#writpetition

[seemabhatnagar]

The Case of the Missing TDS: A Story of Tax Evasion and Justice

Harshdip Singh Dhillon v. Union of India Through Commissioner of Income Tax TDS

WP©10828/2019

Before Delhi High Court

The bench of Hon’ble Mr. Justice Girish Kathpalia & Hon’ble Mt. Justice Rajiv Shakdher allowed the Writ and set aside the demand notice dated 04.02.2019.

The Respondent were directed to allow credit of TDS deducted by his employer for the Assessment Year 2013-14 to the petitioner vide judgment dt. 04.01.2024.

Background

The petitioner-Harshdip Singh Dhillon has prayed for setting aside demand letter dated 04.02.2019 qua outstanding tax liability pertaining to the Assessment Year 2013-14 and for allowing credit to the petitioner against the Tax Deducted at Source (TDS) for the assessment year 2013-14 by his employer.

Respondent entered appearance through counsel and filed counter affidavit.

Facts

The petitioner was employed with Tulip Telecom Ltd. as Associate Vice-President during the period November 2011 to May 2013 and he resigned from service on 07.05.2013 with effect from 09.05.2013.

For assessment years 2011-12 and 2012-13, the employer of the petitioner deducted Tax at Source (TAS) on the salaries paid to petitioner but the deducted tax pertaining to the assessment year 2012-13 was not deposited by the employer with the Income Tax authorities.

The employer of petitioner also failed to issue the requisite TDS certificate, so the petitioner informed the concerned Income Tax Officials about the default, but no action was taken.

The petitioner filed a petition seeking winding up of the employer company by way of Company Petition under Section 433(e)&(f) read with Section 434 of the Companies Act, in which liquidator was appointed.

Instead of granting credit of the TDS pertaining to the assessment year 2012-13, the respondent issued intimation dated 03.12.2015, thereby raising demand of Rs.15,77,240/- against the petitioner towards outstanding tax liability.

The petitioner made various representations to the respondent/revenue informing them about the defaults on the part of his employer. Ultimately, the respondent/revenue issued the impugned demand notice dated 04.02.2019, thereby again raising a tax demand of Rs.15,36,220/- against the petitioner. Since the respondent/revenue did not clarify the situation despite being approached by the petitioner, the present petition was filed.

Submission of the Respondent

The respondent/revenue in its counter affidavit did not dispute that the petitioner had received salary after deduction of tax.

The amount due to the petitioner towards salary for the months of December 2012, January 2013 and March 2013 was not actually paid to the petitioner by his employer, so the employer had no obligation to deduct tax at source and consequently the respondent/revenue is under no obligation to allow credit of the same.

Issue

Whether any recovery towards the outstanding tax demand can be effected against the petitioner in view of the admitted position that the tax payable on his salary was being regularly deducted at source by his employer who did not deposit the same with the authorities.

Observation of Court

Since the petitioner accepted salary after deduction of income tax at source, it is his employer who is liable to deposit the same with the revenue authorities and on this count, the petitioner cannot be burdened.

We find no substantial question of law to be considered by us in this appeal.

Seema Bhatnagar

[soolegal]

Yes, appeal can be filed against writ petition. To Know where and on what grounds contact our experts at SoOLEGAL.

[mindhunterlaw]

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[lawzgridlegalfirm]

WRIT PETITION 

 The Supreme Court and High Courts in India have been vested with the power to issues appropriate directions, or orders or writs for the enforcement of the fundamental rights. 

Various writs which can be issued are: 

Habeas Corpus: This writ is issued in form of an order calling upon a person by whom another person is detained to bring the person before the court and let the court know why the authority has detained the person. 

 Mandamus: This writ is an order by the superior court commanding a person or a public authority to do or forbear to do something in the nature of public duty. 

Prohibition: This writ is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction or acting contrary to the rules of natural justice. 

Certiorari: This writ is issued by a superior court to an inferior court to prevent an excess or abuse of the jurisdiction 

Quo Warranto: This writ is issued to call upon a holder of the office to show to the court under what authority he holds the office.

[osakagroup]

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For more details please go through this link.

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[seemabhatnagar]

The son and the daughter are equally entitled to inherit a share of the property by birth as coparceners.

Yagnaseni Patel v. The GM Mahanadi Coalfields Ltd. & others

WP No. 28534/2020 before Hon’ble Orissa High Court

U/A 226 & 227 of Constitution of India

Writ Petition Allowed on 22.06.2023

By Hon’ble Mr. Justice Dr. B R Sarangi J & Hon’ble Mr. Justice M S Raman J

Background

This is a case where daughters claim equal share in the property of their late father. After the death of the father petitioner’s 03 brothers got property mutated in their name in the Revenue Record. Petitioner and her 02 other sister filed Mutation Appeal before Sub Collector, Sundargarh. Sub-Collector directed Tehsildar to record the name of 03 sisters in the Record of Rights (RoR). Name was recorded in RoR along with their 03 brothers. Daughter’s than claimed equal share in the property before Claim Commission being daughter of the Coparcener are entitled to get equal share as that of her brothers irrespective of the date of death of her father. Brothers disputed on the basis of the Judgment of the Supreme Court namely Prakash and others v. Phulabati and others & Mangammal @ Thulasi and another v. T.B. Raju and others. In these cases, it was held by the SC that daughters are not entitled to get the benefit being not the co-sharer. Claim Commission decided the matter against the petitioner on 04.01.2020.

Contention of the Petitioner

Judgment, basing upon which the Claims Commission decided the matter, had been referred to the Larger Bench and the Larger Bench decided the same in the case of Vineeta Sharma v. Rakesh Sharma and others, 2020 (II) OLR (SC) 569, which was in favor of the petitioner.

Being daughter of the Late Kulamani Patel stand on the same footing as are the sons.

In view of the decision of the larger Bench in the case of Vineeta Sharma v. Rakesh Sharma and others, the decision of the Claim Commission is not sustainable and it be quashed.

Contention of the Respondent’s

Since the parties (Petitioner Daughter) approached the Claims Commission for adjudication of the matter and the same was decided on the basis of the law applicable at the relevant point of time. Wherefore, the present Writ Petition be dismissed.

 Writ Court exercising a limited supervisory jurisdiction constitutionally vested under Article 227 should abhor to undertake a deeper examination in such matters.

Hindu Law & Amendment in Hindu Law (2005)

In Hindu Law Succession of property in a Hindu Undivided Family is governed by two schools of law 1. Mitakshara 2. Dayabhaga. Mitakshara entitles a son to a right equal to his father in the joint family property by birth.

All the male descendants of a Hindu in the male line up to the fourth degree of generation are his sons. The adopted child also gets a right equal to the right of his adoptive father in the joint family property from the date of adoption. The daughter is not given a right by birth in the joint family property.

The Parliament, being inspired by the amendments in four States namely Andhra Pradesh, Tamil Nadu, Maharashtra & Karnataka, passed The Hindu Succession (Amendment) Act, 2005 for the whole of India.

The amendment is that even in a joint family governed by the Mitakshara law the daughter of a coparcener is made as good a coparcener as a son. She has the same rights in the coparcenary property as she would have had if she had been a son. She has a right to agitate in respect of her share in the joint family property.

Decision of Larger Bench of the Supreme Court in re Vineeta Sharma v. Rakesh Sharma and others.

 The finding of the apex Court (Prakash and others v. Phulabati and others & Mangammal @ Thulasi and another v. T.B. Raju) that daughters are not entitled to get the benefit of equal share being co-sharers in the ancestral property, no more remains res integra in view of the Larger Bench judgment of the apex Court in the case of Vineeta Sharma v. Rakesh Sharma and others.

In the case of Vineeta Sharma, Section 6(1) of the Hindu Succession (Amendment) Act, 2005 was under consideration and a question was framed “does the Hindu Succession (Amendment) Act, 2005, which gave equal right to daughters in ancestral property, have a retrospective effect”.

The Apex Court, answered the same in affirmative, held that daughter shall remain as coparcener (one who shares equally with others in inheritance of an undivided joint family property) throughout life, regardless of the question as to whether her father was alive when the law was amended in 2005 or not

Sons and daughters of a coparcener become coparceners by virtue of birth.

Observation of the Orissa High Court

In view of the decision dt. 11.08.2020 of the Apex Court in Vineeta Sharma v. Rakesh Sharma and others., Claims Commission has committed error apparent on the face of the record by passing the order impugned denying benefit to the daughter.

The earlier judgement of the Supreme Court namely Prakash and others v. Phulabati and others & Mangammal @ Thulasi and another v. T.B. Raju has no effect in view of the subsequent decision of the Larger Bench.

The daughter has a right to get the property of her father from the date the Amendment Act came into force.

Decision

The Writ Petition was allowed and the order dated 04.01.2020 passed by Claims is not sustainable in the eye of law and was quashed. However, the matter was remitted back to the Claims Commission for re-adjudication.

Seema Bhatnagar

[seemabhatnagar]

"High Court Dismisses Writ Petition Citing Alternative Remedy under SARFAESI Act"

The Allahabad High Court reinforced the judiciary's adherence to procedural propriety. The Court emphasized the principle of exhausting available statutory remedies before knocking on the door of the High Court by way of Article 226 of the Constitution of India. The writ petition was dismissed on this ground as an alternative remedy is available under the SARFAESI Act.

Kasturi Devi Sheetalaya Pvt Ltd & Another v. The Presiding Officer Debt Recovery Tribunal And Another

Writ Petition 18388/2024

Before Allahabad High Court

Heard by Hon'ble Mr. Justice Ajit Kumar, J.

Facts

The petitioners invoked the extraordinary jurisdiction of the High Court under Article 226 of the Constitution challenging the order passed by the Debt Recovery Tribunal (DRT) on a miscellaneous application arising out of a Securitization Application.

Preliminary Objection of the Bank (Bank Of India): The petitioners had an alternative and efficacious remedy to appeal before the Debt Recovery Appellate Tribunal (DRAT) under Section 18 of the SARFAESI Act, 2002.

Supreme Court Precedent: The respondent bank relied on a recent Supreme Court judgment (PHR Invent Educational Society v. UCO Bank) emphasizing that High Courts should not interfere in matters arising out of the SARFAESI Act when a special forum is prescribed.

Petitioners' Argument: The petitioners contended that an order on a miscellaneous application regarding court fees does not fall under Section 17 of the SARFAESI Act, and thus, an appeal under Section 18 is not applicable.

Issue before the Court:

Whether the High Court should entertain a writ petition under Article 226 when an alternative remedy is available under the SARFAESI Act, specifically regarding orders passed on miscellaneous applications by the DRT.

Order:

Preliminary Objection Upheld: The High Court upheld the preliminary objection of the Respondent Bank, that an alternative remedy is available.

Dismissal of Petition: The petition was dismissed on the ground of alternative remedy, with liberty granted to the petitioners to approach the appropriate appellate forum.

[seemabhatnagar]

‘A mother can’t be discriminated for Maternity Leave’

Smt. Chanda Keswani v. State of Rajasthan & The Jt. Director HRD College Education, Rajasthan

WP© 7858/2020

Before High Court of Rajasthan at Jaipur

Order pronounced by Hon’ble Mr. Justice Anoop Kumar Dhand J

Issues

Whether any distinction can be made by the State Government to a natural mother, a biological mother and a mother who has begotten a child by surrogacy procedure?

Whether a surrogate mother/commissioning mother can be deprived to get maternity leave?

Whether denying maternity leave to surrogate mother amounts to violation of right to life under Article 21 of the Constitution of India? and

Whether the right to life includes the right to motherhood and also the right of every child to full development?

Facts:

Petitioner became the mother of twins via surrogacy process.

She applied for maternity leave for taking care of newborn.

Her request was not allowed vide order dt.23.06.2020 on the ground that there is no no provision under the Rajasthan Service Rules, 1951 for granting maternity leave to the mother who got children through the process of surrogacy.

Agreed by refusal of maternity leave present WP was filed praying direction to the respondents for sanctioning maternity leave for 180 days from 01.02.2020. Payment of leave salary equal to pay drawn by her preceeding maternity leave. Direction to the respondents for not debiting maternity leave availed by the petitioner from her leave account and a separate entry in this regard shall be made in the service book of the petitioner.

Submission of the Petitioner’s Counsel

Rajasthan Service Rules were enacted by the legislature in the year 1951 & at that time there was no such procedure of begetting children via surrogacy.

Now parents have option of having children via surrogacy if they don’t have issue from the wedlock.

Under these circumstances, the petitioner is entitled to get maternity leave of 180 days for taking care of children born through surrogacy process.

Though there is no such Rule under the Rajasthan Service Rules of 1958 and there exists no similar Rules in other States as well.

But the Delhi High Court in the case of ‘Rama Pandey vs. Union of India & Ors’ has interpreted the Rule regarding grant of maternity leave where the children were born through surrogacy process.

The Delhi High Court has not only granted medical leaves to the surrogative mother but also granted him other service benefits & the judgement was followed by Bombay High Court in several cases.

Submission of the counsel of the Respondents

Since there is no provision in the Rajasthan Service Rules for granting Maternity leave to the mother having children via surrogacy hence no illegality is caused by the Respondents.

In the absence of any rule the petitioner is not entitled to get any indulgence from this Court, hence the petition is liable to be rejected.

Observation of the Court

Maternity Leave s not defined under the Rajasthan Service Rules 1951

Provision of grant of maternity leave was substituted vide notification dt. 06.12.2004 by Department of Finance, Government of Rajasthan.

Mother & Child have nowhere been defined under the Rajasthan Service Rules 1951 & Maternity Beneit Act 1961.

Maternity leave in common parlance means where a female employee is given a certain amount of time off, after birth of the baby to take care of her newborn and to develop the bond of love, care and affection with the new little one on arrival in the family.

A female can become a mother by giving birth to a child or via surrogacy.

If maternity means motherhood, it would not be proper to distinguish between a natural and biological mother and a mother who has begotten a child through surrogacy.

The object of maternity leave is to protect the dignity of motherhood by providing for full and healthy maintenance of the woman and her child.

Surrogacy has been recognized by the Government & The Surrogacy (Regulation) Act, 2021 was enacted which deals with the provisions of regularization of surrogacy and surrogacy procedures.

Hence, surrogacy is an option for couples to have a child for whom it is not possible to carry a baby at their own. Now, one can have a child through surrogacy process and the same is recognized under the law.

Once the surrogacy has been recognized by the Legislature, by enacting the Act of 2021, the benefit of maternity benefit can’t be denied to the mother having children via surrogacy.

The provisions of maternity leave and its entitlement to surrogacy and commissioning mother, several High Courts have held that commissioning mother (biological mother) is entitled for grant of maternity leave and this issue is no more res integra (new and not dealt).

Right to life under Article 21 of the Constitution of India includes the right to motherhood and also the right of every child to full development.

No distinction can be made by the State Government to a natural mother, a biological mother and a mother who has begotten a child through surrogacy method.

The action of the State-Respondent is quite unjustified in denying maternity leave to the surrogate mother for taking care of her twins born through surrogacy method.

Making a difference between natural biological mother and surrogate/commissioning mother would amount to insult of motherhood.

This is high time, provisions are silent, for the Government to bring appropriate Legislation in this regard for grant of maternity leave to the surrogate mothers.

Order

Writ Petition stands allowed and the impugned order dt.23.06.2020 is hereby quashed and set aside. The respondents are directed to sanction 180 days of maternity leave to the petitioner, as per the request made by her.

This Court directs the Registry that copy of this order may be forwarded to the Ministry of Law and Justice, Union of India, New Delhi as well as to the Principal Secretary, Department of Law and Legal Affairs, Government of Rajasthan, Jaipur, for such action as, they may deem fit to take in this behalf.

Seema Bhatnagar

[seemabhatnagar]

Separation of elderly couples by children is painful for them

Shiju K Bhanu v The District Collector & Maintenance Appellate & Ors.

Before Kerala High Court

The Kerala High Court recently by an order reunited an elderly couple, an 80-year-old woman with her 92-year-old husband. The husband was taken by the son to his residence for taking care of his father as he was suffering from Dementia.

The wife filed a Writ before Kerala High Court praying for direction to son to send his husband back to his home, whom she claimed had been unjustly separated from her by their son. More so she had expressed concerns about potential mistreatment by her son and his family based on past incidents

The Bench of Hon’ble Mr. Justice Devan Ramachandran emotionally remarked, “Till death do us part,” before issuing directives for the couple’s reunion at their family home.

The High Court took cognizance of reports submitted by a social justice officer and the police, which indicated that despite suffering from dementia, the husband found happiness and shared “good moments” with his wife.

The Court emphasized that the senior citizen husband should never be denied the company of his wife, as it was his inviolable and absolute right.

The couple’s son had argued that he took his dementia-afflicted father to his own residence because his mother was too unwell and elderly to provide the necessary care. He also cited a dispute with neighbors as a reason for not residing in the family home, where his mother lived.

Justice Ramachandran noted that the son’s reluctance to stay in the family house was primarily due to fears of confrontations with neighbors.

Government Pleader Vidya Kuriakose presented reports from a social justice officer indicating that the husband found the most happiness in the company of his wife and expressed a desire to live with her in the family home.

Kuriakose also highlighted that the local police had not reported any threats from the neighbors and were willing to take necessary steps to ensure the family’s safety.

The son personally appeared before the Court, asserting that these reports were manipulated to favor his mother’s interests. He contended that his mother’s actions were influenced by his sister and reiterated that he was the most capable of caring for his father due to his mother’s ill health.

Challenging an order from a senior citizens appellate tribunal to return his father to the family home, the son assured the Court of his father’s contentment living with him. He also offered to take care for his mother if she chose to relocate to his residence.

The Court, however, opined that the son could provide care for his father in the family home as well and directed a social justice officer to accompany the senior citizens to their family house and visit them weekly, filing monthly reports.

The Court clarified that the son was free to stay or visit the family house to be with his father, provided it aligned with his mother’s wishes. Additionally, the son could request police protection if he anticipated any threats.

Seema Bhatnagar

[seemabhatnagar]

Supreme Court and High Court are Parens Patriae in exceptional situations

In the larger interest of patient lying in permanent vegetative state, who was in urgent need of treatment, support the Court invoked its power under Article 226 of the Constitution of India, to deal with such situation and appointed the wife of patient as his Guardian allowed the wife to sell the land to meet the expenses for the treatment of his husband and issued guidelines for the use of money obtained through the sale of property and kept the locus of relative open to approach the court in case the interest of the patient is against the interest of the patient.

Pooja Sharma v. State of UP & 2 Others

WP (C) 26406/2023

Allowed by Allahabad High Court on 06.10.2023

Background

Husband of the petitioner met with an accident and sustained serious head injury and since than is lying in a comatose state and is in unresponsive wakefulness bed ridden and completely dependent on caregivers for basic needs.

The petitioner wife, who comes from a very average family, works at private place to make her two ends meet. She has a minor son also to take care of & has been subjected to lot of medical expenses. Having exhausted all financial resources, she was in despair, isolation and abandonment besides undergoing agony, stress on account of her husband lying in “permanent vegetative state”.

Prayer of the petitioner wife

Having no other alternative to meet the medical expenses the petitioner wife took the shelter of the Court by filing Writ Petition seeking direction from the Court for permitting her to sell the piece of land purchased by her husband to meet out the expenses of his treatment and was also seeking direction to the government to help her in the treatment of his husband.

Submission of the Petitioner Wife

In India there is no legislation, which provides for appointment of Guardian for a person in comatose state, unlike legislations for appointment of ‘Guardian for minors’ and persons with other disabilities like mental retardation etc.

The Court accorded permission to the petitioner wife also appointed her as guardian of her husband vide its order dt.06.10.2023 with clear guidelines to ensure the interest of the husband who is in a comatose state is protected.

View of the Court

The matters came up before the Court on 20.9.2023, Court and was allowed by the Division Bench of the Allahabad High Court comprising Hon’ble Mr. Justice Mahesh Chandra Tripathi J Hon’ble Mr. Justice Prashant Kumar J on 06.10.2023.

1.     Before proceeding with the relief prayed for, Court considered it appropriate to verify the present mental status of the petitioner’s husband.

2.     Since the petitioner was living in Delhi so Court found it proper to get the Petitioner’s husband examined by the medical board of AIIMS consisting of specialist doctors dealing with such kind of ailments. The petitioner’s husband was examined by the AIIMS Medical Board.

3.     A perusal of the report of the Medical Board shows that the petitioner's husband is in coma and in vegetative state and is not in a situation to take a decision or to execute any conveyance.

4.     He needs a guardian to take care of him, his property and his affairs.

Opinion of the Medical Board

1.     The MRI Brain scans of date 18.07.2023 showed poor clinical condition of the patient, the board was of the opinion that the patient will require prolonged supportive and nursing care and is unlikely to make significant neurological recovery in near future and may require frequent hospital visits for health needs.

Observation of the Court

1.     The issue before the Court in view of the Medical Report was not just limited to allow selling a piece of land in the name of the petitioner’s husband but also to look for the welfare of the petitioner.

Issue before the Court in view of the Report of the Medical Board

Who should be the Guardian of a person who can administer or handle the property of such a person who is in comatose state, as he does not fall under the ambit of mental illness nor will come under the ambit of person with disabilities.

2.     The Mental Healthcare Act, 2017 & The Rights of Persons with Disabilities Act, 2016, provide for appointment of Support/Guardian for People with Particular Disabilities/Mental Illness, but do not address the situation of a person, who is in comatose state.

3.     For a person in comatose state, who would not respond to any stimuli and in the larger interest of patient, who is in urgent need of treatment, support and for that the petitioner wife need funds to take care of this extraordinary situation, cannot be ignored or compromised, hence, the Court is consciously bound to invoke power under Article 226 of the Constitution of India, to deal with such situation.

4.     Looking to the health condition of husband of the petitioner, it was clear that he needs 24 hours medical assistance & it was also neede that a constraint Court may act as Parens Patriae* so as to meet the ends of justice.

Parens Patrie* Hon’ble Apex Court in the case of Shafin Jahan v. Ashokan K M & Others had observed …… There are situations when the Court can invoke the parens patriae principle and the same is required to be invoked only in exceptional situations……..

Guidelines issued by the Court

1.     Petitioner wife is appointed as guardian of her husband who is in comatose state.

2.     She will have the right to take decisions on behalf of her husband for his proper medical treatment, nursing care, welfare and benefit of her husband and their children with power to do all acts, duties and things with respect to all the assets, properties of her husband

3.     She is allowed to sell the land situated

4.     The entire sale consideration will be deposited with the Registrar General of this Court. This amount should be invested in a fixed deposit so that the petitioner gets the maximum interest. Registrar General is further directed to request the bank to remit Rs.50,000/- every month in the account of the petitioner

5.     While selling the properties of her husband Vikas Sharma, the petitioner may ensure that the best possible price or consideration amount is fetched.

6.     In case, any relative or friend of the person lying in comatose state points out that guardian is not acting in the best interest of the person lying in comatose state, such person will also have the locus to approach this Court for issuance of proper direction and for removal of the guardian.

Seema Bhatnagar

[seemabhatnagar]

Use of Emblem and Insignia on vehicles of private person

I believe it is commonly observed by us all that private vehicles are using Emblem and Stickers Police, Government of India, Advocate, High Court, Supreme Court without any authority to them and the reason is to create “Bhaukal” in the eyes of the public and who so ever they come across or to use it as a shield in criminal activities or to run away from the police. While it is understandable that an official vehicle of the state may impose these stickers, the use of it on private vehicles is doing more harm than good.

The Division Bench of Hon’ble Mr. Chief Justice Sanjay V Gangapurwala J & Hon’ble Mr. Justice P D Audikesavalu of #MadrasHighCourt held that it is the #responsibility of the #Stateauthorities to #ensure that the number plate stickers of the private vehicles are #not in #contravention of the #Rules, #Regulations and #ExecutiveInstructions.

Administrative matter(Motor Vehicle)

Dr. Krithika B v. The Additional Principal Secretary Home Dept. Govt. of Tamil Nadu & 3 others

WP 26317/2023 Before Hon’ble Madras High Court.

WP was allowed vide order dt.20.09.2023

Background

The present case is one such case where petitioner-Dr. Krithika B filed a Writ Petition this year before Madra High Court for directing to the Additional Chief Secretary Home Department, Government of Tamil Nadu, Principal Secretary, Transport Authority, Government of Tamil Nadu Additional Chief Secretary, Transport Authority, Government of Tamil Nadu, Commissioner of Police, Chennai to get the the stickers and other artifacts containing “Emblem”, “G”, “Govt of India”, “Government of Tamil Nadu”, “High Court” and “Police” removed from all private vehicles within the jurisdiction of Madras High Court.

Similar Writ Petition was also filed in the year 2014 numbered as 14697/2014 before Madras High Court and Directions were issued:

The Director General of Police, Tamil Nadu was directed to publicize through Visual Media and Press Media, providing to all concerned to remove all kind of unauthorized usage of Flags, Emblems, Names, Symbols, Stickers, Seals, etc., within a period of one month, from the date of such publication.

The Director General of Police was directed to register, on expiry of the said period of one month and prosecute the offenders by following the procedures as contemplated under law.

The respondents were directed to sensitize the competent authorities/Police officials for securing information regarding misuse of Flags, Emblems, Stickers, Names, etc., and in the event of any violation on the part of the law enforcing officials’ strict actions is to be taken against such officials, for dereliction of duty.

The Director General of Police was directed to instruct the Subordinate Police officials across the State to register cases under the provisions of the Act and Rules, in the event of receiving information from any person and by verifying/investigating the genuinity of the information and complaints.

The Director General of Police, Tamil Nadu was directed to issue appropriate circular/instructions to all the Subordinates/Police officials, within a period of two weeks from the date of uploading of this order on the website of the High Court.

Observation of the Court

The direction given in Writ Petition 14697/2014 would take care of the grievance raised by the petitioner in the present writ petition as well.

Report of the police Department with respect to directions issued in WP 14697/2014: -

Till date 104017 private vehicles containing stickers and artifacts containing “Emblem”, “G”, “Govt of India”, “Government of Tamil Nadu”, “High Court” and “Police” were detected.

A fine of Rs.16,56,000/- was imposed on the erring persons.

State authorities would take stern action against the erring persons.

Seema Bhatnagar

[seemabhatnagar]

Punishment must be proportionate to the misconduct proved

Union of India & Others v. Yashpal

WP 15295/2023 before Hon'ble Allahabad High Court

Gravity of misconduct, past conduct, nature of duties, position in organization, previous penalty, if any and requirement of discipline to be enforced are relevant to be considered by the disciplinary authority before awarding the punishment to the employee.

 Case of the Petitioner-Union of India

1.     This is a case where a khalasi of the Railway was dismissed from service on the ground of being habitual absentee.

2.     He was dismissed by the Disciplinary Authority on 29.05.2023 as he was absent without any intimation for about 10 months.

3.     He was asked by the Department to Report to the Railway Hospital but he failed to comply with the Directions and continued to remain on unexplained leave.

4.     Hence, it was necessary to award major punishment of dismissal from service for continued and repeated acts of remaining absent without leave.

 Case of the Respondent-Employee

1.     He joined service on 22.10.1999.

2.     He was absent from work for nine months from 09.05.2005 to 18.2.2006.

3.     He joined on 29.06.2006 and he remained on duty without any further complaint of absenteeism. He was not unwell which had prevented him from performing his duties. Respondent had produced medical certificate in support of his claim of illness, there was prima facie evidence in support of the explanation furnished by the Employee-Respondent.

 Central Administrative Tribunal

1.     Looking into the facts and evidence in support of the submission of the Employee-Respondent, the Central Administrative Tribunal had set aside the punishment ordered and remitted the matter back to the disciplinary authority to pass a fresh order which is proportionate to the misconduct found proven.

 Argument of the Counsel of the Petitioner-Union of India

1.     The Tribunal has completely erred in setting aside the punishment, and in remitting the matter back to the Disciplinary authority.

 Argument on behalf of the Petitioner

1.     No accentuating fact or circumstances was found proven in the enquiry report which may have warranted the wholly disproportionate punishment of dismissal from service. The fact of the respondent that he remained ill was not found to be false.

2.     These mitigating circumstances haven’t been considered by the disciplinary authority. Thus, wholly excessive punishment of dismissal from service was awarded to the respondent after he had joined back in service and had continued to work without break.

Observation of the Hon’ble Court

 1.     Tribunal has not committed any error in setting aside the orders of punishment, appeal and revision and remitting the matter to the disciplinary authority to consider the matter afresh.

 2.     Gravity of misconduct, past conduct, nature of duties, position in organisation, previous penalty, if any and requirement of discipline to be enforced are relevant to be considered by the disciplinary authority before the punishment was awarded to the respondent-employee.

 3.     It is undisputed that the respondent was appointed as a Khalsi on 22.10.1999. In the context of the present proceedings, he was found absent from work for nine months from 9.5.2005 to 18.2.2006. Thereafter, there was a brief break up to 28.06.2006 but there is no dispute to the fact that the respondent had worked continuously from 29.06.2006 onwards.

 4.     In the context of absence from duty without leave, all factors should have been examined by the disciplinary authority before award of major punishment of dismissal.

 5.     The Tribunal has protected the interest of the present petitioner by taking note of all the relevant factor and by observing that the disciplinary authority may observe the past record of the respondent.

 Order of the court

The writ petition was dismissed by Division Bench of the Allahabad High Court comprising Hon’ble Mr. Justice Saumitra Dayal Singh J & on’ble Mr. Justice Arun Kumar Singh Deshwal J on 20.09.2023.

 Seema Bhatnagar

[seemabhatnagar]

A juvenile can be detained for a maximum period of three years

The Petitioner a convict of offence of 302IPC (murder) sought verification of his claim of juvenility and consequential orders as per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000.

The petitioner received the benefit of Juvenile Justice Act after verification of claim of juvenility. Verification of juvenility can be raised at any stage as per the Juvenile Justice Act.

Legal Provision

Section 16 read with Section 15(1)(g) of the Juvenile Justice Act provides that the maximum period for which the petitioner (a juvenile at the time of commission of offence) could be detained is three years.

Here the petitioner was under detention for over 12 years much more than the statutory requirement.

Makkella Nagaiah v. The State of Andhra Pradesh

Before Supreme Court of India

Writ Petition 429/2022

Background

The petitioner was arrayed as an accused along with other for offence under Section 302 read with Section 34 of the Indian Penal Code, 1860, and sentenced them all to undergo imprisonment for life.

The petitioner appealed against the conviction and the sentence to the High Court of Andhra Pradesh, which by its judgment dated 10.04.2014, dismissed the appeal and upheld his conviction.

The petitioner also filed a Special Leave Petition against the concurrent findings of the Sessions Court and the High Court, and this Court by its order dated 12.07.2022 dismissed the SLP, giving finality to the conviction and the sentence.

Facts

After dismissal of his SLP, Petitioner-Makkella filed WP praying that a Writ of Mandamus be issued to the State to verify his juvenility and to pass necessary consequential orders.

Hon’ble Apex Court issuednotice to the State & State filed an affidavit through the Inspector of Police, PS Sathupally, Khammam District, Telangana.

As per the Affidavit the petitioner had studied at the M.P.P. School, Putrela Main, Village of Vissannapet Mandal, Krishna District, Andhra Pradesh, from First to Third Standard from 1994 to 1997 and his date of birth is 02.05.1989.

Observation of the Court

If the date of birth of the petitioner is 02.05.1989, it means he was 16 years 7 months old on the date of the crime, i.e., 21.12.2005.

Wherefore, the petitioner is a juvenile in conflict with the law on the date of commission of the offence.

Since the juvenility was based on the petitioner’s school documents, the Court considered it appropriate to direct the Additional Sessions Judge (Fast Track Court), Khammam, Andhra Pradesh, to conduct an enquiry with regard to the plea of juvenility raised by the petitioner.

The report of the Additional Sessions Judge confirmed that the petitioner was juvenile at the time of commission of the offence,

Order

In view of the Statutory provision and documentary evidence in support of the juvenility Apex Court allowed the Writ Petition and directed the release of the petitioner.

[seemabhatnagar]

Disciplinary Authority can't assume the role of Enquiry Officer

Bhaskaran KP v. Kerala State Electricity Board Limited

Writ Petition 40499/2017 allowed on 31.07.2023

By Hon’ble Mr. Justice Devan Ramachandran,

Kerala High Court

Petitioner Bhaskaran KP, filed Writ Petition (WP) before the Kerala High Court seeking quashing of the order passed by Disciplinary Authority of Kerala State Electricity Board (KSEB) and confirmation of the modified order by the Appellate Authority.

Background

1.    Petitioner, an Assistant Engineer at Electrical Section – Desamanglam retired on 31.03.2015 but was denied retiral benefits on account of uncorroborated shortfall in materials of which he was in charge.

2.    Charge memo was issued to the petitioner to which he denied.

3.    Enquiry was conducted and two charges were framed against him. First charge was account for the material. This charge was not proved in the absence of proper verification of the accounts and the materials. Second Charge was gross insubordination, it was proved.

4.    Consequent to the enquiry report an investigating team was constituted to quantify the liability against the petitioner which found Rs. 14,51,286/ as shortfall amount.

5.    Disciplinary Authority imposed Rs.14,51,286/ as personal liability of the petitioner but didn’t impose any punishment on account of second proved charge of gross misconduct.

6.    Disciplinary Authority however modified its earlier order and reduced the liability to Rs.10,54,844/- by another order.

7.    Petitioner Challenged modification of order by Disciplinary Authority before the Appellate Authority.

8.    Appellate Authority confirmed the order of Disciplinary Authority that Rs. 10,54, 484 is personal liability of the petitioner thus the amount is liable to be recovered from the retiral benefits.

Contention of the Petitioner’s Counsel

1.    Review of its order by Disciplinary Authority is improper and impermissible.

Contention of the Counsel of the KSEB

1.    Report of the investigating team is not available because of lapse of time.

2.    On humanitarian ground figure of Rs.14,51,286/- was reduced to Rs. 10,54,844/- by the Disciplinary Authority.

3.    Thus, Disciplinary Authority issued another order treating the amount as personal liability.

4.    Thus, order of the Disciplinary Authority and Appellate Authority can’t be challenged by the petitioner.

Observation of the Court

1.    Disciplinary Authority didn’t impose any punishment on the proved charge rather inflicted Rs.14,51,286 as personal liability of the petitioner. This is the first error.

2.    The matter should have gone back to the Enquiry Officer for completing the disciplinary proceedings. Instead, Disciplinary Authority himself took the role of the Enquiry Officer and found the petitioner guilty and concluded that Rs.14,51,286/- be reckoned as his ‘personal liability’.

3.    The input of the investigating team ought to have gone back for enquiry and enquiry officer should have concluded the guilt or otherwise of the petitioner.

4.    Disciplinary Authority reviewed its own order and reduced the liability to Rs.10,54, 884/- and affirming this as his personal liability.

5.    The Appellate Authority failed to notice that the order of the Disciplinary Authority was not one which emanated out of the disciplinary enquiry, but was based on his own assessment of liability. The second error committed by the Appellate Authority.

6.    The failure of the KSEB to produce the report of the Investigating Team casts aspersion on the manner in which the proceedings against petitioner were taken forward and completed by them.

7.    Court fails to understand how the Appellate Authority affirmed the order of the Disciplinary Authority reducing personal liability to Rs. 10,54,884/- on the basis of untraceable report against the petitioner.

Decision

The modified order of the Disciplinary Authority & affirmation of the order by the Appellate Authority is set aside. The KSEB is directed to pay the petitioner his eligible amounts within a period of two months from the date of receipt of a copy of this judgment issue.

[seemabhatnagar]

A service matter that exposes how rules and regulation can be ridiculed and misused.

Rovins Kumar v. The Lalit Narayan Mithila University Darbangha & 4 others.

Writ Petition allowed on 30.05.2023

By Hon’ble Mr. Justice Anil Kumar Sinha

Patna High Court

This is a service matter where the petitioner Rovins Kumar challenges the appointment of Respondent Kalpana Kumari on the post of Librarian at The Lalit Narayan Mithila University, Darbangha. As per the advertisement preference will be given to the woman candidate in selection. But in this case what to say of preference, the appointment procedure itself was an eye wash. Basic procedure of appointment was not followed. Court made specific query with respect to thename of the members of the Interview Board/Selection Committee, but no response came from the side of the. In short, a complete mockery of the interview procedure.

Background

The instant case is filed for quashing the appointment of Respondent Kalpana Kumari on the post of Librarian appointed pursuant to advertisement published by the Registrar, Lalit Narayan Mithila University, Darbhanga under the orders of the Vice Chancellor of the University.

The advertisement prescribed that the appointment shall be on contract basis on the basis of interview only scheduled for 20.02.2015.

Argument of the Petitioner’s Counsel:

The petitioner claimed to be Master of Library and Information Science and fulfilling the eligibility criteria for appointment. Altogether eight candidates were called for interview on 20.02.2015, including the respondent Kalpana Kumari, but the name of the petitioner did not figure in the list of applicants selected for the interview.

As such, the petitioner filed a representation on 20.02.2015 to allow him to appear in the interview. The representation of the petitioner was considered and the petitioner, along with six other candidates, were called for interview, held on 24.02.2015.

Finally, Respondent Kalpana Kumari was selected for the post of Librarian.

Aggrieved by the appointment of Respondent Kalpana Kumari, petitioner challenged her appointment by means of Writ Petition before Patna High Court on the ground that he has Masters in Library & Information Science. More so he has been working at the University as librarian since 2007.

Whereas Respondent Kalpana Kumari is working as peon since 2011.

Respondent Kalpana Kumari was appointed as Librarian on extraneous consideration as she happened to be the daughter of the PA to the Vice Chancellor of the University.

Further selection was made on the basis of interview held on 20.02.2015 & the interview of dt 24.02.2015 in which petitioner along with other candidate participated was not taken into consideration.

Evaluation sheet presented before the court only shows the name of candidates interviewed on 20.02.2015 and evaluation sheet of 24.02.2015 was not even presented before the Court by the University authorities.

Argument of the Counsel of Respondent’s University:

Respondent Kalpana Kumari fulfilled the requirement for the post and was appointed as female candidate was to be given preference as per advertisement.

Petitioner participated in the selection process if he is not selected than he can not challenge the selection process.

Observation of the court:

The attendance sheet of all the appearing candidates have been brought on record by way of second supplementary affidavit.

As per the documents on record it appeared that a sort of scrutiny was done with regard to eight candidates relating to their educational qualification and experience who appeared for interview on 20.02.2015.

The attendance sheet of the candidates, including the petitioner, who were called for interview on 24.02.2015, merely contains their signatures no scrutiny with regard to their education qualification and experience was done.

No reply or any document came forward from the side of the respondents on the pointed query of the Court as to who all were the members of the Interview Board/Selection Committee, who conducted the interview on 20.02.2015 and 24.02.2015, respectively.

The evaluation/marking done by the Interview Board/Selection Committee also not been brought before this Court.

The merit list does not contain the inter se merit of the candidates and their performance in the interview.

I am of the opinion that the selection/appointment on the post of Librarian was not done in fair manner and the contention of the petitioner is correct that the appointment of respondent Kalpana Kumari has been made for extraneous consideration.

The basic procedure for appointment, i. e. constitution of the Selection Committee, constitution of the Interview Board, assessment/marking done by the Interview Board of the candidates for the purpose of deciding the inter se merit has also not been done.

The contention of the respondents that as per the advertisement, the female candidate was to be given preference is not acceptable, inasmuch as the ‘preference’ connotes that other thing being equal, the women candidate shall be given preference.

When assessment/marking/evaluation of the candidates have not been done by the Interview Board/Selection Committee of the respective inter se merit of the candidates, the plea of preference has no meaning.

Decision:

The contention of the petitioner is correct that there was serious discrepancy in the process of appointment as such the appointment of the Respondent is quashed as not sustainable in the eyes of law with liberty to make fresh appointment on the post of Librarian in accordance with law and after giving opportunity to all eligible candidates.

Seema Bhatnagar