Saturday, May 21, 2022

Private Medical Colleges - Capitation Fee , Management Of Private Medical Colleges Prohibited From Accepting Payment Of Fees In Cash: SC Issues Directions To Curb Capitation Fee Menace

The Supreme Court, in an order passed on 19/05/2022, has prohibited managements of private medical colleges from accepting payment of fees in cash.

This is to avoid charging of capitation fee. The bench comprising Justices L. Nageswara Rao and B R Gavai also agreed to the suggestion for setting up web-portal under the aegis of Supreme Court wherein any information about the private medical colleges charging capitation fees can be furnished by the students.

While fixing fee, the Fee Fixation Committees of the States should take into account all the components of fee, leaving no scope for managements to charge any additional amounts apart from what has been prescribed by the fee fixation committee from time to time, the bench directed.

The court was considering Special Leave Petitions in which orders passed by Fee Fixation Committee for undergraduate medical courses for the academic years 2004-2005, 2005-2006 and 2006-2007 were under challenge. Noticing that in spite of repeated directions to stop the menace of capitation fee, hard reality of charging exorbitant capitation fee was very much prevalent, the court had appointed Senior Advocate Salman Khurshid as Amicus Curiae to make a detailed analysis of the problem and suggest an appropriate mechanism by which the charging of capitation fee can be stalled.

In its order passed today in these petitions while considering the suggestions made by the Amicus Curiae, the bench observed:

In spite of the State Governments enacting legislations prohibiting the practice of charging capitation fee and making it an offence, the stark reality which cannot be ignored is that capitation fee being charged for admission to medical colleges is prevalent even today.

The court also accepted the following suggestions made by the Amicus Curiae and Counsel for the States and National Medical Council and issued following directions: 

(a) A web-portal under the aegis of Supreme Court has to be set-up wherein any information about the private medical colleges charging capitation fees can be furnished by the students. The webportal has to be maintained and regulated by the National Informatics Centre (NIC) under the Ministry of Electronics and Information Technology;

(b) The Chief Secretaries of the States and Union Territories are directed to publish the details about the web-portal in the English as well as vernacular newspapers at the time of admission. In addition, a pamphlet should be compulsorily given to the students and their parents at the time of counselling informing them about the availability of the web-portal;

(c) While fixing the schedule for the admission process, the National Medical Commission and the Dental Council of India have to make sure that the counselling for all the rounds, including the stray vacancy round, is completed at least two weeks before the last date of admission;

(d) The names of students who are recommended by the authority for admission in the stray round vacancy have to be made public along with rank allotted to them in the NEET exam. The admissions should be made strictly on the basis of merit and in the event of any admission to the contrary, suitable action shall be taken against the private medical colleges;

(e) While fixing fee, the Fee Fixation Committees of the States should take into account all the components of fee, leaving no scope for managements to charge any additional amounts apart from what has been prescribed by the fee fixation committee from time to time. In the event that the management intends to charge additional amounts over and above the price band fixed by the Fee Fixation Committee, or for any component not included in the structure fixed by the Fee Fixation Committee, the same can only be done with the concurrence of the Fee Fixation Committee;

(f) The management of private medical colleges are strictly prohibited from accepting payment of fees in cash, in order to avoid charging of capitation fee. The students or any other aggrieved persons are at liberty to report on the web-portal regarding collection of fees in cash by any medical colleges;

(g) The Director General of Health Services and other concerned authorities to the State Governments should ensure that the All-India Quota and State Quota rounds of counselling are completed strictly in accordance with the time schedule that is fixed.

Thursday, May 19, 2022

Supreme Court Enhances Sentence Of Navjot Sidhu To One Year


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The Supreme Court on 19/05/2022 enhanced the sentence of Congress leader and former Indian Cricket team member Navjot Singh Sidhu to one year imprisonment in a 1988 road rage accident in which a 65-year old person named Gurnam Singh had died.

The Court allowed the review petition preferred by the family of victim Gurnam Singh against its 2018 Supreme Court verdict that had reduced the sentence of Navjot Singh Sidhu to Rs 1000 from 3 years imprisonment in the case.

A bench of Justices A. M. Khanwilkar and Sanjay Kishan Kaul pronounced the verdict to allow the review petition on the issue of sentence.

"W e have allowed review application on the issue of sentence. In addition to fine imposed, we impose a sentence of imprisonment of one year to be undergone by respondent 1(Sidhu)", Justice Kaul read out the operative part of the judgment.  

 In May 2018, a division bench comprising Justice J Chelameshwar (since retired) and Justice SK Kaul had held that the offence of Sidhu will not amount to "culpable offence not amounting to murder" punishable under Section 304 Part II of the Indian Penal Code and instead found him guilty for the offence of "voluntarily causing hurt" under Section 323 IPC.

"The material on record leads us to the only possible conclusion that we can reach that the first accused voluntarily caused hurt to Gurnam Singh punishable under Section 323 IPC", said Justice Chelameswar in the Judgment. In 2006, the Punjab and Haryana High Court had convicted him under Section 304-II IPC and sentenced him to 3 years imprisonment. Reversing the High Court's findings, the Supreme Court had held that the cause of death was not certain and hence the punishment for culpabe homicide could not be sustained. It found fault with the High Court for concluding that the cause of death was subdural haemorrhage and not cardiac arrest.

"...the conclusion of the High Court that Gurnam Singh's death is caused by subdural hemorrhage but not cardiac arrest, in our opinion, is not based on any evidence on record and is a pure conjecture. We,therefore, find it difficult to sustain the conviction of the first accused and set­aside the same. Because to find a man guilty of culpable homicide, the basic fact required to be established is that the accused caused the death. But, as noticed above, the medical evidence is absolutely uncertain regarding the cause ofdeath of Gurnam Singh", the judgment authored by Justice Chelameshwar had held.

Challenging the 2018 verdict which reduced Sidhu's punishment, the victim's family filed review petitions.

The incident occurred on December 27, 1988, at a traffic junction in Patiala, when a dispute relating to the right way of vehicles led to Sidhu pulling out the deceased from his vehicle and assualting him with fist blows.

Victim was a 65 year old person

While allowing the review, the Court noted that Sidhu was an international cricketer, who was tall and well built and aware of the force of a blow that even his hand would carry. 

"The blow was not inflicted on a person identically physically placed but a 65 year old person, more than double his age. Respondent No.1 cannot say that he did not know the effect of the blow or plead ignorance on this aspect.It is not as if someone has to remind him of the extent of the injury which could be caused by a blow inflicted by him. In the given circumstances, tempers may have been lost but then the consequences of the loss of temper must be borne", the bench observed.


Tuesday, May 17, 2022

Calcutta High Court quashes criminal case against lawyer who provided incorrect legal advice

The Calcutta High Court recently quashed criminal proceedings against an advocate accused of providing false and improper legal advice that was instrumental in sanction of a bank loan to a now Non-Performing Asset (NPA)-turned company.
The High Court said that this did not lead to the conclusion that the petitioner entered into a criminal conspiracy to submit a false report.

There is no allegation or material in the charge sheet that the petitioner made any wrongful gain from the co-accused persons or he had any pecuniary benefit for preparing a wrong search report in favour of the company.

The act of the petitioner in submitting a wrong report without examining the basic tenets of ownership and possession of the property reveals his want of professional skill for which he may be held negligent, but in absence of tangible material it would not imply that he conspired with the principal accused persons in defrauding the bank.” 

While quashing the proceedings against the petitioner, the Court placed reliance on the Supreme Court decision in Central Bureau of Investigation, Hyderabad v K Narayana Rao, in which it was held that,

Merely because his opinion may not be acceptable, he cannot be mulcted with the criminal prosecution, particularly, in the absence of tangible evidence that he associated with other conspirators. At the most, he may be liable for gross negligence or professional misconduct if it is established by acceptable evidence and cannot be charged for the offence under sections 420 and 109 IPC along with other conspirators without proper and acceptable link between them.”

Supreme Court imposes ₹8 lakh costs on petitioner who challenged ban on 15-year-old petrol, 10-year-old diesel vehicles

The Supreme Court on 16-05-2022 imposed costs of ₹8 lakh on a petitioner who moved the court challenging the ban in Delhi on diesel vehicles older than 10 years and petrol vehicles older than 15 years.


"Two advocates who are practicing in the Supreme Court have entered into this misadventure. We warned them about this. An exemplary cost of ₹8 lacs is imposed on the petitioner. The registry will not entertain any writ petition by the advocate," the Court ordered.

(The Supreme Court had in 2018 -In a major order passed today, the Supreme Court directed that Transport Departments of National Capital Region (NCR) to immediately announce that all Diesel vehicles which are more than 10 years’ old and Petrol vehicles which are more than 15 years’ old shall not ply in NCR.)

Monday, May 16, 2022

Double Insurance - where an entity seeks to cover risks for the same or similar incidents through two different - overlapping policies


The Supreme Court, recently, held that in cases of overlapping insurance policies, when the defined loss of the insured is fully indemnified by one insurer, the second insurer is not liable for the claim towards the same incident.

"A contract of insurance is and always continues to be one for indemnity of the defined loss, no more no less. In the case of specific risks, such as those arising from loss due to fire, etc., the insured cannot profit and take advantage by double insurance."

A Bench comprising Justices UU Lalit, S. Ravindra Bhat and P.S. Narasimha allowed appeal assailing the order of the National Consumer Disputes Redressal Commission (NCDRC), which directed the insurance company to pay Rs. 1.78 crores towards the claim raised by the insured. While opining that the insurance company was not liable to pay, the Apex Court noted that in the present case the issue was that of 'double insurance'/'overlapping policy', wherein the entity seeks coverage of risks of the same or similar incidents from two insurance policies.

Factual Background

United India Insurance Co. Ltd. (insurer) issued a Standard Fire and Special Perils Policy (SFSP Policy) to Levis Strauss (India) Pvt. Ltd. (insured) covering its stock in storage, first for a period of 01.01.2007 to 31.12.2007 and then 01.01.2008 to 31.12.2008. Levis Strauss & Co., the parent company of the insurer obtained a global policy

 (STP Policy) from Allianz Global Corporate & Speciality (Allianz) for the period of 01.05.2008 to 30.04.2009. It covered stocks of all its subsidiaries, including the insurer. Another 'all risks' policy (AR Policy) was issued by Allianz for the period of 01.05.2008 to 01.05.2009 covering stocks of its subsidiaries across the globe. 

On 13.07.2008, fire broke out in one of the warehouses containing the stocks of the insured. On 18.07.2008, the insured claimed Rs. 12.20 crores from the insurer. Subsequently, on 11.09.2009, the insurer repudiated the claim stating that Condition No. 4 of the SFSP Policy, excludes liability for loss payable under marine policy i.e. STP Policy. The insured approached the NCDRC, which allowed its complaint, without deciding whether the STP policy was a marine policy. On perusal of Clause 47 of the STP Policy, it noted that the said policy excludes the extent covered by the domestic policy. It held that though the loss of profit which the insured would have earned on the sale of the damaged stock was payable by Allianz, the loss suffered to the extent of cost of the goods would be payable by the insurer. It allowed the claim to the extent of Rs. 1.78 crores as the insured had received 19.52 crores from Allianz.

STP Policy is a marine policy

Section 4 of the Marine Insurance Act, 1963 postulates that a contract of marine insurance may, by its express terms, or by usage of trade, be extended so as to protect the assured against losses on inland waters or on any land risk which may be incidental to any sea voyage.Referring to a catena of judgments, the Court noted that marine insurance policies in India include warehouse risks, combined with voyage and other marine risks. The STP policy also stipulates that it covers both marine and other risks. Moreover, the Policy describes itself as, 'Open Marine Insurance Contract'. It observed that the policy includes marine perils and is therefore a marine cover. 

As per Condition No. 4 of the SFSP Policy, the insurer was not liable to pay

The Court noted that Condition No. 4 of the SFSP Policy stated that in the event of occurrence of an insurance risk, if the insured was entitled to claim under a marine policy, the insurer cannot be held liable. Relying on Export Credit Guarantee Corporation of India Ltd. v. Garg Sons International (2014) 1 SCC 686; Vikram Greentech India Ltd v New India Assurance Co. (2009) 5 SCC 599; Sikka Papers Ltd v. National Insurance Co (2009) 7 SCC 777; Impact Funding Solutions Ltd. v. Barrington Support Services Ltd. (2016) UKKSC 57, the Court was of the view that the party who wishes to limit its liability must do so in clear words and that the insured cannot claim more than what is covered by the insurance policy. On a strict interpretation of Condition No. 4, the Court held that the insurer had excluded its liability from the risk covered under a marine policy, which in this case was the STP Policy. The Court also noted that there was no statutory or contractual obligation on the insurer to obtain a domestic policy in the conduct of its business and therefore, NCDRC had erroneously applied Clause 47.

Double Insurance

The insured had raised a claim of Rs. 12.2 crores with the insurer. Against the claim of Rs. 12.2 crores, it had already received about Rs. 19 crores from Allianz. Considering the same, the Court observed that a contract of insurance is one for indemnity of defined loss. In case of specific risks the insured cannot profit by double insurance. In this regard Castettion v. Prestton (1833) 11 QBD 380 was referred to, which had held that in case of a loss, the insured would be fully indemnified, but shall never be more than fully indemnified. The Court opined -

"Levi could not have claimed more than what it did, and not in any case, more than what it received from Allianz. Its endeavour to distinguish between the STP Policy and the SFSP Policy, i.e., that the former covered loss of profits, and the latter, the value of manufactured goods, is not borne out on an interpretation of the terms of the two policies. Even the facts here clearly show that Levi received substantial amounts towards the sale price of its damaged goods, over and above the manufacturing costs."

Marine Policy - Section 4 of the Marine Insurance Act, 1963 - A contract of marine insurance may, by its express terms, or by usage of trade, be extended so as to protect the assured against losses on inland waters or on any land risk which may be incidental to any sea voyage - warehouse risks, combined with voyage and other marine risks, are considered as part of marine insurance policies in India(Paragraph 19).

Insurance Law - Exclusion of liability in insurance policies - as a matter of general principle, it is well established that if one party, otherwise liable, wishes to exclude or limit his liability to the other party, he must do so in clear words; and that the contract should be given the meaning it would convey to a reasonable person having all the background knowledge which is reasonably available to the person or class of persons to whom the document is addressed (Paragraph 19).

Insurance Law - Double Insurance - where an entity seeks to cover risks for the same or similar incidents through two different - overlapping policies - two or more insurers must have insured the same assured in respect of the same risk on the same interest in the same subject-matter - once the first insurer has paid a complete indemnity to the assured, the second insurer would be entitled to decline liability - in the case of specific risks, such as those arising from loss due to fire, etc., the insured cannot profit and take advantage by double insurance(Para 46 and 47).

Monday, May 9, 2022

No vicarious liability under Section 141 -Section 138 NI Act - merely because a person was partner at firm which took loan: Supreme Court


The Supreme Court on 09-05-2022 held that criminal liability for cheque bounce cases under Section 138 of the Negotiable Instruments Act (NI Act) cannot be fastened on a person merely because he was a partner at the firm that had taken the loan or that he stood as a guarantor for such a loan.

"Vicarious liability under sub-section (1) to Section 141 of the NI Act can be pinned when the person is in overall control of the day-to-day business of the company or firm. Vicarious liability under sub-section (2) to Section 141 of the NI Act can arise because of the director, manager, secretary, or other officer's personal conduct, functional or transactional role, notwithstanding that the person was not in overall control of the day-to-day business of the company when the offence was committed. Vicarious liability under sub-section (2) is attracted when the offence is committed with the consent, connivance, or is attributable to the neglect on the part of a director, manager, secretary, or other officers of the company." 
"Therefore, unless the company or firm has committed the offence as a principal accused, the persons mentioned in sub-section (1) or (2) would not be liable and convicted as vicariously liable. Section 141 of the NI Act extends vicarious criminal liability to officers associated with the company or firm when one of the twin requirements of Section 141 has been satisfied, which person(s) then, by deeming fiction, is made vicariously liable and punished."

The Supreme Court at the outset noted that it was "an admitted case of the respondent Bank that the appellant had not issued any of the three cheques, which had been dishonoured, in his personal capacity or otherwise as a partner."

In the absence of evidence to establish that the appellant was responsible for the conduct of affairs at the firm towards the issuance of the cheques, the Bench noted that as per the Supreme Court decision in Girdhari Lal Gupta vs DH Mehta and Another, the conviction has to be set aside.

Sunday, May 8, 2022

Malicious prosecution by police - Madhya Pradesh High Court awards ₹42 lakh compensation to ST medical student who spent 13 years in jail

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A Bench of Justices Atul Sreedharan and Sunita Yadav passed the order on finding that the police had carried out the investigation to falsely implicate the appellant accused, and the prosecution had been malicious.

The case reveals a sordid saga of manipulative and preconceived investigation followed by a malicious prosecution, where the police have investigated the case with the sole purpose of falsely implicating the Appellant and perhaps, deliberately protecting a prosecution witness who may have been the actual culprit.

The fundamental right to a fair and unbiased trial was discussed, and in relation to this several cases were examined. A recent order of the Supreme Court in Nambinarayanan v Siby Mathew was considered, where compensation of ₹50 lakh was granted to former ISRO scientist Nambinarayanan, indicted by the Kerala Police and exonerated by the Central Bureau of Investigation.

Asking husband to produce salary slip during maintenance proceedings not in violation of privacy

The Madhya Pradesh High Court recently held that asking a husband to produce his salary slip during maintenance proceedings will not amount to a violation of his right to privacy under Article 21.

Giving an opportunity to the husband to file his salary slip for effective adjudication of the maintenance proceedings cannot be said to be depriving him of his life and personal liberty,” the Court held.

Tuesday, May 3, 2022

Recovery of excess increments paid to employee due to wrong interpretation of service rules unjustified: Supreme Court



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A Division Bench of Justices S Abdul Nazeer and Vikram Nath stated that such recoveries are more unfair, wrongful, improper and unwarranted than the corresponding right of the employer to get the amount.

"This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered," the Court observed.

Reliance was placed by the apex court on its decisions in Sahib Ram v. State of Haryana and Others (1995)Col BJ Akkara (Retd.) v. Government of India and Others (2006)Syed Abdul Qadir and Others v. State of Bihar and Others (2009) and State of Punjab and Others v. Rafiq Masih (White Washer) and Others (2015), where it had consistently granted relief against recovery of the excess wrong payment of emoluments/allowances from an employee.

Allahabad High Court issues non-bailable warrant against District Magistrate for "gross contemptuous act"


The Allahabad High Court recently issued a non-bailable warrant to Mathura District Magistrate (DM) Navneet Chahal for contempt of court, stating that its order had been "violated with impunity" 

Justice Saral Srivastava passed the order on finding that the DM had refused to implement a judgment of the High Court on the pretext that a review application had been filed against the same by the State government.

"

It is very surprising that despite a clear mandate issued by this Court, the District Magistrate, Mathura sat over in appeal of the order passed by this Court," the single-judge said.

Taking a dim view of the "very causal manner" in which the DM through his affidavit refused to grant the benefit of service rendered by the applicants prior to their regularization, the Court said,

"It is pertinent to note that it is settled in law that if the order of this Court is not stayed or set aside, the order shall remain in force in letter and spirit and nobody can be allowed to violate the order or act in the teeth of order of this Court."

The High Court was angered by the decision of the DM, calling it a "gross contemptuous act", and wondered how he could not understand the intent and simple language of its order.

In view of such "glaring" facts, the Court said that it could not shut its eyes. Therefore, to uphold its majesty and dignity, and to maintain public confidence in the judicial system, a non-bailable warrant was issued against the DM. He was, thus, directed to be produced before the Court in police custody on May 12.

Sunday, May 1, 2022

Magistrate Can Decide Validity Of Talaq In Wife's Petition Under DV Act If Husband Disputes Their Marital Status: Kerala High Court


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The Kerala High Court has ruled that a Magistrate is empowered to decide the pela of talaq raised by the husband in his wife's petition filed under the Domestic Violence Act if he disputes their marital status on that ground. 

Justice Kauser Edappagath thereby allowed a criminal revision petition holding that the finding of the appellate court that the Magistrate has no power to decide the validity of the talaq is wrong and only to be set aside.

"In a petition filed by the wife under the DV Act, if the husband disputes the marital status on the ground that he has divorced the wife by the pronouncement of talaq, the Magistrate has every power to decide whether the said plea is valid or not. "

The petitioners- wife and minor daughter- approached the Judicial Magistrate seeking protection, residential and monetary orders u/s 12(1) of the Protection of Women from Domestic Violence Act, 2005. It is the case of the petitioners that using all the gold and money given by her parents, the first respondent (her husband) constructed a house on his property in which they all resided. Therefore, according to the petitioners, this house is their shared household.

In December 2009, her husband and his brothers allegedly assaulted her on two occasions and she was stabbed with a knife in her head. It was after this that she approached the Magistrate with her daughter. 

However, the husband argued that he had pronounced triple talaq in December 2009 and that they were divorced since then. He denied all allegations of receiving gold from her parents and domestic violence. He contended that he constructed the house with his own funds and that it is not a shared household. 

Finding that the husband failed to prove the pronouncement of talaq, the Magistrate allowed the plea in part, granting the petitioner protection and residential orders, but not the relief of return of gold and money. 

This order was challenged by the husband in appeal, and the appeal was allowed on the ground that the Magistrate under the exercise of the power under the provisions of the DV Act cannot decide the validity of talaq. It was further held that prima facie there was material to show that the husband had pronounced talaq, therefore, the status of the petitioner is that of a divorced woman and she is not entitled to claim maintenance.

Aggrieved by this, the petitioner moved the High Court with a revision petition. 

The Court observed that the talaq allegedly pronounced by the husband was not valid in the eyes of law since he pronounced triple talaq at a go without following any of the procedures mentioned in the decisions of the Supreme Court. 

Therefore, the Magistrate could not have been held to be incompetent to decide the validity of the talaq, although the plea was filed under the Domestic Violence Act. 

Similarly, there was sufficient evidence to prove that the petitioner was subjected to domestic violence and yet the appellate court proceeded to set aside the order of the Magistrate on flimsy grounds. This finding of the appellant court was found to be perverse and not sustainable. 

It was also found that none of the definitions in the DV Act contemplates that on the date of filing an application, the party should be actually residing or living together. The very phrase, 'has lived together at any point of time' necessarily covers even the past cohabitation or past living together. 

The Court further held that even the continued residence or occupation of the shared household is not required for the entitlement of a wife to get a residential order. 

Therefore, it was held that the petitioners had satisfactorily proved that they were entitled to protection, residence, monetary and compensation orders which were rightly granted by the trial court. Since the appellate court had committed gross illegality in reversing the order of the trial court and dismissing the petition, the Judge found it to be a fit case where the discretionary power vested with this court u/s 397 r/w 401 of CrPC could be exercised.

As such, the revision petition was allowed and the judgment of the appellate court was set aside. 

Advocates P. Haridas, Renji George Cherian and P.C. Shejin appeared for the petitioners while Advocates B. Mohanlal and Public Prosecutor Sangeetha Raj appeared for the respondents. 


Monday, April 25, 2022

Anganwadi workers entitled to gratuity under Payment of Gratuity Act: Supreme Court

The Supreme Court on 25/04/2022 held that Anganwadi workers and helpers are entitled to gratuity under the Payment of Gratuity Act of 1972 .


A Bench of Justices Abhay S Oka and Ajay Rastogi ruled that the Payment of Gratuity Act will be applicable to Anganwadi centres, observing that time has to come to improve the working conditions of such workers.

"Time has come when the Central government/State governments has to collectively consider as to whether looking to the nature of work and exponential increase in the Anganwadi centers and to ensure quality in the delivery of services and community participation and ... find out modalities in providing better service conditions of the voiceless commensurate to the nature of job discharged by them.

Justice Oka who authored the lead judgment said that Anganwadi workers are currently being paid very meagre remuneration and paltry benefits under an insurance scheme of the Central Government.

"It is high time that the Central government and State governments take serious note of the plight of Anganwadi Workers (AWWs) and Anganwadi Helpers (AWHs) who are expected to render such important services to the society," Justice Oka said in his judgment.