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Dipak Misra

This tag is associated with 24 posts

Service matter = U.P. Power Corporation Ltd. and another … Appellants Versus Virendra Lal (Dead) through L.Rs. …Respondents= published in judis.nic.in/supremecourt/filename=40846

Since the penalty was imposed by Board itself which is an appellant authority, it’s orders are not correct as per the regulations of Electricity Act as the employee was deprived of his appeal right    ; = whereby the  Division Bench has affirmed the judgment dated 23.9.2010 passed by the  State  Public Service Tribunal, Lucknow, (for short “the tribunal”) … Continue reading

When a court not inclined to grant anticipatory bail , can not direct the lower court to grant bail on the surrender of the accused – the orders to consider the bail application on surrender and release him on it’s satisfaction of sureties submitted was misread by lower courts = On a reading of the said authoritative pronouncement and the principles that have been culled out in Savitry Agarwal there is remotely no indication that the Court of Session or the High Court can pass an order that on surrendering of the accused before the Magistrate he shall be released on bail on such terms and conditions as the learned Magistrate may deem fit and proper or the superior court would impose conditions for grant of bail on such surrender. When the High Court in categorical terms has expressed the view that it is not inclined to grant anticipatory bail to the petitioner-accused it could not have issued such a direction which would tantamount to conferment of benefit by which the accused would be in a position to avoid arrest. It is in clear violation of the language employed in the statutory provision and in flagrant violation of the dictum laid down in Gurbaksh Singh Sibbia and the principles culled out in Savitri Agarwal.”= In the case at hand, though such an order was not passed by the learned single Judge, yet the order passed by him was potent enough to create enormous confusion. And it has so happened. It is the duty of the superior courts to follow the command of the statutory provisions and be guided by the precedents and issue directions which are permissible in law. We are of the convinced opinion that the observations made by the learned single Judge while dealing with second application under Section 438 CrPC was not at all warranted under any circumstance as it was neither in consonance with the language employed in Section 438 CrPC nor in accord with the established principles of law relating to grant of anticipatory bail. We may reiterate that the said order has been interpreted by this Court as an order only issuing a direction to the accused to surrender, but as we find, it has really created colossal dilemma in the mind of the learned Additional Sessions Judge. We are pained to say that passing of these kind of orders has become quite frequent and the sagacious saying, “A stitch in time saves nine” may be an apposite reminder now. We painfully part with the case by saying so. 30. The appeal is disposed of in terms of the modification in the order passed by the learned single Judge in M.Cr.C. No. 701 of 2013 and the observations made hereinabove.

 published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40837         IN THE SUPREME COURT OF INDIA   CRIMINAL APPELLATE JURISDICTION   CRIMINAL APPEAL NO.1545 OF 2013 (Arising out of S.L.P. (Crl.) No. 7678 of 2013)       Ranjit Singh … Appellant   Versus   State of M.P. and others …Respondents                 … Continue reading

Board not liable to pay any amount to the Bank towards subsidy amount as the Borrower committed default =The Borrower had borrowed money from the Bank for its business and as per policy of the State of Karnataka, the Board had assured the Bank that by way of subsidy, the amount of interest would be paid by the Board to the Bank, provided there was no default in repayment of the principal amount by the Borrower.= the Board has been wrongly saddled with the liability of paying Rs.75,213/-.= The question only is with regard to the liability of the Board. The Board is neither a borrower nor a guarantor. = The Commission and the Karnataka State Khadi and Village Industries Board, will have no liability of any kind either in respect of the principal amount of loan or payment of 4% or revised rate of interest to be borne by the borrowers for which interest subsidy eligibility certificate has been issued by the Commission. Its liability shall be restricted only to the extent of payment of interest subsidy as per scheme. The Commission would be liable to pay interest subsidy as per the scheme only for the period of which the loan is sanctioned by the Bank and is not liable to pay such interest subsidy for the defaulted period 87-88.”= In other words, upon default committed by the Borrower, the Board was absolved of its liability of paying interest on behalf of the Borrower to the Bank and its liability was only to the effect that it would surrender its first charge over the moveable and immoveable assets of the borrower in favour of the Bank. 10. In spite of the aforestated facts, the trial court came to the conclusion that the Board was liable to pay interest which was due and payable by the Borrower. In our opinion, the said finding of the trial court is not correct. Even the High Court’s view of confirming the said finding is not correct and therefore, we quash and set aside the judgment of the appellate court as well as the decree passed by the trial court so far as it makes the Board liable to pay the interest on behalf of the Borrower. In view of the contents of the aforestated letter dated 23rd March, 1988, the Board shall surrender its first charge over all the moveable and immoveable assets of the Borrower in favour of the Bank as soon as possible. 11. The appeal stands partially allowed to the above extent with no order as to costs. Karnataka State K.V. Industries Board …..APPELLANT VERSUS Punjab National Bank & Ors. ….RESPONDENTS

published in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40772 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION 1 CIVIL APPEAL NO. 8182 OF 2003 (Arising out of SLP ( C) No. 12161 of 2006)   Karnataka State K.V. Industries Board …..APPELLANT   VERSUS Punjab National Bank & Ors. ….RESPONDENTS   1 J U D G M E N T   … Continue reading

MODVAT- The respondent-company availed deemed MODVAT credit of Rs.77,546/- during the quarter of March, 2000 on the strength of invoices issued by M/s. Sawan Mal Shibhu Mal Steel Re-Rolling Mills, Mandi Govindgarh. During MODVAT verification it was found that the supplier of inputs had not discharged full duty liability for the period covered by the invoices. = Sub-rule (6) of Rule 57A in exercise of which the notification has been issued is as follows: – “(6) Notwithstanding anything contained in sub-rule (1), the Central Government may, by notification in the Official Gazette, declare the inputs on which the duty of excise paid under section 3A of the Central Excise Act, 1944 (1 of 1944), shall be deemed to have been paid at such rate or equivalent to such amount as may be specified in the said notification, and allow the credit of such duty in respect of the said inputs at such rates or such amount and subject to such conditions as may be specified in the said notification: Provided that the manufacturer shall take all reasonable steps to ensure that the inputs acquired by him are goods on which the appropriate duty of excise as indicated in the documents accompanying the goods, has been paid under section 3A of the Central Excise Act, 1944 (1 of 1944).”= “Whether the manufacturer of final products is entitled to deemed credit, under Notification 58/97-CE dated 30.8.97 when the manufacturer-supplier of inputs has not paid Central Excise Duty and given a wrong certificate on the body of invoices about duty dischargement under Rule 96ZP of Central Excise Rules, 1944?” = there is no dispute that a declaration was given by the manufacturer of the inputs indicating that the excise duty had been paid on the said inputs under the Act. It is also not in dispute that the said inputs were directly received from the manufacturer but not purchased from the market. There is no cavil over the fact that the manufacturer of the inputs had declared the invoice price of the inputs correctly in the documents. It is perceivable from the factual matrix that the only allegation is that at the time of MODVAT verification it was found that the supplier of the inputs had not discharged full duty liable for the period covered under the invoices. This lapse of the seller is different and not a condition or rather a pre-condition postulated in the notification. 25. Mr. Prasad, learned counsel for the revenue has vehemently urged that it was requisite and, in a way imperative, on the part of the assessee to verify from the concerned authority of the department whether the excise duty had actually been paid or not. The aforesaid submission leaves us unimpressed. As we notice Rule 57A (6) requires the manufacturer of final products to take reasonable care that the inputs acquired by him are goods on which the appropriate duty of excise as indicated in the documents accompanying the goods, has been paid. The notification has been issued in exercise of the power under the said Rule. The notification clearly states to which of those inputs it shall apply and to which of the inputs it shall not apply and what is the duty of the manufacturer of final inputs. Thus, when there is a prescribed procedure and that has been duly followed by the manufacturer of final products, we do not perceive any justifiable reason to hold that the assessee-appellant had not taken reasonable care as prescribed in the notification. Due care and caution was taken by the respondent. It is not stated what further care and caution could have been taken. The proviso postulates and requires “reasonable care” and not verification from the department whether the duty stands paid by the manufacturer-seller. When all the conditions precedent have been satisfied, to require the assessee to find out from the departmental authorities about the payment of excise duty on the inputs used in the final product which have been made allowable by the notification would be travelling beyond the notification, and in a way, transgressing the same. This would be practically impossible and would lead to transactions getting delayed. We may hasten to explicate that we have expressed our opinion as required in the present case pertaining to clauses 4 and 5 of the notification. 26. Consequently, we concur with the view expressed by the High Court and accordingly the appeals, being devoid of merit, stand dismissed without any order as to costs.

published in http://judis.nic.in/supremecourt/filename=40690 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 7031 of 2009 Commissioner of Central Excise, Jalandhar … Appellant Versus M/s. Kay Kay Industries … Respondent WITH CIVIL APPEAL No. 7032 of 2009 WITH CIVIL APPEAL No. 7034 of 2009 WITH CIVIL APPEAL No. 7392 of 2010 WITH CIVIL APPEAL … Continue reading

Service matter = Reinstatement with compensation but not with back wages = After considering the evidence adduced before the Tribunal, it had come to the conclusion that the termination of the respondent was not legal and therefore, by an award dated 30th June, 2001, the order terminating service of the respondent dated 28th February, 1998, had been quashed and it was directed that the respondent should be reinstated in service as a driver with continuity of service and with arrears of salary for the period during which the respondent-workman was not permitted to perform his duties.= However, we feel that the respondent should not have been awarded full back wages. 10. Instead of awarding back wages, in view of the facts of the case, it would be just and proper to award, in all a sum of Rs.5 lacs by way of compensation to the respondent-workman. It had been submitted that the appellant-Corporation had already paid more than Rs.3,60,000/- to the respondent-workman and if it is so, the amount so paid shall be adjusted while paying the compensation of Rs.5 lacs. Thus, we direct that by way of compensation, in all Rs.5 lacs should be given to the respondent-workman in lieu of back wages. The said amount shall be paid to the workman within four weeks from today. 11. If the respondent-workman has not been reinstated till today, the appellant-Corporation shall reinstate him within four weeks from today. 12. In the above circumstances, the impugned judgment delivered by the High Court is modified to the above extent. The appeal is allowed to the extent stated hereinabove. No order as to costs.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40667 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6968 OF 2013 (Arising out of SLP (C) No. 22730 of 2013)     U.P. State Road Transport Corporation …..Appellant   Versus C.P. Goswami …..Respondent     J U D G M E N T 1 ANIL R. DAVE, J. … Continue reading

Service matter = Whether the Seniority can be considered from the date of vacancy or from the date of promotion = His application to consider from the date of vacancy is rejected = “20. Seniority – The seniority of persons substantively appointed in any category of posts in the service shall be determined in accordance with the Uttar Pradesh Government Servants Seniority Rules, 1991, as amended from time to time. Provided that a person appointed to a post except the post of Associate Professor or Professor on the recommendation of the Commission for which the requisition had been sent to the Commission before the commencement of the Uttar Pradesh State Medical colleges Teacher Service (Second Amendment) Rules, 2005 shall be entitled to seniority from the date of his appointment notwithstanding the fact that a teacher has been given personal promotion to the same post under rule 15 in the same recruitment year.”= Pawan Pratap Singh and others v. Reevan Singh and others,[7] where the Court after referring to earlier authorities in the field has culled out certain principles out of which the following being the relevant are reproduced below: “(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. xxx xxx xxx (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.” 16. In view of the aforesaid enunciation of law, the irresistible conclusion is that the claim of the first respondent for conferment of retrospective seniority is absolutely untenable and the High Court has fallen into error by granting him the said benefit and accordingly the impugned order deserves to be lancinated and we so do. 17. Consequently, the appeal is allowed and the order passed by the High Court is set aside. The parties shall bear their respective costs.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40666 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 6967 OF 2013 (Arising out of SLP (C) No. 31481 of 2010)   State of Uttar Pradesh & Others … Appellants Versus Ashok Kumar Srivastava & Anr. …Respondents J U D G M E N T Dipak Misra, J. Leave granted. … Continue reading

Land Acquisition Act = When the land is in developed area , deduction of 10 % is appropriate but the deduction of 1/3rd in market value is harsh =deduction of 1/3rd value of the land would be very harsh on the appellants because the appellants would be getting substantially less compensation on account of the said deduction. It was also submitted that the High Court had taken note of the fact that the land in question was very much within the developed area. If the land was within the developed area, the High Court should not have deducted 1/3rd of the value of the land in question.= Deduction to the extent of 1/3rd of the value of the land is definitely harsh even as per the observations made by the High Court as the land in question is very much in the developed area. The area has been developed by the HUDA and therefore, the deduction of 1/3rd of the value of the land is not justified. Upon considering all relevant facts, in our opinion, it would be absolutely just if 10% value of the land is deducted instead of 1/3rd because the land is forming part of a well developed area.= The market value of the land in question, as determined by the High Court, is Rs. 11.15 lacs per acre and instead of taking 1/3rd, we direct that 10% of the said value shall be deducted. The claimants shall be entitled to other statutory benefits like solatium, interest etc. on the enhanced compensation.

 published in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40661 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6958 OF 2013 (Arising out of SLP (C) No. 24357 of 2010) Indraj Singh (Dead) …..Appellants through LRs. & Ors. Versus State of Haryana & Anr. …..Respondents With CIVIL APPEAL NO. 6959 OF 2013 (Arising out of SLP (C) … Continue reading

service matter – In the absence of public Advertisement, no posts should be filled from the selected list =there was no advertisement for direct recruitment the select list was quashed.the apex court held that There can be no scintilla of doubt that there was requirement of advertisement for inviting the names. However, as we perceive, the present case projects a totally different picture. = sec. “4. Vacancies to be filled up by persons sponsored by employment exchange. – After the commencement of this Act, all vacancies in the posts in any Government establishment or establishment of any public undertaking, statutory body, Government company or local authority shall be filled up by such persons as may be sponsored by an employment exchange.” – sec.6 Employment exchange to submit list of registrants to appointing authority – The employment exchange shall, on receipt of the requisition under section 5, submit to the appointing authority a list of registrants, other than the registrants who belong to the exempted category, in order of seniority determined on the basis of the length of the period of registration in that employment exchange and in accordance with such principle of rotation as the Director of Employment may prescribe from time to time, and also in conformity with the qualification, age, experience or other requirement, if any, as stated in the requisition.”- The Act provides that the persons are to be selected from the candidates sponsored by the employment exchange. It is admitted by the learned counsel for the State that on the basis of the statutory command names were called for from the employment exchange. As stated earlier, he would clarify that though the names were called for from the employment exchange, the process of selection was not restricted to only the sponsored candidates. In essence, the submission of the learned counsel for the appellants and the learned counsel for the State that when thousands of candidates had appeared, though not sponsored by the employment exchange, the panel prepared after following due procedure should not have been quashed. – There can be no scintilla of doubt that there was requirement of advertisement for inviting the names. However, as we perceive, the present case projects a totally different picture. The number of posts available was 1446 in the group ‘D’ category. For the said posts more than 57000 candidates competed. On a querry being made, the learned counsel for the State would admit that the vacancies have not been filled up because of pendency of litigation. Regard being had to the special features of the case, we are inclined to set aside the order of the High Court and that of the tribunal and we so do. We further direct the State Government to fill up the posts available from among the select list. We may hasten to clarify that if any one whose name features in the select list has been appointed in any other department or statutory organization or Government company, he cannot claim an appointment in the Department of Irrigation and Waterways. We further direct the respondent-State and its functionaries to adjust respondents 1 and 2 and extend them the benefit of appointment. The appointees cannot claim any seniority with retrospective effect as that might create cavil amongst the appointees in other departments at earlier point of time. The aforesaid exercise shall be completed within a period of eight weeks from today. 13. The appeals are disposed of in above terms. However, there is no order as to costs.

  published in http://judis.nic.in/supremecourt/filename=40651 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos. 6748-6749 OF 2013 (Arising out of SLP (C) Nos. 6177-6178 of 2012) Buddhadeb Ruidas & ors. etc. etc. … Appellants Versus State of West Bengal and ors. …Respondents With CIVIL APPEAL Nos. 6750-6751 OF 2013 (Arising out of SLP (C) … Continue reading

Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 = question the constitutional validity of number of provisions of the Uttar Pradesh Gangsters and Anti- Social Activities (Prevention) Act, 1986 (Act 7 of 1986) (for short “the Act”) being violative of Articles 14, 21, 22(4) and 300A of the Constitution of India and further prayed for issue of a writ of certiorari for quashment of the First Information Report dated 2.5.2010 giving rise to Crime No. 100 of 2010 registered at Police Station Ramala, District Baghpat.= Thus, the accused under the Act is in a distinct category and the differentiation between the two, namely, a person arrayed as an accused in respect of offences under other Acts and an accused under the Act is a rational one. It cannot be said to be arbitrary. It does not defeat the concept of permissible classification. The majority in Kartar Singh (supra) has expressed thus: – “218. The principle of legislative classification is an accepted principle whereunder persons may be classified into groups and such groups may differently be treated if there is a reasonable basis for such difference or distinction. The rule of differentiation is that in enacting laws differentiating between different persons or things in different circumstances which govern one set of persons or objects such laws may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different set of circumstances.”= Tested on the touchstone of the abovestated principles, the irresistible conclusion is that the classification is in the permissible realm of Article 14 of the Constitution. Therefore, the submission that Section 12 invites the wrath of Article 14 of the Constitution is sans substratum and, accordingly, we have no hesitation in repelling the same and we so do. 47. In view of the aforesaid analysis, we uphold the constitutional validity of Section 12 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 as it does not infringe any of the facets of Articles 14 and 21 of the Constitution of India. Ex- consequenti, the writ petition, being devoid of merit, stands dismissed.

 published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40619  IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRL.) NO. 100 OF 2010 Dharmendra Kirthal … Petitioner Versus State of U.P. and another … Respondents J U D G M E N T Dipak Misra, J.   In this writ petition preferred under Article 32 of the Constitution of … Continue reading

The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 = question the constitutional validity of number of provisions of the Uttar Pradesh Gangsters and Anti- Social Activities (Prevention) Act, 1986 (Act 7 of 1986) (for short “the Act”) being violative of Articles 14, 21, 22(4) and 300A of the Constitution of India and further prayed for issue of a writ of certiorari for quashment of the First Information Report dated 2.5.2010 giving rise to Crime No. 100 of 2010 registered at Police Station Ramala, District Baghpat.= Thus, the accused under the Act is in a distinct category and the differentiation between the two, namely, a person arrayed as an accused in respect of offences under other Acts and an accused under the Act is a rational one. It cannot be said to be arbitrary. It does not defeat the concept of permissible classification. The majority in Kartar Singh (supra) has expressed thus: – “218. The principle of legislative classification is an accepted principle whereunder persons may be classified into groups and such groups may differently be treated if there is a reasonable basis for such difference or distinction. The rule of differentiation is that in enacting laws differentiating between different persons or things in different circumstances which govern one set of persons or objects such laws may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different set of circumstances.”= Tested on the touchstone of the abovestated principles, the irresistible conclusion is that the classification is in the permissible realm of Article 14 of the Constitution. Therefore, the submission that Section 12 invites the wrath of Article 14 of the Constitution is sans substratum and, accordingly, we have no hesitation in repelling the same and we so do. 47. In view of the aforesaid analysis, we uphold the constitutional validity of Section 12 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 as it does not infringe any of the facets of Articles 14 and 21 of the Constitution of India. Ex- consequenti, the writ petition, being devoid of merit, stands dismissed.

 published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40619  IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRL.) NO. 100 OF 2010 Dharmendra Kirthal … Petitioner Versus State of U.P. and another … Respondents   J U D G M E N T Dipak Misra, J.   In this writ petition preferred under Article 32 of the Constitution … Continue reading

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