SUPREME COURT

• CONSTITUTIONAL LAW

Dr. Puneet Gulati and Ors. etc. etc. Vs. State of Kerala and Ors. etc. etc. (Decided on 17.08.2011) MANU/SC/0965/2011

Reservation - Constitutional Validity of Reservations for admission in Super Specialty Courses - Prospectus for the said course was amended after the selection process limiting reservation in respect of candidates with Rural Service in Kerala to 10 per cent of the seats and enlarging the scope for students of Kerala origin and children of members of All India Service in Kerala - Division Bench affirmed the Order of the Single Judge but while technically allowing the claim of the candidates who were from outside Kerala on the ground that 100 per cent reservation was unconstitutional, but gave no relief the said students as the course had commenced more than 6 months prior to the matter being heard by the Division Bench of the High Court - Hence this Appeal

Held, the decision of the learned Single Judge and the Division Bench as to the constitutional validity of the first and second prospectus reserving 100 per cent of the seats in the said Super Speciality Courses for students from Kerala alone upheld, but since the Appellant was not given admission to the aforesaid course, on the strength of an invalid policy, he deserves to be accommodated in the aforesaid course in some way. Since, 5 seats reserved in terms of our order, 2 are available in the M.Ch. Genito Urinary Surgery Course, Respondents directed that although the Appellant, Dr. Mehta, did not sit for the entrance examination for the year 2011-2012, on the strength of his marks in the entrance examination for the year 2010-2011, he should be given admission in one of the two seats in the M.Ch. Genito Urinary Surgery course, which has been kept vacant in terms of our order dated 22nd July, 2011. That this order being passed as per special facts of this case and should not be treated as a precedent in future cases. Appeal Disposed off

Eastern Coalfields Ltd. Vs. Tetulia Coke Plant (P) Ltd. and Ors. (Decided on 10.08.2011) MANU/SC/0940/2011

Validity of e-auction scheme introduced by Union of India - Article 14 of the Constitution of India, 1950 - High Court held scheme of e-auction as invalid and ultra vires of Article 14 of the Constitution and quashed said scheme - Hence, this appeal

Held, when entire scheme was set at naught by present Court, whatever action had been taken following said e-auction by Appellant-coal company had also been declared to be illegal. Therefore, coal company had become liable to refund entire money which was collected in excess of notified price - In present case, it was a case of refund of price recovered by Appellant in excess and not of any kind of payment of tax or duty. The Appellant had already refunded such excess amount realised to many other parties without raising any such plea. If anything done by party in violation of the law, consequence has to follow and they would be bound to return money to parties from whom excess amount has been realized. There was also no document placed on record in support of any such plea - Bald allegation of such nature could not be accepted particularly when no such plea had been raised in present Court. There was no reason to interfere with impugned order. Court directed appropriate steps to be taken to give effect to impugned judgment and order passed by Court below. Hence, it was directed that amount in terms of settled accounts be paid by Respondents in accordance with law. Appeal disposed of

Budhadev Karmaskar Vs. State of West Bengal (Decided on 02.08.2011) MANU/SC/0881/2011

Right of Prostitutes to Live with Dignity - Article 21 of the Constitution of India, 1950 - Present Court on earlier occasion dismissed the appeal of the Appellant for murdering a sex worker and suo motu converted the case into a PIL by the same order in order to address the problems of sex workers in the countryl - Whether prostitutes are entitled to life of Dignity under Article 21 of the Constitution

Held, sex workers are also human beings and hence they are entitled to life of dignity. The word "life" in Article 21 of the Constitution means life of dignity and not just an animal life. Sex workers could not lead life of dignity as long as they remain sex workers. Sex workers are always in danger of getting sexually transmitted diseases (STD). They are often abused and beaten by proprietors of brothel and others who give them pittance out of her earnings. If sex workers are given proper technical training they would be able to come out of sex work and instead earn their livelihood through their technical skills instead of by selling their bodies. That would enable them to live life of dignity. Court directed that Secretaries, Social Welfare Departments of the State Governments and Central Government to meet Panel constituted to discuss specific schemes for giving technical training to sex workers. Directed, further any rehabilitation of sex workers would not be coercive in any manner

• SERVICE LAW

Ram Kumar Vs. State of U.P. and Ors. (Decided on 19.08.2011) MANU/SC/0962/2011

Selection - Cancellation of - Appellant selection was cancelled by the Senior Superintendent of Police on the ground that Appellant had submitted an affidavit stating wrong facts and concealing correct facts and his selection was irregular and illegal - Single Judge as well as the Division Bench of High Court upheld the Order of termination - Hence this appeal

Held, clear from the instructions issued by the Governor that the object of the verification of the character and antecedents of government servants before their first appointment is to ensure that the character of a government servant for a direct recruitment is such as to render him suitable in all respects for employment in the service or post to which he is to be appointed and it would be a duty of the appointing authority to satisfy itself on this point. On the facts, of the case it was not at all possible for the appointing authority to take a view that the Appellant was not suitable for appointment to the post of a police constable. As per the instructions in the Government Order, it was the duty of the appointing authority, to satisfy himself on the point as to whether the Appellant was suitable for appointment to the post of a constable, with reference to the nature of suppression and nature of the criminal case. Instead of considering whether the Appellant was suitable for appointment to the post of male constable, the appointing authority has mechanically held that his selection was irregular and illegal because the Appellant had furnished an affidavit stating the facts incorrectly at the time of recruitment. Hence the appeal allowed and Appellant to be taken back in Service within a period of two months.

HIGH COURT

• Service Law

Delhi High Court

Dr. K.G. Jolly (Dead through L. Rs) Vs. Institute of Economic Growth and Ors. (Decided on 12.08.2011) MANU/DE/3116/2011

Fixation of Pay Scale - Petitioner a former Faculty Member of the Institute of Economic Growth ('IEG') has pleaded for fixation of the Petitioners pay in terms of Fundamental Rule 22-C with effect from March and April 1974 and pay arrears of pay allowances and increments - Whether Petitioner is entitled to Pay in terms of Fundamental Rule 22-C

Held, there was rationalization of posts in the IEG following the acceptance of the TPC recommendations. The document enclosed with the counter affidavit of the IEG shows that the Petitioner who was a Research Analyst was, pursuant to the rationalization, designated as Junior Fellow in the pay scale of Rs. 400-40-800- 50-950 with effect from 1st March 1974. It is stated therein "these grades have since been revised in accordance with the recommendations of the TPC retrospectively." Hence, there is no illegality committed by the IEG in the matter of fixation of pay of the Petitioner. This was not a case of promotion but of rationalization of posts and the scales of pay. Therefore, the Fundamental Rule 22-C would not apply. 

• CRIMINAL LAW

Ashrafi Devi Vs. State of Delhi (Decided on 11.08.2011) MANU/DE/3127/2011

Conviction based on Dying declaration - Challenge against thereto - Additional Session Judge convicted the Appellant for offences charged under Section 302 of the Indian Penal Code, 1860 (IPC) relying on the two dying declaration made by the deceased the first oral made to her brother and the second to the Executive Magistrate - Whether the Additional Session Judge was correct in convicting the Appellant on the basis of the dying declaration

Held, Rule 3 requires that the 'Judicial Magistrate' should satisfy himself that the declarant is in a fit condition before he starts recording the statement. But, in the present case, there is no such certificate given by PW-12 (D.B. Kubba) nor is there any doctor's certificate indicating that deceased was fit for making a statement. Rule 4 of the said Rules requires that the dying declaration should be in the form of a simple narrative and that the actual words, as far as possible, should be recorded and, that too, in the language of the declarant. This rule has also not been followed inasmuch as the so-called dying declaration has been recorded in a question and answer form and in English, which was not the language of the declarant. Rule 5 has also not been followed in this case as the thumb impressions have not been taken nor is there any indication that the statement was read out to the declarant. There is also no evidence that the dying declaration was placed in a sealed cover and transmitted to the Judicial Magistrate having jurisdiction over the matter. Rule 8 has also been violated in the sense that no fitness certificate has been given while recording the dying declaration. For all these reasons, dying declaration (Exhibit 13/A) is also of a very doubtful character and cannot be relied upon or form the sole basis of conviction. In the present case, even the authenticity and correctness of the dying declarations has not been established by the prosecution and the same remains shrouded in doubt, therefore, this is not one of those dying declarations which can be made the sole basis of conviction. Thus, the appeal stands allowed.

Bombay High Court

Vikas Motiram Ghodke Vs. State of Maharashtra (Decided on 12.08.2011) MANU/MH/1015/2011

Outraging modesty of a Women - Applicant has preferred this revision questioning the legality, propriety and correctness of the Judgment and Order passed by Session Judge wherein the Applicant was convicted for offences punishable under Section 354 of Indian Penal Code, 1860 (IPC) - Whether the Judgment and Order passed by the Session Judge was justified

Held, delay of two days to report the FIR to the police, is no ground of defense as ordinarily when honour of the family is involved, the family of the victim girl would not like any stigma to be attached to her and her family. Further, a schoolgirl would not put her character at stake only in order to take revenge upon a Shopkeeper or in order to falsely implicate the accused. The incident took place inside the shop itself and there was no person present in the shop to see the said incident and therefore, non-examination of independent witness from the neighborhood of the shop cannot be said to be something going against the prosecution. It is a settled legal position that in order to constitute the offence punishable under Section 354 of the Indian Penal Code, mere knowledge that the modesty of a woman is likely to be outraged is sufficient without any deliberate intention of having such outrage alone for its object. Hence, no interference required. Hence Revision Application dismissed

• Narcotics Law

Nandlal Shyamdas S/o Shyamdas Vs. State of Goa, as represented by Officer-In-Charge, Anti Narcotic Cell (Decided on 12.08.2011) MANU/MH/1019/2011

Contraband Substance - Illegal possession of - Conviction - Challenged under - Appellant was convicted for offences punishable under Section 8(C) read with Section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Hence this appeal - Whether there was no cross-examination on the point that if there was any other substance other than charas found in the cross-examination

Held, charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid Hashish. Even if the witness meant that there was some other substance along with Charas while saying that the substance "contains Charas", it need not refer to any other substance, which is not Charas but could very well refer to some impurity in crude Charas. The prosecution witness referred only to Charas in his evidence and there is no suggestion to him in cross-examination that if the analysis shown the existence of any other substance in the contents. In the present case, it is not possible to create a doubt so as to give any benefit to the Appellants. There is absolutely no material on record to draw any inference of doubt and, to the effect that the benefit of doubt is to be given to the appellant for the purpose of the sentence. Appeal Dismissed

TRIBUNALS

• ITAT AHMEDABAD

Punjab Steel Rolling Mills (Baroda) Pvt. Ltd. Vs. DCIT (Decided on 12.08.2011) MANU/IB/0341/2011

Direct Taxation - Rectification of computation of Income Tax - Section 115 JB(2)(Vii) of the Income Tax Act 1961 - Assessee has filed this appeal on ground that CIT(A) has erred in confirming the action of the AO of not accepting the Assessee's request to rectify the computation of income tax payable under section 115JB of the Act and thereby denying the deduction of Rs.59,93,711/- and Rs.76,66,027/- under section 115JB(2)(vii) of the I.T. Act

From the records, it is clear that the Assessee has not claimed any deduction under section 115JB(2)(vii) in the return of income nor any claim was made during the course of assessment proceedings, as the Assessee has not fulfilled the condition that it had become sick industrial company under section 17(1) of SICA. Since no claim was made in the return nor during the course of assessment proceedings, there can not be said to be any mistake apparent in the order of the AO so as to allege that the AO has wrongly declined claim of deduction under section 115JB(2)(vii). There is no dispute to the well-settled legal proposition that provisions of section 154 can be invoked only if there is an apparent mistake in the record. Where the issue is debatable or requires further investigation, the same cannot be decided by invoking provisions of section 154. The issue, which requires detailed deliberations, the same cannot be said to be mistake apparent from record so as to rectify the same under section 154 of the I.T. Act.. The finding recorded by lower authorities to the effect that the Assessee has never fulfilled the conditions of section 115JB(2)(vii) till date, has not been controverted by the ld. A.R. by bringing any positive material on record. As per the order passed by the BIFR the Assessee has not been declared sick company, in view of the fact that its net worth became positive. Moreover, there was no finding in this order to the effect that during the assessment years 2003-04 and 2004-05, net worth of the Assessee company was negative and it was eligible for deduction under section 115JB(2)(vii) of the I.T. Act. Hence, no infirmity in the order of the CIT(A) confirming the action of the AO for rejecting Assessee's application under section 154. Before parting with the matter, it is pertinent to note that the Assessee is at liberty to raise the issue against the scrutiny assessment framed under section 143(3),as per provisions of law. We order accordingly. In the result, both the appeals filed by the Assessee are disposed off in terms indicated hereinabove.