not made out on facts, civil suit restored. [Kusumben Indersinh Dhupia v. Sudhaben Biharilalji Bhaiya, (2019) 3 SCC 569]

Railways Act, 1989 — Ss. 124-A and proviso thereto and 124 — Right to compensation on account of untoward incident: Concept of “self-inflicted injury” would require intention to inflict such injury and not mere negligence of any particular degree. Further, invocation of the principle of contributory negligence cannot be done in the case of liability based on “no fault theory”. Held, death or injury in the course of boarding or de-boarding a train will be an “untoward incident” entitling a victim to compensation and will not fall under the proviso to S. 124-A merely on plea of negligence of victim as a contributing factor. [Union of India v. Rina Devi, (2019) 3 SCC 572]

Constitution of India — Art. 32: Writ petition before Supreme Court for enforcement of personal contractual rights, not maintainable. Writ petition filed by ex-employee seeking writ of mandamus directing CBI to investigate into alleged financial irregularities committed by employer company, with ulterior motive of enforcement of personal rights inter se employee and employer, cannot be allowed. [Ramesh Sanka v. Union of India, (2019) 3 SCC 589]

Civil Procedure Code, 1908 — Ss. 47 and 21 — Objection to territorial jurisdiction of court: Executing court has no jurisdiction to entertain Objection raised before executing court under S. 47 as to validity of decree sought to be executed on ground of lack of territorial jurisdiction of court which passed decree. [Sneh Lata Goel v. Pushplata, (2019) 3 SCC 594]

Penal Code, 1860 — S. 307 or S. 324 — Offence under S. 307 — Ingredients of: Proof of grievous or life threatening hurt is not a sine qua non for offence under S. 307. Intention of accused can be ascertained from actual injury, if any, as well as from surrounding circumstances. Among other things, nature of weapon used and severity of blows inflicted, can be considered to infer intent. [State of M.P. v. Kanha, (2019) 3 SCC 605]

Hindu Succession Act, 1956 — S. 30 Explanation: Disposal of undivided share in Mitakshara joint family properties by means of executing will, permissible. [Radhamma v. H.N. Muddukrishna, (2019) 3 SCC 611]

Penal Code, 1860 — Ss. 302/34 — Criminal Trial — Appreciation of Evidence: Minor contradictions or inconsistencies immaterial, as appellant alleged to have assaulted deceased with gupti on his neck and nearby area resulting in his death, hence, conviction confirmed. [Satya Raj Singh v. State of M.P., (2019) 3 SCC 615]

Recovery of Debts and Bankruptcy Act, 1993/Recovery of Debts Due to Banks and Financial Institutions Act, 1993 — Ss. 17 and 18 r/w S. 34 i.e. bar of jurisdiction under: A winding-up proceeding is not a proceeding that can be referred to as a proceeding for realisation of debts and since a winding-up proceeding under the Companies Act is not “for recovery of debts” due to banks, the bar contained in S. 18 r/w S. 34 of the Recovery of Debts Act would not apply. [Swaraj Infrastructure (P) Ltd. v. Kotak Mahindra Bank Ltd., (2019) 3 SCC 620]