Nominal Index [Citations 2023 LiveLaw (Ker) 12-20]State of Kerala rep. by Secretary to the Government & Ors. v. Dr. Sushama S. & Anr. 2023 LiveLaw (Ker) 12Suo Motu v. State of Kerala and Ors. 2023 LiveLaw (Ker) 13M/S PVS Memorial Hospital & Ors. v. Dr. Satheesh Iype & Anr. 2023 LiveLaw (Ker) 14Dimple Lamba @ Dolly v. State of Kerala 2023 LiveLaw (Ker) 15State of Kerala and Ors....
Nominal Index [Citations 2023 LiveLaw (Ker) 12-20]
State of Kerala rep. by Secretary to the Government & Ors. v. Dr. Sushama S. & Anr. 2023 LiveLaw (Ker) 12
Suo Motu v. State of Kerala and Ors. 2023 LiveLaw (Ker) 13
M/S PVS Memorial Hospital & Ors. v. Dr. Satheesh Iype & Anr. 2023 LiveLaw (Ker) 14
Dimple Lamba @ Dolly v. State of Kerala 2023 LiveLaw (Ker) 15
State of Kerala and Ors. v. Raveendran Pillai S and Anr. 2023 LiveLaw (Ker) 16
The Tahsildar (RR) & Ors. v. Nizamudeen S. & Ors. and other connected cases. 2023 LiveLaw (Ker) 17
Tintu K. & Anr. v. Union of India & Ors. 2023 LiveLaw (Ker) 18
Nibu Kasim & Ors. v. Union of India & Ors. and M/S Go Green Bags v. Union of India & Ors. 2023 LiveLaw (Ker) 19
Aswathi & Anr. v. Rajeesh Raman & Anr. and Betty Philip v. William Chacko 2023 LiveLaw (Ker) 20
Judgments/Orders This Week
Case Title: State of Kerala rep. by Secretary to the Government & Ors. v. Dr. Sushama S. & Anr.
Citation: 2023 LiveLaw (Ker) 12
The Kerala High Court held the appointment of a teacher against the vacancy that arose by reason of the leave without allowance granted to a regular incumbent, cannot be regarded as an appointment made against a substantive vacancy.
The Division Bench comprising Justice P.B. Sureshkumar and Justice C.S. Sudha further held that the service rendered by such person in the leave vacancy preceding their absorption without break in the regular establishment would also not qualify for pensionary benefits.
"...in the absence of an order by the Government suspending the lien of the teacher in whose leave vacancy the petitioner was initially appointed, the said teacher was retaining a lien on that post. If that be so, the initial appointment of the petitioner cannot be said to be an appointment made against a substantive vacancy", it was observed.
Case Title: Suo Motu v. State of Kerala and Ors.
Citation: 2023 LiveLaw (Ker) 13
The Kerala High Court observed that no pilgrim can be permitted entry to Sabarimala Sannidhanam carrying posters and huge photographs of celebrities, politicians etc.
The Court, therefore, directed the Travancore Devaswom Board (TDB) to take necessary steps to ensure that every worshipper of Lord Ayyappa exercises his right of worship at Sabarimala Sannidhanam, in an accustomed manner and subject to the practice and tradition in Sabarimala.
Division Bench consisting of Justice Anil K Narendran and Justice P. G. Ajithkumar observed that,
"According to Oxford Dictionary 'worshipper' is a person who shows reverence and adoration for deity. Right to worship is a civil right, of course in an accustomed manner and subject to the practice and tradition in each temple".
Case Title: M/S PVS Memorial Hospital & Ors. v. Dr. Satheesh Iype & Anr.
Citation: 2023 LiveLaw (Ker) 14
The Kerala High Court held that the moratorium provision enshrined in Section 14 (1) of the Insolvency and Bankruptcy Code would only apply to corporate debtors, and the non-corporate debtors under Section 141 of the Negotiable Instruments Act would continue to be statutorily liable under Chapter XVII of the Act.
As regards the application of the principles of vicarious liability under criminal law as has been provided under Section 141 of the NI Act is concerned, the Single Judge bench of Justice A. Badharudeen observed that, the same could not be fastened due to civil liability.
"Vicarious liability under sub-Section (1) to S.141 of the NI Act can be pinned when the person is in overall control of the day-to-day business of the company or firm. Vicarious liability under sub-section (2) to S.141 of the NI Act can arise because of the director, manager, secretary, or other officer's personal conduct, functional or transactional role, notwithstanding that the person was not in overall control of the day-to-day business of the company when the offence was committed. Vicarious liability under sub-section (2) is attracted when the offence is committed with the consent, connivance, or is attributable to the neglect on the part of a director, manager, secretary, or other officer of the company", it was observed.
Case Title: Dimple Lamba @ Dolly v. State of Kerala
Citation: 2023 LiveLaw (Ker) 15
The Kerala High Court granted bail to Dimple Lamba alias Dolly, who allegedly facilitated the gang rape of a 19 year old model in a moving car in Ernakulam.
Justice Bechu Kurian Thomas passed the above order.
"The victim had specifically stated, at the initial stage itself, that the petitioner had an active role in the crime committed. The sequence of events as pointed out by the learned Public Prosecutor also indicates prima facie, the possibility of an active role played by the petitioner. However, taking note of her young age, and the period of detention already undergone including the stage of investigation, I am of the view that no further purpose would be served by continuing the petitioner in detention. Moreover she is a woman falling within the beneficial provision of the first Proviso to Section 437 of Cr.P.C.", it was observed.
Case Title: State of Kerala and Ors. v. Raveendran Pillai S and Anr.
Citation: 2023 LiveLaw (Ker) 16
The Kerala High Court observed that according to Rule 4 and Rule 14E(a) of Kerala Service Rules no claim to pension is admissible when an employee is appointed for a limited period and that the period of regular full time service of a pensioner in an aided school alone shall be reckoned as qualifying service for pension.
Division Bench consisting of Justice P. B. Suresh Kumar and Justice C. S. Sudha observed that,
“The appointments of the petitioner in the leave vacancies can be regarded only as appointments for a limited time and in light of Rule 4 of Part III KSR, no claim to pension is admissible for the services rendered by the petitioner in the said vacancies, especially in light of the clarification made in Rule 14E(a) that only regular full time aided school service shall be reckoned for pension”.
Case Title: The Tahsildar (RR) & Ors. v. Nizamudeen S. & Ors. and other connected cases.
Citation: 2023 LiveLaw (Ker) 17
The Kerala High Court held that the statutory charge created under the provisions of the Kerala General Sales Tax Act, 1963 and the Kerala Value Added Tax Act, 2003, prior to any mortgage made, against the dealers would remain intact, even if the property is sold by the Bank, by the rights conferred under Section 26E of the SARFAESI Act, 2002, and Section 31B of the Recovery of Debts and Bankruptcy Act 1993 read with the Rules to it, until such encumbrances are cleared as per the provisions of the said enactments and the rules.
The Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly, passed the above orders in a batch of writ appeals filed by the State challenging the Single Bench order which held that a secured creditor under Section 26E of the SARFAESI Act and Section 31B of the RDB Act obtains priority over the right claimed by the Revenue, both in proceeding against the properties in question, or in recovering the secured debt.
While allowing the writ appeals, the Division Bench observed: "To put it otherwise, if and when any amounts have fallen due as per the provisions of the KGST Act, 1963 and the KVAT Act, 2003 and the proceedings start, consequent to which a charge is created on the properties of the assessee and the said charge created would continue to run with the property even if the Banks / financial institutions conduct the sale to recover the amounts due under the mortgage".
It noted that, "....if the mortgage is created after the amounts have fallen due as per the provisions of the KGST Act, 1963 and the KVAT Act, 2003 and accordingly, proceedings are initiated, such a mortgage can only be termed as subject to a statutory charge as per Sections 26B and 38 of Act 1963 and the Act 2003 respectively".
Contractual Employees Cannot Be Terminated Without Issuance Of Notice: Kerala High Court
Case Title: Tintu K. & Anr. v. Union of India & Ors.
Citation: 2023 LiveLaw (Ker) 18
The Kerala High Court held that contractual employees cannot be terminated on the ground of 'unsatisfactory performance' of service without the issuance of notice or finding to that effect.
Setting aside an order passed by Mananthavady Municipality by which the service of petitioners at Ayush NHM Homeopathic Dispensary was discontinued, Justice Anu Sivaraman said that the primary reason for termination of services of the contract was that their services had been found to be unsatisfactory.
"If that be so, even though the petitioners are contractual employees, they were entitled to a notice with regard to the unsatisfactory nature of their service and their services could have been terminated only on a finding being rendered on the same," the court said.
The court further noted that even in case the contention of the respondents is that the petitioners were not appointed after a full process of selection was carried out, it is not in dispute that they have been continuing in service on contract basis from 2010 and 2016 onwards.
Plastic Ban : Kerala High Court Lifts Ban On Non-Woven Bags Of 60 GSM & Above
Case Title: Nibu Kasim & Ors. v. Union of India & Ors. and M/S Go Green Bags v. Union of India & Ors.
Citation: 2023 LiveLaw (Ker) 19
The Kerala High Court held that the inclusion of non-woven bags of 60GSM and above in the list of banned single use plastic items by Government Orders without regard to the GSM standards, and in violation of the provisions of the Plastic Waste Management Rules, 2016 as arbitrary and illegal.
Justice N. Nagaresh, passed the order in two writ petitions filed before it challenging the ban on the non-woven bags brought into effect by virtue of certain Government Orders by the State of Kerala and the Kerala State Pollution Control Board.
The Court in this case noted that while Section 23 of the Environment Protection Act, 1986 provided that the Central Government is competent to delegate its powers and functions under the Act, 1986, the rule making power of the Central Government cannot be delegated.
"When, in exercise of the rule making powers under Section 25, the Central Government has prescribed minimum standard in GSM for manufacturing of non-woven bags, then under any delegated power the State Government cannot prescribe a different standard which would negate the rules framed by the Central Government. If any State Government issues executive instructions contrary to the Rules framed by the Central Government, it would amount to exercise of powers which the Act, 1986 has prohibited to delegate", it observed in this regard.
Case Title: Aswathi & Anr. v. Rajeesh Raman & Anr. and Betty Philip v. William Chacko
Citation: 2023 LiveLaw (Ker) 20
The Kerala High Court held that even though an order of maintenance may be enforceable at the place where the person - against whom it is made - resides, the court which passed the order also retains the power to execute it outside the jurisdiction where such person is residing.
The Single Judge Bench of Justice A. Badharudeen considered the legal question as to whether a court which passed an order of maintenance under Section 125 and 127 of the Code of Criminal Procedure (CrPC) is competent to execute the order against a person, who has been residing in a place outside its jurisdiction.
"...it is necessary in the interests of justice to visualise the plight of poor wife and children or the parents, as the case may be, if a view taken to the effect that each and every execution proceedings to enforce order of maintenance obtained by the wife, children and parents at the place where the person against whom the order was made. If such a proposition is declared, a clever husband or son or daughter, as the case may be, could very well shift their residence, outside the jurisdiction of the court where the order of maintenance sought to be executed, so as to defeat the enforcement of the order. No doubt, it may be easy for them to shift their residence periodically, to defeat the enforcement of the maintenance order," the court observed.
Other Significant Developments This Week
Case Title: P.S. Jayaprakash v. Central Bureau of Investigation and other connected matters
The Kerala HC heard the anticipatory bail pleas of former Intelligence Bureau officers who have been accused of conspiring to frame former ISRO scientist Nambi Narayanan in the 1994 ISRO Espionage case.
The matter was heard by a bench of Justice K. Babu. It may be recalled that the Supreme Court had in December 2022 set aside the previous orders of the High Court granting pre-arrest bail to the accused and remanded the matters for fresh consideration.
Kannur University Case| Priya Varghese Appeals Against Decision Of Single Judge
Case Title: Priya Varghese v. Joseph Skariah & Ors.
Priya Varghese, the wife of K.K. Ragesh, private secretary to Chief Minister Pinarayi Vijayan, has moved the Kerala High Court challenging the Single Bench decision which directed the competent authority of the University to reconsider her credential, and decide whether she ought to continue in the rank list for appointment.
The Single Judge Bench of Justice Devan Ramachandran had passed the impugned order on November 17, 2022.
Case Title: Sayed Mohammed Noorul Ameer and Ors. v. U.T. Administration of Lakshadweep
Lakshadweep MP Mohammed Faizal has approached the Kerala High Court challenging the decision of Court of Session, Kavarathi to convict and sentence him and three others to 10 years in jail in a case of attempt to murder.
Faizal and the three other accused persons on Wednesday were convicted for offences punishable under Sections 143, 147, 148, 448, 427, 324, 342, 307, 506 r/w 149 of IPC and sentenced by the Sessions Court to undergo 10 years of rigorous imprisonment and also imposed a fine of Rs one lakh each on the convicts for attempting to kill Mohammed Salih, son-in-law of former Union Minister P M Sayeed, during the 2009 Lok Sabha polls.
Case Title: P.S. Jayaprakash v. Central Bureau of Investigation and other connected matters
The Kerala High Court was told by the counsel appearing on behalf of former ISRO scientist Nambi Narayanan accused in the 1994 Espionage Case, that the arrest of the scientist was done as part of a conspiracy. The Court was told that this was done in order to stall the cryogenic engine that is crucial for India's space program.
The Single Judge Bench of Justice K. Babu continued the hearing on the anticipatory bail pleas that were filed former Intelligence Bureau and Kerala police officers who were accused of conspiring to frame Narayanan in the 1994 Espionage case.
Case Title: P.S. Jayaprakash v. Central Bureau of Investigation and other connected matters
The Kerala High Court was told by Additional Solicitor General (ASG) SV Raju appearing for the Central Bureau of Investigation that the entire conspiracy in ISRO espionage was to derail the development of Cryogenic Technology.
ASG submitted before the court that the matter is of serious nature involving national security and foreign powers may be involved in the conspiracy to foist a false case against eminent scientists of ISRO and custodial interrogation was necessary for proper investigation. Advocate C S Unnikrishnan appearing on behalf of former ISRO scientist Nambi Narayanan sided with the contentions raised by ASG.