Nominal Index [Citation 2022 LiveLaw (Ker) 508 - 515]Midland Rubber Produce Company ltd. V. Uthayasuriyan & Ors. 2022 LiveLaw (Ker) 508C.P. Pappachan v. State of Kerala & Anr. 2022 LiveLaw (Ker) 509Sheeba George v. State Election Commission & Ors. 2022 LiveLaw (Ker) 510Nishad Mathew v. State of Kerala & Anr. 2022 LiveLaw (Ker) 511The General Manager South Railway v. R....
Nominal Index [Citation 2022 LiveLaw (Ker) 508 - 515]
Midland Rubber Produce Company ltd. V. Uthayasuriyan & Ors. 2022 LiveLaw (Ker) 508
C.P. Pappachan v. State of Kerala & Anr. 2022 LiveLaw (Ker) 509
Sheeba George v. State Election Commission & Ors. 2022 LiveLaw (Ker) 510
Nishad Mathew v. State of Kerala & Anr. 2022 LiveLaw (Ker) 511
The General Manager South Railway v. R. Haridrakumar 2022 LiveLaw (Ker) 512
Manager, Sunniyya Arabic College v. State of Kerala & Ors and Aboobacker E.K. v. State of Kerala & Ors. 2022 LiveLaw (Ker) 513
Sreekanth Sasidharan v. State of Kerala & Ors. 2022 LiveLaw (Ker) 514
Capt. Rajeev Thotten v. Air India Express Ltd & Ors. and other connected matters 2022 LiveLaw (Ker) 515
Judgments/Order This Week
Case Title: Midland Rubber Produce Company ltd. V. Uthayasuriyan & Ors.
Citation: 2022 LiveLaw (Ker) 508
The Kerala High Court on Friday observed that the limited enquiry contemplated under Section 33 (2) (b) of the Industrial Disputes Act is only to find out whether a proper domestic enquiry has been held to prove the misconduct attributed to the workman and whether he has been afforded reasonable opportunity to defend himself in consonance with the principles of natural justice.
Justice Mohammed Nias C P observed that proviso to Section 33 (2)(b) is for the protection of the workman and to shield the workman against victimization or unfair practice by the employer during the pendency of an industrial dispute when the relationship between them is strained.
Case Title: C.P. Pappachan v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 509
The Kerala High Court on Friday contemplated the question as to whether non-compliance of the Kerala Criminal Rules of Practice by the court staff would be sufficient ground to non-suit the complainant or any party, and answered the same in the negative.
Justice A. Badharudeen, while holding so, observed, "It is the settled law that fault committed by the court shall not stand in the way of non-suiting the aggrieved party before the court. The maxim 'Actus curiae neminem gravabit' embodies the said principle. That is to say, the act of Court shall prejudice no one. In such a situation, Court is under an obligation to undo the wrong".
However, on noting that many complaints and petitions were forwarded to the High Court without seal as mandated under Rule 28, and taking note of the seriousness in non-payment of court fees in petitions before the criminal court, the Court in this case issued direction to subordinate courts that the aforementioned Rules 28 and 29 of the Criminal Rules of Practice ought to be strictly complied with.
Case Title: Sheeba George v. State Election Commission & Ors.
Citation: 2022 LiveLaw (Ker) 510
The Kerala High Court recently held that when a candidate, who contested elections as an independent contender, subsequently makes a declaration about being a candidate of a party or coalition, the same would attract disqualification on the ground of defection under Section 3(1)(c) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999.
Upholding the decision of the State Election Commission to disqualify an elected member of Keerampara Grama Panchayat, the Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly said the law relating to defection in regard to the members of the local body has been made with the intention of upholding the constitutional principles, the democratic setup and the rule of law prevailing in the country. "This we say because, in order to sustain the faith of the citizens in the democratic set up of conducting elections, and for retaining and sustaining the confidence of the citizens on the candidates elected by the electorate, a strict view is to be adopted in the matter of defection. It is with the said basic intention that the Act, 1999 and Rules, 2000 were brought into force," said the court.
Case Title: Nishad Mathew v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 511
The Kerala High Court recently held that where the accused has himself conceded the jurisdiction, and the trial has been completed, the question of territorial jurisdiction cannot be raised at the fag end of the trial and transfer of the case on this ground cannot be sought for.
The Court in this light, taking note of precedents, observed that as per Section 462 of the Code of Criminal Procedure (Cr.P.C.), it would be clear that when there is no inherent lack of jurisdiction, lack of territorial jurisdiction or ground of irregularity of procedure an order or a sentence awarded by a competent court could not be set aside unless a prejudice is pleaded and proved, which would mean failure of justice. Justice A. Badharudeen, further observed that, "as per the settled position of law, the objection regarding question of territorial jurisdiction ought to be raised at the earliest and at any rate, before adducing evidence or examination of witnesses in the Court".
Case Title: The General Manager South Railway v. R. Haridrakumar
Citation: 2022 LiveLaw(Ker) 512
The Kerala High Court recently observed that as per the provisions of the Railway Services (Pension) Rules, 1993, a railway servant compulsorily retired from the service as a penalty has no vested right to stake a claim for the entire pension or gratuity, as the quantum of pension and gratuity to be granted is at the absolute discretion of the employer.
A division bench consisting of Justice A K Jayasankaran Nambiar and Mohammed Nias C P, further observed that past service can be forfeited or pension can be withheld to the extent which the Regulations permit, and this exercise of discretion cannot be termed as a secondary punishment.
Case Title: Manager, Sunniyya Arabic College v. State of Kerala & Ors and Aboobacker E.K. v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 513
The Kerala High Court recently held that where a post has been reserved for blind/ hearing impaired candidates under Section 34 of the Right of Persons with Disabilities Act, 2016 (RPwD Act), candidates having locomotor disability cannot ordinarily raise a claim to be appointed to the said post, but only at the last instance where no such candidates originally eligible to the post are available.
"...going by Section 34 of the RPwD Act, even if the post in question was one which was deserving of being reserved for candidates under its ambit, it could have been offered only to a "blind" candidate and to no one else. It is only if no such candidate is available and consequently, a fresh notification issued, wherein, again persons from the "blind" or "the hearing impaired" categories are not available, can a person like the petitioner (Safeena), with locomotor disability, be considered", Justice Devan Ramachandran observed.
Case Title: Sreekanth Sasidharan v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 514
The Kerala High Court on Thursday reiterated that if a man retracts his promise to marry a woman, the consensual sex they have had will not constitute rape unless it is established that the consent was obtained by him by giving false promise of marriage with no intention of adhering to it, and that promise made was false to his knowledge.
Quashing a rape case against a 33-year-old man, Justice Kauser Edappagath said the relationship between the accused and the complainant appears to have been purely consensual in nature. There is no allegation that when he promised to marry her, it was done in bad faith or with the intention to deceive her, said the court.
Case Title: Capt. Rajeev Thotten v. Air India Express Ltd & Ors. and other connected matters
Citation: 2022 LiveLaw (Ker) 515
The Kerala High Court on Friday dismissed the petitions of three retired pilots who had approached the court seeking re-engagement on a contract basis with the Air India Express Ltd. In 2020, the contract appointments of the petitioners had been terminated.
Justice Anu Sivaraman at the outset observed that the Air India subsidiary is no longer a public sector undertaking after privatisation and therefore the issuance of public law remedy in the nature of a writ against it cannot be sought now. The court added that the only question which remains would be as to the legality of the order of the termination passed by Air India Express Ltd when it was a PSU.
Other Significant Developments
Case Title: Suo Motu v. State of Kerala & Ors.
The Kerala High Court on Thursday initiated suo motu proceedings on the Vadakkancherry bus accident. In the early hours of Thursday, nine people, including five students were killed, and more than 50 others were injured when a tourist bus carrying school children rammed into a KSRTC bus at Vadakkenchery in Palakkad District.
A Division Bench consisting of Justice Anil K. Narendran and Justice P. G. Ajithkumar initiated the suo motu proceedings and has sought report from the Police Department and the Motor Vehicles Department on the accident. Flashy lights and sound systems, which were banned by the Court, were used in the bus.
The Kerala High Court on Thursday reserved its decision in the batch of petitions seeking enforcement of 'Right to be Forgotten' and consequent removal of a judgement copy and information related to it from various online portals.
The Division Bench of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen, after hearing the submissions of Senior Advocate Sajan Poovayya, appearing on behalf of Google LLC, reserved the matter.
Case Title: Pauly Vadakkan v. Corporation of Cochin
The Kerala High Court on Thursday, expressing distress over the Vadakkanchery bus accident, suo motu impleaded the Transport Commissioner, who is also the Road Safety Commissioner, as an additional respondent in a pending matter related to the poor condition of roads in the state.
Directing the officer to personally remain present before the court on Friday, the court said the pain of "the families, the parents, the children, the husbands and the wives" requires an urgent intervention and no more time can be lost. Nine people including five students were killed and more than 50 others were injured when a tourist bus carrying school children rammed into a KSRTC bus at Vadakkencherry in Palakkad District.
Justice Devan Ramachandran observed that the recurrence of accidents is due to the lack of strict enforcement of the law. At the outset in its order, the court said while it has been struggling to obtain semblance of road safety in the state, the "horrific news of an accident awoke us in the morning".
Case Title: Suo Motu v. State of Kerala & Ors.
In the wake of the tragic Wadakkanchery accident in Palakkad district, the Kerala High Court has called for strong action against tourist buses fitted with illegal modifications and YouTube vloggers who promote such vehicles which pose "potential threat to the safety of passengers and other road users".
The Court noted that the tourist bus involved in the accident had several unauthorized alterations as its passenger cabin was fitted with multi-coloured LED/Laser/Neon lights, flash lights and high-power audio system producing loud sound. The windscreen of the bus had huge graphical inscriptions obstructing the vision of the driver. The Court also noted that the vehicle, which rammed into a KSRTC Bus during the early hours of October 6, was fitted with multi-toned horn in violation of the Central Motor Vehicle Rules.
The bench comprising Justices Anil K Narendran and PG Ajithkumar also strongly condemned the action of the vloggers and others who upload videos on 'YouTube' and other online platforms, promoting the use of motor vehicles in public places, flouting safety standards and has directed the Transportation Commissioner to take action against them.
Adani Vizhinjam Port: Kerala HC Orders Removal Of Tent At Protest Site
Case Title: M/S Adani Vizhinjam Ports Pvt Ltd & Ors v. Dr. V.P. Joy IAS & Ors.
The Kerala High Court on Friday directed that the tent erected by protestors on the road leading to under-construction Vizhinjam Port be immediately removed.
"The respondents shall take appropriate steps to see that the 'panthal' obstructing the road to the project site is immediately removed," said the court.
Justice Anu Sivaraman passed the order on a submission made by the counsels representing Adani Vizhinjam Port Limited that the "obstruction" has not been removed even after previous orders from the court.
Case Title: Pauly Vadakkan v. Corporation of Cochin
The Kerala High Court Friday said that the recklessness on the wheel will not be tolerated and directed the Transport Commissioner to ensure strict enforcement of law on the roads to send a stern message to all the drivers that they will be held accountable for their actions.
Justice Devan Ramachandran in a warning to the drivers said: "The unmistakable caution to a driver, that recklessness on the wheel and the proclivity to violate law, will never be tolerated and will be dealt with the most stringent response in law ... is to be fostered and inculcated, because otherwise, nothing can change."
Case Title: Suo Motu v. Baiju Kottarakkara
The Kerala High Court has initiated suo motu contempt proceedings against the Malayalam film director Baiju Kottarakkara for making abusive remarks during a news channel discussion on May 9 against a trial court judge, who is hearing the 2017 actor abduction and assault case.
In the Draft Charges sent through Registrar General to the 56-year-old director, the High Court said his remarks "intended to characterize the judge who conducts the trial and scandalize the judiciary as well."
In a notable order, the Kerala High Court recently allowed a senior citizen aged 61 years to seek cycro-preservation of his sperm, considering the fact that he was suffering from a rare cardiac condition.
A single bench of Justice VG Arun granted this interim relief while considering a writ petition filed by the man and his 39 year old wife challenging the age-limit under the Assisted Reproductive Technology(Regulation Act 2021.