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Review of Judgments and orders passed by the High Court in July.
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 Cdr. Senthil V. P. v. Union of India, the Court refused to grant interim relief to short service commissioned officers of the Indian Navy whose commission was due to lapse and whose representations for grant of permanent commission were under consideration inasmuch as it noted that ultimately if the petitioners were granted permanent commission then all consequential benefits, including all emoluments between the date of relieving and the date of absorption into permanent commission, could be granted by the Court at the final stage. The Court further held that particularly in the case of the armed forces, the additional element of public interest had to be kept in mind while adjudicating on the interim relief.
In A. Loganathan v. Union of India, the Court held that the grant of interim orders which would have the effect of continuation in service in the armed forces of those who were otherwise found unfit for any reason would also be detrimental to the discipline required to be expected in a force like the Indian Army, particularly when no perversity could be demonstrated in the impugned order of the Armed Forces Tribunal declining the interim relief prayed for.
In Dr. Mahabir Prasad Yadav v. Lakshibai College, the Court held that the mere fact that the case which resulted in the employee being placed under suspension was pending, would not be a ground to deny the enhancement of subsistence allowance under Fundamental Rule 53 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 after the expiry of period prescribed therein, in the absence of any allegation that the petitioner had contributed to the prolongation of the inquiry. The Court further held that there was no provision under the Rules which proscribed the payment of the revised paid leave salary or benefits under the revised pay rules to a person on leave and this was to be taken into account for the purpose of calculation of the subsistence allowance. The Court, however, observed that the benefit of an increment could not be given to an employee who was, admittedly, under suspension. However, once the inquiry was to conclude, then a final decision could be taken as to whether the period of suspension should be counted as the period spent on duty or as a completely inconsequential period, and which decision would determine the entitlement to the increment.
In Dr. Shyam Sunder Tiwari v. Union of India, the Court held that even when the petitioner who had sought to challenge the transfer order had a very good case on sympathetic grounds, the Court would have to weigh the said factor against the injustice which would be caused by not transferring the person, who was a medical practitioner, to the border area where soldiers were likely to suffer injury while protecting and securing the country. Relief against the transfer order was ultimately declined by the Court while noting that the safety of the soldiers on the border would be compromised in the absence of the officer concerned.
In Lt. Col. Manish Narayanan v. Union of India, the Court held that there was a clear distinction between permission to apply for admission and the subsequent permission to actually undertake the course and that the permission for the former would not result in automatic sanction for the latter or create any vested rights in that regard. The Court further explained the difference between attachment and posting and observed that the former is relevant from the point of view of disciplinary action and is quite distinct from the latter.
In Nishant Kumar v. Union of India, the Court held that in the case of the armed forces, where the standard of medical fitness is much higher compared to other professions, the Court would be very reluctant to interfere with or dilute the said fitness standards at the behest of an individual inasmuch as it would seriously endanger the preparedness and effectiveness of the armed forces as a whole.
In a similar vein in Priti Yadav v. Union of India, the Court held that with the achievement of the relevant level of fitness for performing duties ultimately being a matter of opinion, the report of an official belonging to a third-party organisation which does not intend to recruit the petitioner is not to be given more weightage than the opinion of the concerned officials of the organisation under which employment was sought inasmuch as the officials of the latter had the requisite training and specific experience to be able to form an opinion as to the suitability of the candidate for the post in question.
In Sharvan Kumar Rai v. Union of India, the Court observed that when the difference in opinion between the report of the review medical board and that of the private medical practitioner consulted by the petitioner was only in relation to a limited aspect, then the opinion of the review medical board, with it being the specialised entity put in place by the recruiting organisation, should be respected and preferred.
In Rachpal Singh v. Union of India, the Court noticed that in a country struggling with a problem of severe scarcity of resources, a decision taken by the authority concerned to post an employee at a particular place and/or to ask the employee to vacate the accommodation in the existing place of posting should not be lightly interfered with by the Court inasmuch as it was a matter purely within the realm of administration and related to the specific needs and requirements of the organisation concerned.
In Raj Kumar Singh v. Union of India, the Court held that even though the said aspect may not strictly be relevant to an order of transfer, the Court cannot be blind to the past conduct of the person sought to be transferred, and which conduct had repeatedly been demonstrated to be unconducive to the effective discharge of duties and to the peaceful residential environment of the camp away from which he was being transferred.
In Tarun Kumar Banerjee v. Union of India, the Court held that the 6th Central Pay Commission despite having a very wide mandate in this regard, consciously did not carry out an exercise of cadre review and only made recommendations to be kept in mind whenever the next cadre review exercise was actually undertaken. The Court further held that inasmuch as there were significant and material differences between officers of the Railway Protection Force (“RPF”) as compared to the Central Armed Police Forces (“CAPF”) inter-alia that they were under different ministries, governed by different rules and had different structures etc., then the RPF could not be said to be at par with the CAPF for the purpose of grant of non-functional financial upgradation.
In Ram Singh v. Union of India, the Court reiterated that when an employee facing disciplinary proceedings is subsequently completely exonerated thereunder and is not even visited with a minimum penalty of censure, then the said employee could not be denied any of the benefits, including the salary of the promotional posts.
In Dr. Rajiv Chopra v. University of Delhi, the Court held that when a government servant is appointed to merely officiate in a particular post, then there would be an implied term of the employment that he/she could be removed therefrom on reasonable notice and the same could not be said to be a punishment. The Court, accordingly, held that the action of repatriating the petitioner from his position as OSD/Principal to a substantive post in his parent college would not amount to a reduction in the rank so as to attract the protection of Article 311(3) of the Constitution of India.
In Vikash Kumar v. NTPC Limited, the Court reiterated that it would not interfere at the threshold stage of issuance of a charge-sheet unless exceptional circumstances were demonstrated such as the charge-sheet having been issued by a person who was not authorized to do so. The Court further held that it could not test the merits of the allegation at the very initial stage.
In Rajesh Mathews v. Managing Committee, Bluebells International School, Kailash, the Court set aside an order of suspension on the basis of an inquiry report which ultimately did not proceed any further and held that the action of school in seeking to deny pay and allowances from the period of suspension till the superannuation in the absence of any formal process establishing the alleged infraction of the teacher was patently impermissible.
In Jayant H. Meshram v. The Director General Indo-Tibetan Border Police Force, while reiterating that transfer was an exigency of service, the Court further held that there could be no cavil with a transfer which had occurred as a result of a process of cadre review and consequent abolition of the post held by the officer who has been transferred.
In Pankaj Sharma v. Union of India, the Court held that there could be absolutely no cavil to an order of transfer to a place within the same city and purely on administrative grounds.
In Jadhav Arjun v. DG Border Security Force, the Court refused to interfere with the punishment of reduction in rank and dismissal from service inasmuch as it was found that the officer concerned had been found guilty of offences under Section 19A, 24B and 34A of the Border Security Forces Act, 1968, all of which entailed imprisonment for period ranging from 3 years to 7 years.
In Kabindra Kumar Pandey v. Union of India, the Court upheld the punishment of dismissal from service and rejected the argument that the same was too harsh inasmuch as it found that the person concerned, who belonged to an armed force, was guilty of possession of disproportionate and unexplained income in a highly smuggling-prone area.
In Prabhat Ranjan Deo v. Union Public Services Commission and Dinesh Kumar v. Special Commissioner of Police (Training), the Court reiterated that the Central Administrative Tribunal alone could exercise original jurisdiction in respect of service matters relating to employees falling within the purview of the Administrative Tribunals Act, 1985.
In Shashank S. Mangal v. Government of NCT of Delhi, the Court noted with concern the fact that the provisions of the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, only seemed to cover cases where recruitment of workers happens through contractors, and accordingly asked the government to consider suitable amendments for the welfare of the large section of unorganized workers who were not engaged through contractors.
In DTC v. Dheer Singh, the Court observed that mere non-conduct of a medical test would not completely exonerate a bus driver when the attendant circumstances clearly revealed that the driver was indeed drunk on duty and which consequently resulted in an accident.
In Sarjo Devi @ Saroj v. Dharampal (Deceased), the Court reiterated that in the absence of any specified period of limitation for moving an application under Order IX Rule VII of the Code of Civil Procedure, 1908 (“CPC”), the residuary provision i.e. Article 137 of the Schedule to the Limitation Act, 1963 (“Limitation Act”) would be attracted and therefore the period of limitation for filing an application under Order IX Rule VII of the CPC would be three years.
MATRIMONIAL DISPUTES, CUSTODY AND MAINTENANCE
In Basant Kumari Sikka v. Maintenance Tribunal, the Court upheld the argument that in a complaint filed under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, in terms of the Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009, the Presiding Officer of the Tribunal had to be the Additional District Magistrate and not the District Magistrate. The Court further observed that merely because the District Magistrate could act as the appellate authority would also not vest jurisdiction in such authority as an original authority to adjudicate such application, and that the mere filing of an appeal by the petitioner and participation in the process could not vest jurisdiction which otherwise did not exist.
In Anita Chopra v. Rohini Chopra, the Court while reiterating the right of a wife to reside in her matrimonial home when the same is a joint property, further held that when a question as to whether the property in question is joint or self-acquired in nature is fundamental to the determination of the right to the residence of the estranged wife then the same cannot be decided in a summary fashion at the pre-trial stage and an application seeking to dispossess the wife on this ground would be unmerited.
In Sirisha Dinavahi Bansal v. Rajiv Bansal, the Court reiterated that in view of the provision of a statutory appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005, a petition under Section 482 Cr.P.C. would not be maintainable. The Court further held that merely because the issue involved determination of custody of minors would not render the remedy of appeal as inefficacious for the Court to intervene directly.
MEDIA LAW, CENSORSHIP, DEFAMATION AND FREE SPEECH
In Devangana Kalita v. Delhi Police, the Court refused to interfere with a press release issued by the Delhi Police in relation to one of the accused persons inasmuch as the Court observed that the press release was a reproduction of the charge sheet as filed by the police and that even otherwise the police authorities could not pronounce on the guilt of the person. The Court noted that a mere reiteration of the allegations of the charge sheet, and that too strictly in terms of an office memorandum which moderated the press releases, could not be said to violate the right of the accused under Article 21 of the Constitution or be said to be contrary to any law. The Court, however, observed that a concerted media campaign by the prosecution to pronounce a person guilty would certainly destroy the presumption of innocence, and would thus be impermissible.
In Ajay Pal Sharma v. Udaiveer Singh, the Court reiterated that in the case of defamation over the internet or a public media platform, the plaint must mandatorily contain averments as regards the particulars of the persons in whose esteem the plaintiff claims to have fallen within the jurisdiction of the Court when the Court which is approached is one within whose jurisdiction neither the plaintiff nor the defendant resides.
In Mahesh Murthy v. Pooja Chauhan, while reiterating the special considerations that are to be kept in mind while considering an application for restraint of publication, the Court restated the two-pronged test of necessity and proportionality as also the fact that an injunction order would only be passed if reasonable alternative methods or measures would not suffice, and further observed that the right of freedom of speech is to be kept at a very high pedestal.
In Gaffar Ahmed v. Shiv Kumar Ohri, the Court reiterated that when it was the admitted position that the landlord was receiving rent from the tenant then the said person shall be considered as the owner in preference to the tenant, howsoever, his title to the property may otherwise be.
In Dr. B.P. Dangwal v. Smt. Kirti Goyal, the Court reiterated that in terms of Section 25B(4) of the Delhi Rent Control Act, 1958, an order of eviction shall automatically follow upon the rejection of an application for leave to defend.
SPECIFIC RELIEF AND PROPERTY
In Jagriti @Gayatri v. Vikas Sharma, while interpreting the scope of exception (iii) to Section (2)(9)(A) of the Prohibition of Benami Property Transactions Act, 1988, the Court held that the benefits of the said provision can only be extended to an individual who had paid for purchase of a property as consideration in the name of his / her spouse or in the name of the child and could not be extended to a property or joint property or HUF property or trust property in relation to which there is a bare averment that the property was purchased with the funds of the deceased spouse or father-in-law.
In Shakina v. Delhi Development Authority, the Court noted that once the status of a particular property had been clearly demarcated as government land in competent civil proceedings, then repeated proceedings including PILs, writ petitions, challenges to acquisition etc. initiated with a view to prolong the illegal occupation over the land cannot be permitted.
In Dharamvir Khosla v. Asian Hotels (North) Limited, the Court observed that though the revocability, or otherwise, of an easementary right is to be determined in terms of the Easements Act, 1882, however, the parties could always agree to make the agreement irrevocable to binding effect. The Court held that once an irrevocable license is found to exist, then the same cannot be revoked at the sweet will of the licensor unless there is a demonstrated breach of the terms therein.
TAX, EXCISE AND CUSTOMS
In Savita Kapila v. Assistant Commissioner of Income Tax, the Court while setting aside an order of reopening of assessment under Section 148 of the Income Tax Act, 1961 (“Income Tax Act”) held that inasmuch as the said section is the foundation for reopening of an assessment it is a sine-qua-non that the notice should be issued in the name of the correct person and accordingly a notice to a dead person would not fulfil the statutory requirement. The Court further observed that Section 159 of the Income Tax Act would only apply when proceedings are initiated or were pending against the assessee when he/she was alive and it is only in such circumstances that the legal representative can be said to step into the shoes of the deceased assessee. The Court further held that there was no such statutory requirement imposing a duty upon a legal representative to intimate the death of the assessee to the Income Tax Department. The Court further held that Section 292B of the Income Tax Act is inapplicable to a dead person and in the same vein held that Section 292DD of the Income Tax Act is only applicable to an assessee and not to a legal representative. The Court also observed that if the very jurisdiction to initiate the assessment was lacking then merely because subsequent orders has been passed would not render the challenge to jurisdiction as infructuous.
In BSA Citi Courier Private Limited v. Commissioner of Central Goods and Services Tax Delhi West, the Court reiterated that a declaration filed under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 could not be rejected without giving an opportunity of hearing to the petitioner and without considering the case put forth by the said entity.
In Cooner Institute of Health Care and Research Centre Private Limited v. Income Tax Officer Ward 6(3), the Court reiterated that an order passed under Section 241A of the Income Tax Act has to reflect due application of mind and judicious exercise of discretion, and further reiterated that the mere issuance of a notice to the assessee under Section 143(2) of the Income Tax Act does not prevent the revenue authority from processing a refund under Section 143(1) of the Act solely on the aforesaid ground.
In Infiniti Retail Limited v. Government of NCT of Delhi, the Court held that the issuance of a declaration form C & F under Section 6 and 6A of the Central Sales Tax Act, 1956 could not be withheld by the concerned commissioner when no order has been passed under Rule 5(4)(ii) of the Central Sales Tax (Delhi) Rules, 2005.
In Jian International v. Commissioner of Delhi Goods and Services Tax, the Court while holding that Rules 90 and 91 of the Delhi Goods and Services Tax Act, 2017 (“DGST Act”) provide for a complete code in themselves in relation to acknowledgement, scrutiny and grant of refund, further held that accordingly the strict timelines provided therein for providing an acknowledgement or a deficiency memo as the case maybe are to be strictly construed and the department cannot be permitted to take any belated action in breach of the statutory timelines, and accordingly the refund applications were to be deemed to be complete in all respects upon expiry of the prescribed period.
In Sachin Enterprises through Sole Proprietorship of Sachin Bansal v. Assistant Commissioner Division – Narela, the Court reiterated that with an order passed under Section 64 of the Central Goods and Services Tax Act, 2017 rejecting a refund application being amenable to the remedy of appeal before the Additional Commissioner, GST, the Court would not ordinarily entertain a writ petition against the impugned order and would relegate the petitioner to avail of the appellate remedy.
In Sanjay Kaul v. Principal Commissioner of Income Tax Delhi, the Court refused to interfere with an order passed by the Income Tax Appellate Tribunal inasmuch as it found that the assessing officer had significant evidence and material before him to come to the conclusion that the short-term capital loss claimed by the assessee was neither genuine nor market driven but was in fact in the nature of a pre-arranged transaction in lieu of unaccounted cash.
TENDER AND BLACKLISTING
In DSS Imagetech Private Limited v. Indian Council of Medical Research, the Court warned against rushing to impose a penalty of blacklisting against an entity when the dispute between the parties was clearly one which revolved around varying interpretations of the terms of the contract and it could not be said to be such a reprehensible or unforgivable action warranting the extremely punitive action of blacklisting.
In Manmeet Singh v. South Delhi Municipal Corporation, the Court while reiterating the power of an authority to cancel a tendering process for cogent reasons, further observed that in the particular case, the concerned committee put in place by the authority had come to a reasoned conclusion that there was the possibility of cartelisation in the bidding process and had further suggested cogent modifications to be followed in the future tendering processes. The Court also observed that when a new model of tendering-out the asset in question was being followed by the authority for the very first time it was quite possible that bona fide errors and oversights might have crept into the tendering process and there was no such prohibition for the authority concerned to attempt to rectify the said errors.
In Ispa Pharmaceuticals Private Limited Though Its Authorized Representative v. New Delhi Municipal Council, the Court set aside an order of blacklisting inter-alia on the ground that the order placed reliance on certain documents which were never supplied to the petitioner.
In High Command v. Delhi Development Authority, the Court observed that a demonstrably low margin in a tender may adversely impact the quality of services and detract from the fairness and the competitiveness expected in a public bidding process.
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.