Legislative and Regulatory Update
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In This Issue [No.141] November 30, 2005
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- Life Insurance Corporation of India Vs. R Dhandapani
The present appeal is against the order of the Hon’ble High Court wherein it was held that even if the penalty of removal from service is held to be in order, the employee would nevertheless be entitled to pension to which he would be entitled but for his removal.
It was observed that though under Section 11A, the Tribunal has the power to reduce the quantum of punishment it has to be done within the parameters of law. Possession of power is itself not sufficient; it has to be exercised in accordance with law. The power under said Section 11A has to be exercised judiciously and the Industrial Tribunal or the Labour Court, as the case may be, is expected to interfere with the decision of a management under Section 11A of the Act only when it is satisfied that punishment imposed by the management is wholly and shockingly disproportionate to the degree of guilt of the workman concerned. To support its conclusion the Industrial Tribunal or the Labour Court, as the case may be, has to give reasons in support of its decision. The power has to be exercised judiciously and mere use of the words 'disproportionate' or 'grossly disproportionate' by itself will not be sufficient.
In recent times, there is an increasing evidence of this tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the Courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the Courts tends to degenerate into misplaced sympathy, generosity and private benevolence. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings.
In the aforesaid background the Division Bench of the High Court was wholly unjustified in giving directions that the pension should be payable to the employee, having set aside the award of the Tribunal as affirmed by learned Single Judge. The High Court has not even indicated as to under what provision of law and/or statutory enactment or Regulation or Scheme, pension was payable to the respondent. On the contrary, the Pension Rules and the Scheme referred to above clearly justified the stand of the appellant that the respondent was not entitled to receive any pension or benefit under the scheme. Hence the order of payment of pension set aside.
Competent Authority Vs. Barangore Jute Factory and Ors.
The subject matter of these appeals is the compulsory acquisition of certain lands belonging to the writ petitioners by the Central Government vide Notification under Section 3A of the National Highways Act, 1956 (hereinafter referred to as the 'Act'). The writ petitioners challenged the acquisition of their lands on various grounds. However, keeping in view the fact that possession of the acquired land had already been taken by the authorities, the High Court felt that no useful purpose would be served by quashing the Notification. An additional amount calculated at 30% over and above the compensation already determined was also ordered to be paid to the writ petitioners. Hence, the present appeal.
It was observed that so far as the question whether the impugned Notification meets the requirement of Section 3A(1) of the Act regarding giving brief description of land is concerned, the Notification in this case fails to meet this requirement. Unless it is known as to which portion was to be acquired, the petitioners would be unable to understand the impact of acquisition or to raise any objection about user of the acquired land for the purposes specified under the Act or to make a claim for compensation. It is settled law that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. In our view, the impugned notification fails to meet the statutory mandate which renders the Notification invalid. Moreover, none of the statutory requirements for taking possession were fulfilled. Thus taking of possession of the lands in the present case is in total violation of the statutory provisions as contained in the Act.
Having held that the impugned notification regarding acquisition of land is invalid and also having found that taking possession of the land of the writ petitioners in the present case in pursuance of the said notification was not in accordance with law, the question arises as to what relief can be granted to the petitioners. Normally, compensation is determined as per the market price of land on the date of issuance of the notification regarding acquisition of land. However, the relevant date in the present case ought to be the date when possession of the land was taken by the National Highway Authority of India from the writ petitioners. The interest on the amount of compensation was also ordered to be paid.
Rajinder Singh Chauhan and Ors. Vs. State of Haryana and Ors.
The question that arises in the present appeal is whether the retrenchment being effected in accordance with Chapter V-A by employing with Section 25F of the Industrial Dispute Act, 1947 and other provisions of the said Chapter is proper or whether the employees are covered under Section 25N of the said Act.
It was observed that the expression "Industrial Establishment" is defined in Section 25L, which means a factory or a mine or a plantation. Admittedly, the employer is not covered by the definition of the "Industrial Establishment". Therefore, Section 25N has no application.
The residual question is whether any benefit was to be extended under Rule 35(b) of the Haryana State Federation of Consumers Co-operative Wholesales Stores Limited Staff Service Rules, 1975 which is extended to confirmed employees.
It was observed that the question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject-matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been passed. The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired.
It was further observed that where the service rules fix a certain period of time beyond which the probationary period cannot be extended and an employee appointed or promoted to a post on probation is allowed to continue in the post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication.
Therefore, the appellants inferentially have to be treated as permanent employees, and consequently the benefits under Rule 35(b) were available to them. But the same shall not be in addition to what is payable under Section 25F. The amount which is higher of the two i.e. of Section 25F or Rule 35(b) shall be paid to the appellants. If any amount has already been paid in terms of Section 25F the same shall be adjusted while making the payment under Rule 35(L).
Madras
Thamiraparani Investments Pvt. Ltd. V. Meta Films Pvt. Ltd.
The Plaintiff has filed the suit for a judgment and decree of permanent injunction restraining the defendant, its men, agents, servants, or anyone claiming. The plaintiff entered into an agreement with the company for purchase of 25.8 acres of land out of 30.8 acres of land all together. The company was unable to clear the debts, it requested to the plaintiff for payment of advance, accordingly, fresh agreement was made of which the plaintiff made the payment, on such payment the company handed over possession of the property to the plaintiff. Defendant by an agreement entered into with the company, agreed to purchase the remaining 5 acres of land out of the 30.8 acres of land owned by the company. On the strength of the agreement the defendant, though entitled to possession of 5 acres of land only, attempted to interfere with the remaining extent of land, hence this suit.
The High Court held that, though in the suit of bare injunction the court would not go into the question of title but is concerned about the prima facie case as to how the possession is claimed. The suit in respect of a land situated outside the jurisdiction of the court cannot be entertained by the court. For the ongoing reasons leave was granted by the court to the plaintiff, the interim order was vacated and was dismissed.
Calcutta
Shyamapada Mondal V. State of West Bengal & Ors.
The writ petitioner was appointed as primary teacher in Rahimtola Primary School in the district of Malda. A criminal case was initiated at the instance of the District Inspector of School (Primary Education), Malda as against the writ petitioner on the allegation that he obtained employment by producing fake certificate but the petitioner was acquitted since the prosecution failed to produce any witness in support of the compliant case. The primary school council maintained silence though the petitioner sought for restoration of service. The principal question, which was mooted in the writ application was whether or not the service of the petitioner should be restored in the background of the acquittal of the petitioner from criminal charges and whether money compensation would be adequate to redress his grievance.
The Court held that a person has every right to protect his means of livelihood. It might be true that the petitioner’s certificate was a fake one; it might be the other way round. The writ petitioner lost his employment only on the basis of the letter issued by the Bihar School Board, which was never proved in the Court of Law. It would have been proper for this court to adequately compensate the writ petitioner for the mental agony he suffered, the council is directed to take back the writ petitioner in service from the day he was dismissed, he must get all his back wages as well as all service benefits.
Orissa
Nilambar Majhi V. Secretary to Govt. Of Orissa, Panchayat Raj Deptt. And others.
Petitioner was elected as Sarpanch of Machichalla Grama Panchayat in the district of Kalahandi in the Panchayat Election held in the year 2002, and assumed office accordingly. While the matter stood thus, some of the Ward Members including Naib – Sarpanch held meeting and passed a resolution proposing vote of no confidence against the petitioner. They accordingly gave requisition to the Sub- Collector, Dharmagarh to convene a meeting to record the vote of no confidence. Bashing on such requisition the Sub – Collector, issued notice to the ward Members and the petitioner fixing the date of the meeting. The meeting was accordingly held and the no confidence motion was carried, whereafter Collector of Kalahandi issued letter removing the petitioner from the post of Sarpanch and basing on that order a letter was served by the Panchayat on the petitioner asking him to make over charge of the Grama Panchayat to the Naib- Sarpanch. Aggrieved by such action petitioner has filed the present writ petition.
It was held that because of no confidence motion the petitioner has been relieved from the office of the Sarpanch, liberty be given to the Ward Members and the state government to again pursue the matter of vote of no confidence against the petitioner according to law. The petition was accordingly allowed.
Gujarat
Jayeshbhai Jayantibhai Maniar V. State of Gujarat
The petitioner by invoking the jurisdiction of this court under section 482 of the Criminal Procedure Code has challenged the finding recorded by the trial Judge and the learned Session Judge. As the second Revision Application is barred, it seems that the petitioner has adopted this mode to get the impugned orders set aside. According to the Court the case of the petitioner cannot be said to be a rare or an exceptional case where this court should rush to rescue even after rejection of the revision application on merit. Only in given cases such powers can be exercised.
It was held that the proviso is read closely and in view of the scheme of Section 138 of the Negotiable Instrument Act, There is ample scope of causing prejudice to the petitioner, if all the cases are tried jointly or in a consolidated manner as a single trial. The prosecution under Section 138 of the Negotiable Instrument Act can be said to be a prosecution under a special law and a distinct separate offence and, therefore, it falls out as an exception of the scheme envisaged under Section 219 of the Code.
RPCD
Interest Rate on Non-Resident (External) Rupee (NRE) Deposits
Circular No: RPCD.CO.RF.BC.No.48/07.38.01/2005-06 Dated 22.11.2005. The Reserve Bank of India vide the said circular, has declared the Interest Rate on Non-Resident (External) Rupee (NRE) Deposits. The same shall remain in force until further notice. Vide this circular the interest rates on NRE Savings deposit accounts shall be at the rate applicable to domestic savings deposits (as against LIBOR/ SWAP rate for six months maturity on US dollar deposits). Also the interest rates on fresh repatriable Non-Resident (External) Rupee (NRE) Term deposits for one to three years should not exceed the LIBOR/SWAP rates, as on the last working day of the previous month, for US dollar of corresponding maturity plus 75 basis points (as against 50 basis points effective since November 1, 2004).
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