Friday, 27 March 2015

Right to Liberty and Livelihood guaranteed under Articles 19 and 21 of the Constitution of India

SC Decision in State of U.P. Vs. Charan Singh dated March 26, 2015 on Livelihood 

Contents
    1. 1.1 i. Whether the services of the workman has been illegally terminated, and 
    2. 1.2 ii. Whether there is any violation of Section 6-N of the Act? 
    1. 2.1 State of U.P. and Ors. v. Arun kumar Singh, (1995) Supp (4) SCC 241
      1. 2.2.1 It has already been rightly held by the Industrial Tribunal that the Department of Fisheries is covered under the definition of “Industry” as defined under Section 2(k) of the Act and also in accordance with the statement of R.W.1 and E.W.1, Shri. R.B.Mathur, on behalf of the appellant before the Industrial Tribunal, because the object of the establishment of the appellant department is fulfilled by engaging employees and that the department is run on a regular basis. Thus, the matter of termination of the services of the workman of the said department can be legally adjudicated by the Industrial Tribunal as the matter is covered under the provisions of the Act read with the Second Schedule in Entry No.10. Thus, it has been rightly held by the courts below that the dispute raised by the workman in relation to the termination of his services by the appellant is an industrial dispute.
      2. 2.2.2 15. Therefore, in view of the above stated facts and also on a perusal of the reasons given by the Industrial Tribunal in its Award on the contentious point, the contention urged on behalf of the appellant that the termination of the services of the workman was done in accordance with above mentioned Government order cannot be accepted by us as the same is erroneous in law. The fact that the persons junior to him as well as his contemporaries are still working for the appellant-department, shows that the termination of the services of the respondent has been done in an unreasonable and unfair manner.
      3. 2.2.3 16. Now, coming to the question of the entitlement of back wages to the respondent workman, the same is answered in the positive, in view of the fact that the workman had refused to accept the new job as fisherman which was offered to him pursuant to the Award passed by the Industrial Tribunal on the ground that the said post is not equivalent to the post of the Tube-well Operator. Even though the appellant had agreed to comply with the terms of the Award dated 24.02.1997 passed by the Industrial Tribunal and had offered reinstatement to him, it is well within the right of the workman to refuse the new job offered to him and the same cannot be said to be unjustified or erroneous on the part of the respondent-workman.
      4. 2.2.4 17. In the present case, there has been an absence of cogent evidence adduced on record by the appellant to justify the termination of the services of the respondent-workman, who has been aggrieved by the non-awarding of back wages from the date of termination till the date of passing the Award by the Industrial Tribunal. There is no justification for the Industrial Tribunal to deny the back wages for the said period without assigning any cogent and valid reasons. Therefore, the denial of back wages to the respondent even though the Industrial Tribunal has recorded its finding on the contentious question no.1 in the affirmative in his favour and in the absence of evidence of gainful employment of the respondent during the relevant period, amounts to arbitrary exercise of power by the Industrial Tribunal for no fault of the respondent and the same is contrary to law as laid down by this Court in a catena of cases. Hence, it is a fit case for this Court to exercise its power under 
    1. 3.1 to award back wages to the respondent, even though the respondent has not filed a separate writ petition questioning that portion of the Award wherein no back wages were awarded to him by the Courts below for the relevant period. The respondent has got a right to place reliance upon the said provision of the Civil Procedure Code, 1908 and show to this Court that the findings recorded by both the Courts below in denying back wages for the relevant period of time in the impugned judgment and Award is bad in law as the same is not only erroneous but also error in law. 
      1. 3.2.1 we hold that the State Government is liable to pay 50% of the back wages to the respondent from the date of his termination order dated 22.08.1975 till the date of the Award passed by the Industrial Tribunal, i.e. 24.02.1997. 
    2. 3.3 “33. Power of Court of Appeal.-
      1. 3.4.1 If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.” 
      1. 3.5.1 20. Thus, in view of the cases referred to supra, there was absolutely no justification on the part of the Industrial Tribunal to deny back wages to the respondent even when it is found that the order of termination is void ab initio in law for non-compliance of the mandatory provisions under Section 6-N of the Act. Keeping in view the fact that the period of termination was in the year 1975 and the matter has been unnecessarily litigated by the employer by contesting the matter before the Industrial Tribunal as well as the High Court and this Court for more than 40 years, and further, even after the Award/order of reinstatement was passed by the Industrial Tribunal directing the employer to give him the post equivalent to the post of Tube-well Operator, the same has been denied to him by offering the said post which is not equivalent to the post of Tube-well Operator and thereby, attributing the fault on the respondent for non reporting to the post offered to him, which is once again unjustified on the part of the employer.
      2. 3.5.2 21. Thus, the principle “no work no pay” as observed by this Court in the catena of cases does not have any significance to the fact situation of the present case as the termination of the services of the workman from the post of Tube-well Operator is erroneous in law in the first place, as held by us in view of the above stated reasons.
      3. 3.5.3 22. The respondent and his family members have been suffering for more than four decades as the source of their livelihood has been arbitrarily deprived by the appellant. Thereby, the Right to Liberty and Livelihood guaranteed under Articles 19 and 21 of the Constitution of India have been denied to the respondent by the appellant as held in the case of 
      1. 3.6.1 The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. 
      2. 3.6.2 That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. 
      3. 3.6.3 That is the context in which it was said by Douglas, J. in Baksey that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. “Life”, as observed by Field, J. in Munn v. Illinois means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. 
      4. 3.6.4 23. Therefore, with respect to the judicial decisions of this Court referred to supra, we hold that the appellant is liable to pay 50% back wages in favour of the respondent from the date of the termination order dated 22.08.1975 till the date of the Award passed by the Industrial Tribunal, i.e. 24.02.1997.
      5. 3.6.5 24. In so far as the awarding of full back wages to the respondent by the High Court in its judgment and order dated 18.07.2006 for the period 24.02.1997 to 31.01.2005 is concerned, we retain the same. The appellant is further directed to pay full back wages to the respondent after computing the same on the basis of the revised pay-scale and pay him all other monetary benefits as well. The aforesaid direction shall be complied with by the appellant within four weeks from the date of receipt of the copy of this order.
      6. 3.6.6 25. Accordingly, the appeal is dismissed with modification regarding back wages as mentioned in the preceding paragraphs. The order dated 11.12.2006 granting stay shall stand vacated. No costs.
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Wednesday, 28 January 2015

Dishonour of Cheques : Whether a Power of Attorney holder can sign and file a complaint?

A.C. Narayanan Vs. State of Maharashtra (Supreme Court of India, January 28, 2015)
Contents
  1. Section 482 of the Code of Criminal Procedure, 1973 
    1. 2.1 M.M.T.C. Ltd. and Anr. vs. Medchl Chemicals and Pharma(P) Ltd. and Anr., (2002) 1 SCC 234 
    2. 2.3 Janki Vashdeo Bhojwani and Anr. vs. Indusind Bank Ltd. and Ors. , 2005(2)SCC 217
    3. 2.4 Shambhu Dutt Shastri vs. State of Rajasthan [1986 2 WLN 713 (Raj.)] 
    4. 2.5 Humberto Luis v. Gloriano Armado Luis [(2002) 2 Bom. CR 754) 
    5. 2.6 Mamtadevi Prafullakumar Bhansali vs. Pushpadevi Kailashkumar Agrawal & Anr. [2005 (2) Mah. L.J. 1003) 
    6. 2.7 S.P. Sampathy vs. Manju Gupta and Anr. (2002) Crl.L.J. 2621)
      1. 2.8.1 (i) Whether a Power of Attorney holder can sign and file a complaint petition behalf of the complainant? Whether the eligibility criteria prescribed by Section 142(a) of NI Act would stand satisfied if the complaint petition itself is filed in the name of the payee or the holder in due course of the cheque? 
      2. 2.8.2 (ii) Whether a Power of Attorney holder can be varied on oath under Section 200 of the Code? 
      3. 2.8.3 (iii) Whether specific averments as to the knowledge of the Power of Attorney holder in the impugned transaction must be explicitly asserted in the complaint? 
      4. 2.8.4 (iv) If the Power of Attorney holder fails to assert explicitly his knowledge in the complaint then can the Power of Attorney holder verify the complaint on oath on such presumption of knowledge? 
      5. 2.8.5 (v) Whether the proceedings contemplated under Section 200 of the Code can be dispensed with in the light of Section 145 of the N.I. Act which was introduced by an amendment in the year 2002? 
    1. 3.1 A.C. Narayanan vs. State of Maharashtra, 2013(11) Scale 360 
    2. 3.2 Ashwin Nanubhai Vyas vs. State of Maharashtra (1967) 1 SCR 807
      1. 3.3.1 “(i) Filing of complaint petition under Section 138 of N.I Act through power of attorney is perfectly legal and competent. 
      2. 3.3.2 (ii) The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions. 
      3. 3.3.3 (iii) It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case. 
      4. 3.3.4 (iv) In the light of section 145 of N.I Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the N.I. Act. 
      5. 3.3.5 (v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person.” 
  2. Case of A.C. Narayanan 
    1. 5.1 21. The appeals are allowed accordingly.
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Sunday, 25 January 2015

Family Court : Parties have to file a detailed affidavit of their assets, income and expenditure says Delhi HC

Kusum Sharma Vs. Mahinder Kumar Sharma 

(Delhi High Court, 14-01-2015)
CONTENTS
      1. 1.1.1 the Supreme Court held that any delay in adjudication of maintenance cases by the Family Court is not only against human rights but also against the basic embodiment of dignity of an individual. The object of the provisions for grant of maintenance is to provide speedy remedy for supply of food, clothing and shelter to the deserted wife and to prevent vagrancy and destitution.
      2. 1.1.2 The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. 
      3. 1.1.3 Section 125 of the Code is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife.
      4. 1.1.4 The Family Judge is expected to be sensitive to the issues, for he is dealing with extremely delicate and sensitive issues pertaining to the marriage and issues ancillary thereto. When we say this, we do not mean that the Family Courts should show undue haste or impatience, but there is a distinction between impatience and to be wisely anxious and conscious about dealing with a situation. A Family Court Judge should remember that the procrastination is the greatest assassin of the lis before it. It not only gives rise to more family problems but also gradually builds unthinkable and Everestine bitterness. It leads to the cold refrigeration of the hidden feelings, if still left. The delineation of the lis by the Family Judge must reveal the awareness and balance. Dilatory tactics by any of the parties has to be sternly dealt with, for the Family Court Judge has to be alive to the fact that the lis before him pertains to emotional fragmentation and delay can feed it to grow. We hope and trust that the Family Court Judges shall remain alert to this and decide the matters as expeditiously as possible keeping in view the objects and reasons of the Act and the scheme of various provisions pertaining to grant of maintenance, divorce, custody of child, property disputes, etc.
      1. 2.1.1 this Court observed that parties rarely disclose their true income and therefore, the Court have to resort to the status and life style of the parties for fixing the maintenance. 
      2. 2.1.2 “3. Cases where the parties disclose their actual income are extremely rare. Experience, therefore, dictates that where a decision has to be taken pertaining to the claim for maintenance, and the ”quantum to be granted, the safer and surer method to be employed for coming to a realistic conclusion is to look at the status of the parties, since whilst incomes can be concealed, the status is palpably evident to all concerned. If any opulent lifestyle is enjoyed by warring spouses he should not be heard to complaint or plead that he has only a meagre income.
    1. 3.1 “Section 106 - Burden of proving fact especially within knowledge –
    1. 4.1 “Section 10 - Procedure generally
      1. 5.1.1 “8. …Truth, like song, is whole, and half-truth can be noise! Justice is truth, is beauty and the strategy of healing injustice is discovery of the whole truth and harmonising human relations. Law's finest hour is not in meditating on abstractions but in being the delivery agent of full fairness. 
    1. 5.2 Union Carbide Corporation v. Union of India, (1989) 3 SCC 38
    2. 5.3 Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271
      1. 5.4.1 People would have faith in Courts when they would find that truth alone triumphs in Courts.
      1. 5.5.1 discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice.
      1. 5.6.1 Truth, like all other good things, may be loved unwisely—may be pursued too keenly—may cost too much.
      1. 5.7.1 the truth should be the guiding star in the entire legal process and it is the duty of the Judge to discover truth to do complete justice. 
      2. 5.7.2 Judge has to play an active role to discover the truth and he should explore all avenues open to him in order to discover the truth. 
      3. 5.7.3 33. The truth should be the guiding star in the entire judicial process.Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. 
      4. 5.7.4 52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth.”
      1. 6.1.1 2. In last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.”
      1. 6.2.1 In spite of caution, courts are continued to be flooded with litigation with false and incoherent pleas and tainted evidence led by the parties. The judicial system in the country is choked and such litigants are consuming courts‘ time for a wrong cause. Efforts are made by the parties to steal a march over their rivals by resorting to false and incoherent statements made before the Court. 
      1. 7.1.1 C. Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings…
      2. 7.1.2 54. While imposing costs we have to take into consideration pragmatic realities and be realistic what the Defendants or the Respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.
      3. 7.1.3 55. The other factor which should not be forgotten while imposing costs is for how long the Defendants or Respondents were compelled to contest and defend the litigation in various courts. 
      4. 7.1.4 In appropriate cases, the Courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.”
  1. 12. Judge’s Power to put questions or order production 
    1. 9.1 “Section 165. Judge’s power to put questions or order production.-
      1. 9.2.1 While conducting trial, the Court is not required to sit as a silent spectator or umpire but to take active part within the boundaries of law by putting questions to witnesses in order to elicit the truth 
      1. 9.3.1 every trial is a voyage of discovery in which truth is the quest. 
      2. 9.3.2 It is an extraordinary power conferred upon the Court to elicit the truth and to act in the interest of justice. 
      1. 9.4.1 Section 165 of the Indian Evidence Act confers vast and unrestricted powers on the Court to elicit truth. 
      2. 9.4.2 A Judge is expected to actively participate in the trial to elicit necessary materials from witnesses in the appropriate context which he feels necessary for reaching the correct conclusion.
  2. 10 Suggestions
    1. 11.1 Puneet Kaur v. Inderjit Singh Sawhney, 2011 (183) DLT 403
  3. 12 7.1 Personal Information
  4. 13 7.2 Income
  5. 14 7.3 Assets
  6. 15 7.4 Liabilities
  7. 16 7.5 Expenditure
  8. 17 7.6 General Information regarding Standard of Living and Lifestyle
  9. 18 17. Format of the affidavit of assets, income and expenditure.
  10. 19 18. International Best Practices
      1. 20.1.1 Conference.
    1. 21.1 (A) Required Filing. 
      1. 21.2.1 (1) Divorce, Legal Separation, Annulment: 
      2. 21.2.2 (2) Dissolutions of Marriage: 
      3. 21.2.3 (3) Domestic Violence: 
      4. 21.2.4 (4) Post Decree Motions: 
  11. 22 Conclusion
  12. 23 PERSONAL INFORMATION RELATING TO THE DEPONENT 
  13. 24 RELEVANT INFORMATION RELATING TO THE SPOUSE
    1. 25.1 Details of expenditure on education
    1. 26.1 In case of salaried persons:
    2. 26.2 In case of self-employed persons:
    3. 26.3 Income from Other Sources:
    4. 26.4 TOTAL INCOME
    1. 27.1 Housing
    2. 27.2 Household expenditure
    3. 27.3 Transport
    4. 27.4 Medical expenditure
    5. 27.5 Insurance
    6. 27.6 Entertainment and recreation
    7. 27.7 Holiday and vacations
    8. 27.8 Gifts
    9. 27.9 Pocket money/allowance
    10. 27.10 Legal/litigation expenses
    11. 27.11 Discharge of Liabilities
    12. 27.12 Miscellaneous
    13. 27.13 Other expenditure
  14. 28 TOTAL EXPENDITURE
    1. 29.1 Real Estate
    2. 29.2 Financial Assets:
    3. 29.3 Investments
    4. 29.4 Pensions and Registered Retirement Savings Plan
    5. 29.5 Corporate/Business Interests
    6. 29.6 Movable Assets
    7. 29.7 About disposal of properties
  15. 30 JOINT PROPERTIES OF THE PARTIES 
    1. 31.1 Secured debt(s)
    2. 31.2 Unsecured Debt(s)
    3. 31.3 Other
  16. 32 GENERAL INFORMATION RELATING TO THE STATUS, STANDARD OF LIVING AND LIFESTYLE
  17. 33 DOCUMENTS RELATING TO ASSETS, INCOME AND EXPENDITURE OF THE DEPONENT PART A
  18. 34 DOCUMENTS RELATING TO PERSONAL INFORMATION
    1. 35.1 In case of Salaried Persons
    2. 35.2 In case of self-employed persons
    3. 35.3 In case of Income from other sources:
  19. 36 DOCUMENTS RELATING TO EXPENDITURE
  20. 37 Declaration:
  21. 38 Verification:
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