CUSTOM SEARCH

CASE LAW ON PREFERENTIAL RIGHT TO SELECTION

In Sher Singh v. Union of India and Ors., 1984 AIR 200, 1984 SCR (1) 464 the Hon'ble Supreme Court examined the provisions of Section 47(1) of the Motor Vehicles Act, 1939 providing for preference to the State Transport Undertaking by grant of permit and explained the meaning of 'preference' as under: 6... The expression 'preference' amongst others means prior right, advantage, precedence etc. But how would it be possible to give precedence one over the other? It signifies that other things being equal, one will have preference over the others.... Their merits and demerits must be ascertained keeping in view the requirements of (a) to (f) of Section 47 (1) and after comparing the merits and demerits of both, not with the yardstick of mathematical accuracy but other things being equal, the application of the Undertaking will have preference over others Qualitative and quantitative comparison on broad features of passenger transport facility such as fleet facilities to travelling public and other relevant consideration may be undertaken and after balancing these factors other things being equal, the application of the Undertaking shall be given preference over other applicants. There is no question of eliminating private operators merely because the Undertaking applies for a stage carriage permit under Chap TV.... Competition is the essence of improved commercial service. After ensuring competition in matter of rendering more efficient transport service a public sector Undertaking is assured statutory preference, remember no monopoly, there is no denial of equality guaranteed by Article 14.... That while considering the application for stage carriage permit under Section 47, the private operator has an equal chance to get a permit even on inter-State route if it shows that the Undertaking is either unable to provide efficient and economical service or that the private operator is better equipped to render the same. Preference in this context would mean that other things generally appearing to be qualitatively and quantitatively equal though not with mathematical accuracy, statutory provision will tilt: the balance in favour of the Undertaking....

In Executive Officer v. E. Tirupalu and Ors., 1996 AIR 1311, JT 1996 (3) 453 the Hon'ble Supreme Court held that where rules provide for preference to a particular class of candidates, that preference under the Rules cannot be applied irrespective of the merit of candidates, the inmates have to be given appointment. It means that the merit of the candidates being equal, preference would be given to the inmates of the class which is to be given preferential right and it certainly does not mean an automatic appointment without considering the cases of other candidates. Therefore, even if the rules provide for preferential right, candidates having such subjects would have preferential right only when they compete with other candidates and are found on equal footings, otherwise not.

In Government of Andhra Pradesh v. P. Dilip Kumar and Anr., 1993 (2) SCC 10 the Hon'ble Supreme Court held as under: The matter may be looked at from another viewpoint. The word 'preference' as understood in ordinary parlance means preferring or choosing as more desirable, favouring or conferring a prior right. What then is the purpose and object sought to be achieved by the insertion of the preference clause in the rule? There is no doubt that preference v as sought to be granted under Note 1 to post-graduates in the larger interest of the administration. How would the interest of the administration be served by granting preference to post-graduates? It is obvious that it was thought that on account of their higher mental equipment the quality of performance that the State will receive from highly qualified engineers would be better ana of a high order. In other words the State considered It necessary to strengthen the engineering service by recruiting post-graduates to the extent available so that the State may benefit from their higher educational qualifications and better performance. If this was the objective surely it would not be realized unless post-graduates are treated as a class and given preference en bloc over the graduates.... It is true that notwithstanding the preference rule it is always open to the recruiting agency to prescribe a minimum eligibility qualification with a view to demarcating and narrowing down the field of choice with the ultimate objective of permitting candidate with higher qualifications to enter the zone of consideration. It was, therefore, held that screening a candidate out of consideration at the threshold of the process of selection is neither illegal nor unconstitutional if a legitimate field demarcating the choice by reference to some rationale formula is carved out. Thus the challenge based on Articles 14/16 of the Constitution was repelled.

In Secy. (Health) Deptt of Health & F.W. and Anr. v. Dr. Anita Puri and Ors., 1996 (6) SCC 282. the question raised before the Supreme Court was answered as follows: ...The question then arises is whether a person holding a M.D.S. qualification is entitled to be selected and appointed as of right, by virtue of the aforesaid advertisement conferring preference for higher qualification? The answer to the aforesaid question must be in the negative. When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed. In adjudging the suitability of person for the post, the expert body like Service Commission in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection of the candidate. The competence and merit of a candidate is adjudged not on the basis of the qualification he possesses but also taking into account the other necessary factors like career of the candidate throughout his educational curriculum, experience in any filed in which the selection is going to the held, his general aptitude for the job to be ascertained in course of interview, extracurricular activities like sports and other allied subjects, personality of the candidate as assessed in the interview and all other germane factors which the expert tody evolves for assessing the suitability of the Candidate for the post for which the selection is going to be held.

Supreme Court in the Secy., A.P. Public Service Commn. vs. Y.V.V.R.Srinivasulu, reported in 2003 (5) SCC 341, wherein, the Supreme Court made the following observation: "11. Whenever, a selection is to be made on the basis of merit performance involving competition, and possession of any additional qualification or factor is also envisaged to accord preference, it cannot be for the purpose of putting them as a whole lot ahead of others, dehors their intrinsic worth or proven inter se merit and suitability, duly assessed by the competent authority. Preference, in the context of all such competitive scheme of selection would only mean that other things being qualitatively and quantitatively equal, those with the additional qualification have to be preferred. There is no question of eliminating all others preventing thereby even an effective and comparative consideration on merits, by according en bloc precedence in favour of those in possession of additional qualification irrespective of the respective merits and demerits of all candidates to be considered. If it is to be viewed the way the High Court and the Tribunal have chosen to, it would amount to first exhausting in the matter of selection all those, dehors their inter se merit performance, only those in possession of additional qualification and take only thereafter separately those with ordinary degree and who do not possess the additional qualification. ...."

In State of U.P. and Anr. v. Om Prakash and Ors., (AIR 1970 SC 679 after considering the earlier judgments on the issue, the Hon'ble Apex Court held that the word "preference" would mean that when the claims of all candidates who are eligible and who possess the requisite educational qualification prescribed in the advertisement are taken for consideration and when one or more of them are found equally positioned, then only the additional qualification may be taken as a tilting factor, in favour of candidates vis-a-vis others in the merit list prepared by the Commission. But "preference" does not mean en block preference irrespective of inter se merit and suitability.

CASE LAW ON JUDGMENT IN REM AND PERSONAM

Hon'ble Supreme Court in Director of Technical Education and Anr. v. Smt. K. Sitadevi AIR 1991 SC 308 wherein the Court has categorically held that the judgment and decree of a Civil Court was not binding on the Department for the reason that it was not a party to the Suit.
Surinder Kumar v. Gian Chand, AIR 1957 SC 875, wherein it was held that the judgment of a Probate Court granting probate of a will in favour of the petitioner is presumed to have been obtained in accordance with the procedure prescribed by law and it is a judgment in rem. Judgments in rem as already observed above, are judgments binding on the whole world."
Hon'ble the Supreme Court while placing reliance on its earlier judgment in the case of R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, AIR 1963 SC 1, went on to observe that the judgments in rem as per provisions of Section 41 of the Evidence Act would not exclude an inquiry as to whether the judgment has been pronounced by a Court of competent jurisdiction as contemplated by Section 13 of the Code or it was obtained by fraud or collusion. In that regard reliance has been placed on Section 44 of the Evidence Act, which laid down an overriding principle that if a judgment, order or decree which is relevant under Sections 40, 41 or 42, has been delivered by a Court not competent to deliver it or it was obtained by fraud or collusion then such judgment and decree is liable to be ignored. ………….. A foreign Court being incompetent to try a suit relating to immovable property not situate within its jurisdiction the grounds on which its decision relating to title to immovable property within its jurisdiction is founded will not debar investigation into title to other property within the jurisdiction of the municipal courts, even if the latter properties are alleged to be held on the same title. Every issue and every component of the issue relating to title to immovable property must be decided by the Court within whose jurisdiction it is situate: to recognise the authority of a foreign court to adjudicate upon even a component of that issue would be to recognize the authority of that Court to decide all the components thereof."
Case of Smt. Satya v. Teja Singh, (1975) 1 SCC 120, the judgment and decree of divorce passed by a Court in Nevada was completely disregarded by the Courts in India because the Courts of this country reached the conclusion that the decree was passed by the Court of in-competent jurisdiction, which cannot be accepted by the Courts in India. Hon'ble the Supreme Court observed that no country is bound by comity to give effect in its courts to divorce laws of another country which are repugnant to its own laws and public policy. The judgment and decree was also found to be delivered by a Court which has no jurisdiction and it was obtained fraudulently.
The aforementioned principles have been followed and applied by Hon'ble the Supreme Court in later judgments in the cases of Sankaran Govindan v. Lakshmi Bharathi, (1975) 3 SCC 351; R.S.A. No. 563 of 1980 17 Y. Narasimha Rao v. Y. Venkata Lakshmi, (1991) 3 SCC 451; and Rohini Damji Sidpra v. Freny Damji Sidpra, (2001) 10 SCC 588.
In Gurdit Singh and Ors. v. State of Punjab and Ors. , 1974 AIR 1791, 1974 SCR (3) 896 the Supreme Court explained as under: A judgment of a court is an affirmation, by the authorised societal agent of the State, speaking by the warrant of law and in the name of the State, of the legal consequences attending of proved or admitted state of facts. Its declaratory, determinative and adjudicatory function is its distinctive characteristic. Its recording gives an official certification to a pre-existing relation or establishes a new one on pre-existing grounds.
In State of Bihar and Ors. v. Sri Radha Krishna Singh and Ors., 1983 AIR 684, 1983 SCR (2) 808 the Hon'ble Supreme Court, while considering the scope of provisions of Sections 13 and 41 to 43 of the Act, to prove the admissibility of the earlier judgment, observed as under: It is also well settled that statements or declarations before persons of competent knowledge made ante litem motam are receivable to prove ancient rights of a public or general nature. ……….. The admissibility of such declarations is, however, considerably weakened if it pertains not to public rights but to purely private rights. It is equally well settled that declarations or statements made post litem motam would not be admissible because in cases or proceedings taken or declarations made ante litem motam, the element of bias and concoction is eliminated. Before, however, the statements of the nature mentioned above can be admissible as being ante litem motam they must not only be before the actual existence of any controversy, but should be made even before the commencement of legal proceedings. ……………. This position however cannot hold good of statements made post litem motam which would be clearly inadmissible in evidence. The reason for this rule seems to be that after a dispute has begun or a legal proceeding is about to commence, the possibility of bias, concoction or putting up false pleas cannot be ruled out.
(i) A judgment in rem e.g, judgments or orders passed in admirally, probate proceedings, etc, would always be admissible irrespective of whether they are inter partes or not;
(ii) judgment in personam not inter partes are not at all admissible in evidence except for the three purposes mentioned above.
(iii) on a parity of aforesaid reasoning, the recitals In a judgment like findings given in appreciation of evidence made or arguments or genealogies referred to in the judgment would be wholly in admissible in a case where neither the plaintiffs nor the defendants were parties.
(iv) The probative value of documents which, however ancient they may be, do not disclose sources of their information or have not achieved sufficient notoriety. is precious little.
(v) Statements, declarations or depositions, etc., would not be admissible if they are post litem motam

In Raje Anandrao v. Shamrao and Ors. , 1961 AIR 1206, 1961 SCR (3) 930 the Supreme Court held that suit under Section 92 of the Code is of public nature and unless the scheme of administration or modification thereof regarding administration of the temple not affecting the private rights of Pujaris who are not parties to the suit, is binding on them. Similar view has been reiterated in Ahmed Adam Sait and Ors. v. M.E. Makhri and Ors. AIR 1964 SC 107, observing that when a representative suit is brought and decree is passed in such a suit, law assumes that all persons, who have the same interest as the plaintiffs in the representative suit, were represented by the said plaintiffs and, therefore, are constructively barred, by the res-judicata, from re-agitating the matters directly or substantively in issue in the said suit. A similar rule follows if the suit is either filed or defended under Order 1 Rule 8 of the Code. In that case, persons either suing or defending an action, are doing so in a representative capacity and, so, the decree passed in such a suit binds all those whose interests were represented either by the plaintiffs or by the defendant.
In Surinder Kumar and Ors. v. Gyan Chand and Ors., AIR 1957 SC 875, the Hon'ble Supreme Court held that probate of the will operates as a judgment in rem, therefore, the, objection that the parties in any subsequent proceedings were not parties to it, is not sustainable because of the nature of the judgment.
In Smt. Satya v. Teja Singh, AIR 1975 SC 105, the Supreme Court observed as under :- "Section 41 of the Indian Evidence Act provides, to the extent material, that a final judgment of the Competent Court, in the exercise of matrimonial jurisdiction, is conclusive proof that a legal character, which it confers or takes away, accrued or ceased at the time declared in the judgment for that purpose. But, the judgment has to be of a Competent Court, i.e., a Court having jurisdiction over the parties and the subject matter. Even a judgment in rem is, therefore, open to attack on the ground that the Court, which gave it, had no jurisdiction to do so."

CASE LAW ON CORRECTION OF DATE OF BIRTH

(2003) 6 SCC 483 (State of U.P. v. Gulaichi), in paragraphs 8 and 9 the Supreme Court held as follows: "8. Normally, in public service, with entering into the service, even the date of exit, which is said as the date of superannuation or retirement, is also fixed. That is why the date of birth is recorded in the relevant register or service-book, relating to the individual concerned. This is the practice prevalent in all services, because every service has fixed the age of retirement, it is necessary to maintain the date of birth in the service records. But, of late a trend can be noticed, that many public servants, on the eve of their retirement raise a dispute about their records, by either invoking the jurisdiction of the High Court under Article 226 of the Constitution of India or by filing applications before the Administrative Tribunals concerned, or even filing suits for adjudication as to whether the dates of birth recorded were correct or not. 9. Most of the States have framed statutory rules or in absence thereof issued administrative instructions as to how a claim made by a public servant in respect of correction of his date of birth in the service record is to be dealt with and what procedure is to be followed. In many such rules a period has been prescribed within which if any public servant makes any grievance in respect of error in the recording of his date of birth, the application for that purpose can be entertained, the sole object of such rules being that any such claim regarding correction of the date of birth should not be made or entertained after decades, especially on the eve of superannuation of such public servant. ......."

The application submitted for correction of date of birth on the verge of retirement shall be summarily rejected is the view taken by the Supreme Court in the following decisions;
(i) (1994) 2 SCC 491 (State of Orissa v. Brahamarbar Senapathi)
(ii) (1996) 7 SCC 421 (Union of India v. Ram Suia Sharma)
(iii) (2000) 8 SCC 696 (G.M.,Bharat Coking Coal Ltd., v. Shib KUmar Dushad)
(iv) (2004) 3 SCC 394 (State of Punjab v. S.C.Chadha)
(v) (2005) 6 SCC 49 (State of U.P. v. Shiv Narain Upadhyaya)
(vi) (2005) 11 SCC 465 (U.P.Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri)
(vii) (2005) 11 SCC 477 (State of Uttaranchal v. Pitamber Dutt Semwal)
(viii) (2005) 12 SCC 201 (Coal India Ltd. v. Ardhendu Bikas Bhattacharjee)
(ix) (2006) 6 SCC 537 (State of Gujarat v. Vali Mohd. Dosabhai Sindhi)

Supreme Court in the decision reported in (2002) 7 SCC 719 (State of M.P. v. Mohanlal Sharma). the Hon'ble Supreme Court held that while examining the issue of correction of date of birth, the Court must be very slow in accepting the case of applicant if issue has been agitated at a much belated stage and it must examine the pros and cons involved in the case even if not raised by the parties. In the said case the Tribunal had allowed application for correcting the date of birth placing reliance on the Horoscope and a certificate issued by the retired Head Master of the School showing a different date of birth. The Apex Court reversed the said judgment observing that if it was allowed the applicant would have joined the service when he was less than 18 years of age, and therefore, accepting such an application would amount to sanctifying his illegal entrance in service. The Court further observed that no reliance could be placed upon the said certificate and Horoscope at all. In paragraph 2 the Supreme Court held as follows: "2. .............. The date of birth, as recorded in the matriculation examination, carries a greater evidential value than the evidential value attached to the certificate given by the retired headmaster showing the date of birth of the respondent. Such an evidence is not to be preferred when, admittedly, the date of birth of the respondent as recorded in the matriculation examination was 19-4-1935. The Tribunal erred in relying on the certificate issued by the retired headmaster as well as the horoscope furnished by the respondent."

Supreme Court reported in (2005) 3 SCC 702 (State of Punjab v. Mohinder Singh). The evidentiary value of the horescope and the entries made in the school records are considered and held as follows: “Horoscope is a very weak piece of material to prove age of a person. In most cases, the maker of it may not be available to prove that it was made immediately after the birth. A heavy onus lies on the person who wants to press it into service to prove its authenticity. In fact, a horoscope to be treated as evidence in terms of Section 32 clause (5) must be proved to have been made by a person having special means of knowledge as regards authenticity of a date, time, etc. mentioned therein. In that context horoscopes have been held to be inadmissible in proof of age. ………. On the contrary, the statement contained in the admission register of the school as to the age of an individual on information supplied to the school authorities by the father, guardian or a close relative is more authentic evidence under Section 32 clause (5) unless it is established by unimpeachable contrary material to show that it is inherently improbable. The time of ones birth relates to the commencement of ones relationship by blood and a statement therefore of ones age made by a person having special means of knowledge, relates to the existence of such relationship as that referred to in Section 32 clause (5). …………….. As observed by this Court in Umesh Chandra v. State of Rajasthan 1982 AIR 1057, 1982 SCR (3) 583 ordinarily oral evidence can hardly be useful to determine the correct age of a person, and the question, therefore, would largely depend on the documents and the nature of their authenticity. Oral evidence may have utility if no documentary evidence is forthcoming. Even the horoscope cannot be reliable because it can be prepared at any time to suit the needs of a particular situation. Entries in the school register and admission form regarding date of birth constitute good proof of age. There is no legal requirement that the public or other official book should be kept only by a public officer and all that is required under Section 35 of the Evidence Act is that it should be regularly kept in discharge of official duty. In the instant case the entries in the school register were made ante litem motam.”

State of T.N. vs. T.V. Venugopalan, (1994) 6 SCC 302, In this case, this Court held that the rule provided that an application for alteration of recorded date of birth would be entertained only if made within five years after entering the service. This Court held that an employee already in service at the time of enforcement of such rule should make the application for correction within five years from the date of enforcement of the rule, otherwise he would lose his right to make such an application and the Government servant would not be permitted to challenge the entry at the fag end of his service.

Executive Engineer, Bhadrak (R&B) Division, Orissa and Others vs. Rangadhar Mallik, 1993 Supp (1) SCC 763. In this case, this Court was considering Rule 65 of the Orissa General Finance Rules stipulating that representation for correction of date of birth made near about the time of superannuation shall not be admitted. This Court held that the representation for correcting the date of birth made by respondent 18 years after is not maintainable in law since the entry regarding date of birth made in the service record was on the basis of the horoscope produced by the employee himself and after obtaining his signature.

Government of Andhra Pradesh and Another vs. M. Hayagreev Sarma, (1990) 2 SCC 682. A.P. Public Employment (Recording and Alteration of Date of Birth) Rules, 1984 was under consideration in this case by this Court. The date of birth of the employee was recorded in the service book on the basis of school certificate at the time of entry into service. The employee's application for alteration in the date of birth so recorded was finally rejected prior to coming into force of the rules. A subsequent claim was made by the employee for alteration after commencement of the rules. This Court held that the subsequent claim for alteration after the commencement of the rules even on the basis of the extracts of entry contained in births and deaths register maintained under Births, Deaths and Marriages Registration Act, 1886 was not open.

Union of India vs. Harnam Singh, (1993) 2 SCC 162. the Hon'ble Supreme Court held that the Court must be very vigilant in placing reliance on a document or certificate of date of birth which had been brought into existence for the benefit of the pending proceedings as the correctness and genuineness of such a certificate is not free from doubt and the same might have been obrained for getting the relief by such an applicant. In this case, there was a delay of five years in seeking for alteration prescribed in Note 5 to FR 56(m) as substituted in 1979. This Court held that those already in service prior to 1979, for a period of more than five years, obliged to seek alteration within the maximum period of five years from the date of coming into force of amended note 5 in 1979. Alteration sought by the employee in 1991, 35 years after his induction into the service during which period he had several occasions to see the service book to raise any objection regarding his date of birth cannot be allowed in view of unexplained and inordinate delay.

Burn Standard Co. Ltd. and Others vs. Dinabandhu Majumdar and Another, AIR 1995 SC 1499. "Entertainment by High Courts of writ applications made by employees of the Government or its instrumentalities at the fag end of their services and when they are due for retirement from their services, is unwarranted. It would be so for the reason that no employee can claim a right to correction of birth date and entertainment of such writ applications for correction of dates of birth of some employees of Government or its instrumentalities will mar the chances of promotion of his juniors and prove to be an undue encouragement to the other employees to make similar applications at the fag end of their service careers with the sole object of preventing their retirements when due. Extraordinary nature of the jurisdiction vested in the High Courts under Article 226 of the Constitution is not meant to make employees of Government or its instrumentalities to continue in service beyond the period of their entitlement according to dates of birth accepted by their employers, placing reliance on the so-called newly found material. The fact that an employee of Government or its instrumentality who will be in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employers as correct, when all of a sudden comes forward towards the fag end of his service career with a writ application before the High Court seeking correction of his date of birth in his Service Record, the very conduct of non- raising of an objection in the matter by the employee, should be a sufficient reason for the High Court, not to entertain such applications on grounds of acquiescence, undue delay and laches. Moreover, discretionary jurisdiction of the High Court can never be said to have been reasonably and judicially exercised if it entertains such writ application, for no employee, who had grievance as to his date of birth in his 'service and Leave Record' could have genuinely waited till the fag end of his service career to get it corrected by availing of the extraordinary jurisdiction of a High Court."

In The Secretary & Commissioner Home Department & Ors. Vs. R. Kirubakaran, JT 1993 (5) SC 404, this Court held : "An application for correction of the date of birth by a public servant cannot be entertained at the fag end of his service. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose the promotion forever. According to us, this is an important aspect, which cannot be lost sight of by the Court or the Tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless clear case on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the Court or the Tribunal should not issue a direction, on the basis of materials which make such claim only plausible and before any such direction is issued, the Court must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within time fixed by any rule or order. The onus is on the applicant to prove about the wrong recording of his date of birth in his service book. .. As such whenever an application for alteration of the date of birth is made on the eve of superannuation or near about that time, the Court or the Tribunal concerned should be more cautious because of the growing tendency amongst a section of public servants, to raise such a dispute, without explaining as to why this question was not raised earlier. In the facts and circumstances of the case, it is not possible to uphold the finding recorded by the Tribunal."

CASE LAW ON JURISDICTION OF CIVIL COURT

Justice Dr. B. S. Chauhan of Allahabad High Court in the case of Rahmatullah And Ors. vs Civil Judge (Senior Division) 2004 (4) AWC 3768 Quoted series of case laws on Jurisdiction of civil court.

In Firm Seth Radha Kishan v. Administrator, Municipal Committee, Ludhiana, AIR 1963 SC 1547, the Hon'ble Apex Court held that in a case where Jurisdiction of civil court has expressly been barred, a suit should not be entertained even If it is impliedly barred under Section 9 of the Code, but a suit in the civil court will always lie to question the order of a Tribunal created by a Statute, even if its order is, expressly or by necessary implication, made final if the said Tribunal abused its power or does not act under the Act but in violation of Its provisions.


A Constitution Bench of the Hon'ble Supreme Court in Firm of Illury Subbayya Chetty and Sons v. State of Andhra Pradesh, AIR 1964 SC 322, placing reliance upon the judgments of the Privy Council in Secretary of State v. Mask and Co., AIR 1940 PC 105 and Raleigh Investment Co. Ltd. v. Governor General in Council, AIR 1947 PC 78, held as under : "...................there is a general presumption that there must be a remedy in the ordinary civil court to a citizen claiming that an amount had been recovered from him illegally and that such a remedy can be held to be barred only on very clear and unmistakable indication to the contrary. The exclusion of the jurisdiction of a civil court to entertain civil cause will not be assumed unless the relevant Statute contains an express provision to that effect or leads to a necessary and inevitable implication of that nature.............."

Constitution Bench of the Hon'ble Supreme Court in Ram Swarup and Ors. v. Shikar Chand and Anr., AIR 1966 SC 893, held that the jurisdiction of civil courts to deal with civil causes can be excluded by the Legislature by Special Act which may deal with special subject- matters, but the statutory provision must expressly provide for such exclusion or must necessarily and impliedly lead to that inference. However, the said bar would not be relevant if the plea raised before the civil court goes to the root of the matter and would, if upheld, lead to the conclusion that the impugned order is a nullity.


Constitution Bench of the Hon'ble Supreme Court in Dhulabhai and Anr. v. State of Madhya Pradesh and Anr., AIR 1969 SC 78, held that exclusion of jurisdiction of the civil court by express provision may not be a complete bar to entertain a suit if party satisfies the civil court that the Statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. More so, the Statutory Tribunal must be competent to provide all the remedies normally associated with the actions' in civil courts, which are prescribed by the said Statute or not. More so, the exclusion of jurisdiction of the civil court is not readily to be inferred unless the aforesaid conditions are fulfilled.


In Sardara Singh v. Sardara Singh. (1990) 4 SCC 90, the Hon'ble Supreme Court held that civil court's jurisdiction is available wherever action is taken without jurisdiction under any Statute.

In D.R. Chawla and Ors. v. Municipal Corporation of Delhi, (1993) 3 SCC 162, the Supreme Court held that where statutory enactments only create rights or liabilities without providing forums for remedies, any person having a grievance that he had been wronged or his right is being affected, can approach the ordinary civil court, but in case a Special Forum is provided for enforcement of such right or for protection or enforcement of a liability without any authority in law, the ouster of the civil court's Jurisdiction can be upheld on the finding that the rights and liabilities in question have been created by the Act without touching the existing Common Law rights and the remedy provided therein is adequate and complete. But where adequate redressal machinery is not provided under the Statutory Forum, the civil court can still examine the correctness of the order passed under the Statute.

In Pavitter Singh and Ors. v. Niranjan Lal Malhotra, JT 2001 (8) SC 641, the Apex Court held that Section 46 of the Administration of Evacuee Property Act, 1950 bars the jurisdiction of civil court in certain cases. The Court held that in such an eventuality, civil court cannot entertain and try a suit as its Jurisdiction has expressly been barred and the only remedy in such cases, if any person is aggrieved by the order passed under the Act in respect of those evicted, is to resort to writ jurisdiction of the Writ Court.


Hon'ble Supreme Court while dealing with the provisions of the Motor Vehicles Act, 1939 in Shri Chand v. Government of U. P. and Ors., AIR 1986 SC 242 and Anwar v. First Addl. District Judge, Bulandshahr and Ors., AIR 1986 SC 1785, observing that in most of the matters pertaining to the Motor Vehicles Act, the jurisdiction of the civil court is impliedly barred as the matter can be adjudicated upon by the State Transport Appellate Tribunal only.


In Sankarnarayanan Potti v. K. Sreedevi and Ors., (1998) 3 SCC 751, the Hon'ble Supreme Court observed as under : "It is obvious that in all types of civil disputes, civil courts have inherent jurisdiction as per Section 9 of the Code of Civil Procedure unless a part of that jurisdiction is carved out from such jurisdiction, expressly or by necessary implication, by any statutory provision and conferred on any other Tribunal or authority."
Similar view has been reiterated in Shri Panch Nagar Parakh, Mandsaur v. Purushottam Das, AIR 1999 SC 3071,
In P.A. Ahammed Ibrahim v. Food Corporation of India, AIR 1999 SC 3033, the Hon'ble Supreme Court held that the applications under the provisions of various Statutes cannot be treated as suits or claims unless such possibility is specifically provided for under those particular statutes.
In Bhanu Construction Co. (P.) Ltd. v. Andhra Bank, Hyderabad, AIR 2001 SC 477, the Hon'ble Supreme Court considered the provisions of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and held that after the commencement of provisions of the said Act came into force, the suit could not be instituted as conferring the jurisdiction upon the Tribunal under the Act would take away the jurisdiction of the civil court.
In Vannattankandy Ibrayi v. Kunhabduula Hajee, (2001) 1 SCC 564, the Hon'ble Supreme Court considered the provisions of the Kerala Building and Lease Control Act, 1965, which barred the jurisdiction of civil court for recovery of premises on various grounds by the landlord before the Authority prescribed under the Act and the Suit was not maintainable. The Court held that where the building stood washed off because of natural calamity, possession of the remaining land may be recovered before the civil court. The Court held that under such circumstances, civil court may have jurisdiction, but had the building been there, its jurisdiction was barred by Section 9 of the Code because it ceased to be a building and remained land and in such a situation, only civil court was competent to entertain and try the suit.
In Shri Ram and Anr. v. First Addl. District Judge and Ors., AIR 2001 SC 1250, the Apex Court held that in tenancy matters, generally revenue court has the jurisdiction, but in case a suit is filed for cancellation of a void document, Section 9 of the Code does not impliedly bar such a suit because the document has been obtained by fraud or impersonation as in such a case the mere declaration of title is required and the document, being void, is merely to be ignored for giving relief for declaration and possession.
In Ghulam Qadir v. Special Tribunal and Ors., (2002) 1 SCC 33, the Hon'ble Supreme Court held that in case the title is to be established, the remedy of civil court is available and in such case, Section 9 of the Code would not bar the civil suit and would ask the authority only to avail the remedy under the provisions of J and K State Evacuees (Administration of Property) Act, 1949.
In M/s. Pearlite Liners Pvt. Ltd. v. Manorma Sirsi, 2004 (1) AWC 764 (SC) the Apex Court held that as contract of service (Private) cannot be enforced in court, the suit for declaration/permanent injunction that termination was bad, would not be entertained.

A party is bound either by provisions of the Constitution, statutory provisions or any rule or under the terms of the contract which is not against the public policy. In case parties under their own agreement expressly agree that their dispute shall be tried by only one of several forums available to them then the party can only file the suit in that Court alone to which they had agreed vide Shriram City Union Finance Corporation Ltd. v. Rama Mishra, AIR 2002 SC 2402.

In : Abdul Waheed Khan v. Bhawani and Ors., AIR 1966 SC 1718, the Apex Court held that a statute ousting the jurisdiction of a civil court must be strictly construed. In fact, it is the pith and substance of the plaint which is to be seen to determine : whether the suit is maintainable in a civil court or before other competent authority, as the language might be used in such a way that It may oust the jurisdiction of a particular court. The form of action in relation to void document or instrument regarding agricultural land depends on the real cause of action with reference to the facts averred.

In Smt. Bismillah v. Janeshwar Prasad and Ors., AIR 1990 SC 540, the Hon'ble Supreme Court has observed as under: "It is true that the question of jurisdiction depends upon the allegations in the plaint and not the merits or the result of the suit. However, In order to determine the premise, the nature of action, the pleadings should be taken as a whole................The real point is not the stray or loose explanation which abound in inartistically drafted plaint but the real substance of the case is gathered by construing the pleadings as a whole."


In Azhar Hasan and Ors. v. District Judge. Saharanpur and Ors., AIR 1998 SC 2960, the Apex Court held that the rights of tenancy are determinable by the Revenue Authorities, in a case where the sale deed is being questioned on the basis of fraud, the executor of the sale deed must be necessarily impleaded and whether the matter can be decided by the revenue court or civil court, would depend upon the pleadings taken in the plaint and the relief sought in the suit.

In Ramaswamy v. M. Lobo, (2001) 10 SCC 176, the Hon'ble Apex Court rejected the contention that a suit in respect of the agricultural land, could be entertained only by the revenue court and not by the writ court on the ground that the use of the land stood changed as it was having the residential buildings.
In Shri Ram and Anr. v. Ist Additional District Judge and Ors., AIR 2001 SC 1250, while deciding a similar issue the Hon'ble Supreme Court held that suit by a recorded tenure holder in possession for cancellation of a sale deed being void would He before the civil court.
A seven Judges Bench of the Hon'ble Supreme Court in Kamla Mills Limited v. State of Bombay, AIR 1965 SC 1942, considered the issue as under what circumstances a suit of civil nature can be held to be barred by special statute. The Court held that for deciding the issue, the Court is to be very conscious about the words used in the statutory provisions on which the plea is rested, the scheme of the relevant provision, their object and purpose. The issue becomes more important when the bar is pleaded by necessary implication and it becomes pertinent to inquire as to whether remedy is normally associated with actions in civil courts are prescribed by the said institute or not.
In Dhruv Greenfield Limited v. Hukam Singh and Ors., AIR 2002 SC 2841, the Supreme Court held that for ousting the jurisdiction of the civil court the other statute should provide for an adequate and satisfactory alternative remedy to a party that may be aggrieved by the relevant order under its material provision.
In Sahebgouda (Dead) by L.Rs. and Ors. v. Ogeppa and Ors., AIR 2003 SC 2743, the Apex Court held that to prove that the civil court does not have jurisdiction, a very heavy onus lies on the party seeking ouster of civil court Jurisdiction as exclusion of jurisdiction is not to be easily inferred.

In Dwarka Prasad Agrawal v. Ramesh Chandra Agrawal and Ors., 2003 (3) SCCD 1210 : AIR 2003 SC 2696, the Hon'ble Supreme Court considered a case as to whether the jurisdiction of the civil court stood barred by the Companies Act. In that case, the owner of the Printing Press leased out the premises to a company of which he himself had been one of the members. Another member of the Company wanted to dispossess the lessor of the Printing Press. In such circumstances eviction suit filed by the lessor against the said other member of the Company was held to be maintainable in view of the provisions of Section 6 of the Specific Relief Act, 1963 in spite of the fact that the provisions of Sections 9 and 10 of the Companies Act, 1956 barred the jurisdiction of the civil court. The Court held that in such an eventuality the statutory provisions ousting the Jurisdiction of a civil court requires very strict interpretation.


Chhedi Lal Gupta and Ors. v. Mohammad Sattar, AIR 1963 SC 448. That was a case where a suit under Section 73 of the Trade Marks Act had been filed in the civil court and the objection had been filed regarding jurisdiction, which was dismissed by the civil court. However, in writ petition the High Court issued the writ of prohibition to the learned civil court not to proceed with the trial of the suit and issued further direction to return the plaint under Order VII Rule 10, C.P.C. to enable the plaintiff to file the same in a Court/Authority of having the jurisdiction in the matter.
In Auto Engineering Works v. Bansal Trading Company and Ors., (2001) 10 SCC 630, the Hon'ble Supreme Court held that once the civil court comes to the conclusion after having heard on the issue of jurisdiction, that it does not have the jurisdiction to entertain the suit, the Court must return the plaint to present the same before the Court of competent jurisdiction.
In S. Govinda Menon v. Union of India and Ors., AIR 1967 SC 1274, the Hon'ble Supreme Court held that there is no prohibition for the writ court to issue the writ of prohibition to the inferior court, if it assumes a jurisdiction which it does not possess or this is to prevent It from exceeding the limits of its Jurisdiction, the purpose of issuing such a writ is to keep the inferior Court/Tribunal within their bounds of limited jurisdiction. Writ may also be issued in case of departure from the principles of natural justice.
In M/s. East India Commercial Co. Ltd., Calcutta and Anr. v. Collector of Customs, Calcutta, AIR 1962 SC 1893, the notice issued by the statutory authority had been challenged being without jurisdiction. In the instant case, it does not involve the similar feature, hence none of the judgments relied upon by the learned counsel for the petitioner has any application in the instant case.

The Hon'ble Supreme Court in Thirurnala Tirupati Devasthanams and Anr. v. Thallappaka Ananthacharyulu and Ors., AIR 2003 SC 3209, considered the issue at length and also had taken into consideration the earlier judgments, particularly, in G. Veerappa Pillai v. Raman and Raman Ltd., AIR 1952 SC 192 ; T.C. Basappa v. T. Nagappa, AIR 1954 SC 440 ; Hari Vishnu Kamath v. Syed Ahmad Ishaque, AIR 1955 SC 233 ; Nanduri Yogananda Lakshminarasimhachari v. Sri Agastheswaraswamvaru, AIR 1960 SC 622 ; Ujjam Bai v. State of U. P., AIR 1962 SC 1621 ;Gulabchand Chhotalal Parikh v. State of Gujarat, AIR 1965 SC 1153 and Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, and summarised the law as under : "On the basis of the authorities it is clear that the Supreme Court and the High Courts have power to issue writs, including a writ of prohibition. A writ of prohibition is normally issued only when the inferior court or Tribunal (a) proceeds to act without or in excess of jurisdiction ; (b) proceeds to act in violation of the rules of natural justice ; (c) proceeds to act under law which is itself ultra vires or unconstitutional, or (d) proceeds to act. in contravention of fundamental rights. The principles, which govern the exercise of such power, must be strictly observed. A writ of prohibition must be issued only in rarest of rare cases. Judicial discipline of the highest order has to be exercised whilst issuing such writs. It must be remembered that the writ jurisdiction is original Jurisdiction distinct from appellate Jurisdiction. An appeal cannot be allowed to be disguised in the form of a writ. In other words, this power cannot be allowed to be used "as a cloak of an appeal in disguise". Lax use of such a power would impair the dignity and integrity of the subordinate court and could also lead to chaotic consequences. It would undermine the confidence of the subordinate court. It was not even argued that there was total lack of jurisdiction in the civil court. It could not be dented that the civil court, before which the suit was pending, had powers to decide on the maintainability of the suit and to decide on questions of its jurisdiction. The civil court had jurisdiction to decide whether the suit was barred by Section 14 of the said Act or on the principles of res Judicata/estoppel. Thus unless there was some very cogent or strong reason the High Court should not have prevented the Court of competent Jurisdiction from deciding these questions. In other words, the High Court should not usurp the jurisdiction of the civil court to decide these questions."

CASE LAW ON GIFT DEED

GIFT DEED AND ITS LEGAL EFFECTS

In the case of Pankajakshy Amma v. Chandramathy Amma reported in (2001) 1 Kerala Law Journal 438, the Kerala High Court has dealt with the issue as to what constitute a valid transfer as gift. The Court has observed that "Section 123 of the Transfer of Property Act deals with the manner of execution of gift deed. If the purpose is for making a gift of immovable property, the transfer must be effected by a registered instrument signed by on or behalf of the donor and attested by atleast two witnesses. By a reading of Section 122 and 123, it can be seen that in order to execute a valid gift, the following elements are to be proved:-
(i) It must be a voluntary transfer.
(ii) The gift must be accepted by the donee during the lifetime of donor.
(iii) The gift must be effected by a registered document. It must be attested by two attestors.
If all the elements are fulfilled, there will be a valid gift, if not, it will have no legal consequence."


As per the commentary of Sanjiva Row on Transfer of Property Act 6th Edition - page 126 para 13), "mutation or change of name in the revenue records does not itself operate as a transfer. It is only evidence of transfer".



OWNERSHIP CAN BE GIFTED WITHOUT ITS POSSESSION AND RIGHT OF ENJOYMENT
K. Balakrishnan v. K.Kamalam (AIR 2004 SC 1257) It was open to the donor to transfer by gift title and ownership in the property and at the same time reserve its possession and enjoyment to herself during her lifetime. There is no prohibition in law that ownership in property cannot be gifted without its possession and right of enjoyment. Under Section 6 of the Transfer of Property Act "property of any kind may be transferred" except those mentioned in clauses (a) to (i). Section 6 in relevant part reads thus :-
"6. What may be transferred.- Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force,-
(a) ..............
(b) A mere right to re-entry for breach of a condition subsequent cannot be transferred to any one except the owner of the property affected thereby.
(c) ...........
(d) All interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.
(e) A mere right to sue [***] cannot be transferred.

CANCELLATION OF GIFT DEED IS ONLY BY WAY OF SUIT

In Narayanamma and Anr.v. Papanna, 1988 (1 ) Kar. LJ. 80 : ILR 1987 Kar. 3892, it was held that cancellation of gift deed by 3rd defendant by another registered deed was not legal and valid as per the aforesaid decision, the remedy was to file a suit seeking cancellation of the gift deed.


ACCEPTANCE OF GIFT

The Supreme Court in K.Balakrishnan v. Kamalam [AIR 2004 SC 1257] held that when the gift is in favour of a minor created by the mother, natural guardian and she retained possession and the right of enjoyment, ownership of property by minor can be presumed by silent acceptance.


SUIT FOR CANCELLATION OF INSTRUMENT BY A PERSON WHO DID NOT EXECUTE THE DOCUMENT WOULD NOT LIE

A Full Bench of Madras High Court in Muppudathi v. Krishnaswami AIR 1960 Madras 1 (F.B.) when the instrument/document is not executed by the plaintiff, the same does not create a cloud upon the title of the true owner nor does it create apprehension that it may be a source of danger. Accordingly, a suit for cancellation of instrument by a person who did not execute the document would not lie. However, there could be cases where instruments are executed or purported to be executed by a party or by any person who can bind him in certain circumstances. As pointed out by the Madras High Court, these are : a party executing the document or principal in respect of a document executed by his agent, or a minor in respect of document executed by his guardian de jure or de facto, the reversioner in respect of a document executed by the holder of the anterior limited estate, a real owner in respect of a document executed by a benamidar. In these cases, though the party may not have executed document, if those are allowed to stand, it may become a potential source of mischief and danger to the title and a suit would, therefore, be maintainable for cancellation of such document. When the document itself is not executed by the plaintiff, there is no necessity to have the document cancelled by a Court decree, for it has no effect on the title of true owner.

APPEAL BEING A CONTINUATION OF THE SUIT

In Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, the Supreme Court ruled". It is a fixed principle of law that a suit must be tried on the original cause of action and this principle governs not only the trial of the suits but also appeals. The appeal being a continuation of the suit new pleas are not considered."


Hon'ble Supreme Court in the case of Gurdev Kaur and Ors. v. Kaki and Ors. 2006 AIR SCW 2404. The duty of the Court would only be to test the authenticity of the WILL in terms of Section 63 of Indian Succession Act. Any and every circumstance is not a suspicious circumstance. A circumstance would be suspicious when it is not normal or is not. normally expected in a normal situation or is not expected of a normal person. A WILL is normally executed to interrupt the normal succession so that the testator would prefer some and exclude others and as such it cannot be said that. it. is unnatural or suspicious. Therefore, the authenticity of the document would have to be considered.

GIFT UNDER MUSLIM LAW
Transfer of Property Act are not applicable in the case of a gift in Muslim Law. In Muslim Law there can be an oral gift also. There are five types of gifts as per Muslim personal law, they are:
(i) Hiba
(ii) Ariat
(iii) Sadaqa
(iv) Hiba-bil.iwaz
(v) Hiba-ba-sharat-ul-iwaz.

As far as the Muslim gift is concerned, conditions necessary for a valid disposition is;
(i) majority
(ii) understanding
(iii) freedom
(iv) ownership of subject matter of disposition.


Hiba is a bilateral transaction, which takes effect when the donor declares the Hiba and the donee signifies his or her acceptance of the same. The ingredients to constitute Hiba are as follows: (i) disposition must be gratuitous.
(ii) it must effect mere transfer of the corpus of a property by one person to another.
(iii) Transfer should be unconditional. (iv) The property transferred must be in existence and should be specified.


The three essential conditions to constitute the gift are
(i) declaration of gift by the donor (Igde)
(ii) acceptance of the gift, express or implied, by or on behalf of the donee (Quabul)
(iii) delivery of the subject matter of the gift by the donor to the donee (Quada).


Hiba is an immediate and unconditional transfer of the corpus of the property without any return. Every Muslim, who has attained majority and has a sound mind can make a gift. The gift is complete not on the declaration of the date of acceptance, but on the date on which possession is delivered. It is also essential that for validity of a gift the donor should divest himself completely of all ownership and domain over the subject of gift. What is essential is that there should be a gift of the corpus. If the donor reserves to himself the right to be in possession of the corpus and the right to enjoy the same, there cannot be a valid gift as per the Muslim Law. But reservation of life interest and right of residence stand on a different footing.

Katheessa Umma v. Narayanath Kunhambu (AIR 1964 SC 275) "Where a husband, a Hanafi, makes a gift of properties, including immovable property, by a registered deed, to his minor wife who had attained puberty and discretion, and the gift is accepted on her behalf by her mother in whose house the husband and wife were residing, when the minor's father and father's father are not alive and there is no executor of the one or the other, such a gift must be accepted as valid and complete although the deed is handed over to the minor's mother and possession of the property is not given to a guardian specially appointed for the purpose by the civil Court. There can be no question that there was a complete intention to divest ownership, on the part of the husband of the donor, and to transfer the property to the donee. If the husband had handed over the deed to his wife, the gift would have been complete under Muhammadan law and it is impossible to hold that by handing over the deed to his mother- in-law, in whose charge his wife was, the husband did not complete the gift."

The Muslim Personal Law (Shariat) Application Act (26 of 1937) came into existence on 07.10.1937. The clear prescription of the said Act is that in a case of gift involving a donor and donee being Muslims, the law applicable to them shall be the Muslim Personal Law (Shariat). Section 2 of the said Act is extracted herein for better appreciation: "2.Application of Personal Law to Muslims.- Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religion endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).
Going by the Muslim personal law the natural guardians are father, grand father, executor appointed by the father or executor appointed by the grand father. Mother was never considered to be the natural guardian except in case of girl child till certain age.

There cannot be any quarrel about the principle of Mahommedan Law that a gift to a person not yet in existence is void.
Even under paragraph 141 of Mulla's Mahomedan Law it is observed that a gift does not fail in its entirity if it is made in favour of living persons and also in favour of unborn persons and that it would be void only to the extent to which interest is created in favour of unborn persons. The Muslim law does not recognise a gift in favour of an unborn person through the medium of trust. (Vide paragraph 151 of Mulla's Mahomedan Law) . Under the general law governed by the provisions of the T.P.Act , however, gifts to unborn persons through the medium of trust is recognised.
The normal rule of Mahomedan Law is that a gift can be revoked at any time before delivery of possession, subject, of course, to certain exceptions where a gift can be revoked even after delivery of possession. But where the donee is related to the donor within the prohibited degrees, the aforesaid exception does not apply.

GIFT IN FAVOUR OF UNBORN PERSON UNDER HINDU LAW
In F.M. Devaru Ganapati Bhat v. Prabhakar Ganapati Bhat - AIR 2004 SC 2665 - It was held that where a gift was made by a woman in favour of her brother's son then living with a stipulation that if other male children were later born to her brother they shall also be joint holders with the donee who was living at the time of gift, the stipulation would not be hit by Sec. 13 of T.P. Act but would be permissible and valid in view of Sec. 20 of T.P. Act.



GIFT IS WITHOUT CONSIDERATION
In Smt. SHAKUNTALA v. STATE OF HARYANA, AIR 1979 SC 843, their Lordships of the Supreme Court's observations as under: "It is therefore one of the essential requirements of a gift that it should be made by the donor 'without consideration'. The word 'consideration' has not been defined in the Transfer of Property Act, but we have no doubt that it has been used in that Act in the same sense as in the Indian Contract Act and excludes natural love and affection. If it were to be otherwise, a transfer would really amount to a sale within the meaning of Section 54 of the Transfer of Property Act, or to an exchange within the meaning of Section 118 for each party will have the rights and be subject to the liabilities of a seller as to what he gives and have the rights and be subject to the liabilities of a buyer as to that which he takes."

ONCE A GIFT IS COMPLETE, THE SAME CANNOT BE RESCINDED
Judgment reported in (2007)13 SCC 210, in the case of Asokan vs. Lakshmikutty and others, when a registered document was executed and the parties are close relatives, a presumption of the correctness of the averments in the document has to be taken and the onus of proof would lie not on the donee but on the donor and it was the donor to prove that the document was not acted upon. ……. ...It is, however, beyond any doubt or dispute that in order to constitute a valid gift acceptance thereof is essential. The Transfer of Property Act does not prescribe any particular mode of acceptance. It is the circumstances attending to the transaction which may be relevant for determining the question. There may be various means to prove acceptance of a gift. The document may be handed over to a donee, which in a given situation may also amount to a valid acceptance. The fact that possession had been given to the donee also raises a presumption of acceptance. ..In the present case it is not a case that the appellant was not aware of the recitals contained in deeds of gift which recite the factum of handling over of possession of the properties which were the subject-matter of the gift. The very fact that the defendant donors contend that the donee was to perform certain obligations in lieu of the gift is itself indicative of the fact that the parties were aware thereabout. Even a silence may sometimes indicate acceptance. It is not necessary to prove any overt act in respect thereof as an express acceptance is not necessary for completing the transaction of gift. ...Once a gift is complete, the same cannot be rescinded. For any reason whatsoever, the subsequent conduct of a donee cannot be a ground for rescission of a valid gift. The said deeds of gift were executed out of love an affection as well as on the ground that the donee is the son and successor of the denor and so as to enable him to live a good family life. The donors cannot later turn round and say that he was to fulfil a promise. It is one thing to say that the execution of the deed is based on a aspiration or belief, but it is another thing to say that the same constituted an onerous gift. What, however, was necessary is to prove undue influence so as to bring the case within the purview of Section 16 of the Contract Act. It was not done. ...It has been submitted by the donors that it would be open to them to prove that in fact no possession had been handed over. This case is concerned with the construction of recitals made in a registered document. When a registered document is executed and the executors are aware of the terms and nature of the document, a presumption arises in regard to the correctness thereof. When such a presumption is raised coupled with the recitals in regard to putting the donee in possession of the property, the onus is on the donor and not on the done.

SPEEDY JUSTICE IS A HUMAN RIGHT – BOTH LEGAL AND NATURAL RIGHT

JUSTICE K.S. Radhakrishnan, JUSTICE Dipak Misra of Supreme Court of India in the case of Noor Mohammed vs Jetha Nand & Anr Decided on 29 January, 2013 Observed “The anguish expressed in the past and the role ascribed to the Judges, lawyers and the litigants is a matter of perpetual concern and the same has to be reflected upon every moment. An attitude of indifference can neither be appreciated nor tolerated. Therefore, the serviceability of the institution gains significance. That is the command of the Majesty of Law and none should make any maladroit effort to create a concavity in the same. Procrastination, whether at the individual or institutional level, is a systemic disorder. Its corrosive effect and impact is like a disorderly state of the physical frame of a man suffering from an incurable and fast progressive malignancy. Delay either by the functionaries of the court or the members of the Bar significantly exhibits indolence and one can aphoristically say, borrowing a line from Southwell “Creeping snails have the weakest force”. ……………… In a democratic set up, intrinsic and embedded faith in the adjudicatory system is of seminal and pivotal concern. Delay gradually declines the citizenry faith in the system. It is the faith and faith alone that keeps the system alive. It provides oxygen constantly. Fragmentation of faith has the effect-potentiality to bring in a state of cataclysm where justice may become a casuality. A litigant expects a reasoned verdict from a temperate Judge but does not intend to and, rightly so, to guillotine much of time at the altar of reasons. Timely delivery of justice keeps the faith ingrained and establishes the sustained stability. Access to speedy justice is regarded as a human right which is deeply rooted in the foundational concept of democracy and such a right is not only the creation of law but also a natural right. This right can be fully ripened by the requisite commitment of all concerned with the system. It cannot be regarded as a facet of Utopianism because such a thought is likely to make the right a mirage losing the centrality of purpose. Therefore, whoever has a role to play in the justice dispensation system cannot be allowed to remotely conceive of a casual approach……………… Thus, from the aforesaid, it is clear as day that everyone involved in the system of dispensation of justice has to inspire the confidence of the common man in the effectiveness of the judicial system. Sustenance of faith has to be treated as spinal sans sympathy or indulgence. If someone considers the task to be herculean, the same has to be performed with solemnity, for faith is the ‘elan vital’ of our system. ………………………. It is the duty of the counsel as the officer of the court to assist the court in a properly prepared manner and not to seek unnecessary adjournments. Getting an adjournment is neither an art nor science. It has never been appreciated by the courts. All who are involved in the justice dispensation system, which includes the Judges, the lawyers, the judicial officers who work in courts, the law officers of the State, the Registry and the litigants, have to show dedicated diligence so that a controversy is put to rest. Shifting the blame is not the cure. Acceptance of responsibility and dealing with it like a captain in the frontier is the necessity of the time. It is worthy to state that diligence brings satisfaction. There has to be strong resolve in the mind to carry out the responsibility with devotion. A time has come when all concerned are required to abandon idleness and arouse oneself and see to it that the syndrome of delay does not erode the concept of dispensation of expeditious justice which is the constitutional command. Sagacious acceptance of the deviation and necessitous steps taken for the redressal of the same would be a bright lamp which would gradually become a laser beam. This is the expectation of the collective, and the said expectation has to become a reality. Expectations are not to remain at the stage of hope. They have to be metamorphosed to actuality.

QUOTED CITATIONS
Ramdeo Chauhan Alias Raj Nath v. State of Assam (2001) 5 SCC 714 “22. ... The judicial system cannot be allowed to be taken to ransom by having resort to imaginative and concocted grounds by taking advantage of loose sentences appearing in the evidence of some of the witnesses, particularly at the stage of special leave petition. The law insists on finality of judgments and is more concerned with the strengthening of the judicial system. The courts are enjoined upon to perform their duties with the object of strengthening the confidence of the common man in the institution entrusted with the administration of justice. Any effort which weakens the system and shakens the faith of the common man in the justice dispensation system has to be discouraged.”

In Zahira Habibulla H. Sheikh and another v. State of Gujarat and others, (2004) 4 SCC 158 emphasizing on the duty of Court to maintain public confidence in the administration of justice, this Court has poignantly held as follows: - “35. ...Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice – often referred to as the duty to vindicate and uphold the “majesty of the law”. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it.”

A three-Judge Bench in Kailash v. Nanhku and others, (2005) 4 SCC 480 while dealing with the issue whether Order 8 Rule 1 of Code of Civil Procedure is mandatory or directory, referred to the observations in Sushil Kumar Sen v. State of Bihar (1975) 1 SCC 774 which we may profitably reproduce: - “The mortality of justice at the hands of law troubles a judge's conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. … Justice is the goal of jurisprudence — processual, as much as substantive.” The Bench further referred to the pronouncement in State of Punjab v. Shamlal Murari (1976) 1 SCC 719 to emphasise the approach relating to the process of adjective law. It has been stated in the said case: - “Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.”

We may note with profit that the Court had further opined that the procedure is directory but emphasis was laid on the concept of desirability and for the aforesaid purpose, reference was made to Topline Shoes Ltd. v. Corpn. Bank (2002) 6 SCC 33. Analysing the purpose behind it, the three-Judge-Bench, referring to Topline Shoes Ltd. (supra), observed thus: - “36. The Court further held that the provision is more by way of procedure to achieve the object of speedy disposal of such disputes. The strong terms in which the provision is couched are an expression of “desirability” but do not create any kind of substantive right in favour of the complainant by reason of delay so as to debar the respondent from placing his version in defence in any circumstances whatsoever.”

In Shiv Cotex v. Tirgun Auto Plast Private Limited and others (2011) 9 SCC 678 Court was dealing with a judgment passed by the High Court in a second appeal wherein the High Court had not formulated any substantial question of law and further allowed the second appeal preferred by the plaintiff solely on the ground that the stakes were high and the plaintiff should have been non-suited on the basis of no evidence. This Court took note of the fact that after issues were framed and the matter was fixed for production of the evidence of the plaintiff on three occasions, the plaintiff chose not to adduce the evidence. The question posed by the Court was to the following effect: - “Is the court obliged to give adjournment after adjournment merely because the stakes are high in the dispute? Should the court be silent spectator and leave control of the case to a party to the case who has decided not to take the case forward?”
Thereafter, the Court proceeded to answer thus: - “15. It is sad, but true, that the litigants seek - and the courts grant - adjournments at the drop of the hat. In the cases where the Judges are little proactive and refuse to accede to the requests of unnecessary adjournments, the litigants deploy all sorts of methods in protracting the litigation. It is not surprising that civil disputes drag on and on. The misplaced sympathy and indulgence by the appellate and revisional courts compound the malady further. The case in hand is a case of such misplaced sympathy. It is high time that courts become sensitive to delays in justice delivery system and realise that adjournments do dent the efficacy of the judicial process and if this menace is not controlled adequately, the litigant public may lose faith in the system sooner than later. The courts, particularly trial courts, must ensure that on every date of hearing, effective progress takes place in the suit. 16. No litigant has a right to abuse the procedure provided in CPC. Adjournments have grown like cancer corroding the entire body of justice delivery system.” After so stating, the Bench observed as follows: - “A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit — whether the plaintiff or the defendant — must cooperate with the court in ensuring the effective work on the date of hearing for which the matter has been fixed. If they don’t, they do so at their own peril.”


In Ramon Services Pvt. Ltd. v. Subhash Kapoor and others, AIR 2001 SC 207 after referring to a passage from Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd., AIR 1999 SC 287 the Court cautioned thus: - “Nonetheless we put the profession to notice that in future the advocate would also be answerable for the consequence suffered by the party if the non-appearance was solely on the ground of a strike call. It is unjust and inequitable to cause the party alone to suffer for the self imposed dereliction of his advocate. We may further add that the litigant who suffers entirely on account of his advocate’s non-appearance in Court, he has also the remedy to sue the advocate for damages but that remedy would remain unaffected by the course adopted in this case. Even so, in situations like this, when the Court mulcts the party with costs for the failure of his advocate to appear, we make it clear that the same Court has power to permit the party to realize the costs from the advocate concerned. However, such direction can be passed only after affording an opportunity to the advocate. If he has any justifiable cause the Court can certainly absolve him from such a liability.”

Pandurang Dattatraya Khandekar v. Bar Council of Maharashtra, Bombay and others, (1984) 2 SCC 556 wherein the Court observed that an advocate stands in a loco parentis towards the litigants and it, therefore, follows that the client is entitled to receive disinterested, sincere and honest treatment especially where the client approaches the advocates for succour in times of need.


In Lt. Col. S.J. Chaudhary v. State (Delhi Administration), AIR 1984 SC 618 a three- Judge Bench, while dealing with the role of an advocate in a criminal trial, has observed as follows: - “We are unable to appreciate the difficulty said to be experienced by the petitioner. It is stated that his Advocate is finding it difficult to attend the court from day-to-day. It is the duty of every Advocate, who accepts the brief in a criminal case to attend the trial from day-to-day. We cannot over-stress the duty of the Advocate to attend to the trial from day-to-day. Having accepted the brief, he will be committing a breach of his professional duty, if he so fails to attend.”


Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd., AIR 1999 SC 287 “A lawyer is under obligation to do nothing that shall detract from the dignity of the Court of which he is himself a sworn officer and assistant. He should at all times pay deferential respect to the judge, and scrupulously observe the decorum of the Court room. Of course, it is not a unilateral affair. There is a reciprocal duty for the Court also to be courteous to the members of the Bar and to make every endeavour for maintaining and protecting the respect which members of the Bar are entitled to have from their clients as well as from the litigant public. Both the Bench and the Bar are the two inextricable wings of the judicial forum and therefore the aforesaid mutual respect is sine qua non for the efficient functioning of the solemn work carried on in Courts of law. But that does not mean that any advocate or group of them can boycott the courts or any particular Court and ask the Court to desist from discharging judicial function. At any rate, no advocate can ask the Court to avoid a case on the ground that he does not want to appear in that Court.”

While recapitulating the duties of a lawyer towards the Court and the society, being a member of the legal profession, this Court in O.P. Sharma and others v. High Court of Punjab and Haryana (2011) 6 SCC 86 has observed that the role and status of lawyers at the beginning of sovereign and democratic India is accounted as extremely vital in deciding that the nation’s administration was to be governed by the Rule of Law. The Bench emphasized on the role of eminent lawyers in the framing of the Constitution. Emphasis was also laid on the concept that lawyers are the Officers of the Court in the administration of justice.

In R.K. Garg, Advocate v. State of Himachal Pradesh, (1981) 3 SCC 166 Chandrachud, C.J., speaking for the Court pertaining to the relationship between the Bench and the Bar, opined thus: “....the Bar and the Bench are an integral part of the same mechanism which administers justice to the people. Many members of the Bench are drawn from the Bar and their past association is a source of inspiration and pride to them. It ought to be a matter of equal pride to the Bar. It is unquestionably true that courtesy breeds courtesy and just as charity has to begin at home, courtesy must begin with the Judge. A discourteous Judge is like an ill-tuned instrument in the setting of a court room. But members of the Bar will do well to remember that such flagrant violations of professional ethics and cultured conduct will only result in the ultimate destruction of a system without which no democracy can survive.”

Krishna Iyer, J. had stated thus: - “Our justice system, even in grave cases, suffers from slow motion syndrome which is lethal to “fair trial”, whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings.”

In criminal jurisprudence, speedy trial has become an indivisible component of Article 21 of the Constitution and it has been held by this Court that it is the constitutional obligation on the part of the State to provide the infrastructure for speedy trial (see Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360 Hussainara Khatoon (IV) and others v. Home Secretary, State of Bihar, Patna (1980) 1 SCC 98).

In Diwan Naubat Rai and others v. State through Delhi Administration, AIR 1989 SC 542 it has been opined that right to speedy trial encompasses all stages of trial, namely, investigation, enquiry, trial, appeal and revision.

In Surinder Singh v. State of Punjab, (2005) 7 SCC 387 it has been reiterated that speedy trial is implicit in the broad sweep and content of Article 21 of the Constitution of India. Thus, it has been put at the zenith and that makes the responsibility of everyone Everestine which has to be performed with Olympian calmness.


SPEEDY JUSTICE IS A HUMAN RIGHT – BOTH LEGAL AND NATURAL RIGHT 2013 SC by

INSTEAD OF RE-INSTATEMENT WITH BACK WAGES – COMPENSATION IS ADEQUATE RELIEF FOR WRONG FULL DISMISSAL.

JUSTICE R.M. Lodha, and JUSTICE Sudhansu Jyoti Mukhopadhaya of Supreme Court of India in the case of Asst.Engineer,Rajasthan ... vs Gitam Singh Decided on 31 January, 2013 by quoting following citations has observed that ‘In view of the legal position and the fact that the workmen were engaged as “daily wagers” and they had merely worked for more than 240 days, in our considered view, relief of reinstatement cannot be said to be justified and instead, monetary compensation would meet the ends of justice.’

QUOTED CITATIONS
Court in Assam Oil Company Limited, New Delhi v. Its Workmen AIR 1960 SC 1264 observed that the normal rule in cases of wrongful dismissal was reinstatement but there could be cases where it would not be expedient to follow this normal rule and to direct reinstatement. Having regard to the facts of that case, this Court set aside the order of reinstatement although dismissal of the employee was found to be wrongful and awarded compensation.
In M/s. Hindustan Steels Ltd., Rourkela v. A.K. Roy and Others , (1969) 3 SCC 513 Court noted that there have been cases where reinstatement has not been considered as either desirable or expedient.
In M/s. Ruby General Insurance Co. Ltd. v. Shri P.P. Chopra, (1969) 3 SCC 653 Court reiterated what was stated in Assam Oil Company Limited9. In paragraph 6 (pgs. 655-656) of the Report, this Court said : “6. The normal rule is that in cases of invalid orders of dismissal industrial adjudication would direct reinstatement of a dismissed employee. Nevertheless, there would be cases where it would not be expedient to adopt such a course. Where, for instance, the office of the employer was comparatively a small one and the dismissed employee held the position of the secretary, a position of confidence and trust, and the employer had lost confidence in the concerned employee, reinstatement was held to be not fair to either party……………”
Court in The Management of Panitole Tea Estate v. The Workmen, (1971) 1 SCC 742 while dealing with the judicial discretion of the Labour Court or the Tribunal under ID Act in directing appropriate relief on setting aside the wrongful dismissal of a workman, stated in paragraph 5 (pgs. 746- 747) as follows: “…. The question whether on setting aside the wrongful dismissal of a workman he should be reinstated or directed to be paid compensation is a matter within the judicial discretion of the Labour Court or the Tribunal, dealing with the industrial dispute, the general rule in the absence of any special circumstances being of reinstatement. In exercising this discretion, fairplay towards the employee on the one hand and interest of the employer, including considerations of discipline in the establishment, on the other, require to be duly safeguarded. This is necessary in the interest both of security of tenure of the employee and of smooth and harmonious working of the establishment. Legitimate interests of both of them have to be kept in view if the order is expected to promote the desired objective of industrial peace and maximum possible production. The past record of the employer, the nature of the alleged conduct for which action was taken against him, the grounds on which the order of the employer is set aside, the nature of the duties performed by the employee concerned and the nature of the industrial establishment are some of the broad relevant factors which require to be taken into consideration. The factors just stated are merely illustrative and it is not possible to exhaustively enumerate them. Each case has to be decided on its own facts and no hard and fast rule can be laid down to cover generally all conceivable contingencies……”
In M/s. Tulsidas Paul v.The Second Labour Court, W.B. and Others, (1972) 4 SCC 205 this Court relied upon M/s. Hindustan Steels Ltd.10 and held as under: “9. In Hindustan Steels Ltd. v. Roy [(1969) 3 SCC 513] we recently held, after considering the previous case-law, that though the normal rule, in cases where dismissal or removal from service is found to be unjustified, is reinstatement, Industrial Tribunals have the discretion to award compensation in unusual or exceptional circumstances where the tribunal considers, on consideration of the conflicting claims of the employer on the one hand and of the workmen on the other, reinstatement inexpedient or not desirable. We also held that no hard and fast rule as to which circumstances would constitute an exception to the general rule can be laid down as the tribunal in each case must, in a spirit of fairness and justice and in keeping with the objectives of industrial adjudication, decide whether it should, in the interest of justice, depart from the general rule.”
10. In L. Robert D’Souza (1982) 1 SCC 645, Court in paragraph 27 (pg. 664) held as under : “27. ……….Therefore, assuming that he was a daily-rated worker, once he has rendered continuous uninterrupted service for a period of one year or more, within the meaning of Section 25-F of the Act and his service is terminated for any reason whatsoever and the case does not fall in any of the excepted categories, notwithstanding the fact that Rule 2505 would be attracted, it would have to be read subject to the provisions of the Act. Accordingly the termination of service in this case would constitute retrenchment and for not complying with pre- conditions to valid retrenchment, the order of termination would be illegal and invalid.”
In Manager, Reserve Bank of India, Bangalore v. S. Mani and Others, (2005) 5 SCC 100 this Court in paragraph 54 (pg. 120) of the Report held as under: “54. Mr. Phadke, as noticed hereinbefore, has referred to a large number of decisions for demonstrating that this Court had directed reinstatement even if the workmen concerned were daily- wagers or were employed intermittently. No proposition of law was laid down in the aforementioned judgments. The said judgments of this Court, moreover, do not lay down any principle having universal application so that the Tribunals, or for that matter the High Court, or this Court, may feel compelled to direct reinstatement with continuity of service and back wages. The Tribunal has some discretion in this matter. Grant of relief must depend on the fact situation obtaining in a particular case. The industrial adjudicator cannot be held to be bound to grant some relief only because it will be lawful to do so.”
In Nagar Mahapalika (Now Municipal Corpn.) v. State of U.P. and Others, (2006) 5 SCC 127 this Court, while dealing with the non-compliance with the provisions of Section 6-N (which is pari materia to Section 25-F) of U.P. Industrial Disputes Act held that the grant of relief of reinstatement with full back wages and continuity of service in favour of retrenched workmen would not automatically follow or as a matter of course. Instead, this Court modified the award of reinstatement with compensation of Rs. 30,000/- per workman.
In Municipal Council, Sujanpur v. Surinder Kumar, (2006) 5 SCC 173 Court after having accepted the finding that there was violation of Section 25-F of the ID Act, set aside the award of reinstatement with back wages and directed the workman to be paid monetary compensation in the sum of Rs. 50,000/-.
In Mamni, (2006) 9 SCC 434 Court modified the award of reinstatement passed by the Labour Court, though the termination of the workman was in violation of Section 25-F of the ID Act, by directing that the workman should be compensated by payment of a sum of Rs. 25,000/-.
In Regional Manager, SBI v. Mahatma Mishra, (2006) 13 SCC 727 this Court observed that it was one thing to say that services of a workman were terminated in violation of mandatory provisions of law but it was another thing to say that relief of reinstatement in service with full back wages would be granted automatically.
In Haryana Urban Development Authority v. Om Pal, (2007) 5 SCC 742 Court in paragraphs 7 and 8 (pg. 745) of the Report held as under : “7. Moreover, it is also now well settled that despite a wide discretionary power conferred upon the Industrial Courts under Section 11-A of the 1947 Act, the relief of reinstatement with full back wages should not be granted automatically only because it would be lawful to do so. Grant of relief would depend on the fact situation obtaining in each case. It will depend upon several factors, one of which would be as to whether the recruitment was effected in terms of the statutory provisions operating in the field, if any. 8. The respondent worked for a very short period. He only worked, as noticed hereinbefore, in 1994-95. The Industrial Tribunal-cum-Labour Court, therefore, in our opinion committed an illegality, while passing an award in the year 2003, directing the reinstatement of the respondent with full back wages. Although we are of the opinion that the respondent was not entitled to any relief, whatsoever, we direct the appellant to pay him a sum of Rs. 25,000.”
In Uttaranchal Forest Development Corporation v. M.C.Joshi, (2007) 9 SCC 353 the Court was concerned with a daily wager who had worked with Uttaranchal Forest Development Corporation from 01.08.1989 to 24.11.1991 and whose services were held to be terminated in violation of Section 6-N of the U.P. Industrial Disputes Act. The Labour Court had directed the reinstatement of the workman with 50 per cent back wages from the date the industrial dispute was raised. Setting aside the order of reinstatement and back wages, this Court awarded compensation in a sum of Rs. 75,000/- in favour of the workman keeping in view the nature and period of service rendered by the workman and the fact that industrial dispute was raised after six years.

In Madhya Pradesh Administration v. Tribhuban, (2007) 9 SCC 748 Court upheld the order of the Industrial Court passed in its jurisdiction under Section 11A of the ID Act awarding compensation and set aside the judgment of the Single Judge and the Division Bench that ordered the reinstatement of the workman with full back wages. The Court in paragraph 12 (pg. 755) of the Report held as under: “12. In this case, the Industrial Court exercised its discretionary jurisdiction under Section 11-A of the Industrial Disputes Act. It merely directed the amount of compensation to which the respondent was entitled had the provisions of Section 25-F been complied with should be sufficient to meet the ends of justice. We are not suggesting that the High Court could not interfere with the said order, but the discretionary jurisdiction exercised by the Industrial Court, in our opinion, should have been taken into consideration for determination of the question as to what relief should be granted in the peculiar facts and circumstances of this case. Each case is required to be dealt with in the fact situation obtaining therein.”

In Mahboob Deepak, (2008) 1 SCC 575 Court stated that an order of retrenchment passed in violation of Section 6-N of the U.P. Industrial Disputes Act may be set aside but an order of reinstatement should not however be automatically passed. The Court observed in paragraphs 11 and 12 (pg. 578) of the Report as follows:- “11. The High Court, on the other hand, did not consider the effect of non-compliance with the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947. The appellant was entitled to compensation, notice and notice pay. 12. It is now well settled by a catena of decisions of this Court that in a situation of this nature instead and in place of directing reinstatement with full back wages, the workmen should be granted adequate monetary compensation. (See M.P. Admn. v. Tribhuban (2007) 9 SCC 748).”
In Telecom District Manager and others v. Keshab Deb, (2008) 8 SCC 402 Court said that even if the provisions of Section 25-F of the I.D. Act had not been complied with, the workman was only entitled to just compensation.
In Talwara Co-operative Credit and Service Society Limited v. Sushil Kumar, (2008) 9 SCC 486 Court in paragraph 8 (pg. 489) of the Report held as under : “8. Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11- A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment viz. whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned, etc., should be taken into consideration.”
In Jagbir Singh, (2009) 15 SCC 327 Court, speaking through one of us (R.M. Lodha, J.) while dealing with the question of consequential relief arising from the facts quite similar to the present case, ordered compensation of Rs. 50,000/- to be paid by the employer to the workman instead of reinstatement. In paragraph 14 (pg.335) of the Report, this Court held as under : “14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.”
In Uttar Pradesh State Electricity Board v. Laxmi Kant Gupta, (2009) 16 SCC 562 Court stated, “…. now there is no such principle that for an illegal termination of service the normal rule is reinstatement with back wages, and instead the Labour Court can award compensation”.
In Santosh Kumar Seal, (2010) 6 SCC 773 while dealing with a case of workmen who were engaged as daily wagers about 25 years back and had hardly worked for two or three years, this Court speaking through one of us (R.M. Lodha, J.) held that reinstatement with back wages could not be said to be justified and instead monetary compensation would subserve the ends of justice. It was held that compensation of Rs. 40,000/- to each of the workmen would meet the ends of justice.

Court in Bharat Sanchar Nigam Limited v. Man Singh (2012) 1 SCC 558 . That was a case where the workmen, who were daily wagers during the year 1984-85, were terminated without following Section 25-F. The industrial dispute was raised after five years and although the Labour Court had awarded reinstatement of the workmen which was not interfered by the High Court, this Court set aside the award of reinstatement and ordered payment of compensation.

KARNATAKA LAND LAWS