advocatemmmohan
just another law knowledge bank
state of jharkhand
Industrial dispute = The Industrial Tribunal/ Labour Court constituted under the Industrial Disputes Act is a creature of that statute. It acquires jurisdiction on the basis of reference made to it. The Tribunal has to confine itself within the scope of the subject matter of reference and cannot travel beyond the same. This is the view taken by this Court in number of cases including in the case of National Engineering Industries Limited v. State of Rajasthan & Ors. 2000 (1) SCC 371. 19. It is for this reason that it becomes the bounden duty of the appropriate Government to make the reference appropriately which is reflective of the real/ exact nature of “dispute” between the parties. In the instant case, the bone of contention is as to whether the respondent workmen were simply transferred by the appellant to M/s. Lafarge or their services were taken over by M/s. Lafarge and they became the employees of the M/s. Lafarge. Second incidental question which would follow therefrom would be as to whether they have right to join back the services with the appellant in case their service conditions including salary etc. which they were enjoying with the appellant are not given or protected by M/s. Lafarge? If it is proved that their service conditions are violated, another question would be as to whether they can claim the service benefits/ protection from M/s. Lafarge or they have the right to go back to the appellant?= It follows from the above that the reference in the present form is clearly defective as it does not take care of the correct and precise nature of the dispute between the parties. On the contrary, the manner in which the reference is worded shows that it has already been decided that the respondent workmen continue to be the employees of the appellant and further that their services were simply transferred to M/s. Lafarge. This shall preclude the appellant to put forth and prove its case as it would deter the labour court to go into those issues. It also implies that by presuming so, the appropriate Government has itself decided those contentious issues and assumed the role of an adjudicator which is, otherwise, reserved for the Labour Court/ Industrial Tribunal. 21. As a consequence, this appeal is allowed and the impugned judgment of the High Court is set aside. Sequitur to that would be to quash the references made in the present form. However, at the same time, direction is given to the appropriate Government to make fresh reference, incorporating real essence of the dispute as discussed in this judgment, within a period of two months from the date of receipt of the copy of this judgment.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40776 [REPORTABLE] IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8246 OF 2013 (Arising out of Special Leave Petition (Civil) No. 20494 of 2011) M/s. Tata Iron & Steel Co. Ltd. …….Appellant(s) Versus State of Jharkhand & Ors. ……Respondent(s) WITH C.A. No. 8247/2013 (@ SLP(C) No. 21086 of 2011) … Continue reading
Pension and Gratuity with holding pending inquiry = whether, in the absence of any provision in the Pension Rules, the State Government can withhold a part of pension and/or gratuity during the pendency of departmental/ criminal proceedings? = Fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in “property”. 14. Article 300 A of the Constitution of India reads as under: “300A Persons not to be deprived of property save by authority of law. – No person shall be deprived of his property save by authority of law.” Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced. 15. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as “law” within the meaning of aforesaid Article 300A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold – even a part of pension or gratuity. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different. 16. We, accordingly, find that there is no merit in the instant appeals as the impugned order of the High Court is without blemish. Accordingly, these appeals are dismissed with costs quantified at Rs. 10,000/- each.
published in http://judis.nic.in/supremecourt/filename=40650 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6770 OF 2013 (Arising out of Special Leave Petition (Civil) No. 1427 of 2009) State of Jharkhand & Ors. ….. Appellant(s) Vs. Jitendra Kumar Srivastava & Anr. …..Respondent(s) WITH C.A. No. 6771/2013 (arising out of … Continue reading
Code of Criminal Procedure, 1973: s. 309 – Prayer for stay of criminal proceedings pending probate case – Criminal case alleging the Will to be forged – HELD: Primacy has to be given to criminal case over civil case – Orders of courts below declining to stay criminal proceedings need no interference, in view of the fact that criminal case was instituted much prior to initiation of probate proceedings and because of the conduct of the appellant and the stage in which the probate proceedings are pending – Practice and Procedure – Evidence Act, 1872 – s.41 – Constitution of India, 1950 – Article 136. Evidence Act, 1872: s. 41 – Pendency of probate case – Its effect on criminal case alleging the will to be forged – Held: Pendency of two proceedings, whether civil or criminal, by itself would not attract the provisions of s. 41 – A judgment has to be pronounced – The genuineness of the will must be gone into – s. 41 would become applicable only when a final judgment is rendered – On facts, courts below rightly declined to stay criminal proceedings – Code of Criminal Procedure, 1973 – s.309. The appellant filed an application before the Sub-Registrar, Hazaribagh, Jharkhand for registration of a will dated 3.5.1998 stated to have been executed by one Mst. `SA’, and applied before the Delhi Development Authority for grant of mutation in respect of a property in Delhi on the basis of the alleged will. Mst. `SM’, the daughter of Mst. `SA’ also made an application to the DDA for grant of mutation in respect of the Delhi property in her favour. Mst. `SM’ filed a civil suit in Patna questioning the genuineness of the will dated 3.5.1998,and also filed a criminal complaint u/ss 420/468/444/34 IPC in Delhi against the appellant alleging the will dated 3.5.1998 as a forged one. The appellant filed an application for grant of probate in respect of the will dated 3.5.1998 before the Jharkhand High Court u/s 276 of the Indian Succession Act, 1925. The appellant first filed a writ petition before the Delhi High Court seeking to quash the criminal proceedings and on its dismissal filed an application u/s 309 Cr.P.C. before the Metropolitan Magistrate seeking stay of the proceedings in the criminal case. The said application was dismissed. Appellant’s revision petition also having been dismissed by the High Court, he filed the instant appeal. Meanwhile Mst. `SM’ died after having executed a will in favour of respondent no.2, and the Delhi property was mutated in his name. He was impleaded as respondent no.2 in the appeal. It was contended for the appellant that a judgment in probate proceedings being a judgment in rem as envisaged u/s 41 of the Evidence Act, the criminal proceedings should have been directed to be stayed. =Dismissing the appeal, the Court HELD: 1.1. Section 41 of the Evidence Act, 1872 would become applicable only when a final judgment is rendered. Rendition of a final judgment which would be binding on the whole world being conclusive in nature would take a long time. As and when a judgment is rendered in one proceeding subject to the admissibility thereof keeping in view s.43 of the Evidence Act may be produced in another proceeding. It is beyond any cavil that a judgment rendered by a probate court is a judgment in rem. It is binding on all courts and authorities. Being a judgment in rem it will have effect over other judgments. A judgment in rem indisputably is conclusive in a criminal as well as in a civil proceeding. [Para 12] [1034-D-G] Surinder Kumar & Ors. vs. Gian Chand & Ors. AIR 1957 SC 875; Sardool Singh & Anr. vs. Smt. Nasib Kaur 1987 (Supp.) SCC 146; Mt. Daropti vs. Mt. Santi 1929 Lahore 483 and Darbara Singh vs. Karminder Singh & Ors. AIR 1979 Punjab & Haryana 215 – referred to. Commissioner of Income Tax, Mumbai vs. Bhupen Champak Lal Dalal & Anr. (2001) 3 SCC 459, cited. 1.2. Pendency of two proceedings whether civil or criminal, however, by itself would not attract the provisions of s.41 of the Evidence Act. A judgment has to be pronounced. The genuineness of the Will must be gone into. Law envisages not only genuineness of the Will but also explanation to all the suspicious circumstances surrounding thereto besides proof thereof in terms of s.63(c) of the Indian Succession Act, and s.68 of the Evidence Act. [Para 13] [1038-C-D] Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria & ors. 2009 (1) SCALE 328, relied on. 1.3. As noticed in several decisions of this Court, including two Constitution Bench decisions*, primacy has to be given to a criminal case over a civil case. If primacy is to be given to a criminal proceeding, indisputably, the civil suit must be determined on its own merit, keeping in view the evidences brought in it and not in terms of the evidence brought in the criminal proceedings. In the instant case, the FIR was lodged not only in regard to forgery by the Will but also on the cause of action of a trespass. Not only another civil suit is pending, but a lis in relation to mutation is also pending. [Para 10, 14 and 15] [1029-G; 1038-E; 1039-A] *M.S. Sheriff & anr. vs. State of Madras & Ors. AIR 1954 SC 397 and Iqbal Singh Marwah & Anr. vs. Meenakshi Marwah & Anr. (2005) 4 SCC 370, relied on. K.G. Premshanker vs. Inspector of Police and Anr. (2002) 8 SCC 87 M/s Karam Chand Ganga Prasad & anr. etc. vs. Union of India & Ors. (1970) 3 SCC 694 and P. Swaroopa Rani vs. M. Hari Narayana @ Hari Babu AIR 2008 SC 1884, referred to. 1.4. Whereas the criminal case is pending before the Delhi court, the testamentary suit has been filed before the Jharkhand High Court. Since 2003 not much progress has been made therein. The Will has not been sent to the handwriting expert for his opinion, which is essential for determination of the question in regard to its genuineness. It is alleged that the Will was registered at Hazaribagh after the death of the testatrix. For the last seven years in view of the pendency of the matters before the High Courts in different proceedings initiated by the appellant, the criminal case has not proceeded, although charge-sheet has been filed and cognizance of the offence has been taken. Exercise of such a jurisdiction furthermore is discretionary. [Para 15] [1039-A-C] 1.5. In the facts and circumstance of the case, orders of the Metropolitan Magistrate and the High Court need not be interfered with. Firstly, because the criminal case was instituted much prior to the initiation of the probate proceeding and, secondly, because of the conduct of the appellant and the stage in which the probate proceedings are pending. Therefore, it is not a fit case where the Court should exercise discretionary jurisdiction under Article 136 of the Constitution of India. [Para 15] [1039-D] Case Law Reference: AIR 1954 SC 397 relied on para 10 (2002) 8 SCC 87 referred to para 10 (1970) 3 SCC 694 referred to para 10 (2005) 4 SCC 370 relied on para 11 AIR 2008 SC 1884 referred to para 11 1987 (Supp.) SCC 146 referred to para 12 (2001) 3 SCC 459 cited para 12 AIR 1957 SC 875 referred to para 12 1929 Lahore 483 referred to para 13 AIR 1979 Punjab & Haryana 215 referred to para 13 2009 (1) SCALE 328 relied on para 13 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 416 of 2009. From the Judgment and Order dated 23.07.2008 of the High Court of Delhi in Criminal Revision No. 184 of 2005. Dinesh Dwivedi, S.K. Sinha, Manish Shanker and Prateek Dwivedi for the Appellant. A. Sharan, ASG, A.M. Singhvi, S.C. Maheshwari, Neera Gupta, Sadhna Sandhu, Anil Katiyar, Sandhya Goswami, H.C. Kharbanda and M.P.S. Tomar for the Respondent.
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 416 OF 2009 [Arising out of Special Leave Petition (Criminal) No. 5791 of 2005] SYED ASKARI HADI ALI AUGUSTINE IMAM & ANR. … APPELLANTS VERSUS STATE (DELHI ADMN.) & ANR. … RESPONDENTS JUDGMENT S.B. Sinha, J. 1. Leave granted. 2. Effect of … Continue reading
The courts are receiving a large number of cases emanating from section 498-A of the Indian Penal Code which reads as under:- “498-A. Husband or relative of husband of a woman subjecting her to cruelty.–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.–For the purposes of this section, `cruelty’ means:- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” 30. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1512 OF 2010 (Arising out of SLP (Crl.) No.4684 of 2009) Preeti Gupta & Another …Appellants Versus State of Jharkhand & Another ….Respondents J U D G M E N T Dalveer Bhandari, J. 1. Leave granted. 2. This appeal has been … Continue reading
the respondent-M/s Shivam Coke Industries, Dhanbad is a manufacturer of coal and was registered under the provisions of the Bihar Finance Act, 1981 [now repealed – for short “BFT Act, 1981”] and presently under the provisions of Jharkhand Value Added Tax, 2005. Respondent-assessee being manufacturers of hard coke buys coal from Bharat Coking Coal Ltd. after making the payment of local Sales Tax @ 4% which is being used as an input for the purpose of manufacturing the hard coke. Respondent was assessed to tax for the Financial Years 1988-89, 1992-93 and 1996-97 determining the tax on intra-State sales transactions as well as Central Sales Tax on inter-State sales transactions. Respondent preferred an Appeal before the Joint Commissioner of Commercial Taxes (Appeals), Dhanbad Division, Dhanbad against the assessment orders passed between 26.4.1990 to 23.12.1998 for the Financial Years 1988-89, 1992-93 and 1996-97, who vide order dated 25.08.2003 remanded the aforesaid assessment proceedings by a common order to re-examine the books of account and to re-determine the nature of sales as to whether they are intra-state sales or inter-state sales, on the basis of the books of account and the audit reports as well as on the basis and within the meaning and scope of Section 3(a) of the Central Sales Tax Act, 1956 (for short “the CST Act”).
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 6889-6891 OF 2011 [Arising out of SLP (C) Nos. 19104-19106 of 2008] State of Jharkhand & Ors. Etc. …. Appellants Versus M/s. Shivam Coke Industries, Dhanbad, Etc. …. Respondents With CIVIL APPEAL NO. 6892 OF 2011 [Arising out of SLP (C) No. … Continue reading
advocatemmmohan 