writ petition

This tag is associated with 180 posts

2G Spectrum case.=whether two orders passed by this Court on 11.04.2011 and 09.11.2012 in Civil Appeal No.10660 of 2010, in exercise of powers conferred on this Court under Articles 136 and 142 of the Constitution of India, while monitoring the investigation of 2G related cases, are liable to be recalled, de hors the rights guaranteed to the Petitioners to invoke the jurisdiction of this Court under Articles 32 and 136 of the Constitution of India, if aggrieved by the orders passed by the Special Court dealing with 2G Spectrum case.= No Court, other than the Court seized with the trial, has the power to monitor the proceedings pending before it. Order dated 11.4.2011 only facilitates the progress of the trial by ordering that the trial must proceed on a day-to-day basis. Large backlog of cases in the Courts is often an incentive to the litigants to misuse of Court’s system by indulging in unnecessary and fraudulent litigation, thereby delaying the entire trial process. Criminal justice system’s procedure guarantees and elaborateness sometimes give, create openings for abusive, dilatory tactics and confer unfair advantage on better heeled litigants to cause delay to their advantage. Longer the trial, witnesses will be unavailable, memories will fade and evidence will be stale. Taking into consideration all those aspects, this Court felt that it is in the larger public interest that the trial of 2G Scam be not hampered. Further, when larger public interest is involved, it is the bounden duty of all, including the accused persons, who are presumed to be innocent, until proven guilty, to co-operate with the progress of the trial. Early disposal of the trial is also to their advantage, so that their innocence could be proved, rather than remain enmeshed in criminal trial for years and unable to get on with their lives and business. 29. We fail to see how the principle laid down by this Court in A.R. Antulay’s case (supra) would apply to the facts of these cases. We have found no error in the orders passed by this Court on 11.04.2011 or on 09.04.2012. Therefore, the question of rectifying any error does not arise. On the other hand, as we have already indicated, the purpose and object of passing those orders was for a larger public interest and for speedy trial, that too on day-to-day basis which has been reflected not only in the various provisions of the PC Act, 1988 but also falls within the realm of judicial accountability. 30. We also find no reason to lay down any guidelines as prayed for by the petitioners in a Court monitored investigation. In a Court monitored investigation, as already pointed out the Court is not expected to interfere with the trial proceedings. The conduct of the trial is the business of the trial judge and not the court monitoring the investigation. A superior court exercising the appellate power or constitutional power, if gives a direction to conduct the trial on day-to-day basis or complete the trial in a specific time by giving direction is not interfering with the trial proceedings but only facilitating the speedy trial, which is a facet of Article 21 of the Constitution of India. That being the factual situation in these cases, the principle laid down by this Court in Rajiv Ranjan Singh “Lalan” VI and another v. Union of India and others (2006) 1 SCC 356, Brij Narain Singh v. Adya Prasad (2008) 11 SCC 558 and Ankul Chandra Pradhan (supra), are not applicable. 31. We, therefore, find no good reason either to frame guidelines to be followed by a constitutional court in relation to monitoring of criminal investigation or any legal infirmity in the orders passed by this Court on 11.04.2011 or 09.04.2012. Writ Petitions lack merits and they are accordingly dismissed, so also IA Nos.59, 61, 63 and 68 in Civil Appeal No.10660 of 2010.

published in         http://judis.nic.in/supremecourt/imgst.aspx?filename=40716     REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (C) NO.548 OF 2012 Shahid Balwa …Petitioner Versus Union of India and others …Respondents With WRIT PETITION (C) NO.550, 551, 552 OF 2012, 17 of 2013, and I.A. Nos.59, 61, 63 and 68 IN CIVIL APPEAL … Continue reading

Entrusting the investigation to the CBI = the High Court of Karnataka at Bangalore in Writ Petition No. 7623 of 2012 whereby the Division Bench of the High Court constituted a Special Investigation Team (SIT) to investigate into the broadcasting of certain news items by certain television channels on 02.03.2012 regarding scuffle between advocates, police and media persons in the premises of the City Civil Court Complex, Bangalore.= a Constitution Bench of this Court in State of West Bengal and Others vs. Committee for Protection of Democratic Rights, West Bengal and Others, (2010) 3 SCC 571 has laid down certain principles. Though the CBI has issued various principles/suggestions for endorsing the matter to CBI in para 68, it is worthwhile to refer the conclusion in paras 69 & 70. “69. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly. 70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.” Keeping the above principles in mind, considering the series of unfortunate incidents which occurred within the City Civil Court Complex, Bangalore on 02.03.2012 involving members of the bar, police personnel, journalists and media persons and in spite of the specific direction by the High Court as early as on 16.05.2012, subsequent order of this Court dated 19.10.2012, and also of the fact that the composition of SIT itself has not been finalized, we feel that the present case falls within the principles enunciated by the Constitution Bench and we are satisfied that CBI inquiry is necessitated in the matter in issue. 12) In the light of what is stated above, while setting aside the impugned order of the High Court dated 16.05.2012 and in modification of earlier order of this Court dated 19.10.2012, we entrust the entire investigation of the incident to the CBI. Accordingly, we direct the CBI to carry out the investigation and submit a report before the appropriate Court having jurisdiction at Bangalore within a period of six months from the date of receipt of copy of this judgment. We further direct the State/SIT to immediately hand over all the records pertaining to the said investigation to the CBI. 13) The appeal is allowed on the above terms. In view of the above direction, no separate order is required in I.A. No. 8 of 2013, accordingly, the same is also disposed of.

   published in     http://judis.nic.in/supremecourt/imgst.aspx?filename=40700                                     REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION 1 CIVIL APPEAL NO.7159 OF 2013 2 (Arising out of SLP (C) No. 22604 of 2012) WITH 3 I.A. NO. 8 IN … Continue reading

Service matter – whether respondent No. 2 is entitled to pension as claimed by him or he is eligible to get his retirement benefits under Contributory Provident Funds Scheme (for short “the C.P.F. Scheme”).= No- as he failed to choose his option with in 3 months of notification – Delay can not be accepted as it carry no value in the eye of law = The appellant-University accepted the option exercised by respondent No. 2 and therefore, it cannot be said that the deeming fiction incorporated in the Notification would help respondent No. 2. For sake of convenience, relevant extract of the Notification dated 17th August, 1991, is reproduced hereinbelow :- “….Thus all employees who were in service on 1.1.1990 shall have to exercise their option in writing, either for the pension scheme under these regulations or for continuance under the existing C.P.F. Scheme, within 3 months from the date of notification of this provision and shall submit the same to the Comptroller, Rajasthan Agriculture University, Bikaner in the prescribed form. The existing employees who do not exercise option within the period specified under these regulations shall be deemed to have opted for the pension scheme. Option once exercised shall be final and irrevocable…” 22. Though, respondent No. 2 did not exercise his option within the period prescribed under the aforestated Notification, when he had exercised the option on 3rd January, 1992, for continuing to be under the C.P.F. Scheme and when the appellant-University had graciously accepted the option exercised by respondent No. 2, he would not get benefit under the deeming fiction incorporated in the Notification. It would be unfair to the University if the submission of respondent No. 2 is accepted. A special favour was done to respondent No. 2 by accepting his option even after the prescribed period was over. Now, at this stage, after his retirement, respondent No. 2 wants to take undue advantage of the favour done to him by the appellant university, which cannot be permitted. Had respondent No. 2 not exercised his option at all, he would have been surely treated to have accepted the Pension Scheme but as he had given his option late, which had been graciously accepted by the appellant-University, it cannot be said that respondent No. 2 should be treated to have accepted the Pension Scheme. 23. All averments pertaining to employees of other universities are not relevant because each employer university would have its own scheme with regard to payment of retirement benefits to its employees. 24. We may add here that respondent No. 2 is a highly literate person and he must have known the consequences, when he had opted for the C.P.F. Scheme under his letter of option dated 3rd January, 1992. It was his conscious effort to see that he continues with the C.P.F. Scheme and the said effort was respected by the appellant- University by showing special favour, as his option was accepted even after the time prescribed in the Notification was over. 25. For the aforestated reasons, we are of the view that the High Court was in error by giving a direction to the appellant- University that respondent No. 2 should be given pension as if he had opted for the Pension Scheme. 26. The appeal stands allowed with no order as to costs.

   published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40698  REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7160 OF 2013 (Arising out of SLP (C) No. 7781 of 2011)     Rajasthan Agriculture University, Bikaner …..Appellant   Versus State of Rajasthan & Ors. …..Respondents       J U D G M E N T … Continue reading

Service matter = whether fixation of benchmark would amount to change in the criteria of selection in the midstream when there was no such stipulation in that regard in the advertisement.- whether there was any change in the mode of selection after the process of selection had started. – Rule 8 is a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit. The one higher in rank is deemed to be more meritorious than the one who is lower in rank. It could never be said that one who tops the list is equal in merit to the one who is at the bottom of the list. Except that they are all mentioned in one list, each one of them stands on a separate level of competence as compared with another. That is why Rule 10(ii), Part C speaks of “selection for appointment”. Even as there is no constraint on the State Government in respect of the number of appointment to be made, there is no constraint on the State Government in respect of the number of appointments to be made, there is no constraint on the Government fixing a higher score of marks for the purpose of selection. In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high-standards of competence to fix a score which is much higher than the one required for mere eligibility.” “In the case at hand, as we perceive, the intention of the Commission was to get more meritorious candidates. There has been no change of norm or procedure. No mandate was fixed that a candidate should secure minimum marks in the interview. Obtaining of 65% marks was thought as a guidelines for selecting the candidate from the OBC category. The objective is to have the best hands in the field of law. According to us, fixation of such marks is legitimate and gives a demarcating choice to the employer. It has to be borne in mind that the requirement of the job in a Competition Commission demands a well structured selection process. Such a selection would advance the cause of efficiency. Thus scrutinized, we do not perceive any error in the fixation of marks at 65% by the Commission which has been uniformly applied. The said action of the Commission cannot be treated to be illegal, irrational or illegitimate.” It is stated at the cost of repetition that there is no change in the criteria of selection which remained of 80 marks for written test and 20 marks for interview without any subsequent introduction of minimum cut off marks in the interview. It is the short listing which is done by fixing the benchmark, to recruit best candidates on rational and reasonable basis. That is clearly permissible under the law.(M.P.Public Service Commission vs. Navnit Kumar Potdar & Anr. (1994) 6 SCC 293). – 18. The result of the aforesaid discussion would be to dismiss the appeals as bereft of any merit. No costs.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40656 [REPORTABLE] IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6799/2013 (arising out of S.L.P.(Civil) No. 34427/2011) Yogesh Yadav …..Appellant Versus Union of India & Ors. ….Respondents WITH C.A.No.6800/2013 (@ SLP(civil) Nos.6988/2012 C.A.No.6801/2013 (@ SLP(civil) Nos.9556/2012   J U D G M E N T A.K.SIKRI,J. 1. Leave granted. 2. Counsel … 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

Service Matter – Whether the petitioners, whose names were included in the select list prepared for recruitment to Punjab Civil Service (Judicial Branch) are entitled to be appointed against the posts which became available due to the resignation of two of the appointees and the unfilled posts of reserved categories is the question which arises for consideration in these petitions filed under Article 32 of the Constitution.= once the appointments are made against the advertised posts, the select list gets exhausted and those who are placed below the last appointee cannot claim appointment against the posts which subsequently become available. = “At the outset it should be noticed that the select list prepared by APSC could be used to fill the notified vacancies and not future vacancies. If the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised, even though APSC had prepared a select list of 64 candidates. The select list got exhausted when all the 27 posts were filled. Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The fact that evidently and admittedly the names of the appellants appeared in the select list dated 17-7-2000 below the persons who have been appointed on merit against the said 27 vacancies, and as such they could not have been appointed in excess of the number of posts advertised as the currency of select list had expired as soon as the number of posts advertised are filled up, therefore, appointments beyond the number of posts advertised would amount to filling up future vacancies meant for direct candidates in violation of quota rules. Therefore, the appellants are not entitled to claim any relief for themselves. The question that remains for consideration is whether there is any ground for challenging the regularisation of the private respondents.” In view of the above noted legal position, the decision taken by the High Court not to enter the petitioners name in the register to facilitate their appointment against the de-reserved posts or the posts vacated by the general category candidates cannot be faulted, more so because the State Government had already approved fresh recruitment and the Commission issued advertisement for 71 posts including 6 reserved category posts. In the result, the writ petitions are dismissed.

published in http://judis.nic.in/supremecourt/filename=40643 Non-Reportable IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 73 OF 2013 Raj Rishi Mehra and others …Petitioners versus State of Punjab and another …Respondents WITH WRIT PETITION (CIVIL) NO. 77 OF 2013 O R D E R Whether the petitioners, whose names were included in the select … Continue reading

Appointment of Special police officers from ex-service men = whether this court can compel the State of Punjab to create posts and absorb the appellants into the services of the State on a permanent basis consistent with the Constitution Bench decision of this court in Umadevi’s case. = The appellants herein assert that all the appellants are ex- servicemen and registered with the employment exchange. They were recruited as Special Police Officers.[2] = i) That it will not be possible to provide police guard to banks unless the Banks were willing to pay for the same and additional force could be arranged on that basis, it was decided that police guards should be requisitioned by the Banks for their biggest branches located at the Distt. and Sub Divisional towns. They should place the requisition with the Distt. SSPs endorsing a copy of IG CID. In the requisition, they should clearly state that the costs of guard would be met by them. It will then be for the police department to get additional force sanctioned. This task should be done on a top priority. In the meantime depending upon the urgency of the need of any particular branch, police Deptt. may provide from police strength for its protection. ii) For all other branches guards will be provided by Distt. SSP after selecting suitable ex-servicemen or other able bodied persons who will be appointed as Special Police Officer in terms of Section 17 of the Police Act. Preference may be given to persons who may already be in possession of licence weapons. All persons appointed as SPO for this purpose will be given a brief training for about 7 days in the Police Lines in the handling of weapons taking suitable position for protection of branches. These SPOs will work under the discipline and control and as per Police Act, they will have the same powers, privileges and protection and shall be amenable to same penalty as an ordinary police personnel.”= The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State, the allocation of the finances is no doubt exclusively within the domain of the Legislature. However in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. If absorbing the appellants into the services of the State and providing benefits at par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to meet such additional burden. Apparently no such demand has ever been made by the State. The result is – the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks. We are of the opinion that neither the Government of Punjab nor these public sector banks can continue such a practice consistent with their obligation to function in accordance with the Constitution. Umadevi’s judgment cannot become a licence for exploitation by the State and its instrumentalities. For all the abovementioned reasons, we are of the opinion that the appellants are entitled to be absorbed in the services of the State. The appeals are accordingly allowed. The judgments under appeal are set aside. We direct the State of Punjab to regularise the services of the appellants by creating necessary posts within a period of three months from today. Upon such regularisation, the appellants would be entitled to all the benefits of services attached to the post which are similar in nature already in the cadre of the police services of the State. We are of the opinion that the appellants are entitled to the costs throughout. In the circumstances, we quantify the costs to Rs.10,000/- to be paid to each of the appellants.

published in       http://judis.nic.in/supremecourt/imgst.aspx?filename=40625   Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1059 OF 2005 Nihal Singh & Others …Appellants Versus State of Punjab & Others …Respondents WITH CIVIL APPEAL NO. 6315 OF 2013 [Arising out of SLP (Civil) No. 12448 of 2009) Bhupinder Singh & Others …Appellants Versus … Continue reading

Stamp duty and penalty = Whether the sale deed executed by Aditya Mills Ltd. in favour of respondent No.1 could be treated as lease deed for the purpose of stamp duty is the question = unable to do so because neither party has placed on record copy of deed dated 29.9.1978 and without examining that document, it is not possible for us to record a firm finding about the nature and character of deed dated 3.5.1995. In this scenario, the only appropriate course is to remit the case to the Collector for fresh determination of the issue relating to valuation of the building and the land purchased by respondent No.1. Ordered accordingly.= The appeal is disposed of with a direction that the Collector shall call upon respondent No.1 to produce deed dated 29.9.1978, to which reference has been made in the deed executed in its favour by Aditya Mills Ltd. and then decide whether it is a lease deed simpliciter or a sale deed for the purpose of stamp duty. While disposing of the appeal, we consider it necessary to make it clear that if the Collector comes to the conclusion that the deed executed by Aditya Mills Ltd. in favour of respondent No.1 is a lease deed then the latter shall have to surrender the land to the Government of India on 9.3.2021, i.e., the date on which term of the lease would expire.

     published in     http://judis.nic.in/supremecourt/imgst.aspx?filename=40595  NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6086 OF 2013. (Arising out of SLP(C) No. 3749 of 2012) State of U.P. now Uttarakhand and another …Appellants Versus Vinit Traders and Investment Ltd. and another …Respondents O R D E R Leave granted. Whether the … Continue reading

Custody of Child =no relief could be granted to the appellant in the present proceedings given her conduct in removing Anand from U.S.A. in defiance of the orders of the Court of competent jurisdiction. – the duty of Courts in all countries to see that a parent doing wrong by removing children out of the country does not gain any advantage by his or her wrongdoing.= The facts narrated above would clearly indicate that the mother is singularly responsible for removal of the child from the jurisdiction of U.S. Courts. In view of the above, we are constrained to pass the following order:-= The directions issued by the High Court in the impugned order are upheld with the following additions and modifications:- Direction No.(iv) of the High Court shall be substituted by the following : “(iv) The petitioner shall make necessary arrangements for the stay of the respondent No.7 and the child in suitable accommodation in a locality according to her status prior to the dissolution of marriage for a period of three months on their landing in USA.” Direction No.(vi) – Prior to making any travel arrangements for the 7th respondent and Anand, the petitioner shall move the Court of Competent Jurisdiction in USA for withdrawal of the bailable warrants issued against the respondent No.7 to enable her to attend the custody proceedings in the US Courts. Direction No.(viii) – Upon the bailable warrants having been withdrawn, the petitioner shall personally escort respondent No.7 and Anand from India to the USA. 32. With these observations, the judgment of the High Court is upheld and the Criminal Appeals No.934-936 of 2013 @ SLP(Crl.) Nos. 10606-10608 of 2010 are hereby dismissed. 33. Before parting with this order, we may also notice here that the respondent (husband) filed a Criminal Appeal No. 937 of 2013 @ SLP(Crl.)No.3335 of 2012, challenging the order dated 23rd December, 2011 of the High Court of Andhra Pradesh. As noticed earlier, the aforesaid order was passed in the criminal petition filed by the respondent husband, seeking quashing of the criminal complaint filed by the appellant/wife against the respondent himself and his parents under Sections 498-A, 506 of IPC and Sections 4 & 6 of the Dowry Prohibition Act, 1961. Since no arguments were advanced in the aforesaid matter, let this appeal be listed for arguments separately.

 published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40567  REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.934-936 OF 2013 (Arising out of SLP (Crl.) No. 10606-10608 of 2010) Arathi Bandi …Appellant VERSUS Bandi Jagadrakshaka Rao & Ors. …Respondents WITH CRIMINAL APPEAL NO.937 OF 2013 (Arising out of SLP (Crl.) No. 3335 of 2012) Bandi Jagadrakshak Rao … Continue reading

A Daily worker on termination of his service not entitled for re-employment as of right as the termination is not amounts to retrenchment of an employee = whether termination of services of the respondent on the expiry of the contract period would amount to retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act, 1948 (for short “the ID Act”). = Section 2(bb) says that if the termination of the service of workman is as a result of non-renewal of the contract between the employer and the workman on its expiry of such contract being terminated under a stipulation in that behalf contained therein, the same would not constitute retrenchment.= Facts would clearly indicate that the respondent’s service was terminated on the expiry of the fixed periods mentioned in the office orders and that he had worked only for 54 days. The mere fact that the appointment orders used the expression “daily wages” does not make the appointment “Casual” because it is the substance that matters, not the form. The contract of appointment consciously entered into by the employer and the employee would, over and above the specific terms of the written agreement, indicates that the employment is short-lived and the same is liable to termination, on the fixed period mentioned in the contract of appointment.= “25G. Procedure for retrenchment.- Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman. 25H. Re- employment of retrenched workmen.- Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity 2[ to the retrenched workmen who are citizens of India to offer themselves for re- employment and such retrenched workman] who offer themselves for re- employment shall have preference over other persons.”= Section 25H will apply only if the respondent establishes that there had been retrenchment. Facts will clearly indicate that there was no retrenchment under Section 2(oo) read with Section 2(bb) of the ID Act. Consequently, Section 25H would not apply to the facts of the case. Similar is the factual and legal situation in the civil appeal arising out of SLP(C) No.5387 of 2012 as well. We are sorry to note that the Labour Court, learned Single Judge and the Division Bench have not properly appreciated the factual and legal position in this case. When rights of parties are being adjudicated, needless to say, serious thoughts have to be bestowed by the Labour Court as well as the High Court. For the above-mentioned reasons we allow both the appeals, set aside the award passed by the Labour Court and confirmed by the High Court. However, there will be no order as to costs.

 published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40563 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPEALLATE JURISDICTION CIVIL APPEAL NO. 5498 OF 2013 (Arising out of SLP(C) No.5387 of 2012) Bhavnagar Municipal Corporation Appellant Versus Salimbhai Umarbhai Mansuri Respondent with CIVIL APPEAL NO. 5510 OF 2013 (Arising out of SLP(C) No.5390 of 2012) J U D G M E N … Continue reading

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