Supreme Court Weekly Digest With Nominal And Subject/Statute Wise Index [May 23 - May 29] [ 2022 LiveLaw (SC) 521 to 27]

Arbitration and Conciliation Act 1996; Section 11(5), 11(6) - Delay in appointment of arbitrators - If the arbitrators are not appointed at the earliest and the applications under Sections 11(5) and 11(6) of the Arbitration Act are kept pending for a number of years, it will defeat the object and purpose of the enactment of the Arbitration Act and it may lose the significance of an effective Alternative Dispute Resolution Mechanism. If the Commercial disputes are not resolved at the earliest, not only it would affect the commercial relations between the parties but it would also affect economy of the country. Shree Vishnu Constructions v. Engineer in Chief Military Engineering Service Service, 2022 LiveLaw (SC) 523

Arbitration and Conciliation Act 1996; Section 11(5), 11(6) - Directions issued to High Courts to dispose pending applications within 6 months - Ensure that all pending applications under Sections 11(5) and 11(6) of the Arbitration Act and/or any other applications either for substitution of arbitrator and/or change of arbitrator, which are pending for more than one year from the date of filing, must be decided within six months from today. Shree Vishnu Constructions v. Engineer in Chief Military Engineering Service Service, 2022 LiveLaw (SC) 523

CETSTAT judgments overruled - Some judgments relied upon by the assessee and the CESTAT have limited precedential value - the Apex Court had merely affirmed the ruling of CESTAT in these judgements without providing independent reasoning - Overruled Volkswagen India Pvt. Ltd. v. CCE, Pune-I; Computer Sciences Corporation India Pvt. Ltd. v. Commissioner of Service Tax; SRF Ltd. v. Commissioner and Commissioner of Central Excise v. Coca Cola India Pvt. Ltd. [Para 59] C.C. C.E. & S.T. - Bangalore (Adjudication) Etc. v. M/s. Northern Operating Systems Pvt. Ltd., 2022 LiveLaw (SC) 526

Code of Civil Procedure, 1908; Order VIII Rule 1A (3) - To deprive a party to the suit not to file documents even if there is some delay will lead to denial of justice - Trial Court should have imposed some costs rather than to decline the production of the documents itself - Rules of procedure are hand-maid of justice. Levaku Pedda Reddamma v. Gottumukkala Venkata Subbamma, 2022 LiveLaw (SC) 533

Code of Criminal Procedure, 1973; Section 407 - Fault or shortcoming on the part of the staff of the Subordinate Court and for that matter, any delay in compliance by the Court were hardly the reasons for the High Court to immediately adopt the course of transferring the matter. Nazma Naz v. Rukhsana Bano, 2022 LiveLaw (SC) 532

Code of Criminal Procedure, 1973; Section 439 - Bail - Appeal against Delhi High Court order granting bail to a man accused of kidnapping and murdering the 13-year-old son of a Delhi jeweler in 2014, whose body was found in a drain in East Delhi in November 2014 - Allowed - An important circumstance which should have, but has not been taken into consideration by the High Court is that crucial witnesses are yet to be examined. The release of the accused on bail, at this stage, would run a grave risk of impeding a fair trial. The apprehension that the witnesses may be tampered with cannot be regarded as lacking in substance. Mamta v. State (NCT of Delhi), 2022 LiveLaw (SC) 531

Code of Criminal Procedure, 1973; Section 482 - The circumstances in which power to quash an FIR could be exercised. Gurukanwarpal Kirpal Singh v. Surya Prakasam, 2022 LiveLaw (SC) 519

Commercial Courts Act, 2015 - Order excluding period between 15.03.2020 till 28.02.2022 for the purposes of limitation in Re: Cognizance of Extension of Limitation 2022 LiveLaw (SC) 31 - Applicable with respect to the limitation prescribed under the Commercial Courts Act, 2015 also. Babasaheb Raosaheb Kobarne v. Pyrotek India Pvt. Ltd., 2022 LiveLaw (SC) 520

Constitution of India, 1950; Article 14 - Inter­play between the plea of legitimate expectation and Article 14 - For a decision to be non ­arbitrary, the reasonable/legitimate expectations of the claimant have to be considered. However, to decide whether the expectation of the claimant is reasonable or legitimate in the context, is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. (Para 14)] State of West Bengal v. Gitashree Dutta (Dey), 2022 LiveLaw (SC) 527

Constitution of India, 1950; Article 21 - Rights of Sex Workers - Basic Protection of human decency and dignity extends to sex workers and their children - Directions issued to States/UTs for conditions conducive to sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution of India - Police should not abuse them physically or verbally - Press Council of India to issue guidelines to media to protect their anonymity during raid and rescue operations - Various other directions issued. Budhadev Karmaskar v. State of West Bengal, 2022 LiveLaw (SC) 525

Constitution of India, 1950; Article 21 - The right to health is an integral part of the right to life under Article 21 of the Constitution. Without health, the faculties of living have little meaning. (Para 5) Baiju K.G. v. Dr. V.P. Joy, 2022 LiveLaw (SC) 517

Constitution of India - Article 142 - In a catena of decisions of this Court, this power has been recognised and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role. Budhadev Karmaskar v. State of West Bengal, 2022 LiveLaw (SC) 525

Contempt of Courts Act, 1971 - Appeal against Madras High Court's order holding advocate guilty of Contempt and sentencing him to 2 weeks imprisonment as well as debarring him from practicing for a period of 1 year for obstructing the execution of a non-bailable warrant issued by the HC against him - Upheld - Appellant has no respect for the administration of justice. The finding of contempt, as well as the sentence cannot be regarded as disproportionate. P.R. Adikesavan v. Registrar General, High Court of Madras, 2022 LiveLaw (SC) 530

Contract of Service or Contract for Cervice - Sushilaben Indravadan Gandhi v. New India Assurance Co. Ltd. - flexibility in regard to deciding the question of whether a contract is one for service or one of service - no one test of universal application can ever yield the correct result - it is a conglomerate of all applicable tests taken on the totality of the fact situation in a given case that would ultimately yield, particularly in a complex hybrid situation, whether the contract to be construed is a contract of service or a contract for service - depending on the fact situation of each case, all the aforesaid factors would not necessarily be relevant, or, if relevant, be given the same weight. [Para 41 & 56] C.C. C.E. & S.T. - Bangalore (Adjudication) Etc. v. M/s. Northern Operating Systems Pvt. Ltd., 2022 LiveLaw (SC) 526

Criminal Trial - Circumstantial Evidence - The circumstances concerned "must or should be" established and not "may be" established - The accused "must be" and not merely "may be" guilty before a court can convict him. The conclusions of guilt arrived at must be sure conclusions and must not be based on vague conjectures. The entire chain of circumstances on which the conclusion of guilt is to be drawn, should be fully established and should not leave any reasonable ground for the conclusion consistent with the innocence of the accused. Chandrapal v. State of Chhattisgarh, 2022 LiveLaw (SC) 529

Criminal Trial - Last Seen Together - In absence of any other links in the chain of circumstantial evidence, the accused cannot be convicted solely on the basis of "Last seen together", even if version of the prosecution witness in this regard is believed. (Para 14-17) Chandrapal v. State of Chhattisgarh, 2022 LiveLaw (SC) 529

Doctrine of Legitimate Expectation - The doctrine of legitimate expectation ordinarily would not have any application when the legislature has enacted the statute. Further, the legitimate expectation cannot prevail over a policy introduced by the Government, which does not suffer from any perversity, unfairness or unreasonableness or which does not violate any fundamental or other enforceable rights vested in the respondent. When the decision of public body is in conformity with law or is in public interest, the plea of legitimate expectation cannot be sustained. (Para 10-13) State of West Bengal v. Gitashree Dutta (Dey), 2022 LiveLaw (SC) 527

Education - Punjab (Regulations of Fees of Unaided Educational Institutions) Act, 2016 - Government Order/Notification stipulation that unaided Educational Institution shall upload income, expenditure account and balance sheet on its website - Ultra vires- It is clearly outside the scope of the authority bestowed on the competent authority. Independent Schools' Association Chandigarh (Regd.) v. Union of India, 2022 LiveLaw (SC) 518

Education - Punjab (Regulations of Fees of Unaided Educational Institutions) Act, 2016 - Government Order/Notification stipulation that prohibits the unaided institutions from charging any kind of cost from the parents - Consistent with the legislative intent and mandate of the 2016 Act - The unaided institutions can charge only the disclosed fee structure amount from its students and no further. Independent Schools' Association Chandigarh (Regd.) v. Union of India, 2022 LiveLaw (SC) 518

Education - Punjab (Regulations of Fees of Unaided Educational Institutions) Act, 2016 - Government Order/Notification provision whereby penalty amount is enhanced in respect of unaided institutions - Unconstitutional and ultra vires - What should be the quantum of penalty amount or punishment, is a legislative policy. It must be left to the concerned legislature. It cannot be provided by way of an executive order. Independent Schools' Association Chandigarh (Regd.) v. Union of India, 2022 LiveLaw (SC) 518

Endosulfan Tragedy - Contempt plea preferred by victims alleging failure on the part of State of Kerala to disburse 5 lakhs compensation - State's Chief Secretary to hold monthly meetings to undertake the process of identification of the victims of endosulfan, ensuring disbursement of compensation of Rs 5 lakhs and taking steps to ensure provision of medical facilities. Baiju K.G. v. Dr. V.P. Joy, 2022 LiveLaw (SC) 517

Estoppel - There can be no estoppel against a statute - Plea of promissory estoppel would stand negated when the mandate of a statute is followed. (Para 25-29) State of West Bengal v. Gitashree Dutta (Dey), 2022 LiveLaw (SC) 527

Evidence Act, 1872; Section 30 - Extra judicial confession is a weak kind of evidence and unless it inspires confidence or is fully corroborated by some other evidence of clinching nature, ordinarily conviction for the offence of murder should not be made only on the evidence of extra judicial confession - The extra judicial confession made by the co-accused could be admitted in evidence only as a corroborative piece of evidence. In absence of any substantive evidence against the accused, the extra judicial confession allegedly made by the co-accused loses its significance and there cannot be any conviction based on such extra judicial confession of the co-accused. (Para 11-12) Chandrapal v. State of Chhattisgarh, 2022 LiveLaw (SC) 529

Fair Price Shop - Supreme Court upheld cancelation of the declaration of Fair Price Shop vacancies by State of West Bengal in view of the implementation of National Food Security Act. State of West Bengal v. Gitashree Dutta (Dey), 2022 LiveLaw (SC) 527

Finance Act 1994 - Service Tax - Secondment Agreement - Indian company employing services on employees seconded from overseas group companies can be said to be service recepient of manpower supply- Liable for service tax-The assessee was, for the relevant period, service recipient of the overseas group company concerned, which can be said to have provided manpower supply service, or a taxable service, for the two different periods in question (in relation to which show cause notices were issued). (Para 61) C.C. C.E. & S.T. - Bangalore (Adjudication) Etc. v. M/s. Northern Operating Systems Pvt. Ltd., 2022 LiveLaw (SC) 526

Finance Act, 1994; Section 65(44) - excludes from the sweep of service tax "a provision of service by an employee to the employer in the course of or in relation to his employment." - while the control (over performance of the seconded employees' work) and the right to ask them to return, if their functioning is not as is desired, is with the assessee, the fact remains that their overseas employer in relation to its business, deploys them to the assessee, on secondment. Secondly, the overseas employer- for whatever reason, pays them their salaries - their terms of employment, even during the secondment, are in accord with the policy of the overseas company, who is their employer - upon the end of the period of secondment, they return to their original places, to await deployment or extension of secondment. [Para 45 & 57] C.C. C.E. & S.T. - Bangalore (Adjudication) Etc. v. M/s. Northern Operating Systems Pvt. Ltd., 2022 LiveLaw (SC) 526

Judicial Appointments - Selection to the post of Civil Judge (Junior Division) in Bihar - Decision of Bihar Public Service Commission to reject the applications of 8 candidates for not submitting originals of the certificates at the time of interview set aside - The rejection of the candidates was improper, unjustified and not warranted - 8 appellants who were duly qualified and duly selected have been deprived of their appointment as Judicial Officers. Aarav Jain v. Bihar Public Service Commission, 2022 LiveLaw (SC) 521

National Food Security Act, 2013 - There is a paradigm shift in addressing the problem of food security from the current welfare approach to a right based approach. The Act confers legal right on the eligible beneficiaries to get the essential commodities through fair price shops at a highly subsidized price. The Act also envisages reforms necessary for distribution of essential commodities to the ration card holders - The Act is a social welfare legislation and its provisions are mandatory. (Para 15-20) State of West Bengal v. Gitashree Dutta (Dey), 2022 LiveLaw (SC) 527

Penal Code, 1860; Section 285 - Essential requirement of Section 285 of IPC was that the accused must have done something with fire or any combustible matter in a rash and negligent manner to endanger human life. Gurukanwarpal Kirpal Singh v. Surya Prakasam, 2022 LiveLaw (SC) 519

Penal Code, 1860; Section 302 - In order to convict an accused under Section 302, the court is required to first see as to whether the prosecution has proved the factum of homicidal death. (Para 8) Chandrapal v. State of Chhattisgarh, 2022 LiveLaw (SC) 529

Penal Code, 1860; Section 405, 406 - The sine qua non for attracting the provision is the entrustment of the property with the accused persons. Gurukanwarpal Kirpal Singh v. Surya Prakasam, 2022 LiveLaw (SC) 519

Penal Code, 1860; Sections 416, 420 - Essential ingredients of the offence of cheating are deception on the part of the accused or dishonest inducement by them, resulting in any person delivering any property to such accused or alteration or destruction of whole or any part of valuable security. Gurukanwarpal Kirpal Singh v. Surya Prakasam, 2022 LiveLaw (SC) 519

Secondment Agreements - explained - Employees of overseas entities are deputed to the host entity (Indian associate) on the latter's request to meet its specific needs and requirements of the Indian associate - during the arrangement, the secondees work under the control and supervision of the Indian company and in relation to the work responsibilities of the Indian affiliate - social security laws of the home country (of the secondees) and business considerations result in payroll retention and salary payment by the foreign entity, which is claimed as reimbursement from the host entity - in the event the overseas entity is treated as the employer, the arrangement would be treated as service by the overseas entity and taxed. [Para 34] C.C. C.E. & S.T. - Bangalore (Adjudication) Etc. v. M/s. Northern Operating Systems Pvt. Ltd.,2022 LiveLaw (SC) 526

Service Law - Compassionate Appointments - The authorities must consider and decide applications for appointment on compassionate grounds as per the policy prevalent, at the earliest, but not beyond a period of six months from the date of submission of such completed applications. (Para 9) Malaya Nanda Sethy v. State of Orissa, 2022 LiveLaw (SC) 522

Special Relief Act, 1963; Section 28 - A suit for specific performance does not come to an end on the passing of a decree and the court which has passed the decree for specific performance retains control over the decree even after the decree has been passed. Section 28 not only permits the judgment ­debtors to seek rescission of the contract but also permits extension of time by the court to pay the amount. The power under this section is discretionary and the court has to pass an order as the justice of the case may require. (Para 11) Kishor Ghanshyamsa Paralikar v. Balaji Mandir Sansthan Mangrul (Nath), 2022 LiveLaw (SC) 528

Special Relief Act, 1963; Section 28 - Consent Decrees - Time for payment of sale consideration may be extended even in a consent decree. Kishor Ghanshyamsa Paralikar v. Balaji Mandir Sansthan Mangrul (Nath), 2022 LiveLaw (SC) 528

Tribunal Reforms Act 2021 - All material must be placed in advance before the SCSC. It must be emphasized that the SCSC, which is chaired by a Judge of the Supreme Court also consists of two Secretaries of the Union Government. A comprehensive exercise is conducted by the Committee, inter alia, involving calling for inputs from the IB, verifying the record of each candidate and conducting personal interaction. Hence, all such inputs, as are available with the Government, must be placed before the SCSC in advance. In an exceptional situation, where certain material comes to light after the submission of the recommendations, that must also be drawn to the attention of the SCSC so as to enable it to consider whether any modification of its recommendations is necessary. (Para 12) Advocate Association Bengaluru v. Anoop Kumar Mendiratta, 2022 LiveLaw (SC) 524

Tribunal Reforms Act 2021 - Centre must place subsequent materials collected about member recommended by the Search Cum Selection Committee before the SCSC - the candidates who are recommended by the SCSC are those who had been cleared by the IB after verifying their credentials, integrity, character and other relevant aspects. Evidently, many of the comments which are contained in the feedback column are of a subjective nature without any disclosure of underlying material. This would substantially detract from the fairness of the process. If, in an exceptional case, subsequent to the formulation and submission of recommendations of the SCSC, any tangible material comes to the knowledge of the competent authority, it is only proper and appropriate, as the Attorney General submits, that such material should be placed before the SCSC. We are in agreement with the submission of the Attorney General that as a general practice, all inputs bearing on the candidature of each prospective applicant under consideration, whether the inputs emanate from the IB or from any other source, ought to be placed by the Union Government on the record of the SCSC in advance, before the recommendations are formulated. (Para 12) Advocate Association Bengaluru v. Anoop Kumar Mendiratta, 2022 LiveLaw (SC) 524

Nominal Index 2022 LiveLaw (SC) 517 to LiveLaw (SC) 533

1. Aarav Jain v. Bihar Public Service Commission, 2022 LiveLaw (SC) 521
2. Advocate Association Bengaluru v. Anoop Kumar Mendiratta, 2022 LiveLaw (SC) 524
3. Babasaheb Raosaheb Kobarne v. Pyrotek India Pvt. Ltd; 2022 LiveLaw (SC) 520
4. Baiju K.G. v. Dr. V.P. Joy, 2022 LiveLaw (SC) 517
5. Budhadev Karmaskar v. State of West Bengal, 2022 LiveLaw (SC) 525
6. C.C. C.E. & S.T. - Bangalore (Adjudication) Etc. v. M/s. Northern Operating Systems Pvt. Ltd., 2022 LiveLaw (SC) 526
7. Chandrapal v. State of Chhattisgarh, 2022 LiveLaw (SC) 529
8. Gurukanwarpal Kirpal Singh v. Surya Prakasam, 2022 LiveLaw (SC) 519
9. Independent Schools' Association Chandigarh (Regd.) v. Union of India, 2022 LiveLaw (SC) 518
10. Kishor Ghanshyamsa Paralikar v. Balaji Mandir Sansthan Mangrul (Nath), 2022 LiveLaw (SC) 528
11. Levaku Pedda Reddamma v. Gottumukkala Venkata Subbamma, 2022 LiveLaw (SC) 533
12. Malaya Nanda Sethy v. State of Orissa, 2022 LiveLaw (SC) 522
13. Mamta v. State (NCT of Delhi), 2022 LiveLaw (SC) 531
14. Nazma Naz v. Rukhsana Bano, 2022 LiveLaw (SC) 532
15. P.R. Adikesavan v. Registrar General, High Court of Madras, 2022 LiveLaw (SC) 530
16. Shree Vishnu Constructions v. Engineer in Chief Military Engineering Service Service, 2022 LiveLaw (SC) 523
17. State of West Bengal v. Gitashree Dutta (Dey), 2022 LiveLaw (SC) 527