#gujrathighcourt

[seemabhatnagar]

SC allows pension benefits for ex-Central Govt. employee who joined State Govt. later

Vinod Kanjibhai Bhagora v. State of Gujrat & Another

SLP 16030/218

Before Supreme Court of India

Order:  

Appeal was allowed on 02.02.2024 by the bench comprising Hon’ble Mr. Justice Vikram Nath J & Hon’ble Mr. Justice Satish Chandra Sharma J.

Apex Court set aside the order of the High Court  & directed State to consider the service rendered by the Appellant to the Central Government in his capacity as Postal Assistant to be considered as qualifying service.

Fact:

Appellant was engaged as postal assistant on 12.08.83 at Gandhinagar Postal Division of the Central Government & he served in the aforesaid role till 16.07.1993.

Later an invitation by the Ste Government of Gujrat was issued for the post of Senior Assistant.

Appellant after obtaining NOC from the Superintendent of Post Office Gandhinagar Division on 18.06.93 and participated in the selection process.

He was selected and he joined as Sr. Assistant on 18.08.93 and served for a period of 23 years.

State Government paid terminal benefit only for the period appellant was on their role as Sr Assistant.

Terminal benefit for the period of 10 years which he served with Central Government was not included.

Aggrieved with the non - inclusion of terminal benefit which he served with Central Government, appellant moved Representation before Chief Post Master General, Gujrat Division Rule 25 of the Gujarat Civil Services (Pension) Rules, 2022.

The representation was rejected.

Against the rejection of his representation, appellant filed Writ Petition before Gujrat High Court.

The Writ Petition was rejected by the High Court observing Rule 25 doesn’t apply on the appellant.

Submission of the Counsel of the Appellant

The Appellant was absorbed by the State Government and consequently, in terms of Rule 25(ix) of the Pension Rules, the Appellants’ terminal benefits could not be limited to the Period of 23 years only but must also include 10 years of service which Appellant had rendered to the Central Government.

Submission of the Counsel of the Respondent State

Appellant was not entitled to seek the benefit of Rule 25(ix) of the Pension Rules as the Appellant was appointed in the State Government emanating from a fresh recruitment.

Observation of the Supreme Court

Qualifying service for the purpose of calculating terminal benefits would include prior services rendered by such a person under inter alia the Central Government provided that (i) the employment of such person under the Central Government encompassed an underlying pension scheme; and (ii) such person came to be absorbed by the State Government.

The prior employment of the Appellant under the Central Government provides for pension scheme.

Argument of the State is petitioner joined State Government as fresh appointee and his previous employment with Central Government could not be considered to have been absorbed by the State Government.

Interpretation by the State Counsel is narrow and restrictive so as to limit the benefit of Rule 25(ix). Benefit extended to such person(s) who have been explicitly absorbed by the State Government.

Pension scheme(s) floated by the State Government form a part of delegated beneficial legislation and ought to be interpreted widely.

The Appellants’ participation in the selection process was preceded by an NOC from the Central Government and subsequently was followed by the tender of a technical resignation to the Central Government upon securing employment with the State Government.

High Court erred in interpreting of Rule 25(ix) of the Pension Rules.

Seema Bhatnagar

[newswatchindia]

Bilkis Bano Case Supreme Court News! The Supreme Court, while giving its verdict on Bilkis Bano case today,

Supreme Court News! The Supreme Court, while giving its verdict on Bilkis Bano case today, wrongly took the decision of the Gujarat Government in which it had released the culprits of the Bilkis Bano case from jail by giving them remission in their punishment.

[seemabhatnagar]

Proactive evidence gathering is the responsibility of the litigant

Ajitsinh Chehuji Rathore v. State of Gujrat and Another

SLP Crl. 16641/2023

Before Supreme Court of India

The Criminal Appeal was dismissed by the Division Bench of the Apex Court comprising Hon’ble Mr. Justice B R Gavai J & Hon’ble Mr. Justice Sandeep Mehta J on 29.01.2024

The present Criminal Appeal is filed against the rejection order of the Gujrat High Court where by the Criminal Misc. Case filed u/s 482 Cr P C by the Appellant Ajitsinh Chehuji Read With Section 391 Cr P C was rejected.

Facts

The present appellant was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act.

It was alleged by the Complainant Shri Mahadevsinh Cahndaasinh Champavat before the Trial Court that the cheque for an amount of Rs.10 lakhs which was issued by the appellant in his favour upon being presented in the bank was dishonoured “for insufficient funds and account dormant.

During the course of trial, the appellant preferred an application before the Trial Court praying to send the cheque to the handwriting expert for comparison of the handwriting as well as signature appearing thereon with a plea that his signatures had been forged on the cheque in question.

The Trial Court rejected his application observing that the application is aimed at delaying the trial. The Trial Court also observed that the matter is at the stage of defense and the accused could lead evidence to prove his claim pertaining to mismatch of signatures.

The order of the Trial Court dt. 13.07.2019 was not challenged by the appellant as such it attained finality on 07.11.2019

The appellant subsequently preferred an appeal before the Principal Sessions Judge, Gandhinagar and during pendency thereof, he also filed an application under Section 391 CrPC for taking additional evidence at appellate stage and seeking a direction to obtain the opinion of the handwriting expert after comparing the admitted signature of the accused appellant and the signature as appearing on the disputed cheque.

Appellant also prayed for summoning the concerned officer from the Post Office to prove the defense theory that the notice under Section 138 of NI Act was never received by the accused appellant.

This application of the appellant was rejected by the Principal Sessions Judge, Gandhinagar vide order dt. 25.07.2023.

Against the rejection of his application by the Principal Sessions Judge Gandhinagar, Appellant invoked extra ordinary jurisdiction of the Gujrat High Court u/s 482 Cr P C.

Gujrat High Court dismissed his application vide order dated 25.10.2023.

Against the rejection of Petition u/s 482 Cr P C present SLP/Criminal Appeal is filed.

Observation of the Apex Court

Settled Law –

Power to record additional evidence under Section 391 CrPC should only be exercised when the party making such request was prevented from presenting the evidence in the trial despite due diligence being exercised or that the facts giving rise to such prayer came to light at a later stage during pendency of the appeal and that non-recording of such evidence may lead to failure of justice.

The Apex Court observed that the Principal Sessions Judge, Gandhinagar had taken note of the fact that during the trial, the appellant examined the witness of the Bank of Baroda in support of his defense but not a single question was put to the said witness regarding genuineness or otherwise of the signatures as appearing on the cheque in question.

Cheque return memo of the Bank dat.26.02.2018 clearly recorded the reason for the cheque being returned unpaid “funds insufficient and account dormant.”

The cheque was not returned unpaid for the reason that the signature thereupon differed from the specimen signature recorded with the bank.

If at all, the appellant was desirous of proving that the signatures as appearing on the cheque issued from his account were not genuine, then he could have procured a certified copy of his specimen signatures from the Bank and a request could have been made to summon the concerned Bank official in defense for giving evidence regarding the genuineness or otherwise of the signature on the cheque.

The appellate Court was not required to come to the aid and assistance of the appellant for collecting defence evidence at his behest.

It is for the accused to rebut such presumptions by leading appropriate defence evidence and the Court cannot be expected to assist the accused to collect evidence on his behalf.

Appellant ought to have challenged the order of rejection of his application seeking comparison of the signature as appearing on the cheque through the handwriting expert.

The order attained finality as it was not challenged.

[newswatchindia]

Supreme Court will give its verdict in Bilkis Bano case today

Bilkis Bano case: Today the Supreme Court will give its verdict on the petitions against allowing the release of the convicts in Gujarat's famous Bilkis Bano gangrape case. Many opposition leaders have filed petitions in this case (Bilkis Bano case).

[newswatchindia]

LSG got a big blow before IPL 2024, after Gautam Gambhir and Andy Flower

Cricket news: The auction for IPL 2024 has been done, while the schedule of the season may also come soon. Meanwhile, Lucknow Super Giants (LSG) captained by KL Rahul has suffered a major setback. After coach Andy Flower, Gautam Gambhir, now the batting coach has severed ties with LSG.

[seemabhatnagar]

Gujarat High Court refused to entertain PIL Seeking Ban on Loudspeakers at Mosques

The Gujarat High Court on November 28, dismissed a Public Interest Litigation seeking a ban on the use of loudspeakers for azaan the Court Observed the PIL as “wholly misconceived” and had no scientific foundation.

The case of the petitioner was that the noise of bells and gongs during `aarti’ at a temple is not heard outside. Whereas azan when played through loudspeakers affects people’s, especially children’s health and causes inconvenience otherwise. The petition, was filed by Bajrang Dal leader Shaktisinh Zala, claimed azan on loudspeaker causes “noise pollution”.

The Division Bench of Hon’ble Madam Chief Justice Sunita Agarwal J and Hon’ble Mr.Justice Aniruddha P Mayee J observed “We are not entertaining this kind of PIL”.

Azan is conducted for a maximum of ten minutes at a time at different hours of the day, the court pointed out. “We fail to understand how the human voice making azan through loudspeaker in the morning could achieve the decibel (level) to the extent of creating noise pollution, causing health hazards for the public at large”. There is a scientific method for measuring noise pollution, but the petition does not provide any data to show that a ten-minute azan causes noise pollution, the court noted.

Court observed that it is a faith and practice going for years, and it is for 5-10 minutes. The court asked the petitioner’s lawyer, in your temple, the morning aarti with drums and music also starts early at 3 am. So, it does not cause any kind of noise to anyone? Can you say the noise of ghanta (bell) and ghadiyal (gong) remains in temple premises only, does not percolate outside the temple.

[seemabhatnagar]

Granting anticipatory Bail at the preliminary stage of investigation may hamper investigation

Ajayraj v. State of Gujrat

Anticipatory Bail 18552/2023

Before High Court of Gujrat

Anticipatory Bail application of the accused was dismissed by Hon’ble Mr. Justice Hasmukh D Suthar J. vide order dt.03.11.2023 because of the seriousness of the charge, prima facie involvement of accused and possibility of tempering with evidences.

Fact

An FIR U/s 419, 420, 465, 467, 468, 471 and 114 IPC is lodged against the accused Ajayraj ibn the year 2016.The accused Ajayraj has moved an application u/s 438 Cr P C for anticipatory bail.

Submission of the Counsel of the accused before the High Court

The applicant accused has no role in the offence of forgery.

Offence took place in the year 2014 and FIR against him was filed in the year 2016 based on the FSL Report.

Applicant is shown as absconding whereas the police has never visited his place.

Nothing is required to be recovered from the applicant accused as such he be allowed anticipatory bail.

Submission of the State Counsel Opposing Anticipatory Bail application

Chargesheet filed against the applicant accused is showing him absconding since 2016.

Applicant has entered into a deal with the co-accused and created forged documents & appeared in the competitive examination for the post of Clerk on behalf of co-accused Udayraj Brijlal Meena.

Other co-accused Vikas & Bhupendra are also shown in the chargesheet as absconding & are yet to be arrested.

Prima facie involvement of the applicant accused is there & therefore custodial interrogation is required.

Hon’ble Court was requested not to exercise the discretion in favor of the applicant abd dismiss his present application.

Observation of the Court

It is incumbent upon the Court to exercise its discretion judiciously, cautiously and strictly while considering an application for bail.

Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided by the Court.

The applicant is facing serious charge of forgery.

In cases related to competitive examination are concerned, misconduct, misbehaviour, malpractices and cheating is required to be dealt with strictly.

In the competitive examination where many incumbent candidates burn their midnight oil to secure the government job and are eagerly waiting for the government jobs, they are ultimately deprived due to such unscrupulous elements and their dishonest activity and malpractice.

Considering the facts and the material available against the accused it is clear that complaint against him has not been made with a view to humiliate him and considering allegation made in the FIR custodial interrogation is necessary.

Arrest is part of the process of investigation and intended to secure several purposes in which the accused may provide information, during the discovery of material facts and relevant information.

It is needless to say that order under Section 438 of CrPC is not a passport to the commission offence nor a shield against any serious accusation, which adversely affects the society.

Order

Since applicant is actively involved in the offence and if applicant is equipped with an order of anticipatory bail before he is interrogated by the Police, it would greatly harm the investigation and would impede the prospects of unearthing the truth.

Considered the nature and seriousness of the charge, prima facie involvement of accused and possibility of tempering with evidences, it does not appear to be just and proper to exercise the discretion in favor of the applicant. Anticipatory Bail application is dismissed.

Seema Bhatnagar

[seemabhatnagar]

"Giving Regular Bail based on settlement in heinous offences is impermissible"

On Monday 28.08.23 I wrote an article that #Noncompoundable & #heinousoffences can’t be settled by way of #mediation #settlement.

Another such case came before #supremecourtofindia and this time it is an Criminal Appeal - "Bharwad Santoshbahi Sondabhai v. The State of Gujrat & Another" filed against the #Regularbail order granted by the Single Judge of the Gujrat High Court in very serious(heinous) offence u/s 302/114 IPC, Section 30 of Arms Act & Section 135 of Gujrat Police Act.

The Respondent was charged with the aforesaid sections moved twice #regularbail before the #trialcourt but it was #rejected on both the occasions for the #reason respondent No.2-accused was charged for offence u/s 302 IPC(#murder) and that the #witnesses had #identified him during the #testidentification #parade.

Don't you think there is immense possibility of tempering of evidence by the accused who is identified by the witness?

#Aggrieved with the #dismissal of his #bailapplication the respondent No.2accused moved bail application before the #GujratHighCourt on the basis of #settlement arrived between the #originalcomplainant(son of the deceased) and him.

Gujrat High Court granted bail observing #Investigation is #completed. #Chargesheet is submitted. #No #criminalantecedent against the respondent. Additional Public Prosecutor (#APP) failed to bring any #additionalcircumstances against the accused. Incident too place due to scuffle amongst friends present at the farm of the deceased Pravinbhai and in heat of argument respondent No.1 took out his revolver and fired. (whereas the Respondent No.2 exhorted Respondent No.1)

In such offences there is always the #apprehension of #tampering of the #evidence if the #accused #remainsonbail.

#ApexCourt was #shocked #how can in the offence of murder #regularbail is #granted to the Respondent No.2 #onthebasis #ofsettlement by the #GujratHighCourt. Moreso, it was a fit case where the #State #ought to have #brought this #fact in the #knowledge of the #ApexCourt but #surprisingly this was #notdonebythe #State.

After Apex court's repeated directions State filed affidavit stating #3FIR already #pending #against the #RespondentNo.2 the accused and out of the 3 in one FIR he was arrested on 22.08.2022 while was enlarged on bail by the Gujrat High Court though released on bail the very next day.

Counsel of the respondent accused submitted that the FIR in which he was arrested was in the course of his employment as security officer and there was some dispute with his brother and the employer and he has no role in it. That FIR can't be taken as a ground for refusal of bail in the present case.

However, the Division Bench of #HonorableMadamJusticeHimaKohliJ & #HonorableMrJusticeRajeshBindalJ #Quashed & #setaside the #order dt.18.02.2022 of the Gujrat High Court granting bail to the Respondent no.2 & directed him to #surrender #before the #trialcourt #forthwith.

Seema Bhatnagar

[seemabhatnagar]

Claim of service benefit or pensionary benefit

Civil Appeal Director General Doordarshan Prasar Bharti Corporation & Anr. v. Smt. Magi H Desai

The #GujratHighCourt allowed the Special Civil application of the present Respondent/Smt. Magi H Desai & directed that her #services rendered as #contractual shall be liable to be counted as #temporaryservice for the purpose of calculating the qualifying service for #pensionary / #retiralbenefits. Against this order the #DirectorGeneralDoordarshan Prasar Bharti Corporation of India filed Civil Appeal before the Hon’ble #ApexCourt.

Facts:

1.     The respondent was engaged on contractual basis as General Assistant since 1985. Her services were extended from time to time with a break of few days.

2.     The respondent filed Original Application (OA) before Central Administrative Tribunal(#CAT). Her OA was partly allowed with a direction to the department to pay her the same salary and allowances that were being paid to other regular General Assistants/Clerks from October, 1990 with arrears.

3.     Pursuant to the order of CAT the services of the Smt. Desai came to be regularized as Lower Division Clerk with effect from 31.03.1995 pursuant to the Scheme of Regularization of Casual Staff Artists of Doordarshan, 1992/94.

4.     After regularization of her services Smt. Desai/present respondent approached CAT for consideration of her past services rendered on contractual basis. CAT rejected her application. Respondent than approached Gujrat High Court.

5.     The High Court was pleased to permit her to move a #representation before the Department. She moved Representation before the Department.

6.     Department rejected her representation for giving her the benefit of casual/contractual services rendered by her from 1985 till 31.03.1995 for calculating the pensionary/service benefit.

7.     Against the rejection of her representation the respondent filed another OA which was also rejected by the CAT observing that the services rendered by the respondent as contractual basis cannot be treated as temporary service and therefore the services rendered as such shall not be counted for the purpose of retiral benefits/service benefits.

8.     This dismissal order became the subject of fresh Writ Petition (WP) before Gujrat High Court. The High Court allowed the WP and observed that the services in temporary capacity will include the classes of temporary servants such as casual or even contractual for the purposes of calculating qualifying service in accordance with the rules and accordingly she shall be paid the pension on her retirement relying on Rule 13 of the #CentralCivilServices (#Pension) #Rules, #1972.

Issue: Services rendered on contractual or casual basis is temporary service or not?

 Argument of the appellant before Apex Court

1.     The services rendered as a casual/contractual employee cannot be said to be rendering services as a temporary employee and/or rendering a temporary service

2.     Therefore, #Rule13 of is not applicable and the services rendered by respondent as casual/contractual employee cannot be counted for the purposes of pensionary benefits/service benefits.

Argument of the Respondent

1.     Respondent is claiming 50% of the pensionary benefits of the service rendered on contractual basis.

2.     In other Departments a scheme is there on the basis of which the respondent is claiming service benefits.

Observation of the Supreme Court

1.     In the scheme of regularization through which respondent’s services were regularized there is no mention that the casual services shall be counted towards service benefits/pensionary benefits.

2.     The respondent is governed by Central Civil Services (Pension) Rules, 1972.

3.     Rule 13, provides for #commencement of #qualifyingservice. Accordingly, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity without any interruption by substantive appointment in the same or another service or post.

4.     On fair reading of Rule 13 of Central Civil Services (Pension) Rules, 1972 it is found that the High Court has materially erred in observing that the contractual service would be qualified as service in a temporary capacity.

5.     Merely because some other departments might have pensionary schemes, the respondent shall not be entitled to the same benefit in absence of any scheme in the appellants’ department in which the respondent had rendered her services.

6.     However, counsel of the respondent is not in a position to point out any statutory provision under which the respondent is claiming 50% services rendered as a casual/contractual for the purposes of pensionary benefits/service benefits.

Decision: The Bench of Hon'ble Mr. Justice M R Shah J & C T Ravikumar J quashed and set aside the judgment and order passed by the Gujrat High Court as unsustainable and the same deserves to be set aside.