SUPREME COURT JUDGEMENTS

TODAY'S UPDATES
(from SUPREMECOURTCASELAW.COM)

Total No. of Cases:16

2010 SCCL.COM 282(Case No:Civil Appeal No. 4070 of 2010 With Civil Appeal No. 4071 of 2010)(NEW) N. Rajanna and others Appellant(s) versus State of Karnataka and others Respondent(s) Date of Decision(mm/dd/yy):5/4/2010. Name of the Judge:Hon'ble Mr. Justice G.S. Singhvi and Hon'ble Mr. Justice Asok Kumar Ganguly. Subject Index: Karnataka Industries (Facilitation) Act, 2002 - respondent No. 3 filed an application for acquisition of land for its project - the appellants and others filed objections that their claim for grant of occupancy rights over a portion of the land sought to be acquired was pending before the competent authority - the State Government issued order for approval of the project of respondent No. 3. However, after 8 days, the State Government revised its decision and issued order for withdrawal of the approval accorded to the project of respondent No.3 on the ground of pendency of the case before the competent authority - respondent No. 3 challenged the order of the State Government - the learned Single Judge held that approval to the project of respondent No.3 did not create a right in its favour but directed the State Government to hear respondent No.3 and pass fresh order - the Division Bench quashed the orders of the learned Single Judge and directed the State Government to proceed on the basis of approval granted by it - appeal - whether the Division Bench of the High Court could modify order passed by the learned Single Judge without issuing notice and giving opportunity of hearing to the appellants, who claim to have right over the land sought to be acquired by the State Government on behalf of respondent No.3 - no - this Court held that although, the issue relating to grant of occupancy right over the land is yet to be decided by the competent authority, it cannot be said that the appellants do not have the locus to be heard in the proceedings which may result in acquisition of the land - impugned orders of the Division Bench set aside and matter remitted back to the High Court for deciding the appeal of respondent No.3 afresh after giving opportunity of hearing to the parties - appeals allowed.

2010 SCCL.COM 283(Case No:Civil Appeal No. 4269 of 2006 With Civil Appeal No. 4270 of 2006) North Delhi Power Limited Appellant BSES Rajdhani Power Limited and another Appellants versus Govt. of National Capital Territory of Delhi and others Respondents Date of Decision(mm/dd/yy):5/3/2010. Name of the Judge:Hon'ble Mr. Justice V.S. Sirpurkar and Hon'ble Mr. Justice Surinder Singh Nijjar. Subject Index: Delhi Electric Reforms Act, 2000 - Delhi Electricity Reforms (Transfer Scheme) Rules, 2001 - Rules 3, 6, 8, 12 - unbundling of Delhi Vidyut Board (DVB) for handing over the distribution of electricity to private companies - bids were invited and the terms of the transfer were settled by mutual consent taking note of the Tripartite Agreements and the existing pensioners as well as the employees were protected - in relation to the employees of the erstwhile DVB who could not become part of any of the companies in terms of the transfer scheme due to retirement/dismissal/removal/compulsory retirement by the then DVB, the Government clarified that such cases would be processed and decided by such company who would have been the controlling authority of the employee but for their retirement/removal/dismissal/compulsory retirement etc. thereby clearly fixing the responsibility on the DISCOMS like the appellant - NDPL was incorporated and inherited the distribution undertaking along with the assets, liabilities, personnel and proceedings in pursuance of statutory transfer scheme - the respondent No. 3, an erstwhile employee of DESU filed a petition and claimed benefits arising out of the transfer scheme - the High Court allowed the petition and held that the appellant-petitioner alone was responsible for the payments claimed by respondent No. 3 - appeal - whether the appellants are responsible for meeting the liabilities relating to employees who ceased to be the employees of erstwhile Delhi Electric Supply Undertaking (Predecessor of Delhi Vidhyut Board - DVB) on account of their retirement, removal, dismissal or compulsory retirement in accordance with the provisions of Delhi Electric Reforms Act, 2000? - Yes - no dispute that those who retired and those who were serving with the Board would stand transferred in respect of their liabilities etc. to the successor company, i.e. DISCOMS which included NDPL/appellant and BSES - this Court held that in clothing the NDPL with a liability regarding the personnel who were retired, compulsorily retired or otherwise dead, dismissed etc. could not be termed as 'additional liability' - appeals dismissed - no costs.

2010 SCCL.COM 281(Case No:Civil Appeal No. 4046 of 2010)(NEW) Jenany J.R. Appellant versus S. Rajeevan and others Respondents Date of Decision(mm/dd/yy):5/3/2010. Name of the Judge:Hon'ble Mr. Justice D.K. Jain and Hon'ble Mr. Justice Deepak Verma. Subject Index: Kerala Education Rules, 1959 - Rule 43, Note 2 - interpretation of - the appellant was appointed to the post of High School Assistant (H.S.A.) - since appellant was under medical rest, on account of her recent delivery, the management granted her extension for joining duties - respondent No.1, was already working as Lower Grade Hindi Teacher in the said school but had not passed the test and had applied for re-evaluation. However, he was declared 'pass' - respondent No. 1 filed petition against the appointment of the appellant - District Education Officer and the learned Single Judge rejected the contention of the respondent No. 1 and held no interference against the order of appointment of the appellant. However, the Division Bench quashed the orders of the Single Judge and directed to appoint respondent No. 1 as H.S.A. from the date on which he became qualified to hold the post - appeal - whether on the date, vacancy had occurred i.e. on 1.7.2003, respondent No.1 was having requisite qualification to be appointed on the post of H.S.A. (Hindi) - no - this Court held that the relevant date would be the date when the vacancy had arisen i.e., 1.7.2003 and not the date when the appellant actually joined the service - impugned orders of the Division Bench set aside - appeal allowed.

2010 SCCL.COM 280(Case No:Criminal Appeal No. 963 of 2010 With Criminal Appeal Nos. 964-966 of 2010)(NEW) Damodar S. Prabhu Appellant(s) versus Sayed Babalal H. Respondent(s) Date of Decision(mm/dd/yy):5/3/2010. Name of the Judge:Hon'ble Chief Justice, Mr. Justice P. Sathasivam and Hon'ble Mr. Justice J.M. Panchal. Subject Index: (A) Negotiable Instruments Act, 1881 - Sections 138/147 - compounding of the offence - the parties were involved in commercial transactions - dispute arose on account of the dishonour of five cheques issued by the appellant - with regard to the impugned judgement delivered by the High Court, the appellant prayed for the setting aside of his conviction by relying on the consent terms that have been arrived at between the parties - this Court allowed the compounding of the offence and set aside the appellant's conviction. (B) Dishonour of cheques - Section 147 - the compensatory aspect of the remedy which should be given priority over the punitive aspect - no explicit guidance as to what stage compounding can or cannot be done and whether compounding can be done at the instance of the complainant or with the leave of the court - guidelines framed of imposing cost on parties for unduly delay in compounding of the offences.

2010 SCCL.COM 278(Case No:Transfer Petition (Criminal) Nos. 219 and 220 of 2009)(NEW) Central Bureau of Investigation (C.B.I.) Petitioner versus Hopeson Ningshen and others Respondents Date of Decision(mm/dd/yy):5/3/2010. Name of the Judge:Hon'ble Chief Justice, Mr. Justice Deepak Verma and Hon'ble Dr. Justice B.S. Chauhan. Subject Index: Code of Criminal Procedure, 1973 - Section 406 - transfer petition under - Indian Penal Code, 1860 - Sections 302/400 - FIR registered under - the respondent has been accused of the kidnapping and murder of three government employees - having regard to the seriousness of the crime, the Government of Manipur transferred the investigation into the cases to the CBI - the CBI clearly conveyed the risks associated with conducting the trial in Manipur - this Court held that even if the apprehension about social unrest and communal tension between the Meities and the Nagas were a little exaggerated, there can be no quarrel about the real possibility of a physical attack on the respondent-accused as long as he is in Manipur. Further, conducting the trial in Manipur also reasonably lead to more friction in the State of Manipur which in turn could affect the trial proceedings, therefore the impugned cases directed to be transferred to a designated CBI Court in New Delhi - petition allowed.

2010 SCCL.COM 284(Case No:Civil Appeal No. 4220 of 2002 With Civil Appeal No. 4219 of 2002 with Civil Appeal No. 4213 of 2002 with Civil Appeal No. 4214 of 2002 with Civil Appeal No. 4217 of 2002 with Civil Appeal No. 4218 of 2002 ) M/s M.R.F. Ltd. Appellant with Goa Glass Fibre Ltd. and another Appellants withAlcon Cement Company Limited and another Appellants versus Manohar Parrikar and others Respondents with The State of Goa and another Respondents Date of Decision(mm/dd/yy):5/3/2010. Name of the Judge:Hon'ble Mr. Justice R.V. Raveendran and Hon'ble Mr. Justice H.L. Dattu. Subject Index: Constitution of India, 1950 - Article 166 - conduct of business of the Government of State - Indian Electricity Act, 1910 - Section 23 read with Section 51-A - Business Rules and Rules of Authentication - the State Government published the revised electricity tariff for the State as specified in the Schedule appended to the Notification. By another Notification the State Government for the first time created a new and separate category viz. Extra High Tension Supply Consumers and was included in the revised tariff framed under Notification - the Notification granting 25% rebate to Extra High Tension Supply Consumers imposed an additional burden on the State's Exchequer by introducing a new class of consumers for grant of rebate retrospectively and it was finalized by the Power Minister at his level - the High Court held that the Notifications issued by the Power Minister could not be termed as Notifications issued by the State Government on account of Non Compliance of the Rules of Business framed under Article 166 (3) of the Constitution of India and therefore non-est and void-ab-initio and that the consequential actions based on these two notifications are null and void - appeal - held that the Business Rules 3,6,7 and 9 are Mandatory and not Directory and any decision taken by any individual Minister in violation of them cannot be termed as the decision of the State Government - the Notification was issued solely on the directions of the Power Minister despite the opinion of the Law Secretary that retrospective effect to the proposed amendment could not be given as it involved additional class of consumers of power, which is in violation of the Business Rules of Government of Goa - nothing produced on record to show that the department concerned attempted to seek ratification of the decision taken by the Power Minister before the Notification, therefore, if the Council of Ministers or Chief Minister has not been a party to a decision taken by an Individual Minister, that decision cannot be the decision of the State Government and it would be non-est and void ab initio - appeals dismissed.

2010 SCCL.COM 272(Case No:Civil Appeal No. 3977 of 2010)(NEW) Indian Drugs & Pharmaceutical Ltd. Appellant versus Famy Care and others Respondents Date of Decision(mm/dd/yy):4/30/2010. Name of the Judge:Hon'ble Mr. Justice V.S. Sirpurkar and Hon'ble Mr. Justice Deepak Verma. Subject Index: Rate Contract - purchase preference policy - the respondent engaged in the business of manufacture and supply of family planning products including Oral Contraceptives Pills (OCPs) - tender was invited for the supply of OCPs - the rate contract of the entire quantity of 275 lakh cycles of OCPs went in favour of the appellant - the respondent challenged the said order of the respondent No. 3 on the ground that the impugned rate contract was awarded in flagrant violation of the tender notice and was also contrary to the Purchase Preference Policy as the other branded contraceptive pills apart from Mala D and Mala N were not covered under the policy in favour of Pharma CPSEs and their subsidiaries and as such the Union of India could not have placed an order for all other branded OCPs on the appellant, IDPL under the said Purchase Preference Policy - the High Court quashed the said rate contract as it awards 175 lakh cycles of the other brands of OCPs apart from Mala D to the extent of 25 lakh cycles - appeal - this Court held that once a specific brand name was included, it was obvious that it would be only the Mala D and Mala N which would be covered under the entry - impugned orders of the High Court confirmed - appeal dismissed - no costs.

2010 SCCL.COM 279(Case No:Civil Appeal No. 4035 of 2010)(NEW) Amal Kumar Ghosh and others Appellants versus Basanta Kumar Almal Respondent Date of Decision(mm/dd/yy):4/28/2010. Name of the Judge:Hon'ble Mr. Justice R.V. Raveendran and Hon'ble Mr. Justice R.M. Lodha. Subject Index: Discharge of functions - suit for specific performance - during the pendency of the appeal, the parties arrived at a settlement and the appellants agreed to sell 90 Kottahs of land to the first respondent or his nominees at a price of Rs.10,000/- per Kottah - the second respondent was appointed as Receiver - the appellants made an application to the High Court seeking a direction to the Receiver to render accounts and make payments of the amounts due to them - the High Court held that the reference to Park Services Pvt. Ltd. in the appellants' letters was in discharge of the obligation of the appellants to the first respondent in terms of the consent decree on account of municipal taxes and other outgoings and therefore the application was dismissed - appeal - whether the receiver discharged his obligations on the 'Terms of Settlement' - the appellants instructed the Receiver to pay Rs.3,00,000/- to Park Services Pvt. Ltd. towards statutory liabilities and other outgoings in regard to the property. But the Receiver did not comply with the said instructions nor did Park Services Pvt. Ltd make a demand for payment of the said amount by the Receiver - no explanation from the Receiver as to why he directly paid Rs.1,08,341.64p. to the Calcutta Municipal Corporation as that was not part of the instructions by the appellants - the demand for payment was ignored and the Receiver chose to pay the amount to the purchasers without any satisfactory explanation - impugned orders of the High Court set aside and matter remitted back for fresh decision - directions issued.

2010 SCCL.COM 269(Case No:Criminal Miscellaneous Petition No. 6426 of 2010 In Criminal Appeal No. 1305 of 2009)(NEW) Mohan Mali and another Appellants versus State of M.P. Respondent Date of Decision(mm/dd/yy):4/28/2010. Name of the Judge:For the Appellants : S.K. Dubey, Sr. Advocate, Rajesh, Dharm Singh and Yogesh Tiwari, Advocates, with him For the Respondent : Pramod Swarup, Sr. Advocate, Vikas Bansal, C.D. Singh, Sunny Chaudhary an. Subject Index: Juvenile Justice (Care & Protection of Children) Act, 2000 and Rules, 2007 - Sections 7A, 15 and 64 read with Rule 98 - claim of juvenility and disposal of cases of juveniles in conflict with law - Indian Penal Code, 1860 - Sections 302, 326, 324 read with Section 34 - conviction and sentence under - upon due verification, it was confirmed that the Appellant No.2 was a juvenile on the date of commission of the offence - the juvenile, appellant No. 2 had already been tried along with adults and convicted under Sections 302/34, 326/34 and 324/34 IPC and was sentenced to life imprisonment, out of which he has already undergone about 9 years of the sentence - by applying the provisions of Rule 98 read with Section 15 and 64 of the 2000 Act, this Court directed the appellant No. 2 to be released and the bail application filed on his behalf disposed of, accordingly.

2010 SCCL.COM 274(Case No:Transfer Petition (Civil) No. 1127 of 2008 With Transfer Petition (Criminal) No. 74 of 2009)(NEW) Vinisha Jitesh Tolani @ Manmeet Laghmani Petitioner versus Jitesh Kishore Tolani Respondent Date of Decision(mm/dd/yy):4/28/2010. Name of the Judge:Hon'ble Mr. Justice Altamas Kabir and Hon'ble Mr. Justice Cyriac Joseph. Subject Index: Code of Civil Procedure, 1908 - Section 25 - transfer of matrimonial petition - Goa, Daman & Diu (Administration) Act, 1962 - Sections 5 and 6 - power to extend enactments - the marriage between the petitioner and the respondent conducted in Goa according to Hindu rites and customs and the marriage was registered also at Goa - the respondent filed a petition for annulment of the marriage - the petitioner came back to India in order to contest the petition filed by the respondent for annulment of the marriage and prayed for transfer of petition to a Court of competent jurisdiction in Delhi. However, the respondent contended that having regard to the provisions of the Civil Code as prevalent in Goa, the pending proceedings could only be heard and disposed of within the State of Goa - this Court held that the marriage between the parties had been conducted in Goa and the same also had been conducted under Hindu rites and traditions, thus, the provisions of the Hindu Marriage Act, 1955, would be applicable and can be heard by any Court having jurisdiction within the territories to which it applies. Further held that as per the provisions of Sections 5 and 6 of the 1962 Act, even if the customary law in Goa would prevail over the personal law of the parties, the same could not be a bar to the transfer of the matter outside the State of Goa to any other State - petition filed by the petitioner allowed.

2010 SCCL.COM 271(Case No:Civil Appeal No. 3933 of 2010)(NEW) The Administrator, Union Territory of Dadra & Nagar Haveli Appellant versus Gulabhia M. Lad Respondent Date of Decision(mm/dd/yy):4/28/2010. Name of the Judge:Hon'ble Mr. Justice R.V. Raveendran and Hon'ble Mr. Justice R.M. Lodha. Subject Index: Central Civil Services (Classification, Control and Appeal) Rules, 1965 - Rule 14 - disciplinary enquiry initiated under - Central Civil Services (Conduct) Rules, 1964 - Rule 3 - for misconduct - the respondent while functioning as Land Reforms Officer--I, granted occupancy rights of the government land to five persons with ulterior motive and without following the procedure prescribed - the Inquiring Authority recorded that charges were proved and submitted its report - Disciplinary Authority imposed major penalty of respondent's removal from service with other two co-delinquents - the respondent filed the departmental appeal against the order of punishment which were dismissed, however, the punishment of removal awarded to first delinquent was modified to that of compulsory retirement while the punishment awarded to second delinquent was modified to reduction to lower stage of pay by five stages with cumulative effect - the Tribunal held that similarly placed persons have been treated differently and awarding differential punishment to the respondent by singling him out for the extreme punishment of removal could not be sustained - appeal - this Court observed that there was variation in allegations of misconduct and all the three delinquents could not have been put on par although joint enquiry was held and there was common evidence - the Tribunal failed to notice that respondent was holding an important position having been conferred with various powers and duties under the Regulations and the co-delinquents were only his subordinates and they carried out his instructions - impugned orders of the High Court and of the Tribunal set aside - appeal allowed.

2010 SCCL.COM 277(Case No:Civil Appeal No. 3879 of 2010 With Civil Appeal No. 3880 of 2010 with Civil Appeal No. 3881 of 2010 with Civil Appeal No. 3882 of 2010 with Civil Appeal No. 3883 of 2010 with Civil Appeal No. 3884 of 2010 with Civil Appeal No. 3885 and 3886 of 2010)(NEW) Punjab Roadways Moga through its General Manager Appellant(s) State of Punjab Appellant(s) versus Punjab Sahib Bus and Transport Co. and others Respondent(s)Majhi Express Transport Service Regd. and others Respondent(s) Joginder Singh Respondent  Date of Decision(mm/dd/yy):4/27/2010. Name of the Judge:Hon'ble Mr. Justice R.V. Raveendran and Hon'ble Mr. Justice K.S. Radhakrishnan. Subject Index: Motor Vehicles Act, 1988 - Sections 2(38), 99 and 100 and 104 - stage carriage permits - the private applicants challenged the grant of permits to the private-operators and the State Transport Undertakings (STUs) - the High Court noticed that the permit granted to STUs was neither utilized nor operated and, hence, it was not open to the STUs to raise any objection regarding the grant of permit to the writ petitioner, thus, the Division Bench ordered that one stage carriage permit be granted to the writ petitioner therein also with half return trip daily in the notified route since the STUs were not operating the permits granted - appeals - whether the Tribunal and the High Court are justified in directing the Commissioner exercising the powers of RTAs to grant regular permits to the private operators on the ground that the STUs had either failed to utilize the permits granted or surrendered the permits or had not applied for the permits in the notified routes - No - this Court observed that once a scheme is published under Section 100 in relation to any area or route or portion thereof, whether in complete or partial exclusion of other persons, no persons other than STUs may operate on the notified area or route except as provided in the scheme itself, thus, held that the Tribunal have committed a grave error in tampering with the Scheme as well as disturbing the ratio fixed by the Scheme by granting regular permits to the private sector from the quota earmarked for STUs - impugned orders of the High Court directing Regional Transport Authority (RTA) to grant regular permits to the private operators set aside - appeals allowed.

2010 SCCL.COM 270(Case No:Civil Appeal No. 3874 of 2010)(NEW) Indowind Energy Ltd. Appellant versus Wescare (I) Ltd. and another Respondents Date of Decision(mm/dd/yy):4/27/2010. Name of the Judge:Hon'ble Mr. Justice R.V. Raveendran and Hon'ble Mr. Justice K.S. Radhakrishnan. Subject Index: Arbitration and Conciliation Act, 1996 - Section 7 - arbitration agreement - Section 11 - application under - for appointment of sole arbitrator - an agreement of sale was entered into between respondent Nos. 1 and 2 - the Board of Directors of Respondent Nos. 1 and 2 approved the said agreement however no such approval taken by the Board of Director of appellant - certain disputes arose between respondent No. 1 on the one hand and respondent No. 2 and appellant on the other, in respect of the said agreement - the High Court allowed the application of respondent No. 1 for appointment of sole arbitrator and held that appellant was prima facie a party to the arbitration agreement and was bound by it, even though it was not a signatory to the agreement - appeal - whether an arbitration clause found in a document (agreement) between two parties, could be considered as a binding arbitration agreement on a person who is not a signatory to the agreement? - No - whether a company could be said to be a party to a contract containing an arbitration agreement, even though it did not sign the agreement containing an arbitration clause, with reference to its subsequent conduct? - No - respondent No. 1 had not entered into any agreement with appellant, referring to the agreement with respondent No. 2 containing the arbitration agreement, with the intention of making such arbitration agreement, a part of the their agreement - this Court held that the 2 Companies having common shareholders or common Board of Directors, will not make the two companies a single entity. Nor will lead to an inference that one company will be bound by the acts of the other - impugned orders of the High Court set aside and the application under Section 11 dismissed - appeal allowed.

2010 SCCL.COM 273(Case No:Civil Appeal No. 2315 of 2003)(NEW) Sri Srinivasa Bhat (D) by L.Rs. and others Appellants versus Sri A. Sarvothama Kini (D) by L.Rs. and others Respondents Date of Decision(mm/dd/yy):4/27/2010. Name of the Judge:Hon'ble Mr. Justice Aftab Alam and Hon'ble Mr. Justice R.M. Lodha. Subject Index: Occupancy rights - the respondent nos. 1 to 5/writ petitioners filed petition challenging the order of Land Tribunal to the extent of property admeasuring 7 cents - the trial court appointed Assistant Director of Land Records as Commissioner, who submitted that the claim of the writ petitioners was not correct and they were not in possession and that they have no right or interest in the subject land - the Single Judge held that the writ petitioners were not able to show that they have any interest in the land in respect of which occupancy rights have been conferred in favour of the present appellants and, accordingly, dismissed the writ petition. However, the Division Bench vide its order set aside the order of the Single Judge and also the order of the Land Tribunal and directed the Land Tribunal to pass fresh order concerning the subject land - appeal - the order of the Land Tribunal was challenged in the writ petition almost after five years - the writ petitioners concealed vital facts from the Court viz., rejection of their application for temporary injunction by the trial court and the appointment of Court Commissioner by the trial court and his report - although, the writ petitioner nos. 1 to 4 claimed their right to the extent of 7 cents only but the Division Bench set aside the entire order of the Land Tribunal that pertained to 27 cents of land - this Court observed that the Division Bench though recorded the finding that writ petition was hopelessly belated and there were other factors which disentitle the writ petitioners from any relief, yet it interfered with the order of the Single Judge - impugned orders of the Division Bench set aside - appeal allowed - no costs.

2010 SCCL.COM 276(Case No:Civil Appeal No. 2724 of 2006 With Civil Appeal Nos. 4802-4803 of 2008 AND Civil Appeal Nos. 4806-4818 of 2008)(NEW) Killick Nixon Ltd. Appellant versus The Custodian and others Respondents Date of Decision(mm/dd/yy):4/27/2010. Name of the Judge:Hon'ble Mr. Justice B. Sudershan Reddy and Hon'ble Mr. Justice Surinder Singh Nijjar. Subject Index: Special Courts (Trial of Offences Relating to Transactions in Securities) Act, 1992 - Section 10 - appeals under - against the orders of interlocutory nature passed by the Special Court - M/s Dhanraj Mills Pvt. Ltd. - notified party in its ordinary course of business had advanced interest free loans to the appellant and its group of companies. The Special Court found that the notified party, its Directors and their close associates indulged in fraudulent securities transactions resulting in siphoning of huge funds of various banks - the Custodian, on behalf of the notified party proceeded against the appellant and its group Companies for recovery of loans totaling Rs.20,81,67,031/- - the Special Court concluded that the appellant and others are group companies and they are all controlled by notified party and the amounts that are being recovered in execution of the decrees are really public funds which were siphoned off by the Directors of M/s Dhanraj Mills Private Limited, and parked in the companies controlled by them, thus, held that the appropriation of sale proceeds made by the Custodian is proper - appeal - this Court held that the Special Court rightly treated the decrees as a consolidated one as the said group of companies are nothing but front companies of M/s. Dhanraj Mills Private Limited. Further held that the appeals against interlocutory orders excluded under the provision of Section 10 - appeals dismissed - no costs.

2010 SCCL.COM 275(Case No:Criminal Appeal No. 479 of 2009)(NEW) Santhosh Moolya and another Appellant(s) versus State of Karnataka Respondent(s) Date of Decision(mm/dd/yy):4/26/2010. Name of the Judge:Hon'ble Mr. Justice P. Sathasivam and Hon'ble Mr. Justice R.M. Lodha. Subject Index: Indian Penal Code, 1860 - Sections 376 and 506 read with Section 34 - commission of rape, criminal intimidation with common intention - conviction and sentence under - the victims were sisters and both of them explained how they suffered at the hands of the accused - PW-1 (prosecutrix) explained that they know both the accused since they were also doing quarry work under their employer - delay of 42 days in lodging the complaint to the police were properly explained by the victims and the other witnesses - the plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix - this Court found the oral testimony of the victims PWs 1 and 2 to be cogent, reliable, convincing and trustworthy thus, held no interference in the conviction orders of the trial Court as affirmed by the High Court - appeal dismissed.

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Civil Miscellaneous Appeal is filed U/s. 16-E(2) of Plantations Labour Act 1951 r/w. 30 of Workmen's Compensation Act, against the Order of the Deputy Commissioner of Labour (Commissioner for Workmen's Compensation), Coimbatore,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 02-01-2008

CORAM:

THE HONOURABLE Mrs. JUSTICE R.BANUMATHI

C.M.A.No.720 of 2001

The Management of Injipara Estate
Valparai P.O.
Valparai. ... Appellant
-Vs-
Thyilammal
W/o.Late Arjunan
(P.F.No.3266-NC Division)
Injipara Estate
Valparai PO 642 127. ... Respondent
 
Civil Miscellaneous Appeal is filed U/s. 16-E(2) of Plantations Labour Act 1951 r/w. 30 of Workmen's Compensation Act, against the Order of the Deputy Commissioner of Labour (Commissioner for Workmen's Compensation), Coimbatore, dated 21.08.2000 in W.C.No. 135 of 1999.
For Appellant :: Mr.John Zachariah for
M/s.T.S.Gopalan & Co.

For Respondent   :: Mr.S.N.Ravichandran
  JUDGMENT
Aggrieved  by the Order of Deputy Commissioner of Labour awarding compensation of Rs.1,05,377/- to the Respondent/Claimant for the death of her husband Arjunan, the Management has preferred this Appeal.

2.The Respondent's husband Arjunan, a Worker bearing Roll No. 4407 of N.C.Division of Injiparai Estate, Valparai, was employed by the  Applicant-Management.  The case of the Respondent/Claimant is that her husband Arjunan along with others were sleeping at the residential quarters allotted by the Management of  Injiparai Estate.  In the midnight between 29.12.1998 and 30.12.1998 the back door was loudly knocked and when the back door was opened, he saw few wild Elephants standing there. The deceased Arjunan had loudly called others and at that time, the Elephant got wild and are said to have thrown  a water pot with water and attacked the deceased Arjunan.  The deceased Arjunan is said to have sustained injuries on his forehead and he fell down and he became unconscious.  When the Pharmacist checked Arjunan, he was declared dead.  Stating that Arjunan died during the course of his employment and that the Respondent/Claimant is entitled to compensation as per amended Section 16-A and 16-B of Plantations Labour Act, the wife of the deceased Arjunan has filed the  Application claiming compensation of Rs.1,31,350/-.

3. The Appellant-Management contested the Application contending that the Arjunan died of heart attack in his house allotted by the Management and the same was reported to the Estate Pharmacist as per the existing practice and it was never reported that Arjunan was attacked by the wild Elephant.  Arjunan was aged 60 years and that he was about to get superannuation on 31.12.1998.  As such, there was no collapse of the door or roof of the house and therefore, the Claimant is not entitled to claim compensation under Section 16-A(1) of Plantations Labour Act.
4.Accepting the evidence of the Respondent/Claimant, the learned Deputy Commissioner has held that the accident arose out of and during the course of employment.  Fixing the monthly wages of Arjunan at Rs.1,778/-, the learned Deputy Commissioner has ordered compensation at Rs.1,05,377/-.

5. The C.M.A. was admitted on the following substantial questions of law :
i.Whether the Application for compensation filed by the Respondent was maintainable in terms of  Section 3 of Workmen's Compensation Act ?
ii.Was the death of the Respondent's husband due to accident arising out of and in the course of his employment under the Appellant ?
iii.Is the claim of the Respondent maintainable under Section 16-A of the Plantations Labour Act ?

6. Laying emphasis upon the expression "arising out of and in the course of his employment" under Sec. 3 of Workmen's Compensation Act, the learned counsel for the Appellant-Management Mr.John Zachariah has contended that the accident occurred on the midnight of 29.12.1998  cannot be construed as arising out of and in the course of his employment.  Drawing the attention of the Court to the alleged letters given by the wife and son of deceased Workman Arjunan, the learned counsel for the Appellant-Management has submitted that mere dying of heart attack would not be sufficient to bring the accident within the purview of Sec. 3 of the Act. The learned Counsel has further submitted that the deceased workman cannot be construed as a workman within the meaning of Sec. 2(h) of Plantations Labour Act. Contending that mere dying of heart attack unless proved to be arising out of stress and strain no compensation could be awarded the learned counsel for the Appellant-Management has placed reliance upon the decisions reported in (2006) 5 Supreme Court Cases 513 (Jyothi Ademma v. Plant Engineer, Nellore) and 2007 LLR 185 (Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali & Anr.).

7. Countering the arguments the learned counsel for the Respondent Mr. S.N.Ravichandran has submitted that the death was due to shock as a result of seeing the Elephant, which is incidental to the Employment and the Deputy Commissioner of Labour has rightly awarded the compensation.  The learned counsel for the Respondent has further submitted that on the basis of evidence of P.W.2, the Deputy Commissioner has rightly awarded the compensation and the same does not suffer from any infirmity warranting interference.


8. I have carefully examined the materials on record and the rival contentions.  The Claimant's husband Arjunan was admittedly employed in Injipara Estate and residing in the Quarters in Injipara Estate.  Admittedly, late Arjunan was residing within the Estate.  He was employed for the purpose of Plantation Work.  He was due to retire on superannuation on 30.12.1998.  In her evidence, P.W.1 has categorically stated that on the fateful day, there was a wild knock at the back door of the house and on opening of the door, they have found that the house was surrounded by wild Elephants.  When the deceased Arjunan and the inmates of the house tried to come out of the house, one Elephant thrashed the water pot and hit against the forehead of the deceased worker  Arjunan, due to which, he died of shock.

9. Contending that the accident was on the midnight of 29.12.1998, the learned counsel for the Appellant-Management has contended that the expression "arising out of and in the course of his employment" cannot be extended to its illogical ends so as to cover the accident on the midnight of 29.12.1998.  This contention does not merit acceptance.

10.  In various cases of the Supreme Court and High Courts, there has been a good deal of discussion on the meaning of "Phrases" -  "arising out of and in the course of his employment"  appearing in Sec. 3 of Workmen's Compensation Act.  The significant principles are as follows:
(1)There must be connection (casual) between injury and the accident and the work done in the course of employment.
(2)The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury.
(3)It is not necessary that the workman must be actually working at the time of death.
(4)If it satisfies a reasonable man that the work contributed to the causing of the personnel injury it would be enough for the workman to succeed .

11. Whether or not the accident arising in the course of employment would depend upon the facts and circumstances of each case.  In the present case, staying in the residential quarters of the Estate is an incident of employment as Plantation Worker. The alleged accident has occurred on the midnight only on account of the workman staying in the Estate quarters, which is an incidental to employment. Since, the alleged accident is on the midnight of 29.12.1998, while the deceased worker was staying in the residential quarters, the learned Deputy Commissioner for Labour has rightly held that the accident arose out of and in the course of his employment.


12. Contending that the expression  "arising out of and in the course of his employment"  cannot be extended to its illogical ends, the learned counsel for the Appellant-Management has placed reliance upon (2006) 5 Supreme Court Cases 513 (Jyothi Ademma v. Plant Engineer, Nellore) and 2007 LLR 185 (Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali & Anr.).  In the first  case, the workman was employed in Nellore Thermal Station and his job was to "switch on or off". Observing  that there was no scope for any stress or strain in his duties and therefore, the death of workman due to heart attack at the work spot cannot be said to have been caused by any accident arising out of and in the course of his employment, the Supreme Court declined to interfere with the Judgment of the High Court, which has negatived the claim for compensation. In the second case while travelling in Vehicle, which belonged to the Management, in which he was working as a Cleaner the Worker suddenly developed chest pain and was admitted in hospital, where he was declared dead.  Observing that the accident had taken place during the course of employment has to be established and that the failure of heart was because of stress and strain of work has to be established, the Supreme Court declined to interfere with the judgment of High Court. The factual situation in the present case stands entirely on different footing.  The deceased workman happened to confront the Elephant, while he was staying in the residential quarters in the Estate, which he has occupied in his capacity as Plantation Worker.  The accident is direct result of the employment and certainly arising in the course of his employment.

13. The question is, whether the Deputy Commissioner was justified in holding that the accident occurred and the workman died during notional extension of employment.  The deceased Arjunan was sleeping in the house allotted to him by the Management.  The Arjunan happened to be in the residential quarters in his capacity as Plantation Labour.  Hence, there is a casual connection between the employment and the death that could certainly be construed  to be an accident arising out of and in the course of his employment and the Respondent/Claimant being Legal Heir is entitled to claim compensation.

14. The learned counsel for the Appellant-Management nextly contended that the Petition has been filed U/s. 16-A and 16-C of Plantations Labour Act, whereas, the Deputy Commissioner of Labour has retracted from the contents in the Petition and has erroneously awarded the Compensation under Workmen's Compensation Act.  It is of course true that the Application has been filed U/s. 16-A and 16-C of Plantations Labour Act. But, the wrong quoting of Provision is not a ground for rejecting the claim for compensation.  Certain latitude has to be given to such pleadings/Applications filed on behalf of the Workers either due to wrong advise or under wrong expression.  The Application might had been filed U/s. 16-A and 16-C of Plantations Labour Act.  The learned Deputy Commissioner was right in awarding the compensation under the Workmen's Compensation Act. The impugned order does not suffer from any serious error of law or infirmity warranting interference.  This Appeal is devoid of merits and is bound to fail.

15. In the result, the Order of the Deputy Commissioner of Labour (Commissioner for Workmen's Compensation), Coimbatore, dated 21.08.2000 in W.C.No. 135 of 1999 is confirmed and the C.M.A. is dismissed.  However, in the circumstances of the case, there is no order as to costs.  The Deputy Commissioner of Labour shall disburse the amount along with the accrued interest on necessary Application being made by the Respondent/Claimant.  



Paa


To
  The Deputy Commissioner of Labour
(Commissioner for Workmen's Compensation)
Coimbatore.
 

These two appellants, who faced a charge of murder under Sections 302 read with 34 IPC and also under Section 201 read with 34 IPC before the learned Principal Sessions Judge in S.C.No.93 of 1998, who found them guilty of the charges and awarded life imprisonment along with fine and in default to undergo one month simple imprisonment. Hence, this appeal has been brought forth by the appellants.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 04/04/2008

CORAM
THE HONOURABLE MRS.JUSTICE R.BANUMATHI
AND
THE HONOURABLE MR.JUSTICE S.PALANIVELU

Crl.A.No.343 of 2000

1.Ramar
2.Tamil Selvi  ..  Accused Nos.1&2/Appellants


Vs.


State rep by
The Inspector of Police,
H-1 Tallakulam Police Station,
Madurai City.
(Crime No.109/1997)  ..  Complainant / Respondent

PRAYER

This criminal appeal has been preferred under Section 374 Cr.P.C against
the judgment dated 31.03.2000 made in S.C.No.93 of 1998 by the learned Principal
Sessions Judge, Madurai.

!For Appellants  ... Mr.T.K.Gopalan
^For Respondent  ... Mr.P.N.Pandithurai
    Additional Public Prosecutor

:JUDGMENT

S.PALANIVELU, J.

These two appellants, who faced a charge of murder under Sections 302 read
with 34 IPC and also under Section 201 read with 34 IPC before the learned
Principal Sessions Judge in S.C.No.93 of 1998,  who found them guilty of the
charges and awarded life imprisonment along with fine and in default to undergo
one month simple imprisonment. Hence, this appeal has been brought forth by the
appellants.

2. Factual scenario as described by the prosecution is essentially as
follows:-
a) Both the accused are spouses.  P.W.1 is a mason by profession.  He
lodged a complaint with the respondent police station alleging that he was
working under a contractor by name Siddanathan, the deceased, for a long time
and he used to call him as senior paternal uncle.  On 08.02.1997, at about 7.30
a.m., he went to the house of one Iyyasamy, Surveyor with regard to construction
of his house and on his return, he proposed to meet Siddanathan who was residing
in Door No.32, 7th Street, Lourdhu Nagar, Pudur.  He proceeded to his house,
after purchasing a biscuit pocket in a shop nearby.  Siddanathan was residing in
the first floor of the building.  P.W.1 climbed the stairs and found the
entrance door of Siddanathan house closed and a light was burning inside the
house.  He knocked the door, but there was no response. When he came down, he
saw P.W.2, Gurunathan, P.W.3, Selvi and P.W.4 Chitra, coming there.  P.W.1 told
Chitra that the house was kept closed and even after knocking, nobody came out.
All of them trooped to the entrance door and knocked it. P.W.1, Ganesan and
Selvi peeped through the window and found the second accused inside.  On seeing
her, they asked her to open the door. She opened the door.  P.W.1 asked her
where was Siddanathan and then, he saw the body of Siddanathan hanging by a
plastic rope in the kitchen.  His hands were tied on his back by ropes.  He was
dead.  The first accused came out from the bath room.  P.W.1 hauled them up by
quizzing why they have murdered him.  However, both the accused left the house
immediately.  P.W.1 went to the house of Periyamurugan in Narimedu.  On
09.02.1997, at about 5.00 p.m., he went to Tallakulam Police Station  and laid a
complaint.

b) On receipt of the complaint, P.W.7, the Sub-inspector of Police lodged
the First Information Report, Ex.P.3 and despatched the same to the Judicial
Magistrate Court and copies to his superior officers.  On receipt of FIR,
P.W.11, the Inspector of Police, at about 6.00 a.m. on 09.02.1997, proceeded to
the scene of crime, prepared Ex.P.2, Observation Mahazer and drew Rough Sketch,
Ex.P.6 in the presence of witnesses.  He conducted inquest over the dead body of
Siddanathan in the presence of witnesses and prepared Inquest Report, Ex.P.7.
He deputed P.W.6, Grade-I, Police Constable to take the dead body of Siddanathan
for autopsy to the infirmary.  P.W.6 produced the corpse along with the
requisition for post-mortem before the Medical Officer, Government Rajaji
Hospital, Madurai.  P.W.8, lady doctor attached to the said hospital held post-
mortem over the dead body and issued Ex.P.5, the  Post-mortem Certificate
opining that the deceased appeared to have died of cervical spine injury with
post-mortem hanging.  She noted the following external injuries on the dead
body.
"Antemortem injuries:
1.Abrasion 1.5 x 1 cm on the right cheek over the maxillary prominence.
2.Abrasion over the chin 2 x 1 cms.
3.Cresenteric abrasion below the chin two in number 1 x .25 cm each.
4.Abrasion over front of right knee 2 x 1 cms, 1 x .5 cm
5.Cresenteric abrasions right elbow 1 x .25 cm each one below the other 1 cm
apart at the back.
6.Cresenteric abrasion 1 x .25 cm back of right elbow.
7.An oblique ligature mark all around the neck 32 x 2 cms.  The anatomical
location of the ligature marks is as follws:
- from the chin 8 cms; from the left mastoid 4 cms;
- from the right mastoid 7 cms.
On dissection of neck:
Fracture dislocation of C4 over C5 with bruising of the underlying spinal cord
and pre and para vertebral muscles.

c) After the necropsy, P.W.6 collected M.O.1, Red Colour Nylon Rope and
M.O.2, White Colour Twine and M.Os.3 to 6-clothings from the dead body and
entrusted them with the Investigating Officer.  The Investigator examined the
witnesses and recorded their statements.   He arrested the second accused near
Seethalakshmi Mill, Thirunagar and sent her for judicial custody.  He learnt
that the first accused surrendered before the Judicial Magistrate Court,
Sivakasi and was landed in Sattur Sub-jail.  He applied to the Court for taking
him for police custody and got the order as such.  He sent the material objects
for chemical analysis through the Judicial Magistrate Court.  Ex.P.10 the
Chemical Analyst's Report and Ex.P.11 the Serlogist Report were received. On
completion of the investigation, he laid charge-sheet against the accused on
11.03.1997.  The trial Court, on the basis of the materials available on the
prosecution side, framed charges against both the accused under Section 302 IPC
read with 34 and under Section 201 read with 34 IPC as well.

d) In order to substantiate the charges, at the time of trial, the
prosecution examined 11 witnesses and relied on 11 Exhibits and 6 M.Os. On
completion of the evidence on the side of the prosecution, the
accused/appellants were questioned under Section 313 Cr.P.C. as to the
incriminating evidence and circumstances found in the evidence of prosecution
witnesses. They denied complicity in the offence.  No defence witness was
examined. On consideration of the evidence on record, the trial Court found both
the accused guilty under Sections under which they were charged as stated above.
Hence the appeal.

e) Pending the hearing of the appeal before this Court, the first accused
died on 22.09.2001.  A xerox copy of the Death Certificate issued by the
Corporation of Madurai has been produced by the learned counsel for the
appellants along with a memo.  The death of the first accused is recorded and
the appeal is abated as against the first accused.

3.The learned counsel for the appellants Mr.T.K.Gopalan assails the
judgment of the trial Court on two counts.  The first one is the delay in
lodging the First Information Report and the other is the material
contradictions and improbabilities found in the oral testimonies of the
prosecution witnesses.

4.The Court heard the learned Additional Public Prosecutor upon the
contentions put forth by the appellants' side.

5.On a careful consideration of the aspect of delay occurred in lodging
the First Information Report, it is crystal clear that remarkable delay has
crept in.  The occurrence is alleged to have taken place before 7.30 a.m on
08.02.1997.  P.W.1 and other witnesses saw the body of Siddanathan suspended
from the roof in the kitchen.  It is the version of P.W.1 that after leaving the
scene of occurrence, he went to the houses of the deceased's relatives and
informed them and that on the next day i.e. 9.2.1997 at about 5.00 a.m.  he
lodged the complaint with Tallakulam Police Station. FIR was lodged by P.W.7,
the Sub-inspector of Police, who despatched the same to the Court and other
officials.  The First Information Report reached the Judicial Magistrate Court-
II, Madurai, on 09.02.1997 at 12.30 p.m.  As is seen from Ex.P3-FIR, the
distance between the scene of crime and the Police Station is only two Kms.

6.P.W.7 in his evidence would state that one can reach the Judicial
Magistrate's residential quarters within 10 minutes, if he goes by walk from the
police station. While the occurrence was found by the prosecution witnesses at
7.30 a.m. on the previous day, only at 12.30 p.m. on the next day, the First
Information Report reached the Court.  The prosecution has miserably failed to
explain the delay. In the cross-examination, P.W.1 would state that he remained
in his house during night time afraid of presenting himself in the Police
Station in odd hours.  Neither the Sub-inspector of Police nor the Investigating
Officer has adduced any reasons for the delay in lodging and reaching the First
Information Report in the Police Station and the Court respectively. In our
considered view, the unexplained delay is undoubtedly fatal to the prosecution
case.  While the Police Station is only 2 Kms from the scene of crime and the
learned Judicial Magistrate residential quarters is also available at a walkable
distance from the Police Station, it is quite unreasonable to entrust the First
Information Report belatedly to the Judicial Magistrate.  The delay would throw
a cloud of suspicion in the prosecution case.  It also corrodes the genuineness
of the allegations contained in the First Information Report. Every possibility
is there to embellish and embroider the versions as to the occurrence.

7.The learned counsel for the appellants would argue with vehemence,
making a scathing attack on the oral account of P.W.1, by stating that his
evidence is quite unbelievable and a reasonable doubt is surfacing as to whether
he could have been present in the scene of crime after the occurrence, as he
deposed.  The conduct of P.W.1 also would lend support to this view, he further
adds. P.W.4 is the cousin sister of P.Ws.2 and 3.  P.W.2 to 4 are the close
relatives of the deceased.  It is the version of P.W.1 that he had been all
along under the employment of Siddanathan and he came up in his life only with
the help rendered by the deceased; so also both the accused.  In fact,
Siddanathan celebrated the marriage of both the accused.  He also got an
employment for the first accused. Further, he had bequeathed some of his
properties in favour of both the accused by means of a Will. We find much force
in the contention that these circumstances must have possibly caused hatred in
the minds of P.Ws.1 to 4, towards accused, since he neglected them.  As per the
prosecution, P.Ws.1 to 4 saw and found the body suspended in the kitchen roof at
7.30 a.m. It is odd to note that none of the close relatives available in the
scene of crime proceeded to the Police Station and lodged a complaint.  Neither
they divulged the occurrence to police immediately nor to anybody else. P.W.1
alone went to the Police Station, that too, after a long delay, and lodged the
complaint.  The above said conduct of the witnesses would cast doubt on their
testimonies.  No prosecution witnesses present in the scene of crime, attempted
to prevent any of the accused from leaving the house.  We find it difficult to
believe the words of P.W.1 that he went to the Police Station only in the
morning fearing to be present during the night hours in the Police Station.

8.Worthwhile, it is to be noted that P.W.3 Selvi and P.W.4 Chitra turned
hostile to the prosecution.  They had not stated anything against the accused.
They did not speak about the presence of both the accused in the scene of crime.

9.It is pertinent to state that P.W.2 says about the presence of the
second accused alone in the scene of crime and he has not mentioned about the
name of the first accused. His evidence, if carefully analyzed, totally negates
the prosecution case, but paves way to reach a conclusion that he might not have
been present in the scene of crime.  He was aged 19 years at the time of
recording evidence in November,1999.  Hence, he was aged about 17 years on the
date of occurrence.  His evidence does not inspire the confidence of the Court.
His oral account does not improve the prosecution case in any way.  Conversely,
it weakens the prosecution story.

10.Learned counsel for the appellants would garner support from a decision
of Supreme Court reported in 2001 SAR (Criminal) 353, Sohan & Anr Vs State of
Haryana & Anr in which Their Lordships have held that conviction on the basis of
uncorroborated testimony of sole witness is not sustainable.  In the present
case also, only the oral evidence of P.W.1 is available to find the accused
guilty which remains uncorroborated from any other circumstance in this case.
The evidence of P.W.2 does not lend any support to the prosecution.  P.W.1's
evidence remains with contradictions and his version could not be believed on
the ground that his first information to the police was a miserably belated one.
Scientific evidence also does not constitute valid ground to strengthen the
prosecution.  No link is available to connect the accused with the crime.
Nothing transpires to see that they are the actors of crime.  No ill-will
between the deceased and the accused could be gauged.

11.Having heard the arguments of the learned counsel for the appellants
and the Additional Public Prosecutor as well and perused the records, we notice
that the prosecution has woefully failed to bring home the guilt of the
appellants beyond all reasonable doubt.  Each and every stage of the prosecution
case is shrouded with suspicion.  We are of the considered view that the
appellants are entitled to get benefit of doubt which have surfaced in this
case.  Therefore, the case under Section 302 IPC read with 34 and 201 read with
34 IPC comes to a naught.

12. The second appellant is entitled to get acquittal and the appeal
deserves to be allowed and it is accordingly allowed. The fine amount, if any,
paid by the second appellant shall be refunded to the second appellant.
In respect of first appellant the appeal is abated as per Section 394 (2)
Cr.P.C.

ssm

To

1.The Principal Sessions Judge,
  Madurai

2.The Public Prosecutor,
  Madurai Bench of Madras High Court,
  Madurai.

Petition is filed under Article 226 of the Constitution of India praying for a Writ of Habeas Corpus, to call for the records from the first respondent in M.H.S.Confdl.No.47/2007, dated 13.12.2007 setting aside the said order of detention passed by the first respondent and to set the petitioner's son, viz., Manickaraja at liberty, now detained in the Central Prison, Palayamkottai.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 23/04/2008

CORAM
THE HONOURABLE MRS. JUSTICE R. BANUMATHI
AND
THE HONOURABLE MR. JUSTICE S.MANIKUMAR

HCP.No(MD).35 of 2008

Shanmugathai               ... Petitioner

vs.

1. The District Magistrate
    and District Collector,
    Tuticorin District,
    Tuticorin.

2. The Secretary to the Government,
    Prohibition and Excise Department,
    Fort St. George, Chennai-9.       ... Respondents


Petition is filed under Article 226 of the Constitution of India praying
for a Writ of  Habeas Corpus, to call for the records from the first respondent
in M.H.S.Confdl.No.47/2007, dated 13.12.2007 setting aside the said order of
detention passed by the first respondent and to set the petitioner's son, viz.,
Manickaraja at liberty, now detained in the Central Prison, Palayamkottai.

!For Petitioner        ... Mr.V.Kathirvelu

^For Respondents ... Mr.Daniel Manoharan
  Additional Public Prosecutor

:ORDER

(Order of the Court was made by S.MANIKUMAR,J)

Mother of the detenu, has filed this Habeas Corpus Petition, for quashing
the order of detention passed against her son K.Manickaraja Son of Kruppasamy
Thevar, branding him as Goonda under the Tamil Nadu Act 14 of 1982 and detained
by virtue of the order dated 13.12.2007 passed by the District Collector and
District Magistrate, Tuticorin, the first respondent herein.

2.In the order of detention, reference has been made to the involvement of
the detenu in two adverse cases.  One on the file of the Elayirampannai Police
Station in Cr.No.80 of 2007 under Sections 342 and 307 IPC and the other for his
alleged commission of offences under Sections 294(b), 387 and 506(ii) IPC., on
the file of the Koppampatti Police Station in Cr.No.52 of 2007.   Besides,
coming to adverse notice in the above two cases, on 12.10.2007, the detenu and
his associates were alleged to have cut and brutally murdered one
Balasubramanian on the spot.  By indulging in such act, his associates were
alleged to have created fear and panic in the mind of the public and on the
basis of a complaint, a case in Kalugumalai Police Station Cr.No.90 of 2007 was
registered against the detenu and others under Sections 147, 148 and 302 IPC.
The detenu surrendered himself in the Court of the learned Judicial Magistrate
on 15.10.2007 and after brief spell in the police custody, he is now confined in
Central Prison, Palayamkottai.   The case is under investigation.

3.The detaining authority after narrating the incident in the grounds
case, came to the conclusion that it was necessary to detain him as Goonda under
the Act 14 of 1982.  While considering the possibility of the detenu coming out
on bail and indulging himself in further activities prejudicial to the
maintenance of the public order, the detaining authority has arrived at the
subjective satisfaction, and at paragraph 4 of the detention order, concluded as
follows:-

"4. I am aware that Thiru.Manickaraja was produced before the court of
Judicial Magistrate No.I, Kovilpatti after police custody on 23.10.2007 and
remanded to judicial custody till 06.11.2007.  He is a remand prisoner kept in
Central Prison, Palayamkottai.   His remand period was extended upto 20.11.2007,
04.12.2007 and 18.12.2007.   I am aware that Thiru.Manickaraja has filed bail
application in the court of Principal Sessioins, Thoothukudi in
Cr.M.P.No.3281/07 and the same has been posted on 14.12.2007.  I am also aware
that it is very likely that he may come out of bail.   If he comes out on bail,
he will indulge in further activities which will be prejudicial to the
maintenance of public order.  Further, the recourse of normal criminal law would
not have the desired effect of effectively preventing him from indulging in such
activities, which are prejudicial to the maintenance of public order.  On the
materials placed before me, I am satisfied that the said Thiru.Manickaraja is a
"Goonda" and there is a compelling necessity to detain him in order to prevent
him from indulging in such activities in future which are prejudicial to the
maintenance of public order under the provisions of Tamil Nadu Act 14 of 1982."

4.Referring to the endorsement made by the learned Judicial Magistrate
No.I, Sattur, dated 15.11.2007, on the memo filed by the Inspector of Police,
Alangulam Circle, Alangulam, found at Page 65  the copy of the extract of case
dairy at page 67, enclosed in the booklet furnished to the detenu and inviting
the attention of this Court to Paragraph 4 of the Detention Order, learned
counsel for the petitioner submitted that the detaining authority  has merely
referred to the pendency of the adverse cases and the bail application in
Cr.M.P.No.3281 of 2007 filed in the ground case, pending on the file of the
learned Principal Sessions Judge, Thoothukudi and has failed to consider that
the detenu was under custody in two other adverse cases also.  Placing reliance
on the decision of this Court in Sureka Vs. State of Tamil Nadu reported in
2007(1) MLJ (Crl.) 257 he submitted that the detaining authority ought to have
considered the possibility of the detenu being released on bail in the adverse
cases also, and therefore there is non-application of mind on the part of the
detaining authority.  Placing reliance on Sumaiya v. The Secretary to Govt.,
reported in 2007 (2) MWN (Cr.) 145, he submitted that there is delay in disposal
of the representation made by the detenu.

5.Reiterating the averments made in the counter affidavit filed by the
first respondent, Mr.Daniel Manoharan, learned Additional Public Prosecutor
appearing on behalf of the respondents submitted that only after careful
consideration of the materials placed before him, the detaining authority,
having arrived at the subjective satisfaction that the detenu was in judicial
custody in the cases registered against him, passed the order of detention.   He
further submitted that till the date of detention, the detenu had moved a bail
petition only in one case in Kalugumalai Police Station Cr.No.90 of 2007 in
Cr.No.3281 of 2007 on the file of the learned Principal Sessions Judge,
Thoothukudi and that, it was very likely that the detenu on coming out on bail
in the ground case would also file bail applications in other two cases.
Therefore, the detaining authority has rightly come to the conclusion that there
is every likelihood that the detenu would come out of bail in the case
registered against him.   Going by the date of representation of the detenu,
remarks received and other particulars mentioned in the Chart produced at the
time of hearing, he further submitted that there was no delay in considering the
representation of the detenu.

6.We heard the counsel appearing for the parties and perused the materials
available on record.

7.On perusal of the chart, we are convinced that there is no delay in
considering the representation of the detenu and therefore, the contention is
rejected.

7A.Considering the other point raised by the learned counsel for the
petitioner, admittedly, the detenu has come to the adverse notice of the police
in two criminal case in Elayirampannai Police Station Cr.No.80 of 2007 under
Sections 342 and 307 IPC and another case in Kuppampatti Police Station Cr.No.52
of 2007 under Sections 294(b), 387 and 506(ii) IPC.   In the ground case, the
detenu had surrendered himself before the learned Judicial Magistrate, Nanguneri
on 15.10.2007 and was taken to police custody on 22.10.2007.  Thereafter, he was
produced before the Court of the learned Judicial Magistrate No.II, Koilpatti on
23.01.2007 and remanded to judicial custody upto 06.11.2007 in Central Prison,
Palayamkottai.  At Paragraph 4 of the detention order, reference has been made
to the periodical extension of the remand upto 18.12.2007 and, the filing of the
bail application in the ground case and the likelihood of the defence coming out
on bail.  Though the detenu is in judicial custody in respect of the two adverse
cases also, the detaining authority has not at all adverted to the fact as to
whether there is any possibility of the detenu coming out on bail in said cases.

8. In similar circumstances, this Court in Suneka v. State of Tamil Nadu
reported in 2007 (1) MLJ (Crl) 257, following the decisions in Anjalammal v.
State of Tamil Nadu (2004 MLJ (Crl) 829) and Balasubramanaian v. Commissioner of
Police, Madurai City (2006 (1) MLJ (Crl) 37, at Paragraph 6 held as follows:
"Non-application of mind is on account of the fact that the detenu has
been remanded in connection with two cases, but the detaining authority has
referred to the possibility of the detenu being released on bail by referring to
the bail Applications Crl.M.P.Nos.4007 and 4050 of 2006, which had been filed in
Cr.No.44 of 2006.  In other words, the detaining authority has not at all
considered the possibility of the detenu being released in other case.  Even if
bail order would have been passed in Cr.No.44 of 2006, the detenu would be still
detained in prison as no bail application had been filed in connection with the
earlier case, ie., Cr.No.37 of 2006.  The detaining authority has not at all
applied his mind to the aforesaid aspect.  As a matter of fact, almost on
similar circumstances, the Division Bench in Balasubramanian @ Subramanian @
Subbudu @ Subbu v. Commissioner of Police, Madurai City (supra), had quashed
such detention on account of the fact that the detaining authority had only
referred to filing of bail application in one crime and there is no reference to
filing of bail application in connection with other similar crime."

9.In the case on hand, scrutiny of Paragraph 4 of the grounds of
detention reveals that the detaining authority has failed to consider that even
if the detenu was to be released on bail in the ground case, still he would be
under confinement in other two adverse cases.  The decision relied on by the
learned counsel for the petitioner, would be applicable to the facts of the
present case and therefore, we are constrained to quash the order of detention,
though the allegations against the detenu are quite serious in nature.

10.In the result, the Habeas Corpus Petition is allowed.  The detenu
K.Manickaraja Son of Kruppasamy Thevar confined in Central Prison,
palayamkottai, is directed to be released forthwith, unless his presence is
required in connection with any other case.  No costs.

skm/sms

To
1. The District Magistrate
    and District Collector,
    Tuticorin District,
    Tuticorin.

2. The Secretary to the Government,
    Prohibition and Excise Department,
    Fort St. George, Chennai-9. 

The correctness of the order dismissing the writ petition for a Mandamus, for a direction to the respondents 1 to 3, to reject the appointment order of D.Retnadhas, dated 10.07.2006 sent by the Manager and Correspondent of the Salvation Army Higher Secondary School, Nagercoil, the fifth respondent is challenged in this appeal.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 24/04/2008

CORAM
THE HONOURABLE MRS. JUSTICE R. BANUMATHI
AND
THE HONOURABLE MR. JUSTICE S.MANIKUMAR

W.A.(MD)No.352 of 2008

Shirley Water             ... Appellant

vs.

1.The Director of School Education,
   Chennai - 600 006.

2.The Chief Educational Officer,
   Nagercoil-1,
   Kanyakumari District.

3.The District Educational Officer,
   Nagercoil,
   Kanyakumari District

4.The Manager/Territorial Commander,
  The Salvation Army Higher Secondary
  School, Territorial Head Quarters,
  High Ground Road, Maharaja Nagar Road
  Post, Tirunelveli District.

5.The Manager/Correspondent,
   The Salvation Army Higher Secondary School,
   Vetturnimadam, Nagercoil,
   Kanyakumari District. ... Respondents

Writ Appeal filed against the order dated 26.06.2007 passed in W.P.No.8131
of 2006 on the file of this High Court.

!For Appellant        ... Mr.R.Vijayakumar
^For Respondents ... Mr.D.Gandhiraj
  Government Advocate

:JUDGMENT

(Judgment of this Court is delivered by Justice S.MANIKUMAR)

Mr.D.Gandhiraj, learned Government Advocate, takes notice for the
respondents 1 to 3. By consent, the writ appeal is taken up for final disposal
at the admission stage itself.

2.The correctness of the order dismissing the writ petition for a
Mandamus, for a direction to the respondents 1 to 3, to reject the appointment
order of D.Retnadhas, dated 10.07.2006 sent by the Manager and Correspondent of
the Salvation Army Higher Secondary School, Nagercoil, the fifth respondent is
challenged in this appeal.

3.The appellant is working as a Secondary Grade Assistant in the Salvation
Army Higher Secondary School, Nagercoil, the fifth respondent. According to her,
she has passed M.Sc., Agri (Botany) and M.Ed., degree and therefore, qualified
to hold the post of P.G.Assistant(Botany) from 11.12.2005. She submitted a
representation dated 07.11.2005 to the fifth respondent to consider her
seniority and experience in the fifth respondent school and appoint her as
P.G.Assistant(Botany). However, without considering her request, the Manager and
Correspondent of fifth respondent  School appointed one D.Retnadhas as
P.G.Assistant (Botany) and the appointment order was sent for approval to the
Chief Educational Officer, Nagercoil, the second respondent herein.  Aggrieved
by the appointment of the said teacher, the appellant has sent another
representation dated 15.07.2006 to the second respondent not to accord approval
for the appointment of the said D.Retnadhas without considering the appellant's
promotion.

4.The grievance of the appellant was that as the appointment was against
the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Rules,
1974 (hereinafter referred to as 'the Rules') and that the fifth respondent
ought to have promoted the appellant as P.G.Teacher as per Rule 15 (4) (ii)(i)
of the Rules.  Besides, the appellant also contended that she was the next
qualified and eligible teacher for being promoted to the said post.

5.The fifth respondent, Manager/Correspondent of the Salvation Army Higher
Secondary School, Nagercoil, in his counter affidavit has stated that the school
is a minority school receiving grant in aid from the State Government and
therefore, the right of appointment in a sanctioned post is solely vested with
the management of the minority school.


6.It was further stated that Mr.D.Retnadhas was appointed in the Salvation
Army Higher Secondary School , Territorial Head quarters, High Ground Road,
Maharaja Nagar Road Post, Tirunelveli District the fourth respondent herein on
01.06.1992 and was senior to the appellant.  It is also the case of the
respondents that while the said D.Retnadhas was working as B.T.Assistant in the
fourth respondent school, the appellant was working only as a Secondary Grade
Teacher and therefore, she is not qualified to be appointed as P.G.Assistant
(Botony) in the vacancy caused due to the retirement of a P.G.Assistant Teacher.
The fifth respondent has further submitted that the  appointment to the said
vacancy is not by way of promotion from the 5th respondent School and therefore,
Rule 15(4) of the said Rules is inapplicable.

7.The learned single Judge, taking into consideration, the applicability
of Rule 15(4)(ii)(i) of the Rules which deals with qualifications, procedure to
be followed for appointment/promotion of teachers, the power of the management
of a minority institution to appoint teachers in respect of corporate body
running more than one school and also to the fact that the said D.Retnadhas was
working as a graduate teacher (i.e.,) a higher post than that of the appellant
found that there was no infringement of Rule 15(4) of the Rules in the process
of promotion. The learned single Judge, on scrutiny of Rule 15(4) further
observed that there is no automatic promotion of any qualified person, but the
rule clearly contemplates that promotion shall be made on the grounds of merit
and ability  and seniority will be considered only when merit and ability are
approximately equal.  Considering the fact that the said D.Retnadhas had been
selected from among all the qualified candidates and holding a higher post, the
learned single Judge dismissed the writ petition. Though, the appellant
challenged the appointment of said D.Retnadhas, he was not made as party in the
writ petition.

8.Learned counsel for the appellant, reiterating the contentions in the
memorandum of appeal submitted that the learned single Judge ought to have seen
that the appellant was more qualified than D.Retnadhas for the post of
P.G.Assistant (Botany). He further submitted that when the appellant was fully
qualified to be promoted to the post of P.G.Assistant (Botany), appointment of
D.Retnadhas from another school is in violation of Rule 15(4) of the Rules.  He
further submitted that the learned single Judge ought to have seen that the
school committee of the 5th respondent school has not obtained any prior
permission from the Chief Educational Officer before appointing the said
D.Retnadhas who was working in other school.

9.Mr.D.Gandhiraj, learned Government Advocate, appearing for the
respondents submitted that in respect of  a corporate body running more than one
school, all the schools under the control and management of the corporate body
shall be treated as one unit for the purpose of the Rule 15(4) (ii)(i) of the
Rules and therefore, the post of P.G.Assistant in fifth respondent school can be
filled up by appointing a teacher working in any of the schools run by the
fourth respondent namely, the Salvation Army, with their headquarters at
Tirunelveli.  He further submitted that as between the appellant and the said
D.Retnadhas, the latter is senior to the appellant. Besides, the writ petition
itself is not maintainable for non-joinder of the said D.Retnadhas  who is a
necessary and proper party.

10.Heard the learned counsel appearing for the parties and perused the
material available on record.

11.Rule 15 of the Tamil Nadu Recognised Private Schools (Regulation)
Rules, 1974 envisages the procedure to be followed for appointments to various
categories of teachers. The qualifications, condition of service of teachers and
other persons are also set out in this Rule.  As per Rule 15(4) (ii) (i)
promotion shall be made on the grounds of merit and ability and seniority being
considered only when merit and ability are approximately equal. The 5th
respondent school is one of the schools, run by the Salvation Army which is a
corporate body recognised by the educational authorities.

12.A reading of the above said rule makes it clear that in respect of
corporate body running more than one school, the schools coming within the
control and management of the corporate body shall be treated as a single unit
for the purpose of this Rule (i.e.,) for appointment to various categories of
teachers. The contention of the 5th respondent school that the said D.Retnadhas
was appointed in the fourth respondent school at Nagercoil on 01.06.1992 and
that he was working as B.T.Assistant, holding a higher post than that of the
appellant, is not disputed by the learned counsel for the appellant. Perusal of
the affidavit filed in support of the writ petition further discloses that the
appellant was appointed as middle school assistant in the fifth respondent
school only on 29.06.1993 and that he is one year junior to the person appointed
as P.G.Assistant.

13.Therefore the finding of the learned single Judge that there is no
infringement of Rule 15(4) in the process of promotion of the said D.Retnadhas
cannot be found fault with.  Further, the writ petition is liable to be rejected
for non-joinder of necessary and proper party.

14.In Rajbir Singh, HFS-II Vs. State of Haryana and another reported in
1996(2) SCC 19, the dismissal of a writ petition, challenging the inter se
seniority, without impleading the other persons was confirmed by the Apex Court.

15.In Baskaran Vs.The Commissioner of College Education and 2 others
reported in 1995 (2) CTC 513, a Division Bench of this Court following the
judgment of Prabodh Verma's case (AIR 1985 SC 167), held that the remedy under
Article 226 of the Constitution of India is equitable and discretionary and the
persons who would be vitally affected by the decision are necessary parties. The
Court should dismiss the writ petition, if necessary parties are not impleaded
in the writ petition.

16.In yet another decision in Ramarao and others Vs. All India Backward
Class bank Employees Welfare Association and others reported in 2004 (2) SCC 76,
the Apex Court reiterated the legal position and held that
"...An order against the person without impleading him as a party and
without giving an opportunity of hearing must be held to be bad in law. The
appellants herein, keeping in view of the fact that by reason of the impugned
direction, the orders of promotion effected in their favour had been directed to
be withdrawn, indisputably, were necessary parties. In their absence, therefore,
the writ petition could not have been effectively adjudicated upon.  In the
absence of the 'promotees' as parties, therefore, it was not permissible for the
High Court to issue the directions by reason of the impugned judgment."

17.Concedingly, the appellant who has sought for an equitable and
discretionary remedy from this Court has failed to implead the promotee as party
respondent in the writ petition. As rightly observed by the learned single
Judge, the writ petition is not maintainable for non-joinder of necessary and
proper party also. We do not find any infirmity in the order.  There are no
merits in the writ appeal and the same is dismissed.  No costs.

sms

To
1.The Director of School Education,
   Chennai - 600 006.

2.The Chief Educational Officer,
   Nagercoil-1,
   Kanyakumari District.

3.The District Educational Officer,
   Nagercoil,
   Kanyakumari District