The Delhi High Court in Review: August, 2020 [Part II]

With its vast and varied case-docket, the High Court of Delhi has occasion to pronounce verdicts on diverse subjects and myriad areas of law. This two-part monthly column attempts to offer a brief over-view of the important pronouncements of the High Court of Delhi over the period of the relevant month in review.

While an attempt has been made to ensure the widest possible coverage of the various judgments rendered, comprehensive analysis and critique of the individual judgments is eschewed for the sake of brevity.

LABOUR AND SERVICE LAW

In Shubham Kumar Tyagi v. Union of India, the Court while reiterating that there is no promissory estoppel in matters of compassionate appointment, further held that compassionate appointment cannot be claimed as a matter of right after a lapse of a long period of time from the death of the employee and after the element of crisis, which has occasioned as a result of the death, no longer exists.

In Akshay Kumar Singh v. Union of India, the Court held that inasmuch as the law was clear that disciplinary proceedings and criminal prosecution could proceed parallelly, then after the result of one of the proceedings had attained finality after invocation of all permissible appellate remedies, the subsequent result of the other parallel proceeding could not be a ground for reopening the earlier concluded parallel proceeding.

In Jonu Tiwari v. Union of India, the Court observed that when the applicable medical manual used the qualifying words ‘minor’ and ‘slight’ in relation to a certain condition in order for it to deemed to be within the acceptable limit, and further required the impact of the said condition to be determined in relation to the function which was expected to be performed by the recruit, then the appropriate determination in this regard could only be performed by the officials of the recruiting organization who are exactly aware of the nature of the duties to be performed and not by a private medical practitioner.

In Captain Vivek Singh v. State Bank of India, the Court rejected a challenge to an order of transfer inter-alia on the ground that the promotion policy which the petitioner had opted for, and under which he had enjoyed a subsequent promotion, specifically required him to give an undertaking agreeing to any such future transfer.

In Atul Chandra v. Air India Ltd. & Ors., the Court observed that the cessation of the service of an employee can only be as per certain recognised modes under the law such as superannuation, resignation, voluntary retirement etc. or pursuant to imposition of a penalty consequent upon disciplinary proceedings such as dismissal, termination, compulsory retirement etc. The Court further opined that in the absence of any of the said modes of cessation having been satisfied, the employer-employee relationship would continue to exist.

In Kavita Rajan v. Satyawati College, while explaining the meaning of the expression ‘rotation by seniority’, the Court observed that the appointment process would have to follow the principle of seniority, and once the seniority list is exhausted with the appointment of the junior most eligible person, one rotation would be said to have been completed and only thereafter would the cycle restart with the senior-most person. The Court further observed that if the cycle were to be disrupted due to any intervening circumstances, the process could not be aborted midway to start again from scratch but must necessarily proceed ahead to complete the already initiated rotation cycle.

In Sonalika Bhargava v. Government of NCT of Delhi, the Court held that the use of the term ‘extendable’ in a contractual appointment letter, as opposed to the use of the word ‘extend’, would by its very meaning bestow discretion upon the authority concerned to extend or not to extend the same.

In Kartikeya Arora v. Union of India, while reiterating that the certificate by a private medical practitioner cannot suffice in assessing the fitness of a recruit, the Court however, noted that the recruiting organization should ensure that the medical opinion by the medical board and the review medical board should not be vague, as also that in the case of a specific illness the matter should ideally be referred for examination by a specialist appointed by the organization itself.

In Shankar Lal Yadav v. Union of India, the Court held that when the examination notification in question nowhere stipulated that a particular test would be offered in the Hindi language as well as the English language then the mere fact that the earlier stages of the said examination process were held in both languages could not be said to vest any right with the applicants in this regard for the future stages.

In Sonu v. Union of India, the Court directed the grant of a no-objection certificate to an Airman for applying for a civil post or service inasmuch as the Court reiterated its earlier view that the extant policy permitted better skilled Airmen to leave the Air Force while retaining those with a lower skill-set and was, therefore, arbitrary and unsustainable.

In Vivek Kumar Singh v. Union of India, the Court observed that when in an earlier disciplinary proceeding involving overstaying on leave, the petitioner was absolved of the charges purely on the adoption of a lenient view and while cautioning the petitioner as also taking on record his undertaking not to repeat the said conduct in the future, then it could not be said that the action of terming the petitioner as a habitual leave-overstayer in subsequent disciplinary proceeding for the same offence was incorrect or unjustified.

In Rajendra Singh v. Union of India, after an examination of the extant rules, the Court observed if the disciplinary authority were to disagree with the report of the inquiry officer in any regard, including a decision contained therein to discontinue the inquiry for certain reasons, then another inquiry officer could have been appointed instead and the initiation of a completely de-novo inquiry and issuance of a fresh charge-sheet was unjustified.

In Malkhan Singh v. Union of India, the Court directed the concerned higher authorities to ensure that personnel of the Central Armed Police Forces (‘CAPFs’) who are entitled to relief on the basis of judgments in petitions filed by similarly placed personnel, are granted the said relief without being forced to approach the Court in individual petitions.

In Subhash Chander v. Government of India, the Court observed that once an order of termination of services of a probationer had been held to be illegal and accordingly quashed by the Court, the petitioner was required to be restored to the same position as if the impugned order had never been rendered and which would include protecting the seniority of the petitioner vis-a-vis his contemporaries who would otherwise steal a march over the petitioner owing to the petitioner having gotten embroiled in legal proceedings.

In H. N. Sharma v. Government of NCT of Delhi, the Court reiterated that the right to claim interest on delayed payment of pension is a continuing wrong and would not be subjected to the strict regime of delay and latches.

In Mangal Sain Jain v. Principal, Balvantray Mehta Vidya Bhawan, the Court observed that the word ‘employee’ as appearing in Section 2(h) and Rule 105 of the Delhi School Education Act & Rules, 1973 has a wide meaning and is not restricted to a ‘regular’ employee alone for the purpose of determining applicability of the provisions but would also include an ad-hoc employee.

In Anushree Jain v. EPFO, the Court deprecated the mechanical process being followed by the grievance cells appointed under the Employees Provident Fund Organisation and noted that merely sending standardised e-mails to persons in urgent need instead of proactively attempting to solve the grievance was completely inacceptable. The Court further commented adversely on the unnecessary verification formalities sought to be imposed on the petitioner and observed that this would put at naught the purpose of any online grievance-redressal mechanism which was ultimately intended to simplify the process rather than complicate it.

In Kumar Food Industries Limited v. Government of NCT of Delhi, the Court held that merely because the management had been proceeded ex-parte before the Labour Court would not mean that it could be deprived of access to records of the proceedings and that the party had a right for inspection of the record and if the same was not possible, then it should at least be permitted to obtain certified / uncertified copies thereof to avail appropriate remedies in accordance with law.

In Professor P. R. Ramanujam v. Vice Chancellor (IGNOU), the Court while reiterating that overstaying in the official accommodation beyond the permissible period would result in requisite consequences in terms of payment of applicable damages etc., further held that when the authorities concerned had already provided certain leeway on account of the Covid-19 outbreak and the superannuation was also much prior to the outbreak of the Covid-19 pandemic, then no further indulgence would be granted by the Court.

In Pardeep Kumar Sharma v. PR. Chief Security Commissioner, RPF, the Court rejected a challenge by a Railway Protection Force officer to a charge-sheet which was alleged to be vague and non-actionable and observed that an allegation of serious increase in unauthorized constructions and encroachments in an area which the petitioner was in-charge of as also an allegation that no action was taken by the petitioner despite a report of theft having been lodged with him are specific in nature.

In CT/GD Rajender Singh v. Union of India, while rejecting a challenge to an order of transfer, the Court observed that an order by the authority concerned rejecting a representation against the proposed transfer is not required to be detailed and explanatory like the judgment of a court of law.

In Hemant Kumar v. Union of India, the Court rejected a petition on the ground of delay and laches inasmuch as the Petitioner did not approach the Court for many years after his representation against the published seniority list was rejected by the concerned authority. In a similar vein, in Sandeep Kumar v. Union of India, the Court observed that a person aggrieved by his supersession and the promotion of somebody who was otherwise junior to him/her should approach the Court expeditiously and without any delay.

LAND ACQUISITION

In Purshotam Behl v. Union of India & Ors., while elaborating upon the scheme of acquisition of land under the National Highways Act, 1956 (‘NH Act’), the Court held that whereas the de-facto possession of the land might vest with the Central Government or the NHAI upon Section 3F powers being exercised, however, de-jure possession of the land would continue to remain with the erstwhile owner of the land till determination and deposit of compensation is completed. The Court further held that in addition to the compensation for land, building, superstructures, trees and standing crop, compensation towards the elements of solatium and additional amount has also to be deposited before any demand for possession can be made under Sections 3E(1) and 3H(1) of the NH Act. The Court further observed that though one singular award in relation to land acquisition proceedings is advisable in order to avoid inconsistencies in valuation, however, there is no absolute statutory bar against the passing of more than one award or a supplementary award, and this position has not changed even after the enactment of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013

In Manju Arora v. Union of India, the Court refused to entertain a writ petition in relation to land acquisition proceedings in the context of Section 3(g) of the NH Act inasmuch as it observed that the alternative remedy of arbitration under the said provision was available and all arguments could be raised before the arbitrator concerned.

MATRIMONIAL DISPUTES, CUSTODY AND MAINTENANCE

In Kusum Sharma v. Mahinder Kumar Sharma, after an extensive review of the best practices in this regard, the Court formulated a standard format of the affidavit required to be filed by the husband in maintenance proceedings, and further directed simultaneous filing of affidavits by both parties so as to prevent the possibility of any undue advantage being gained by the party subsequently filing the affidavit.

MEDIA LAW, CENSORSHIP, DEFAMATION AND FREE SPEECH

In Lt. Col. P.K. Choudhary v. Union of India, the Court refused to interfere with a policy barring members of the Indian army from using social networking platforms inasmuch as it found that the right to freedom of speech and expression under Article 19 of the Constitution is subject to certain limitations particularly in matters relating to national security and if there was a policy decision taken after proper assessment aimed at targeting espionage by enemy nations through social networking sites, then the Court would not interfere with the same.

In Jindal Power Limited v. ICRA Limited, the Court while rejecting a prayer for injunction against publication of a credit-rating report observed that if the report in question is found to be intelligible, convincing, based on reasoning and founded on sufficient data, then no decree declaring the said report as null and void can be passed nor could any mandatory injunction be granted to proscribe dissemination of the said report.

In Mehul Choksi v. Union of India, the Court while refusing to injunct the broadcasting of a documentary show at the behest of the petitioner observed that the appropriate mechanism to ventilate such a relief would be a civil suit and a writ petition seeking the enforcement of a private right in this manner could not be maintained.

RIGHT TO INFORMATION

In Dr. R.S. Gupta v. Govt. of National Capital Territory (Delhi), the Court reiterated that a government department could not be compelled to furnish information which was admittedly not available or maintained in its records. The Court further observed that an attendance record being a part of the service record and entailing a revelation of personal information of an individual and moreover, being purely a matter between the employer and employee, only a demonstration of a larger public interest would justify its disclosure.

In Goods & Service Tax Network v. Information Commissioner, CIC, while reiterating the exemption from disclosure of elements of trade secrets and confidential information under Section 8(1)(d) of the Right to Information Act, 2005, the Court, however, observed that the Central Information Commission was required to apply its mind to the material on record and arrive at a specific determination as to which information was confidential, and the portion thereof which could actually be disclosed. The Court further observed that a request for information could not extend to an indiscriminate and impractical demand for disclosure of all and sundry information.

RENT CONTROL

In Smt. Vidywati v. Gautam Mahajan, the Court held that under the Delhi Rent Control Act, 1958, the requirement of certain premises even for a married daughter would constitute a bonafide requirement and the tenant could not insist that the said requirement be first attempted to be satisfied at the outset from the property of the spouse of the married daughter. The Court further reiterated that a bonafide requirement is not one which must necessarily be dire, absolute or compelling in nature.

TAX EXCISE AND CUSTOMS

In Seventh Plane Networks Private Limited v. Union of India, the Court observed that the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (‘SVLDR scheme’), and the circulars issued by Central Board of Indirect Taxes and Customs should be interpreted liberally as their underlying intent is to enable businesses to make a fresh beginning after being liberated from the existing baggage of tax non-compliance.

However, in Chaque Jour HR Services Pvt. Ltd. v. Union of India, while upholding the rejection of the petitioner’s declaration under the SVLDR scheme, the Court observed that the scheme is intended as a one-time measure for liquidation of pending disputes and while permitting voluntary disclosures by non-compliant tax payers, thereby, implicitly expects the declarants to be completely truthful. The Court, accordingly, held that a declaration which only admitted service tax liability and concealed liability in relation to other tax dues could not be accepted.

The Commissioner of Income Tax - V, Delhi v. Nalwa Investment Ltd., while expounding on the process of amalgamation from the perspective of taxability, the Court observed that though the amalgamating entity gets extinguished, the shares in possession of the assessees would be replaced with new shares of the newly formed entity and which shares would be of a different stock and would require to be valued on a fundamentally different basis. The Court cautioned that a taxable event is not to be approached merely as a matter of entries made in the account books of the assessee but is to be subjected to a holistic examination of the real nature and substance of what transpired in the transaction in question.

In Dish Tv India Limited v. Union of India, the Court held that in view of the amendment to Section 129E of the Customs Act, 1962, there could be no waiver of a pre-deposit requirement, particularly, when the statute itself already adopted a lenient regime by waiving 90% or 92.5% of the duty amount, as the case may be, assessed by the authorities under the Act.

In KPMG Assurance and Consulting Services LLP v. Union of India, the Court refused to entertain a challenge to a show-cause notice issued by the customs authorities for alleged breach of foreign trade policy and wrong availment of benefits while observing that interference by the Court at this preliminary stage was not called for when a show-cause notice was yet to be adjudicated upon by the concerned authorities.

In Commissioner of Income Tax Delhi 1 (Int. Tax) Delhi v. Authority for Advance Ruling, Income Tax, New Delhi, the Court reiterated that a question cannot be said to be pending under Clause (i) of the proviso to Section 245R(2) upon issuance of a mere notice under Section 143(2) of the Income Tax Act, 1961, especially when it has been issued in a standard pre-printed format and is lacking in requisite material particulars, as also the questions raised before the Authority for Advance Ruling do not appear to be forming the subject matter of the said notice.

In Vaishali Sharma v. Union of India, the Court reiterated that a declaration filed under the SVLDR scheme could not be rejected without giving an opportunity of hearing to the petitioner and without considering the case put forth by the said entity.

TENDER AND BLACKLISTING

In Hariom Project Private Limited v. Military Engineer Services, Director Of Contract Management, the Court cautioned against resorting to the mechanism of blacklisting of an entity merely on allegations of breach of contract without any further examination of the aspect whether the breach was actually of such an egregious nature so as to make the entity unsuitable for future dealings, and without taking into account the past conduct of the said entity. The Court further observed that a bonafide interpretation of the contractual terms cannot lead to an extreme step of blacklisting.

In ISC Projects Pvt. Ltd. v. Ircon International Limited, the Court observed that an entity which had executed certain work in the past in collaboration with another joint venture partner could not seek to get credit for the entirety of the work for the purpose of pre-qualifying in a subsequent tender, particularly, when the tender conditions expressly stipulated that when the earlier qualifying work had been undertaken as a joint venture, then, the benefit would be extended only to the extent of the share in the joint venture and not for the entirety of the work.

In Satvat Infosol Private Limited v. National Testing Agency, the Court held that the failure to disclose a critical aspect as required by the tender conditions could not be explained away on a vague defence of administrative oversight and in such a situation, an order of blacklisting could not be said to be arbitrary or illegal.

In The Mining and Engineering Corporation v. Union of India, the Court observed that when the tender conditions make it mandatory that certain documents are required to be submitted to avail the benefit of a particular exemption then the said exemption cannot be sought to be availed through an alternative methodology.

In JP Aviation Services Private Limited v. Union of India, the Court held that it was incumbent on the part of a prospective bidder which had advance notice of certain logistical difficulties which may arise in the future to ensure that despite the same the requisite documents would reach the tendering authority within the stipulated time.

Dr. Amit George is an Advocate practicing before the High Court of Delhi.

The author would like to place on record his appreciation for the assistance provided by Advocates Rishabh Dheer, Amol Acharya, Bharat Rayadurgam and Piyo Harold Jaimon.