Interim Bail – to attend the marriage ceremony of daughter – applicant shall be accompanied by the Police personnel in plain clothes. However, there will be no handcuffing of the applicant during the period.
Protection of Children from Sexual Offences Act, 2012 – the prosecution was not required to prove a “skin to skin” contact for the purpose of proving the charge of sexual assault under Section 7 of the Act – Neither Section 7 nor any other provision of POCSO even remotely suggests that ‘direct’ physical contact unimpeded by clothing is essential for an offence to be committed.
Environmental Law – Water (Prevention and Control of Pollution) Act, 1981 – Air (Prevention and Control of Pollution) Act, 1974 – National Green Tribunal (NGT) – Pre-existing Industrial Units – Stone Crushers – The main stand of the respondents before the NGT is that they are old units operating since 1985 and they should not be forced to relocate because of the later developments – Public interest would warrant action against polluting units. This is equally applicable to those industrial units which have been functioning since long. Adherence to the environmental and pollution norms cannot be compromised for factual misunderstandings or due to cryptic determination. Orders which have direct repercussions on the right to clean environment must surely be the outcome of careful scrutiny and substantive deliberation, as per the applicable facts – The NGT was required to address the grievance on the adverse health impacts on local populace by the stone crushers.
Service Law – Pension as is well known, is the deferred portion of the compensation1 for rendering long years of service. It is a hard-earned benefit accruing to an employee in the nature of property.
Service Law – Pension – the Coal Mines Pension Scheme, 1998 was framed as a measure of social security for ensuring socio-economic justice for the employees in the coal sector under the powers conferred by Section 3-E of the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948.
While considering the appellant’s case, the High Court did not however consider her entitlement on merit, but had dismissed both the Writ Petition and the LPA, citing want of territorial jurisdiction. The employment of the appellant’s husband with the respondent employer is however not in dispute. Nevertheless, for over a decade, the widow of the employee is forced to litigate to secure the pension benefits.
Juvenile Justice (Care and Protection of Children) Act, 2015 – Claim of Juvenility.
- A claim of juvenility may be raised at any stage of a criminal proceeding, even after a final disposal of the case. A delay in raising the claim of juvenility cannot be a ground for rejection of such claim. It can also be raised for the first time before this Court.
- An application claiming juvenility could be made either before the Court or the JJ Board.
- When the issue of juvenility arises before a Court, it would be under sub-section (2) and (3) of section 9 of the JJ Act, 2015 but when a person is brought before a Committee or JJ Board, section 94 of the JJ Act, 2015 applies.
- If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so 43 as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.
- When an application claiming juvenility is made under section 94 of the JJ Act, 2015 before the JJ Board when the matter regarding the alleged commission of offence is pending before a Court, then the procedure contemplated under section 94 of the JJ Act, 2015 would apply. Under the said provision if the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Board shall undertake the process of age determination by seeking evidence and the age recorded by the JJ Board to be the age of the person so brought before it shall, for the purpose of the JJ Act, 2015, be deemed to be true age of that person. Hence the degree of proof required in such a proceeding before the JJ Board, when an application is filed seeking a claim of juvenility when the trial is before the concerned criminal court, is higher than when an inquiry is made by a court before which the case regarding the commission of the offence is pending (vide section 9 of the JJ Act, 2015).
- That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised.
- The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side.
- That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance.
- That it is neither feasible nor desirable to lay down an abstract formula to 46 determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case.
- This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile.
- If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences.
- That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.
- Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions.
- Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not 48 conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015.
Service Law – Compassionate Appointment – Delay and Laches – the deceased employee died in the year 1977 and the second application for appointment on compassionate ground by the widow to appoint her second son was filed in the year 1996, i.e., after a period of 18 years of the date of the death of the deceased employee – in the year 1977, the eldest son made an application for appointment on compassionate ground, which was rejected in the year 1977 and the same has attained finality – Held, the second application was made after a period of 18 years, the impugned judgment and order passed by the High Court and that of the Central Administrative Tribunal directing the appellant to re-consider the case of the second son of the respondent is unsustainable and deserves to be quashed and set aside and accordingly the same are hereby quashed and set aside.
Arbitration and Conciliation Act, 1996 – the learned Arbitrator in the instant case has erred in awarding pendente lite and future interest on the amount due and payable to the contractor under the contract in question and the same has been erroneously confirmed by the High Court.
Arbitration and Conciliation Act, 1996 – Idioms carping ‘delay’ and ‘hurry’ in adjudication highlight the importance of both speedy disposal and reasonable opportunity, as both are essential for an even-handed and correct decision. Neither should be sacrificed nor inflated, as to prolong or trample a just and fair adjudication. A pragmatic and common-sense approach would invariably check any discord between the desire for expeditious disposal and adequacy of opportunity to establish one’s case.
Section 19 of the Act states that while the arbitral tribunal is not bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872, in the absence of any agreement between the parties as to the procedure to be followed, the arbitral tribunal may conduct the proceedings in the manner it considers appropriate. Section 18 mandates that both parties shall be treated with equality and each party shall be given a full opportunity to present his case. Reference can also be made to Sections 24 and 25 and newly enacted Section 29A of the Act, which though not applicable to this case, emphasise on quick and prompt adjudications. [Para 7]
Motor Accident Claims – Even in case of a deceased who was not serving at the time of death and had no income at the time of death, their legal heirs shall also be entitled to future prospects by adding future rise in income i.e. addition of 40% of the income determined on guesswork considering the educational qualification, family background etc., where the deceased was below the age of 40 years. [Para 13]
Motor Accident Claims – Merely because in the execution proceedings the claimants might have accepted the amount as awarded by the Court, may be as full and final settlement, it shall not take away the right of the claimants to claim just compensation and shall not preclude them from claiming the enhanced amount of compensation which they as such are held to be entitled to. [Para 13]
Motor Accident Claims – Deceased at the time of accident was aged 21-22 years and that he was a 3rd year student in civil engineering – Therefore, it can be said that looking to his educational qualification he was having a bright future – Even the labourers / skilled labourers were getting Rs.5,000/ per month under the Minimum Wages Act in the year 2012 – As the deceased was studying in the 3rd/4th semester of civil engineering, he cannot be considered worse than the labourers / skilled labourers.
Learned Tribunal assessed the income of deceased at Rs.15,000/ per month for the purpose of awarding compensation under the head of future economic loss. However, by the impugned judgment and order, the High Court has reduced the compensation and determined the income of the deceased at Rs.5,000/ per month. Awarding the future economic loss to the claimants considering the income of the deceased as Rs.5,000/ is not sustainable at all. Even the counsel appearing on behalf of the Union of India has fairly conceded that assessing the income of deceased at Rs.5,000/ per month for the purpose of awarding the compensation under the head of future economic loss can be said to be at lower side and as such is not justifiable. [Para 8]
Motor Accident Claims – Future Economical Loss – While awarding the future economical loss, when the deceased died at the young age 21-22 years and was not earning at the time of death/accident, the income for the purpose of determining the future economic loss is always done on the basis of guesswork considering many circumstances namely the educational qualification and background of the family, etc.
Therefore looking to the educational qualification and the family background, the deceased was having a bright future studying in the 3rd year of civil engineering, the income of the deceased at least ought to have been considered at least Rs.10,000/ per month, more particularly considering the fact that the labourers / skilled labourers were getting Rs.5,000/ per month even under the Minimum Wages Act in the year 2012. [Para 8]
Compassionate Appointment – For appointment on compassionate ground, the policy prevalent at the time of death of the deceased employee only is required to be considered and not the subsequent policy.
Relying upon the subsequent circular/policy dated 31.08.2016, the Division Bench of the High Court has directed the appellants to consider the case of the respondent for appointment on compassionate ground. The scheme prevalent on the date of death of the deceased employee is only to be considered. In that view of the matter, the impugned judgment and order passed by the Division Bench is unsustainable and deserves to be quashed and set aside.
Penal Code, 1860 – Ss. 279 & 304A – the appellant has been found to be guilty of offences punishable under Sections 279 and 304A IPC for driving rashly and negligently on a public street and his act unfortunately resulted in the loss of the precious human life. But it is pertinent to note that there was no allegation against the appellant that at the time of accident, he was under the influence of liquor or any other substance impairing his driving skills. It was a rash and negligent act simplicitor and not a case of driving in an inebriated condition which is, undoubtedly despicable aggravated offence warranting stricter and harsher punishment. The widow of the victim has not come forward despite notice being served and the compensation of Rs. 3 lakhs has been deposited by the appellant, a lenient view can be taken in the matter and the sentence of imprisonment can be reduced.
Constitution of India – Article 32 – Res Judicata and Public Interest Litigations (PILs) – While determining the applicability of the principle of res judicata under Section 11 of the Code of Civil Procedure 1908, the Court must be conscious that grave issues of public interest are not lost in the woods merely because a petition was initially filed and dismissed, without a substantial adjudication on merits. There is a trend of poorly pleaded public interest litigations being filed instantly following a disclosure in the media, with a conscious intention to obtain a dismissal from the Court and preclude genuine litigants from approaching the Court in public interest. This Court must be alive to the contemporary reality of “ambush Public Interest Litigations” and interpret the principles of res judicata or constructive res judicata in a manner which does not debar access to justice. The jurisdiction under Article 32 is a fundamental right in and of itself.
Recruitment – there is no bar in intimating the candidates through SMS, more particularly when large number of candidates had to appear in the subsequent process and majority of the candidates have appeared for document verification and physical fitness test pursuant to intimation by SMS.
Even, so far as the respondent is concerned, it is not his case that he had not received the SMS. It is only a technical contention that he ought to have been intimated through postal communication. When a requirement is stated in the application to provide the mobile number, it is with a purpose to communicate and in the instant case, the appellants have sent the SMS to the very number which had been furnished by the appellant.