MY DADDY IS A MOVIE ACTOR, AND SOMETIMES HE PLAYS THE GOOD GUY, AND SOMETIMES HE PLAYS THE LAWYERS.
NEWS – SUPREME COURT
- Ragini Sinha v. State of Bihar and Ors
Two persons, filed their claim petitions before the competent authority under the Minimum Wages Act, 1948 (“the Act”) against the Appellant. In these claim petitions, the Respondents claimed that, they had worked with the Appellant on her land for the relevant period but she did not pay them their legitimate wages despite rendering their services for her. The two applicants (workers/employees), therefore, claimed that their legitimate wages for the period in question be determined in the light of the provisions of the Act and the claimants be accordingly paid their minimum wages for the period in question by the Appellant.By order, the competent authority allowed the claim petitions of the two workers and accordingly directed the Appellant (employer) to pay them wages as determined along with the penalty amount awarded by the authority. The Appellant felt aggrieved and filed appeal before the appellate authority under the Act. By order, the appellate authority dismissed the appeal and affirmed the order of the competent authority. The short question, which arises for consideration in instant appeals, is whether the High Court was justified in upholding the orders passed by the two authorities under the Act.
No case has been made out to call for any interference in the impugned orders. What is involved in this case is a pure question of fact which cannot be gone into in these appeals. The question as to whether the two workers ever worked with the Appellant and, if so, for how much period and how much wages were payable to them by their employer are the material questions, which were gone into by the competent authority and appellate authority and decided in favour of the two workers. A concurrent finding of fact recorded on these issues by the two authorities was binding on the High Court while deciding the writ petitions and the intra Court appeals. Even in the intra Court appeals, the Appellant though filed an application for their impleadment but it was done after a long lapse of time and, therefore, the Division Bench rightly dismissed the application on the ground of delay and laches.
The claim in question relates to the year 1991 and pertains to the payment of minimum wages payable to two workers, who are now dead and not represented before this Court. The Appellant has not been able to make out any case on merits. The Appellant was afforded a sufficient opportunity to defend and which she also availed of. That apart, no material was produced by the Appellant at any stage of the proceedings to show that any prejudice was caused to her. Having regard to the nature of breaches committed by the Appellant and which were held proved, the authority was justified in imposing the penalty on the Appellant.
Authority has the power under the Act to impose the penalty, once the breaches alleged against the employer are proved. Neither the appellate authority, nor the writ Court and nor the Division Bench in their respective jurisdiction considered it proper to interfere on any of these issues. Appeals dismissed.[January 07, 2019]
- Kamal Kumar v. Premlata Joshi and Ors
The Appellant filed the civil suit against the Respondents claiming specific performance of the contract in relation to the suit land. The Respondents contested the suit. By judgment/decree, the Trial Court dismissed the suit. The Plaintiff felt aggrieved and filed first appeal before the High Court. By impugned judgment, the High Court dismissed the appeal and affirmed the judgment and decree of the Trial Court, which has given rise to filing of present appeal by way of special leave by the Appellant (Plaintiff) before this Court.The concurrent findings of facts recorded by the two Courts below on all the material issues are binding on this Court. These findings are neither against the pleadings nor the evidence and nor any principle of law. These findings are also not shown to be perverse to the extent that no judicial person can ever record such findings.
It is a settled principle of law that, the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; Second, whether the Plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; Third, whether the Plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; Fourth, whether it will be equitable to grant the relief of specific performance to the Plaintiff against the Defendant in relation to suit property or it will cause any kind of hardship to the Defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the Plaintiff; and lastly, whether the Plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds.
The aforementioned questions are part of the statutory requirements. These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts.
The two Courts below have gone into these questions in the light of pleadings and evidence and recorded a categorical finding against the Plaintiff holding that the Plaintiff was neither ready and nor willing to perform his part of the contract and, therefore, he was not entitled to claim the relief of specific performance of the contract against the Defendants in relation to the suit land. It was also held that, the Plaintiff was not entitled to claim any relief of refund of earnest money because it was liable to be adjusted as agreed between them.
Both the Courts below held that, the Plaintiff has failed to prove his readiness and willingness to perform his part of the contract. The Appellant was also not able to point out any material perversity or/and illegality in the finding so as to call for any interference therein by this Court. Appeal dismissed.[January 07, 2019]
- Birla Institute of Technology v. The State of Jharkhand and Ors
This appeal is directed against the final judgment passed by the High Court whereby the Division Bench of the High Court dismissed the LPA filed by the Appellant herein. The Appellant is a premier technical educational institute of repute in the country. It is known as “Birla Institute of Technology” (BIT). Respondent No. 4 joined the Appellant-Institute as Assistant Professor on 16.09.1971 and superannuated on 30.11.2001 after attaining the age of superannuation.Respondent No. 4 then made a representation to the Appellant and prayed therein for payment of gratuity amount which, according to Respondent, was payable to him by the Appellant under the Payment of Gratuity Act, 1972 (“The Act”). The Appellant, however, declined to pay the amount of gratuity as demanded by Respondent No. 4. Respondent No. 4, therefore, filed an application before the controlling authority under the Act against the Appellant and claimed the amount of gratuity which, according to him, was payable to him under the Act. The short question, which arises for consideration in present appeal, is whether the Courts below were justified in holding that Respondent No. 4 was entitled to claim gratuity amount from the Appellant (employer) under the Act.
As rightly argued by the learned Counsel for the Appellant, the issue involved in this appeal remains no longer res integra and is decided by this Court in Ahmadabad Pvt. Primary Teachers Association v. Administrative Officer and Ors. in favour of the Appellant. The question arose for consideration in the case of Ahmadabad Pvt. Primary Teachers Association as to whether “Teacher” could be regarded as an “employee” Under Section 2(e) of the Act and, if so, whether he/she is entitled to claim gratuity amount from his employer in accordance with the provisions of the Act. The two-Judge Bench examined this question in detail. Justice D.M. Dharmadhikari speaking for the Bench held that a teacher is not an employee within the meaning of the expression “employee” as defined Under Section 2(e) of the Act and hence he/she is not entitled to claim any gratuity amount from his employer under the Act.
Respondent No. 4, who was also a teacher and worked with the Appellant as such, was not eligible to claim gratuity amount from the Appellant (BIT) under the Act. The High Court though took note of the decision rendered in the case of Ahmadabad Pvt. Primary Teachers Association but erred in distinguishing it on the ground that it is applicable only to the primary teachers working in primary schools and since the case at hand is not a case of a primary teacher, it has no application to this case.
The High Court failed to see that, this Court had examined the expression “teacher” qua the expression “employee” defined in Section 2(e) of the Act and then held that “teacher” is not an employee within the meaning of Section 2(e) of the Act. Therefore, present Court cannot concur with the view taken by the High Court, which is not in conformity with the law laid down by this Court in the case of Ahmadabad Pvt. Primary Teachers Association. The impugned order is set aside. Appeal allowed.[January 07, 2019]
- Management of the Barara Cooperative Marketing-cum-Processing Society Ltd v. Pratap Singh
Present appeal is directed against the final judgment passed by the High Court whereby the Division Bench of the High Court dismissed the appeal filed by the Appellant herein and affirmed the judgment passed by the Single Judge of the High Court by which the Respondent herein was ordered to be reinstated into service with back wages.There was no case made out by the Respondent (workman) seeking re-employment in the Appellant’s services on the basis of Section 25(H) of the Industrial Disputes Act, 1947 (ID Act). In the first place, the Respondent having accepted the compensation awarded to him in lieu of his right of reinstatement in service, the said issue had finally come to an end; and Second, Section 25(H) of the ID Act had no application to the case at hand.
In order to attract the provisions of Section 25(H) of the ID Act, it must be proved by the workman that firstly, he was the “retrenched employee” and secondly, his ex-employer has decided to fill up the vacancies in their set up and, therefore, he is entitled to claim preference over those persons, who have applied against such vacancies for a job while seeking re-employment in the services.
The case at hand is a case where the Respondent’s termination was held illegal and, in consequence thereof, he was awarded lump sum compensation of Rs. 12,500 in full and final satisfaction. The Respondent also accepted the compensation. This was, therefore, not a case of a retrenchment of the Respondent from service as contemplated under Section 25(H) of the ID Act. The Respondent was not entitled to invoke the provisions of Section 25(H) of the ID Act and seek re-employment by citing the case of another employee (Peon) who was already in employment and whose services were only regularized by the Appellant on the basis of his service record in terms of the Rules.
The regularization of an employee already in service does not give any right to retrenched employee so as to enable him to invoke Section 25(H) of the ID Act for claiming re-employment in the services. The reason is that, by such act the employer does not offer any fresh employment to any person to fill any vacancy in their set up but they simply regularize the services of an employee already in service. Such act does not amount to filling any vacancy.
There lies a distinction between the expression ’employment’ and ‘regularization of the service”. The expression ’employment’ signifies a fresh employment to fill the vacancies whereas the expression ‘regularization of the service’ signifies that the employee, who is already in service, his services are regularized as per service Regulations. The Labour Court was, therefore, justified in answering the reference in Appellant’s favour and against the Respondent. The appeal is accordingly allowed. Impugned order is set aside and the award of the Labour Court is restored.[January 07, 2019]
NEWS – HIGH COURT AND TRIBUNALS
- Bijal Packaging and Ors v. C.C.E. & S.T., Ahmedabad – (Customs, Excise and Service Tax Appellate Tribunal)
The Appellant Bijal Packaging and B.B. containers both are situated at one factory premises were engaged in the manufacture of metal tin container. They were manufacturing Metal Steel Container on their own as well as on job work basis and splitting up the clearances availing the exemption from payment of central excise duty under Notification No. 08/2003-CE: MANU/EXCT/0060/2003 dated 01st March, 2003 as amended. On a search and further investigation, it was found that the assessees were engaged in manufacture of metal tin container without obtaining central excise registration.After detailed investigation, SCN was issued to the Appellants which culminated into adjudication order whereby the demand of central excise duty, interest and imposition of penalty were confirmed, therefore, the present appeals.
The Appellant are engaged in the manufacture of tin containers for edible oil manufacturing company. The said tin containers were manufactured on job work basis as well as the same containers were sold on principal to principal basis. In this fact as per the Larger Bench judgment of the Tribunal in the case of M/s. Ispat Industries Ltd., the sale price charged to the independent buyers shall apply even in case of job work. In the said judgment, it is observed that once the value under Section 4 i.e. transaction value is available then there is no need to resort to Section 4(1)(B) and Valuation Rules, 2000. In view of the Larger Bench judgment, the excise duty liability should be computed considering the sale value charged to the independent customers as the assessable value for the purpose of valuation of job worked goods. Since, the said value is in accordance with Section 4, the permissible deduction such as transportation is also available to the appellant.
As regard, the admissibility of the Cenvat Credit, there is no dispute that the invoices on which the Appellant seeking availment of Cenvat Credit, the goods of the said invoices were admittedly used by the Appellant for job work. The same has been endorsed by the department by taking cost of raw material from the same invoices. Merely because the name of the Appellant is not appearing on the invoices, Cenvat Credit cannot be denied. In any case, when the job worker manufactured the goods out of raw material belongs to the principal, the purchase invoices will be in the name of principal and not in the name of job worker, however the fact remains that the said duty paid goods were used by the Appellant in the manufacture of job worked goods, therefore, credit is clearly admissible on such invoices of tin plate to the Appellant.
The valuation of job worked goods computed by the department on the basis of cost of raw material + job work charges is incorrect. Therefore, the adjudicating authority must re-quantify the duty on the value arriving on the basis of sale price of tin container applied to the independent buyer. The appellant is also entitled for deduction of transportation in accordance with law. The appellant is also entitled for the Cenvat Credit on the raw material i.e. tin plates on the invoices though not in their name. In view of all these aspects, demand may be re-quantified. Considering the facts and the circumstances, of the case and the issue involved is interpretation is of SSI exemption Notification No. 8/2003-CE: MANU/EXCT/0060/2003 and valuation provision, the mala fide intention cannot be attributed to the Appellant, therefore, penalties imposed by the adjudicating authority are set aside. The appeals are partly allowed by way of remand to the adjudicating authority.[January 02, 2019]
- The State of Tripura v. Bimal Chakraborty and Ors. – (High Court of Tripura)
The State by means of present revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (CrPC) has challenged the order delivered by the Special Judge, but the challenge is restricted to refusal to take cognizance of the police report filed under Section 173(2) of the CrPC in connection with Case registered under Section 409/468/471 read with Section 34 of the Indian Penal Code, 1860 (IPC) and under Section 13 of Prevention of Corruption Act, 1988 read with Section 120-B of the IPC.It is by now well settled that the Magistrate is not bound by the conclusion drawn by the police officer. After receipt of the police report, the Magistrate can do one of the three things under Section 173(3) of the Cr.P.C. viz.-(i) he may decide that there is no sufficient ground for proceeding further and drop action, (ii) he may take cognizance of the offence under Section 190(1)(b) on the basis of the materials in the police report and (iii) he may direct the further investigation by the police. Therefore, in a police report, the materials which are placed are to be independently scrutinized by the Magistrate for taking cognizance.
The police report which is filed on completion of the investigation is in the form as prescribed by the State. Sub-Section 5 of Section 173 of the CrPC makes it obligatory upon the police officer to forward along with the report all documents or relevant extracts thereof on which the prosecution proposes to rely and the statements recorded under Section 161 of the CrPC of all the persons whom the prosecution proposes to examine as the witness of the trial.
The police report would imply the report prepared on the materials collected on or before the date when the report has been framed. The police officer is not authorized by law to say that the investigation is continuing at the time of filing the police report. The report is mandated to be filed on completion of the investigation. Further, investigation as contemplated under Section 173(8) of the CrPC is on the basis of fresh materials collected after the police report is filed. Even incidence of further investigation be brought to the notice of the Magistrate beforehand.
It is apparent from the records that the eighteen charge-sheets have been filed in the case in hand. These are not results of further investigation but of a continuing investigation, as even accede by the prosecution. Hence, it cannot be inferred the police report was filed on completion of the investigation. In the factual matrix, this court does not find any infirmity in the impugned order passed by the Special Judge. All the eighteen purported police report shall be treated as the one police report with different parts for substantive justice and the date of filing the charge-sheet shall be the date when the charge-sheet No. 71/15 was filed. The Special Judge shall consider the police report in multiple parts and take his decision on cognizance of the alleged offence.
To try the distinct offence the separate trials may be conducted after framing the distinct charge on the basis of the police report. No separate FIR has been registered by the police for the distinct offences. This process shall commence only after framing the separate charges for the distinct offences. Even that may be waived only in exercise of power under proviso to Section 218 of the CrPC. Petition dismissed.[January 03, 2019]
- Prempal and Ors v. State – (High Court of Allahabad)
In present matter, FIR was lodged under Sections 323, 324 of Indian Penal Code, 1860 (IPC) against four persons alleging that, on 18th February, 1985, they alongwith two other persons assaulted victims by lathi-danda and ‘farsa’ and caused them injuries. After investigation, charge sheet was submitted against Prempal, Rampal, Bashir and Hukam Singh. Cognizance was taken by the Court concerned. Charges were framed under Sections 323 read with 34 of IPC, 324 read with Section 34 of IPC and 325 read with section 34 of IPC. Accused persons pleaded not guilty and claimed to be tried.Statements of accused were recorded under Section 313 of Code of Criminal procedure, 1973 (CrPC). They denied offence and contended that they have been falsely implicated on account of enmity but did not adduce any oral evidence. Impugned judgment was passed convicting Prempal, Rampal, Bashir and Hukam Singh under Sections 323 read with Section 34 and 324 read with Section 34 of IPC and sentencing. Against judgment, Criminal Appeal was filed which was dismissed by the Ist Additional Sessions Judge, vide judgment. Hence, present revision.
In the case of Jarnail Singh vs. State of Punjab, it was held that, deposition of an injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies for the reason that his presence on the scene stands established in the case and it is proved that he suffered the injuries during the said incident. Further, in the case of Maqsoodan vs. State of U.P., it was held that presence of the injured witnesses at the time and place of the occurrence cannot be doubted as they had received injuries during the course of the incident and they should normally be not disbelieved.
Both injured witnesses categorically stated that, Prempal with ‘farsa'(sharp-edged weapon) and Rampal, Bashir and Hukam Singh with sticks (lathi-danda-hard & blunt object) assaulted injured persons at the date, time and place mentioned in the FIR. The evidence of injured persons have been corroborated by the statement of doctor, entry in G.D., statement of P.W. 3 and injury reports. Hence, case against revisionists Prempal and Rampal is proved without reasonable doubt under section 323 read with 34 of IPC and section 324 read with 34 of IPC.
In the case of Lallu Manjhi & Another vs. State of Jharkhand, the Supreme Court has held that, “The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness.”
The testimony of witnesses P.W. 1 Shankar Singh and P.W.-2 Jagdish are “wholly reliable” and are also corroborated by medical evidence as well as other documentary evidence produced by the prosecution. On the point of conviction, revision dismissed. The revision is dismissed in respect of revisionist no. 1 Prempal and revision in respect of revisionist No. 2 Rampal is partly allowed.[January 03, 2019]