Gujarat High Court Monthly Digest: November 2024

Citations 2024 LiveLaw (Guj) 165 to LiveLaw (Guj) 180

Nominal Index

IPCL Employee Association (Bhartiya Majdoor Sangh) vs Reliance Industries Ltd.  2024 LiveLaw (Guj) 165

Shailesh Anilkumar Amin & Anr. vs Gujarat Metro Rail Corporation (GMRC) Ltd. 2024  LiveLaw (Guj) 166

M/S Konnecting India & Ors vs The Kalupur Commercial Co. Op Bank Ltd. & Anr. 2024  LiveLaw (Guj) 167

Kurbuddin Inayat Mithiborwala Poa of Aamir Ali Asghar vs State of Gujarat 2024 LiveLaw (Guj) 168

Faruk Mohmmad Bhana Through Imran Faruk Bhana vs State of Gujarat & Anr . 2024 LiveLaw (Guj) 169

XYZ Through Her Father v/s State of Gujarat & Anr. 2024 LiveLaw (Guj) 170

Saquib Nisar @ Saquib Nisar Ahmed Shaikh v/s State of Gujarat2024 LiveLaw (Guj) 171

The Work Assistant Association PWD Road and Building Department v. State of Gujarat & Anr. 2024 LiveLaw (Guj) 172

Adarsh Gujarat Anganwadi Union & Ors. v/s State of Gujarat 2024 LiveLaw (Guj) 173

Venus Macro Prints Pvt. Ltd. v/s State of Gujarat 2024 LiveLaw (Guj) 174

Pernod Ricard India Private Limited Through Rajendra Ramdas Deshmukh & Anr. v/s State of Gujarat & Anr. 2024 LiveLaw (Guj) 175

Hemalkumar Vinodbhai Dodiya & Ors. v/s State of Gujarat 2024 LiveLaw (Guj) 176

Jayeshkumar Bhagwanbhai Pancholi v. State of Gujarat & Others 2024 LiveLaw (Guj) 177

Javedbhau @Javedkhan Babubhai Saiyad & Ors. v/s Sikandarali Kasamali Kureshi & Anr.2024 LiveLaw (Guj) 178

National Federation of the Blind v/s State of Gujarat 2024 LiveLaw (Guj) 179

Re-management of the Water Bodies such as Reservoirs/Ponds/Rivers/Lakes in the State of Gujarat, & Anr. vs State of Gujarat Through the Secretary Home Department. 2024 LiveLaw (Guj) 180

Cash Canteen Subsidy Qualifies As Cash Value Of Food Concession And Is Included In Dearness Allowance: Gujarat High Court

Case Title: IPCL Employee Association (Bhartiya Majdoor Sangh) vs Reliance Industries Ltd.

Case Citation: 2024 LiveLaw (Guj) 165

Shailesh Anilkumar Amin & Anr. vs Gujarat Metro Rail Corporation (GMRC) Ltd.

The Gujarat High Court ruled that Reliance Industries' ₹475 monthly cash canteen subsidy qualifies as part of dearness allowance under Explanation 1 to Section 6 of the Employees Provident Fund Act, requiring provident fund (PF) contributions. The Court held that the subsidy, linked to the cost of living, is equivalent to the “cash value of any food concession,” though not part of basic wages. It overturned a prior ruling and upheld the PF Commissioner's 1998 order, directing Reliance to deduct PF contributions on the subsidy and settle arrears within three months.

Award In Which Serious Allegations Of Fraud Are Not Decided Must Be Set Aside On Grounds Of Patent Illegality: Gujarat High Court

Case Title: Shailesh Anilkumar Amin & Anr. vs Gujarat Metro Rail Corporation (GMRC) Ltd.

Case Citation: 2024 LiveLaw (Guj) 166

The Gujarat High Court ruled that an arbitral award can be set aside if serious fraud allegations about the arbitration agreement's validity are not addressed. The case involved a lease dispute where Metro Link Express allegedly violated terms by not vacating the property or paying rent.

Despite there being a claim of fraud in the lease, the Arbitrator did not pay attention to these issues and overstepped the jurisdiction by delegating the matter of fixing rent to a third party.

The court then highlighted that the claims regarding fraud must be examined as they can invalidate the arbitration agreement. The Court found the award invalid and violation to the Contract Law. The Court set aside the arbitral award and the order of the Sessions Court.

Requirement Of Serving Notice On Other Party For Appointment Of Arbitrator Is Dispensed With In Statutory Arbitration: Gujarat High Court

Case Title: M/S Konnecting India & Ors vs The Kalupur Commercial Co. Op Bank Ltd. & Anr.

Case Citation: 2024 LiveLaw (Guj) 167

The Gujarat High Court dismissed the first appeal challenging the arbitration award for a loan of Rupees 750 lakhs default. The applicants contended that the arbitrator was appointed in an unfair and biased manner relying upon the Supreme Court ruling that held unilateral appointments are prohibited. The Court clarified the arbitration was under Multi State Co-operative Societies Act and not commercial arbitration. The Court observed that there was no evidence of bias in the arbitral order. The Court then rejected the appeal.

No 'Illegal' Detention: Gujarat High Court Rejects Pakistani Father's Plea For Custody Of Minor Son Brought To India By Mother

Case Title: Kurbuddin Inayat Mithiborwala Poa of Aamir Ali Asghar vs State of Gujarat & Ors

Case Citation: 2024 LiveLaw (Guj) 168

The Gujarat High Court rejected a Pakistani Man's Habeas Corpus plea for custody of his 4-year-old son whose lives with his mother in India. The Court found no evidence of an illegal detention or harm towards the welfare of the child and did not entertain the claims of the father about nationality, culture and values. The Father argued that the mother brought the child unlawfully too India and isolated him from his culture. The Father prayed before the Court for the custody his son and to take him to Pakistan. However, the Court observed that his biological mother has the custody and observed that mere assertion that the minor is illegally detained cannot be considered.

2002 Sabarmati Express Burning Case: Gujarat High Court Rejects Temporary Bail Of Convict For Father's Treatment

Case Title: Faruk Mohmmad Bhana Through Imran Faruk Bhana vs State of Gujarat & Anr.

Case Citation: 2024 LiveLive 2024 (Guj) 169

The Gujarat High Court dismissed a petition for temporary bail by a man convicted in the 2002 Sabarmati Express train burning case. The man sought bail in order to attend to some medical care for his ailing 95-year-old father, who has had kidney problems. However, Justice Sanjeev J Thaker rejected the plea. The court noted that other family members could take care of the father and that the man had just been granted temporary bail. The court relied on his life imprisonment sentence under Section 302 of the IPC in its decision.

Gujarat High Court Issues Guidelines For Medical Board To Follow While Forming Opinion Of Termination Of Pregnancy

Case Title: XYZ Through Her Father v/s State of Gujarat & Anr.

Case Citation: 2024 LiveLaw (Guj) 170

The Gujarat High Court allowed a 16-year-old rape victim to terminate her 24 weeks pregnancy taking note of her physical and mental health. Justice Sanjeev Thaker emphasized on the victim's wellbeing and issued guidelines for the medical practitioners to assess the emotional and physical effect of pregnancy in similar cases. The father of the victim who prayed for the termination argued that such pregnancy would cause his daughter trauma and social stigma. The Court allowed the victim to undergo the procedure for termination by following the conditions laid down ensuring the care and assistance to be provided by experts during and post the operation. The Court then directed the state to cover the medical expenses and disposed of the petition with instructions to take necessary actions.

Gujarat High Court Enlarges Man Booked In 2013 Sabarmati Prison Break Attempt Case On Regular Bail

Case Title: Saquib Nisar @ Saquib Nisar Ahmed Shaikh v/s State of GujaratLL Citation: 2024 LiveLaw (Guj) 171

The Gujarat High Court granted regular bail to Saquib Nisar Shaikh, accused in the 2013 Sabarmati prison break attempt observing that he has been in jail for 10 years with so sign of trial to be conducted in near future. Justice Desai noted that the co-accused had also been granted bail by this court and the Apex Court, relying on the principle of parity, the court found it fit to release him on bail with the execution of a bail bond and to follow the conditions laid down by the court for his release.

Employee's Right To Promised Pay Scale Benefits Can't Be Negated By Administrative Delays: Gujarat HC

Case Title: The Work Assistant Association PWD Road and Building Department v. State of Gujarat & Anr.

Case Citation: 2024 LiveLaw (Guj) 172

The Gujarat High Court ruled that the State must grant higher pay scales to Work Assistant's cadre members based on their years of service. The Court found that the State recovered the salaries previously granted to the workers in an unlawful manner. The petitioners argued that despite the Government Resolution promising higher pay scales, it was never implemented. The state then contented that the promotion depends on vacancies and that there was a delay in filing the petition. The Court then held that the delay doesn't not invalidate the claim of the petitioner and the salary recoveries were not justified and violated government policy. The Court allowed the Petition and ordered the state to grant the petitioner higher pay scale based on their term of service.

Anganwadi Workers Perform Onerous Statutory Duties, Not Considering Them As Part Of State Civil Services Is Discriminatory: Gujarat HC

Case Title: Adarsh Gujarat Anganwadi Union & Ors. v/s State of Gujarat

Case Citation: 2024 LiveLaw (Guj) 173

The Gujarat High Court directed that Anganwadi Workers (AWWs) and Helpers (AWHs), though not official part of the State Civil Services, should still be considered as regular workers in view of their importance to the statutory mandates under the Right to Education Act (RTE) and the National Food Security Act (NSF). The Court held that not recognizing them as employees, not paying them a minimum wage, was unequal treatment under the Indian Constitution, which guarantees everyone the right to equality. The Court underlined the fact that AWWs and AWHs do critical and diverse work such as teaching, coordination, and management of public health programs. They put in long hours and are burdened with work, but get miserably low wages which is below the minimum wage. The Court ordered the State and Central Governments to develop a policy to regularize AWWs and Give the AWHs the status of government employee and offer them proper pay scale and all benefits, policy to be finalized within six months and in the meanwhile, minimum wage to be provided to the petitioners.

Certified Copy Not Necessary To File GST Appeal, Order Downloaded From Site Enough: Gujarat High Court

Case Title: Venus Macro Prints Pvt. Ltd. v/s State of Gujarat

Case Citation: 2024 LiveLaw (Guj) 174

The Gujarat High Court quashed an order by a tax authority that had rejected a GST appeal on the ground that the petitioner failed to submit a certified copy of the order. According to the Court, where an order is available on a common portal, a certified copy is not required as the Appellate Authority can access it directly. The Court noted that requirement of physical certified copies to determine its authenticity is “regressive” in this day and age.

The petitioner contended that the amendment of December 2020 in GST Rules that allowed self-certified certified copies if the same was available on the portal. The Court relied on the amendment and noted that it was applicable retrospectively. The Court set aside the order of rejection by the Appellate Authority and directed that it be re-admitted with a decision being taken afresh within 12 weeks. The Court observed that the decision was to be taken by the Appellate Authority.

Transport Rules Places Onus On Transporter To Pay For Excise Escort When Moving Alcohol Through The State: Gujarat High Court

Case Title: Pernod Ricard India Private Limited Through Rajendra Ramdas Deshmukh & Anr. v/s State of Gujarat & Anr.

Case Citation: 2024 LiveLaw (Guj) 175

The Gujarat High Court quashed an FIR against the petitioner in a case where a truck carrying Royal Stag Whisky overturned in Vapi Gujarat. The FIR was a registered for violation of The Gujarat Prohibition Act and Transport Rules, wherein it was also alleged that excise escort was not taken for such consignment. Under Rule 10 of the Gujarat Through Transport Rules, it is the responsibility of the transporter to arrange and pay for the excise escort. The consignor is not responsible. As Manshi Logistics had not arranged the escort, the Court held that the petitioner cannot be penalised for the mistake of the transporter. The Court further added that the petitioner did not wilfully violate the Gujarat Prohibition Act, and there is no such wrongdoings proved by the FIR. Referencing a Supreme Court decision, the Court stated, "Continuation of such a prosecution would amount to throwing away of precious judicial time as the allegations of the FIR do not amount to an offense."

Draft Amendments Made In Body Of Writ Petition Regarding Factual Assertions To Be Accompanied By Application And Affidavit: Gujarat HC

Case Title: Hemalkumar Vinodbhai Dodiya & Ors. v/s State of GujaratCase Citation: 2024 LiveLaw (Guj) 176

The Gujarat High Court dismissed draft amendment filed in a writ petition because the amendments were not filed along with a proper application and affidavit, as mandated by the Code of Civil Procedure. The court made it clear that any amendments to the factual parts of the petition should be done as per procedure, which also includes the filing of an application accompanied by an affidavit.Petitioner's counsel argued that there was a general practice in filing draft amendments without any application at the admission stage. The court rejected that argument. The court ordered the petitioner to file a proper application for amendments. It directed the Registrar to circulate the order, making it comply.

Easing Educational Qualification To Prioritise Experience Can't Be Stretched To Dilute Criteria, State's Approach Anathema To Law: Gujarat HC

Case Title: Jayeshkumar Bhagwanbhai Pancholi v. State of Gujarat & Others

Case Citation: 2024 LiveLaw (Guj) 177

The Gujarat High Court quashed the appointment of a District Commandant in Narmada District, holding that the appointee did not possess the requisite educational qualification. It was held that the decision of the State to grant preference to experience over education was violative of the guidelines issued under the Gujarat Home Guards Act and watered down the eligibility for the post. A graduate appellant argued that a 9th-grade qualified individual was wrongly appointed to the post and according to the rules of the government, there should be at least graduation level. The court pointed out that the State itself had violated its own set of rules that first preference should be given to the graduates. It also stated that even the minimum educational qualification for other honorarium-based posts in the department was at least the 10th standard, which the appointee did not have. It dismissed the State's argument that the appointment had been made on the grounds of experience, holding that if this were to be interpreted then the statutory provisions would fall to the ground. The appointment was hereby set aside and the appellant was directed to be reappointed to the post or that the State would fresh recruit a District Commandant and pay a fine of Rs. 10,000 in favour of the appellant.

Parties In Appeal Not Entitled To Produce Additional Evidence As A Matter Of Right, Only Permitted In Exceptional Circumstances: Gujarat HC

Case Title: Javedbhau @Javedkhan Babubhai Saiyad & Ors. v/s Sikandarali Kasamali Kureshi & Anr.Case Citation: 2024 LiveLaw (Guj) 178

The Gujarat High Court recently held that there is no right to submit additional evidence in an appeal except in exceptional circumstances, which would include when evidence could not be available despite the best efforts or was wrongly excluded by the trial court. The petitioners tried to introduce additional documents on appeal, but the Appellate Court accepted only one document and rejected the others. The petitioners contended that they could not foresee the necessity for certain documents during the course of trial and could not present some earlier because there was a delay in securing certificates. In this respect, however, the Court of Appeals found that the petitioners failed to meet the requirement under the Civil Procedure Code of showing necessity for a just judgment before admitting new evidence. The court also held that the petitioners had enough time to present the evidence during the appeal and did not provide sufficient reasons for not doing so earlier. The High Court upheld the decision of the Appellate Court and dismissed the petition stating that there was no error in the order.

Reservation For Persons With Disabilities: Gujarat High Court Says State Will Endeavour To Notify Vacancies Within 1-Year Period

Case Title: National Federation of the Blind v/s State of GujaratCase Citaiton: 2024 LiveLaw (Guj) 179

The Gujarat High Court recently emphasized that state government departments must notify vacancies for persons with benchmark disabilities (PWDs) to recruiting agencies within the time specified in a government circular, in line with the Rights of Persons with Disabilities (RPwD) Act, 2016. The court was hearing a PIL for the effective implementation of the RPwD Act, which mandates a 4% reservation for PWDs in government jobs. The government identified 21,114 backlog vacancies for PWDs across 27 departments. The petitioners agreed with the government's proposed timeline but raised concerns about delays. The state requested an extension of two years due to a higher number of vacancies than anticipated. The court concluded that the process should go on as scheduled and in case of delays, they can request more time to the court. The court expressed confidence in the State that the recruitment would be completed within the required time.

Can Draw Analogy From Motor Vehicles Act To Calculate Compensation To Victims Of Vadodara Boat Capsize Incident: Gujarat High Court

Case Title: Re-management of the Water Bodies such as Reservoirs/Ponds/Rivers/Lakes in the State of Gujarat, & Anr. vs State of Gujarat Through the Secretary Home Department.

Case Citation: 2024 LiveLaw (Guj) 180

In Harni Lake boat tragedy case, the Gujarat High Court ordered that compensation payable to the victims and their respective families be worked out as per the principles of Motor Vehicles Act, 1988. The court also drew an analogy from the guidelines of the Supreme Court in the case of Sarla Verma for calculating compensation in death and injury cases. It further held that there was an actionable negligence by the project-running contractor M/s Kotia Projects. The court ordered the Collector of Vadodara to nominate an officer equivalent to the post of Deputy Collector to ascertain the compensation within 8 weeks after hearing both the parties and directing legal aid through the DLSA. The quantum of compensation to be finally determined within the aforesaid period. The Court further noted that issues concerning internal conflicts in the contractor's company did not relate to the case at hand.