Sunday, September 30, 2018

Explore use of tech in giving info under RTI: SC

The Supreme Court has asked the Centre to explore the use of advanced technology for providing information to differently-abled persons under the Right to Information (RTI) Act.
Observing that information makes an individual “empowered”, the top court said the right to acquire and disseminate information has been regarded as an intrinsic component of freedom of speech and expression.
Abenchof Chief JusticeDipak Misra and Justices AM Khanwilkar and DY Chandrachud said such people should have a functional facility to receive the information as permissible under the Right to Information Act. “We think it appropriate to ask the authorities to explore any kind of advanced technology that has developedin the meantimesothat other methods can be introduced,” the bench said.
The judgement came on a plea filed by Aseer Jamal who had contended that illiterate persons and the visually impaired persons or persons afflicted by other kinds of disabilities are not in a position to get the information under RTI Act.
He said that certain provisions of the act are not accessible to orthopedically impaired persons, persons below the poverty line and persons who do not have any access to the Internet. While asking the authorities to look for alternative methods, the apex court asked him to submit a representation to the competent authority for pointing out any other mode available for getting information under the RTI Act.
It noted the submission of Attorney General K K Venugopal that several states provide information in Braille since 2012. The AG told the bench that every time the authority receives an RTI application seeking information in Braille, it prepares a reply in the printed format and forwards it to the National Institute for the Visually Handicapped where it is converted to Braille. PTI

Woman ends life after husband’s ‘SC allows adultery’ remark

A 24-year-old woman committed suicide in Chennai on Saturday after her husband told her that she could not stop him from having an affair as the Supreme Court had ruled that adultery was not a crime.
Pushpalatha, a resident of MGR Nagar, included the same reason in her suicide note, which has been recovered by the police. Her body has been sent for post-mortem and cops are questioning her husband, John Paul Franklin, 27, a security guard at a park.
Police said the couple got married two years ago in the face of stiff opposition from their families. The woman later gave birth to a child.
Pushpalatha then developed tuberculosis and began treatment and John began distancing himself from her, a police officer said, after inquiries with the woman’s relatives and the couple’s neighbours. He also stopped giving her money to run the house. Pushpalatha expressed her feelings to one of her husband’s friends who told her that John “had become with close to another woman.”
Pushpalatha confronted him about his affair. She asked him to part ways with his girlfriend and even warned that she would lodge a complaint with police.
“Husbond told her that she could not book a case against him as the SC itself had said that having an extra marital affair was no more a crime,” said an investigating officer, adding that she hanged herself to death after this conversation on Saturday. PTI

Court rejects flat buyers’ plea to stop demolition of a seven-storey illegal building

The Bombay HC has rejected a last-minute bid by flat purchasers to save a seven-storey illegal building,Veer Heights, in Kalyan from demolition. A division bench of Justices Naresh Patil and Girsh Kulkarni said they were "not inclined to grant any indulgence" to the flat purchasers. The bench said the flat purchasers were free to initiate proceedings against the builder, Prashant Rane, to recover their investment.
“The illegality of the building was not something which was unknown to the (flat purchasers) is also not the case that any owner of the land had sought...building permission. It is also not in dispute that the Municipal Corporation has issued notices with regard to this illegal construction and it cannot be said that the petitioners who have intention to hang on to the unauthorised constructions, were not aware about all these proceedings," said the judges.
The court pointed out that the Kalyan Dombivli Municipal Corporation had sought police protection on earlier occasions for demolishing the building.

Saturday, September 29, 2018

Romila Thapar and Ors Versus Union of India and Ors.

Five illustrious persons in their own field have filed this petition on 29th August, 2018 complaining about the highhanded action of the Maharashtra Police in raiding the homes and arresting five well known human rights activists, journalists, advocates, and political worker, with a view to kill independent voices differing in ideology from the party in power and to stifle the honest voice of dissent. They complain that the five activists, namely, Gautam Navalakha, Sudha Bharadwaj, Varavara Rao, Arun Ferreira and Vernon Gonsalves were arrested on 28th August 2018 from their

Friday, September 28, 2018

Make policy terms easy for customers: NCDRC

The country’s apex consumer commission, NCDRC, has ordered a governmentowned insurance company to pay ₹2 lakh compensation for denying claims to the mother of a motor cyclist who was killed while driving the vehicle that was registered in her name.

NCDRC also slammed the firm for its subjective interpretation of “driver-owner” condition in the insurance document and has asked it to end the ambiguity within three months so that buyers can understand the terms easily. The compensation will be over and above the assured claim of ₹1lakh.

A two-member bench comprising SM Kantikar and Dinesh Singh upheld the order of district forum and Uttar Pradesh State Consumer Commission which had directed United India Insurance Company to pay ₹1 lakh claim to the parents of Shobhit Kumar of Mainpuri, who had died in a road accident in December 2004. He was driving the motorcycle insured with the company, which included personal accident insurance cover. Sobhit’s mother Sarlesh Yadav had paid additional premium of ₹towards personal accident cover of “owner–driver”.
The parents had filed a complaint with the district forum in 2012, which had ordered the insurance company to pay the insured amount. But the company had challenged the order in state commission.

Gujarat HC makes ‘law student’ pay wife, kid ₹50k a month

The Gujarat high court ordered a “law student” to pay his estranged wife and daughter Rs 50,000 maintenance every month after he did not reveal his income and financial status and the court made the adverse inference that he was hiding facts about his income.

Amit Shah, who is studying law, was a techie and worked for multinational company Dell in the US. After marital discord, as the divorce proceedings started and his wife Archana and daughter claimed maintenance, he appeared to have left the USA and began studying law in India.
The high court quashed a Vadodara family court’s order from May 2017 that he pay Rs 5,000 as maintenance to his little daughter. The lower court had denied maintenance to the wife.  Justice Paresh Upadhyay took an “adverse inference” from Shah hiding his income and considering the woman’s claim that he belonged to a “rich family”, ordered Shah to pay Rs 50,000 to his wife and daughter.

Amit and Archana got married in January 2008. They moved to the US as Amit worked for an MNC. Their daughter was born in 2010. Due to marital discord, his wife returned to India in September 2011 with their daughter. Shah filed for divorce in a Vadodara court through his father in December 2012 and made several pleadings, which the HC said were “not in good taste and were very ugly”. The court avoided mentioning them to maintain “decorum”.

On the other hand, the wife and child sought maintenance of Rs 50,000 and Rs 25,000 respectively. Dissatisfied at the family court’s order, the wife approached the HC, which asked for details about Shah’s passport, visa and other employment-related matters. The husband produced hundreds of documents, but none about his income.

The family court asked also asked Shah to show his passport. He claimed he could not find it. He maintained this before the HC too, but Justice Upadhyay questioned whether he had filed a police complaint for the missing document. Shah had no answer to that.
Shah told the HC that he had no issues with paying for his daughter, but since he is a student, he should not be fastened with the liability to maintain his wife.
The HC pointed out that while Shah claims that he couldn’t afford to pay maintenance, when he was seeking the custody of the daughter, he had claimed that he could afford to educate his daughter at an international school in the US.

Social and religious stigma on menstruation must go, it is a form of untouchability: SC

Holding that menstrual status of a woman is deeply personal and an intrinsic part of her privacy, the Supreme Court on 28th September  said that social stigma associated with the natural, biological and physiological process of a woman has no place in a constitutional order and any discrimination on that basis cannot be allowed.
While allowing the entry of women devotees inside 
Sabarimala temple, the majority verdict of a five-judge constitution bench said that menstruation stage could not be a ground to create any social and religious barrier to women to enjoy rights to equality and dignity given under the Constitution and to exclude women on that basis was derogatory to an equal citizenship.
"The stigma around menstruation has been built up around traditional beliefs in the impurity of menstruating women. They have no place in a constitutional order. These beliefs have been used to shackle women, to deny them equal entitlements and subject them to the dictates of a patriarchal order. The menstrual status of a woman cannot be a valid constitutional basis to deny her the dignity of being and the autonomy of personhood... The Constitution must treat it as a feature on the basis of which no exclusion can be practised and no denial can be perpetrated. No body or group can use it as a barrier in a woman's quest for fulfilment, including in her finding solace in the connect with the creator," Justice DY Chandrachud said in his judgement.
Justice Chandrachud said that treating menstruation as polluting or impure and imposing exclusionary disabilities on the basis of menstrual status is against the dignity of women which is guaranteed by the constitution. Appealing for a change of mindset of mensturation, he said practices which legitimise 
menstrual taboos
limit the ability of menstruating women to attain the freedom of movement, the right to education and the right of entry to places of worship and, eventually, their access to the public sphere.
"Irrespective of the status of a woman, menstruation has been equated with impurity, and the idea of impurity is then used to justify their exclusion from key social activities. Our society is governed by the constitution. The values of constitutional morality are a non-derogable entitlement. Notions of purity and pollution, which stigmatise individuals, can have no place in a constitutional regime," he said.
"Prejudice against women based on notions of impurity and pollution associated with menstruation is a symbol of exclusion. The social exclusion of women, based on menstrual status, is but a form of untouchability which is an anathema to constitutional values," Justice Chandrachud said.
Delving on the issue of social stigma on menstruation, Justice RF Nariman said all the older religions speak of the phenomenon of menstruation in women as being impure, forbidding their participation in religious activity but the more recent religions have accepted it as a natural process which can not be ground of discrimination.
"However, in the more recent religions such as Sikhism and the Bahá'í Faith, a more pragmatic view of menstruation is taken, making it clear that no ritualistic impurity is involved. 

Thursday, September 27, 2018

Adultery Not A Crime, "Husband Not Master of Wife," Says Supreme Court

Adultery is no longer a crime in India though "without a shadow of doubt" can be grounds for divorce, the Supreme Court said today, junking a 158-year law that punished a man for an affair but not the woman, treating her as her husband's property. "The husband is not the master of the wife," said a five-judge constitution bench led by Chief Justice Dipak Misra, unanimously sticking up for gender justice and calling out the Victorian adultery law - Section 497 of the Indian Penal Code - as arbitrary.
The law punished a man who has an affair with a woman "without the consent or connivance of" her husband, with five years in jail or fine or both. There was no punishment for the woman, who was seen as the victim.
"The wife can't be treated as chattel and it's time to say that husband is not the master of woman," said the Chief Justice Dipak Misra, who is part of a slew of big decisions in his last week -one of the busiest - before retiring on October 2.
Adultery law: The judges noted that most countries had abolished laws against adultery
"There can't be any social licence which destroys a home," Justice Misra said.
The judges noted that most countries had abolished laws against adultery. Making adultery a crime is retrograde and would mean "punishing unhappy people", said Justice Misra.
As he began reading out the verdict, the Chief Justice remarked that the beauty of the constitution is it includes "the I, me and you" and "any law which dents individual dignity and equity of women in a civilised society invites the wrath of the constitution."
The top court, calling adultery a relic of the past, said Section 497 "denudes women from making choices".
During arguments, the centre had defended the law saying adultery must remain a crime so that the sanctity of marriage can be protected. The top court had then questioned how the law preserved the sanctity of marriage when the extra-marital affair didn't invite punishment if the woman's husband stood by her.
The Chief Justice said today that adultery might not be the cause of an unhappy marriage; it could be the result of one.
"In case of adultery, criminal law expects people to be loyal which is a command which gets into the realm of privacy," the judges felt.
The Supreme Court had upheld the legality of the crime in 1954, arguing that in adultery "it is commonly accepted that it is the man who is the seducer, and not the women".
Last year, in response to the petition challenging the law, the court had said it treats a woman as her husband's subordinate and time had come for society to realise that a woman is as equal to a man in every respect.

Wednesday, September 26, 2018

Govt appoints board to supersede MCI

The government on Wednesday superseded the Medical Council of India, appointing a board of governors to take over the council’s powers and functions pending passage of the National Medical Commission Bill that seeks to replace the MCI with a new regulatory body.
Following an ordinance that empowered the government, the health ministry issued a notification asking the president, vice-president and other MCI members to vacate their offices immediately. The notification also stated that until a new council was reconstituted, a board would be constituted to take over the functioning of the MCI. The NMC Bill is pending in Parliament.
The new board consists of the members of the earlier oversight committee appointed by the ministry following an SC order and two fresh names, Dr. Balram Bhargava, the DG of ICMR, and Dr S Venkatesh, the DG of DGHS.
Of the earlier OC members, Niti Aayog member Dr Vinod Paul will be the board chairperson, while directors of AIIMS-Delhi, PGIMER Chandigarh and the National Institute of Mental Health& Neuro Sciences (NIMHANS) Bangalore, Dr Randeep Guleria, Dr. Jagat Ram, Dr. BN Gangadhar respectively, as well as Dr Nikhil Tandon, professor in AIIMS, will be members. Dr. Sanjay Shrivastava, former deputy director general of health services has been appointed secretary-general to the board. The oversight committee had resigned earlier this month.

The Gujarat HC has put the brakes on salary increments for the principal judge of Ahmedabad family court

The Gujarat HC has put the brakes on salary increments for the principal judge of Ahmedabad family court, M J Parikh, for the next two years. The HC punished the judge for making his stenographer draft judgments and then signing those judgments blindly.

Judge Parikh has approached the judicial side of the high court against the inquiry and punishment. A bench of Chief Justice R S Reddy and Justice V M Pancholi on Wednesday issued a notice to the high court and the state government on the judge’s petition.

Judge Parikh was slapped with the charges during his stint as the principal district judge in Junagadh in 2011-12. The high court received anonymous complaints against him following which the high court registrar (vigilance) held an inquiry, which found Parikh guilty on a few counts. However, the high court’s standing committee exonerated Parikh of four charges, holding him guilty of only making his stenographer write judgments.

The standing committee of Justice M R Shah and Justice Akil Kureshi placed the judge’s matter before the chamber committee, which recommended the ‘reduction at 2 stages in the time scale of pay for a period of two years or till his retirement, whichever is earlier’. Judge Parikh is due to retire in November 2019. The decision was communicated to the state government, which passed an order to this effect on June 27, 2017. Thus, Parikh is not likely to get increment till retirement.

Exclude ‘creamy layer’ from SC/ST reservations, says SC

A five-judge Constitution bench of the Supreme Court on Wednesday ruled that “creamy layer exclusion” principle, till date applied only to OBCs, can be extended to Scheduled Castes and Scheduled Tribes to deny reservation to the “elite” among the two underprivileged communities.
The order of Chief Justice Dipak Misra and Justices Kurian Joseph, R F Nariman, Sanjay Kishan Kaul and Indu Malhotra overshadowed the relief they gave to the Centre, states and SC & ST government employees in exempting states from collecting quantifiable data on backwardness to justify reservation in promotion for the two categories.

The bench said their backwardness has been recognised as inherent to them after statutorily provided scrutiny to warrant inclusion in the list of scheduled communities under Presidential Order to get reservation benefits.

The requirement to furnish quantifiable data, laid down by the apex court in the M Nagraj case in 2006, to justify reservation in promotions for SC & ST employees has held up the elevation of serving employees from the two categories, leading to restiveness in their ranks. But the extension of “creamy layer” criterion is sure to temper the happiness over the bench doing away with the mandatory requirement to back up the case for promotion in quota by marshalling data on backwardness.

SC/ST job promotions: No need to refer Nagaraj judgment to larger bench, rules Supreme Court

A five-judge bench of the apex court, also comprising Justices Kurian Joseph, R F Nariman, S K Kaul, and Indu Malhotra, in August reserved its verdict. 
The Supreme Court Wednesday said its 2006 decision in the M Nagaraj case on the reservation for Scheduled Castes and Scheduled Tribes in job promotions does not require reconsideration by a larger bench. However, the apex court reversed the finding in Nagaraj judgment that stated states required to collect quantifiable data to prove backwardness, saying it was contrary to the decision in Indira Sawhney case.
The apex court also turned down the Centre’s plea that overall population of SC/ST be considered for granting quota for them. “States need not collect quantifiable data on the backwardness of SC/ST for giving quota in job promotion to SC/ST employees,” the five-judge bench, headed by Chief Justice Dipak Misra, said.
The bench of the apex court, also comprising Justices Kurian Joseph, R F Nariman, S K Kaul, and Indu Malhotra, in August reserved its verdict on petitions seeking a seven-bench examination of its judgment in the M Nagaraj case that had put conditions for granting quota benefits for job promotions to SC/ST (Scheduled Caste/Scheduled Tribe) employees working in the public sector.
In the Nagaraj verdict, the Supreme Court had held that the state was not bound to provide reservation in promotions to SCs/STs. But in case any state wished to make such a provision, it was required to collect quantifiable data showing backwardness of the class as well as its inadequate representation in public employment, the SC had said.
Additionally, the state was also required to ensure that the reservation does not breach the 50 per cent ceiling. The ruling also said that the ‘creamy layer’ concept cannot be applied to SCs and STs for promotions in government jobs.
The Centre and various state governments had sought reconsideration of the 12-year-old verdict on various grounds, including that the members of the SC/ST communities were presumed to be backward and considering the stigma attached to their caste, they should be given reservation even in job promotions.
Attorney General K K Venugopal, appearing for the Centre, had sought reconsideration of the Nagaraj judgment, saying it was not implementable. He had cited instances of Dalits grooms not being allowed to ride horses and untouchability to make his point.
Senior advocate Rakesh Dwivedi, opposing any review of the Nagaraj verdict, said the situation had changed from the time the Constitution was framed. The social stigma, he said, had disappeared to a large extent. To make his point, he said Dalits had become President and Chief Justice in the country.
Before reserving its verdict, the Supreme Court underlined the need for “quantifiable data” to determine the backwardness of SC and ST for the purpose of providing reservation in promotions to members of these communities. “Quantifiable data, in our view, as a basis is unavoidable,” Chief Justice of India Dipak Misra said. The CJI noted that no state had prepared the “quantifiable data” despite such a direction in the Nagaraj case.

Aadhaar judgment: What needs to be linked, what does not need to be linked

A 5-judge constitutional bench of the Supreme Court on Wednesday 
upheld the constitutional validity of the flagship Aadhaar scheme
. The apex court in its judgment has listed out a host of Read Aadhaar Act 2016services for which linking of Aadhaar is not mandatory. Here is a ready reckoner on what needs to be linked to Aadhaar and what not:


1) It is mandatory to link PAN card with Aadhaar
2) Aadhaar is a must for filing income tax returns
3) Aadhaar is necessary for availing welfare schemes and subsidies given by the government.


1) Aadhaar data is not needed for opening a bank account as the SC on Wednesday struck down Section 57 of the Aadhaar Act which allowed private companies to avail Aadhaar data
2) With the SC striking down Section 57 other private entities like telecom and e-commerce firms are now barred from asking for Aadhaar. So, Aadhaar is not needed to get a SIM card or shopping online
3) Aadhaar is not needed for admission in schools adding that no child can be denied benefits of any schemes on not being able to bring Aadhaar.
4) Aadhaar no more compulsory to appear in CBSE, UGC and NEET examinations.

Tuesday, September 25, 2018

Maharashtra issues guidelinesfor scrapping sonography machines

The state government
has come up with guidelines for
scrapping of sonography
machines, which are being mis-
used for unethical and criminal
practice of sex selection. It has
that will decide on applications
related to disposing of the
The sonography centres will
have to submit all details of son-
ess ofdestroying themwillhave
to be video-recorded. In case a sonography centre wants to use
take permission from the com-
mittee by filing an affidavit
saying thatthey will not be mis-
“Currently,there isno guide-
line for scrapping sonography
machines. At the same time,
be misused for sex determina-
tion. Considering this, the state
public health department
decided to issue the guidelines.
We want to end allthe possibili-
ties for illegal use of the
director, Directorate of Health
The government resolution
(GR), issued by public health
be a five-member committee,
tees will comprise an expert,
assistantdirector,a representa-
tivefrom themunicipalcorpora-
tion concerned or Maharashtra
Pollution ControlBoardandthe
ownerof sonography centre.
The sonography centres,
which want to scrap the
machines, will have to carry
have to takepermission from an
authorised district officer for
transportation ofthe machines,
says theGR.
The owners will have to
destroy machines on their own.
They have to follow the guide-
lines relatedtoe-wastemanage-
ment and environment protec-
tion, said an officialfrom public

Monday, September 24, 2018

HC clears roadblock for builders, junks govt circular

In an important order which clears the way for builders to regularize long-held land parcels by selling them to agriculturists, the Gujarat high court junked a circular issued by the state government last year, restraining such regularization in the interest of farmers. 

The HC held that agricultural land held by non-agriculturist cooperative societies before the final sale to a farmer can be regularized on payment of a fixed premium amount. The HC concluded this with the observation that a cooperative-society can be termed a ‘person’ for the purpose of land holding. This was what the state government had, in fact, provided for by amending the Gujarat Tenancy and Agriculture Act in 2015. The government specifically inserted Section 63AB in the Act for this purpose. 
After making changes to the Act in 2015, which exempted land transactions involving illegal non-agriculturists from a penalty before the land got into the hands to a farmer, the government in February 2017 had issued instructions to all district collectors restraining them from regularizing land if the non-agriculturists involved were a society or a corporate body. Any sale of agricultural land to a non-agriculturist is not possible without prior permission from the collector. The 2017 government circular came as a roadblock for regularization of land parcels, which were earlier owned by societies, but whose latest owners were farmers. 

All transactions in these cases took place without permission from the collector. Six farmers owning such land in and around Ahmedabad had moved the HC because the district collector did not take a decision on regularizing the land sale and sat on their applications seeking NA (non-agricultural use) permission to develop the land. They insisted that a cooperative society can be considered a person and hence the 2017 circular cannot hinder the land regularization process. 

They also sought HC’s directions to the collector to grant NA permission. After hearing the arguments, the HC come to a conclusion that the cooperative societies, which owned the land parcels in the past, can be treated as persons and hence the provisions of Section 63AB of the Act are applicable to these cases. By junking the circular, the high court has ordered the collector to regularize the land parcels. However, the HC asked the collector to take decisions on granting NA permission according to the law only.

No interim relief for Rai University

Gujarat high court has refused to grant any interim relief to Rai University to allow its graduates to appear provisionally in entrance tests for MSc agriculture courses in the state-run universities. The HC denied passing an interim order because the university did not challenge the regulation framed by the State Council of State Agriculture Universities fixing eligibility criteria permitting the institutional preference to state’s universities and of colleges approved by the Indian Council of Agriculture Research. The HC said that granting institutional preference by any education institute is valid and the university authorities also suppressed other litigation pending before the high court when they approached the court against the state’s agriculture universities’ decision to refuse admission to pass-outs of Rai University. 

Doctor loses degree for helping tow Students in MBBS exam

A doctor from Patan has approached the Gujarat HC over Medical Council of India’s decision to cancel his 2009 MBBS degree as punishment for appearing in a medical entrance test for admission in a super-specialty course conducted by National Board Exams. Dr. Patel was barred from taking any exam by NBE for seven years after he was caught impersonating for two students in an MBBS entrance exam. His lawyer Rahil Jain said MCI’s decision to cancel the MBBS degree was taken without any hearing. “A 2009 MBBS degree cannot be cancelled for an alleged offence which was committed in 2017.” After a preliminary hearing, the HC issued a notice to MCI, Delhi Medical Council, NBE and Gujarat Medical Council last week. 

Sunday, September 23, 2018

WhatsApp appoints grievance officer for India

Under pressure to clamp down on sinister messages, 
 has appointed a grievance officer for India and detailed out the process for users to flag concerns and complaints, including those around 
fake news

Meeting one of the key demands that India had put on WhatsApp to curb fake messages that triggered mob killings, the Facebook-owned company has updated its website to reflect the appointment of a 'Grievance Officer for India'. The update mentions that users can seek help through the mobile app, send an email or write in to 'Komal Lahiri', who is based out of the US. 

According to Lahiri's 
 profile, she is senior director, global customer operations and localisation, WhatsApp.

According to sources, the appointment of the Grievance Officer was made at the end of August.

SC Upholds Dismissal Of Banker Who Was Found Drunk On Duty

‘It was obligatory upon the Labour Court to first frame the preliminary issue on the question of legality and validity of the domestic enquiry and confined its discussion only for examining the legality and propriety of the enquiry proceedings.’
The Supreme Court, while upholding the dismissal of a bank employee who was found drunk during duty, has explained the procedure to be followed by the Labour Court while dealing while examining an industrial reference to it pertaining to the dismissal of an employee.
The bench of Justice Abhay Manohar Sapre and Justice S. Abdul Nazeer observed that the Labour Court, while answering an industrial reference, would get jurisdiction to examine the charges on the merits only after the domestic enquiry had been held illegal and after the employer had sought permission to adduce evidence on merits to prove the charges and on permission being granted he had led the evidence.
In this case, the bank employee, who was working as a cashier, was dismissed after a departmental inquiry against him found that he consumed liquor while on duty and on the same day, Rs 35,000 cash shortage was found. The appellate authority dismissed his appeal.
On his request, the state government made a reference to the Labour Court to decide the legality and correctness of his dismissal order under the Industrial Dispute Act, 1947. Without deciding the question as to whether the domestic enquiry is legal and proper, the Labour Court set aside the finding of the Enquiry Officer on charges against the employee, terming it as perverse.
The bank approached the high court which set aside the Labour Court award and restored the dismissal of the employee. Against this, the bank employee approached the apex court.
The bench examined the legality and correctness of the award of the Labour Court and observed that it committed several jurisdictional errors in answering the Reference. The bench observed that Labour Court would get jurisdiction to examine the charges on the merits only after the domestic enquiry had been held illegal and after the employer had sought permission to adduce evidence on merits to prove the charges and on permission being granted, he had led the evidence. The procedure, which has been explained in the judgment, can be summarized as follows:
  • While answering reference, the Labour Court should first decide the question as a preliminary issue as to whether the domestic enquiry was legal and proper.
  • The Labour Court while deciding the preliminary issue could only rely upon the evidence, which is relevant for deciding the issue of the legality of enquiry proceedings but not beyond it.
  • The Labour Court cannot ask the parties to lead evidence on all the issues including the charge of misconduct in the first instance itself.
  • If the answer to the question on the preliminary issue is that the domestic enquiry is legal and proper, the next question to be considered by the Labour Court was whether the punishment of dismissal from the service is commensurate with the gravity of the charges or is disproportionate requiring interference in its quantum by the Labour Court.
  • While deciding this question, it is not necessary for the Labour Court to examine as to whether the charges are made out or not. In other words, the enquiry for deciding the question should be confined to the factors such as what is the nature of the charge(s), its gravity, whether it is major or minor as per rules, the findings of the Enquiry Officer on the charges, the employee’s overall service record and the punishment imposed etc.
  • If answer to the question on the preliminary issue is that the domestic enquiry is illegal because it was conducted in violation of the principles of natural justice thereby causing prejudice to the rights of the employee, employer is under legal obligation to prove the misconduct (charges) alleged against the employee before the Labour Court provided he had sought such opportunity to prove the charges on merits.
  • The Labour Court will be then under legal obligation to give such opportunity and then decide the question as to whether the employer is able to prove the charges against the employee on merits or not.
  • It cannot examine the findings of the Enquiry Officer on the charges like an Appellate Court, appreciated the evidence adduced before the Enquiry Officer and the one adduced before it and then came to a conclusion that the findings of the Enquiry Officer are perverse.
  • If the charges against the employee are held proved, the next question to be examined was in relation to the proportionality of the punishment given to him.
  • If the charges against the employee were held not proved, he is entitled to claim reinstatement with back wages either full or partial depending upon the case made out by the parties on the issue of back wages.
  • In order to claim back wages, it was necessary for the employee to plead and prove that he was not gainfully employed after his dismissal with the aid of evidence.
The apex court also disapproved the reasoning adopted by the high court while setting aside the Labour Court award. “The High Court proceeded to examine the findings of the Labour Court and the Enquiry Officer on two charges on merits in its writ jurisdiction by entering into the factual arena which, in our opinion, was not permissible and on its appreciation came to a conclusion that the reasoning of the Labour Court on Charge-I is perverse whereas the finding of the Enquiry Officer on the said charge is proper,” the bench said.
It held that no case is made out to hold that the domestic enquiry suffers from any procedural lapse or was conducted in violation of the principle of natural justice, thereby, causing any prejudice to the rights of the employee.
Then it went on to examine whether the punishment imposed was proportionate and said: “So far as Charge-I is concerned, it was proved in the enquiry that the appellant had consumed liquor while on duty. No employer would ever allow or tolerate such behavior of his employee while on duty. The employer had, therefore, every right to initiate domestic enquiry against such employee for such reprehensible conduct and behavior. So far as Charge-II is concerned, that a shortage of Rs.35,000/¬ cash was found in cash balance on the particular day was also held proved. It is not in dispute that the appellant was working as Cashier. He was on duty on that day. He was, therefore, directly responsible for the shortage found in the cash.”
The bench then concluded that the order of dismissal passed against the employee cannot be faulted with and nor can it be said to be, in any way, disproportionate to the gravity of charges.

Saturday, September 22, 2018

Bank manager coaches loan seeker to carry out ATM heist -Sensational ATM theft

Shamli police arrested Chetan Kumar on 21Sep. evening, they thought they had finally cracked the sensational ATM theft case reported in March this year. 

The accused, in his early thirties, told police that the entire heist, which involved getting into an ATM booth with his face covered, opening the cash dispensing machine and taking away over Rs 18 lakh without being noticed, had been masterminded by the bank manager.

“The sequence of events narrated by the accused was startling. After thoroughly examining the CCTV footage from the ATM booth, we finally arrested Chetan. The accused bank manager is currently untraceable. We have added his name to the FIR and will soon arrest him. Officers said that Chetan had approached Robin Bansal, the manager of a public sector bank’s Bantikheda branch in Shamli, in February this year. “He has told us that he wanted a personal loan of Rs 1 lakh. During their conversation, Bansal offered to ‘reward’ Chetan Rs 50,000 if he agreed to steal money from the ATM at the bank’s Dheemanpur Road branch,” said an officer.

Chetan has revealed that Bansal not only hatched the entire plan but also provided him passwords and “trained him” in opening the cash dispensing machine without raising an alarm. 

“A person has to beat a three-tier security system before laying his hands on the cash cassette inside the dispenser. After you open the machine’s main analog lock with a key, the cash vault is protected by two passwords. After entering the correct passwords, you get to the cash cassettes, which contain currency in different denominations. However, even the cassettes have to be unlocked. To carry out a theft without raising an alarm is possible only if you have help from an insider,” said a senior bank official, on condition of anonymity.

On the afternoon of March 4, Chetan got inside the ATM booth wearing a helmet. After introducing himself as a technician who had been called to repair the cash dispensing machine, he got inside the booth and stole Rs 18.3 lakh in cash. After a few customers complained to the bank staff about no cash in the machine, the latter slipped into action as the dispenser had been loaded with Rs 28 lakh just a day earlier. A police complaint was lodged by Nitesh Kumar, manager of Dheemanpur Road branch.

“Bansal was earlier posted at the Dheemanpur Road branch. Maybe that is how he knew the passwords. Initially, an FIR was lodged in the matter under sections 420 (fraud) and 406 of the IPC. After getting to know about the manager’s involvement, police have added section 411 to the FIR.

GNLU’s smoking penalty SUSPENDED INDEFINITELY reaches HC


A row over drinking alcohol and smoking on the Gujarat National Law University (GNLU) campus reached the Gujarat high court, after two girls, who were allegedly found drinking and smoking, were suspended indefinitely. One student packed her bags and left for home, while the other, who is from Jaipur and is in the first semester of a Social Service LLB, rushed to the HC against her indefinite suspension. She has questioned GNLU’s decision and accused the authorities of targeting her by imposing a stricter than merited punishment. 

Due to the indefinite suspension, the girl was to miss her exams. She sought the HC’s intervention so she could take the test while the inquiry against her is pending. She also alleged that the university authorities coerced her to admit to the charges of drinking and smoking. She claimed that a liquor bottle was found in her friend’s room in the hostel on September 8 and she happened to be present in the room. She was not drunk, and the university did not report a violation of prohibition laws to the police. Four days later, officials raided her room and found an empty cigarette packet. She was charged with smoking on campus and handed an indefinite suspension. 

The girl has termed the punishment harsh. Regulation No.43 of the GNLU Academic and Other Matters Regulations prohibits smoking or keeping tobacco on campus. A first-time offender is punished with social service or a week’s suspension or Rs 2,500 fine. 

A second-time offender gets a 15-day ouster from the hostel and week-long suspension from academic activities. 

The punishment increases to suspension for a semester when a student is caught for the third time. The student argued that instead of a smaller punishment, she was suspended for an indefinite period. This will not only spoil her studies but remain a stigma during her five-year stay at the university. The university maintained that it cannot relax the punishment because it would jeopardize discipline on the campus. The university, however, assured the HC and the student, that if she is exonerated in the inquiry, she will be allowed to take the tests separately and will not be at any academic loss. The HC directed GNLU to complete its inquiry against the student in two weeks and report back to the court on October 1. Meanwhile, the student has been put up in the university guest house with her parents, as she had to vacate her hostel room.

Sudarsan Puhan V/s. Jayanta Ku. Mohanty & Ors.-September 20, 2018.

These   appeals   are   filed   by   the   appellant-claimant against the final judgment and order dated 09.11.2015 passed by the High Court of Orissa at Cuttack in M.A.C.A. No.690 of 2014 and  M.A.C.A. No.839 of 2014 whereby the High Court allowed the appeal filed by the Insurance Company and reduced the   compensation  awarded  by the  Motor  accident claims   Tribunal   (in   short   ‘the   Tribunal”)   from Rs.24,62,065/­   to   Rs.20,00,000/­   and   in consequence   dismissed   the   M.A.C.A.   No.690   of 2014 filed by the appellant­claimant in terms of the main order passed in M.A.C.A. No.839 of 2014.............

Revocation of H-4 visas USA

Trump administration Call it spousal abuse. More than 125,000 working spouses of immigrants, mainly Indians, remain on tenterhooks after the department of homeland security told a federal court on Friday that its decision to revoke work permits to H-4 visa-holders is on track and new rules would be announced within three months. In its latest court filing in response to a suit filed by Save Jobs USA, a group claiming to represent US workers affected by the previous administration’s expansive immigrant worker policies, the DHS told the US district court in District of Columbia that it was “making solid and swift progress in proposing to remove from its regulations on certain H-4 spouses of H-1B non-immigrants as a class of aliens eligible for employment authorisation”..

Such a rule revision will reverse the hard-won authorisation, approved by the Obama administration three years ago, that allows spouses of H-1B visa guest workers whose green cards are being processed to legally enter the US workforce. 

As of December 2017, the US Customs and Immigration Services (USCIS) had approved nearly 127,000 H-4 work authorisations, 93% of them to Indians. Trump’s ‘Buy American, Hire American’ plan behind reversal The Obama legacy enabled many well-qualified Indian spouses (mainly women, but also many men) to legally enter the US workforce instead of enforced domesticity while the other spouse went to work 

This is is the third time DHS has informed the court about the delay in the issue of notice of proposed rulemaking (NPRM) — and it is not due to any second thoughts about a rule reversal that will have a profound impact on more than 100,000 families of Indian working professionals in the US. Administration attorneys told the court that it is standard practice within DHS for its senior leadership to review rules and request revisions, and when the exercise is concluded, “USCIS will return the proposed rule to DHS for final clearance and submission to the White House office of budget management”.

DHS has filed three status reports — on February 28, May 22 and August 20. The next is due on November 19. So effectively, more than 100,000 H-1B/H-4 Indian families have just two months of double income security before they are reduced to a single income, forcing some to consider leaving the US — to return to India or migrate elsewhere. For many families, it will be a rough and tense Thanksgiving and Christma

Daughters Have Equal Rights In Ancestral Property

Daughters Have Equal Rights In Ancestral Property, Even If They Were Born Before Enactment Of Hindu Succession Act, Holds Supreme Court
The Supreme Court has held that daughters who were born before the enactment of Hindu Succession Act 1956 are entitled to equal shares as a son in ancestral property. The ruling was rendered in an appeal filed by daughters challenging a decree in a partition suit, which excluded them from partition.
The partition suit was filed by the grandson of the deceased propositus of a joint family in 2002. The Trial Court held that daughters were not entitled to share in the property, as they were born before 1956, the year of enactment of Hindu Succession Act. The Trial Court also denied them the benefit of the 2005 amendment, which conferred equal coparcenary status to daughters as sons. The High Court upheld the decree of the Trial Court.
The Supreme Court held that the Courts below erred in holding those daughters were not entitled to partition because they were born before 1956. It was held that according to Section 6 of the Act ,when a coparcener dies leaving behind any female relative specified in Class I of the Schedule to the Act(which includes a daughter), his undivided interest in the Mitakshara coparcenary property would not devolve upon the surviving coparcener by survivorship but upon his heirs by intestate succession. Therefore, the interest of the deceased coparcener would devolve by intestate succession on his heirs, which included his daughters.
The Court also held that the daughters were entitled to the benefit of 2005 amendment as well, and on that basis also they were entitled to shares. It was settled in Prakash v. Phulavati (2016) 2 SCC 36 rights under the amendment area available to daughters living on the date of the amendment, irrespective of when they were born. In the instant case, the bench comprising Justice A.K Sikri and Justice Ashok Bhushan explained it further and stated that the amendment declared that a daughter ‘shall by birth’ became a coparcener in her own right in the same manner as the son. Hence, the daughter will get coparcenary right by virtue of the amendment, ‘since birth’. It was observed as follows:-
Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should, therefore, be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognized.
Also, the fact that the partition suit was filed in 2002 was held to be inconsequential. The Court stated that so far as partition suits are concerned, the partition becomes final only on the passing of a final decree. The decree was passed in 2007. Here, the rights of the daughters got crystallised in 2005, and hence the Trial Court ought to have taken into account that aspect while passing the decree in 2007.
The Court also observed that the 2005 amendment was brought in on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected.
The fundamental changes brought forward about in the Hindu Succession Act, 1956 by amending it in 2005, are perhaps a realization of the immortal words of Roscoe Pound as appearing in his celebrated treatise, The Ideal Element in Law, that “the law must be stable and yet it cannot stand still. Hence all thinking about the law has struggled to reconcile the conflicting demands of the need for stability and the need for change.- the Bench observed.
Hence, it was held that shares will devolve on the daughters as well.

Read Full Judgment

Thursday, September 20, 2018

Person Who Remains In Occupation Of An Encroached Property Disqualified From Being Member Of Panchayath, SC Overrules Its Earlier Judgment

If a member remains in occupation of an encroached property, he/she has a conflict of interest. If an interpretation is placed that it is the first encroacher or the encroachment made by the person alone who would suffer a disqualification, it would lead to an absurdity.’
The Supreme Court, overruling its earlier decision, has held that a person who shares an encroached property by residing there and there is continuance; he/she has to be treated as disqualified from being a Member of Panchayat.
Three-Judge Bench comprising of Chief Justice Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud in Janabai vs. Additional Commissioner overruled two-judge bench decision in Sagar Pandurang Dhundare v. Keshav Aaba Patil.

The Law

Section 14 of Maharashtra Village Panchayat Act, 1958 reads: “No person shall be members of a Panchayat continue as such, who (j-3) has encroached upon the Government land or public property.”
Janabai, who was elected as a member of Panchayat was disqualifying for continuing as a member of the Gram Panchayat) on the ground that there has been an encroachment upon the government land since 1981 by her father-in-law and husband and she is using the said land. The High court had also upheld the disqualification.
Before the Apex court, these orders were assailed, placing reliance on Sagar Pandurang Dhundare Judgment.
Sagar Pandurang Dhundare Judgment
In November 2017, the two-judge bench headed by Justice Kurian Joseph had observed that only the original encroacher, who has encroached upon the government land or public property, is liable to be disqualified, and not his family member.
Sagar Pandurang Dhundare restricts meaning of ‘person’
The bench noted that, in Sagar Pandurang Dhundare, the two-judge bench had referred to various Bombay High court judgments on this issue. In this judgment, the bench reproduces passages from those judgments and particularly notes decision of a division bench of Bombay High court in Devidas Surwade v. Commissioner, Amravati. It also noted that this decision was followed by another bench of Bombay High court in Parvatabai v. Commissioner, the SLP against which was dismissed by the Apex court in January 2016.
At this juncture, the bench remarks: “With the aforesaid expression of law, the controversy should have been put to rest but the fate of the proposition, as it seems, rose like a phoenix.”
The bench then examined the correctness of decision in Sagar Pandurang Dhundare and observed: “That apart, the analysis made by the two-Judge Bench, as we notice, has given a restricted meaning to the word ‘person‘ who has encroached upon the government land or public land. It has also ruled that such a person is one who has actually for the first time encroached upon the government or public land.“
Referring to Sections 10, 11 and 53 of the Act, the bench upheld the view expressed by Bombay High court in Devidas Surwade and observed that the Members elected in Panchayat are duty bound to see to it that the obstruction or encroachment upon any land, which is not a private property but Government land or a public property, should be removed and prosecution should be levied against the person creating such obstruction or encroachment.

Occupier Of Encroached Property Disqualified

Overruling the judgment in Sagar Pandurang Dhundare, the bench observed: “We may note here with profit that the word ‘person‘ as used in Section 14 (1) (j-3) is not to be so narrowly construed as a consequence of which the basic issue of ‘encroachment’ in the context of disqualification becomes absolutely redundant. The legislative intendment, as we perceive, is that encroachment or unauthorized occupation has to viewed very strictly and Section 53, therefore, provides for imposition of daily fine. It is also to be borne in mind that it is the Panchayat that has been conferred with the power to remove the encroachment. It is the statutory obligation on the part of the Panchayat to protect the interest of the properties belonging to it. If a member remains in occupation of an encroached property, he/she has a conflict of interest. If an interpretation is placed that it is the first encroacher or the encroachment made by the person alone who would suffer a disqualification, it would lead to an absurdity. The concept of purposive interpretation would impel us to hold that when a person shares an encroached property by residing there and there is continuance, he/she has to be treated as disqualified. Such an interpretation subserves the real warrant of the provision. Thus analysed, we are of the view that the decision in Sagar Pandurang Dhundare (supra) does not lay down the correct position of law and it is, accordingly, overruled.”

Full Judgment