Gujarat High Court Weekly Round Up: August 15 To August 21, 2022

Rameshbhai Bhathibhai Pagi V/S Deputy Executive Engineer 2022 LiveLaw (Guj) 328

X v/s Indext/C Industrial Extension Cottage & 1 other(s) 2022 LiveLaw (Guj) 329

Shaileshbhai Kandubhai Rathwa V/S Gurjar Shankarlal Devalal 2022 LiveLaw (Guj) 330

M/S Harsh Transport Private V/S Union Of India 2022 LiveLaw (Guj) 331

Dhavalkumar Ashokbhai Aghera v/s Reliance General Insurance Co. Ltd. 2022 LiveLaw (Guj) 332

State Of Gujarat Versus Balvantsinh Amarsinh Raj 2022 LiveLaw (Guj) 333

Rekhaben Shashikant Gade V/S State Of Gujarat & 4 other(s) 2022 LiveLaw (Guj) 334

Kumanbhai Chatrabhjubhaihujbhadaraniya & 18 other(s) v/s Manavadar Municipality & 14 other(s) 2022 LiveLaw (Guj) 335

Pruthvirajsinh Bhagirathsinh Jadeja v/s State Of Gujarat & 2 other(s) 2022 LiveLaw (Guj) 336

Jigar Bharatsingh Kshatriya V/S State Of Gujarat 2022 LiveLaw (Guj) 337

Pragnesh Harshadbhai Patel @ P.G. @ Pragnesh Gota v/s State Of Gujarat 2022 LiveLaw (Guj) 338

Jaferkhan Allarakabhai Radhanpuri V/S Dholka Nagar Palika 2022 LiveLaw (Guj) 339

Mohmed Hasan Aslam Kaliwala Versus State Of Gujarat 2022 LiveLaw (Guj) 340

JUDGMENTS/ORDERS OF THE WEEK

Industrial Disputes Act | Violation Of Retrenchment Procedure U/S 25F & 25G Warrants Reinstatement, Not Mere Compensation: Gujarat HC

Case Title: Rameshbhai Bhathibhai Pagi V/S Deputy Executive Engineer

Citation: 2022 LiveLaw (Guj) 328

The Gujarat High Court has reiterated that once a Labour Court comes to the conclusion that Sections 25F, G and H of the Industrial Disputes Act have been violated, reinstatement of workman ought to follow.

The Bench comprising Justice Biren Vaishnav was hearing several petitions challenging the Labour Court's order wherein compensation of Rs. 72,000 was awarded to each of the Petitioner-workmen rather than reinstatement with backwages.

Workman Who Consents For Contractual Engagement Can't Turn Around & Seek Benefit U/S 25F Of Industrial Disputes Act: Gujarat High Court

Case Title: X v/s Indext/C Industrial Extension Cottage & 1 other(s)

Citation: 2022 LiveLaw (Guj) 329

The Gujarat High Court has reiterated that when there is a specific condition provided in the consent letter of employment that the appointment is on contract basis, then such workman cannot claim any benefit by contending that the Respondent establishment had breached Section 25(F) of the Industrial Disputes Act.

The Petitioner, claiming to be sexually harassed by her immediate superior, was agitating an order of the Labour Court by averring that the Labour Court should have held that the contractual appointment was a mere 'camouflage' and she was entitled to retrenchment compensation.

Motor Accident Claims | Child Victim Can't Be Equated To Non-Earning Adult, Must Be Compensated Under Non-Pecuniary Heads: Gujarat HC Reiterates

Case Title: Shaileshbhai Kandubhai Rathwa V/S Gurjar Shankarlal Devalal

Citation: 2022 LiveLaw (Guj) 330

The Gujarat High Court has reiterated that children who are victims of motor accidents stand on a different footing from non-earning adults in matter of compensation.

Recalling the Supreme Court's observations in Mallikarjun v/s Divisional Manager, National Insurance Company Limited, the Bench comprising Justice Gita Gopi added that compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability.

Railway Tribunal Has Jurisdiction To Adjudicate Disputes Regarding Freight For Carriage Of Goods: Gujarat HC Refuses To Exercise Writ Jurisdiction

Case title: M/S Harsh Transport Private V/S Union Of India

Citation: 2022 LiveLaw (Guj) 331

The Gujarat High Court has held that Railway Claims Tribunal is competent to adjudicate disputes regarding freight for carriage of goods and any dispute with regard to the same, including imposition of punitive charges.

The observation was made by Justice AS Supehia while hearing a writ petition raising a dispute with regard to freight charge demanded by the Railways from the petitioner between two stations. It was the case of the petitioner that it has paid regular freight charges to the Railway and the same were also accepted, and later on an extra freight charge was created.

Motor Accident | Literate Claimants Can Exercise Discretion, Tribunals Must Avoid Investing Their Money In FDRs Without Recording Reasons: Gujarat HC

Case Title: Dhavalkumar Ashokbhai Aghera v/s Reliance General Insurance Co. Ltd.

Citation: 2022 LiveLaw (Guj) 332

The Gujarat High Court has permitted the premature withdrawal of Fixed Deposit Receipt of the compensation awarded in Motor Accidents Claims to an Air Force person who intended to purchase a house for his permanent residence. Justice Gita Gopi stated:

"The deposited money are of the claimants. The literates can prudently exercise discretion, manage their funds and can individually decide about systematic planning for investing the money...In case of literate person, the Tribunal is required to give relaxation by not adopting pedantic approach of investing the money in long term FDR without recording reasons for investing the money in long term deposits."

Possession/ Ownership Of Property Relevant Consideration For Proceedings Against Electricity Theft: Gujarat High Court

Case Title: State Of Gujarat Versus Balvantsinh Amarsinh Raj

Citation: 2022 LiveLaw (Guj) 333

The Gujarat High Court upheld the acquittal of a man under Section 135 of the Electricity Act for alleged unlicensed connection has made it clear that ownership/ possession of the property in question has to be factored into consideration.

Justice Ashokkumar Joshi rejected the State's appeal on several grounds, including the fact that the Police did not call for any certificate or documents to show the possession or ownership of accused for the so-called place of occurrence.

Bullet Train Project | High Court Cannot Usurp Powers Of Statutory Authority Under Fair Compensation In Land Acquisition Act: Gujarat HC

Case Title: Rekhaben Shashikant Gade V/S State Of Gujarat & 4 other(s)

Citation: 2022 LiveLaw (Guj) 334

The Gujarat High Court has emphasised that Chapter VIII of the Land Acquisition Act has prescribed the establishment of the Land Acquisition Rehabilitation and Resettlement Authority which is 'couched with appropriate powers' to examine the issues which may arise in the process of land acquisition and compensation distribution.

Accordingly, the Bench comprising Chief Justice Aravind Kumar and Justice Ashutosh J. Shastri refused to entertain the writ petition moved by a woman seeking compensation for a property, purportedly owned by her at the time, acquired by the government for its 'Bullet Train Project'.

Merely Because Some Benefit Accrued To Litigant Due To Interim Order, They Cannot Claim Such Benefits When Litigation Ends Against Them: Gujarat HC

Case Title: Kumanbhai Chatrabhjubhaihujbhadaraniya & 18 other(s) v/s Manavadar Municipality & 14 other(s)

Citation: 2022 LiveLaw (Guj) 335

The Gujarat High Court has clarified that merely because of some benefit has accrued to the litigant because of operation of interim orders, the litigant cannot claim such benefits when the litigation finally ends against them.

Considering this well-settled principle of law, Justice Biren Vaishnav declined to entertain a second appeal challenging the order of the Appellate Court in order to seek reinstatement in the Municipal Corporation. Justice Vaishnav upheld the order of the Trial Court and the First Appellate Court by affirming:

"What is therefore evident is that no fault can be found inasmuch as the Trial Court as well as the Appellate Court committed no error in holding that the Civil Court has no jurisdiction to entertain a civil suit under section 9 of the Code of Civil Procedure in the face of the provisions of the Industrial Disputes Act,1947."

Person Not Appearing & Pleading Before Courts Not An "Advocate", Mere Enrollment With Bar Council Is Of No Consequence: Gujarat High Court

Case Title: Pruthvirajsinh Bhagirathsinh Jadeja v/s State Of Gujarat & 2 other(s)

Citation: 2022 LiveLaw (Guj) 336

The Gujarat High Court has reiterated that a lawyer who does not appear and plead before courts cannot designate himself as an "Advocate" even if he is enrolled with the Bar Council.

It added that as per the Advocates Act and the Bar Council Rules, once the terms of employment do not require an advocate to plead and appear before the Courts, then during this period of employment, a person cannot be termed as an 'Advocate' because he is not practising as one.

Lok Rakshak Recruitment | Courts Cannot Ascertain Correctness Of Answer Keys, Must Be Left To Experts: Gujarat High Court

Case Title: Jigar Bharatsingh Kshatriya V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 337

The Gujarat High Court has held that it is not open for the Court to undertake the task of ascertaining the correctness of examination answer keys and the same must be left to the discretion of field experts.

"Whichever option is chosen, there will be some candidates who are likely to suffer," Justice Biren Vaishnav said while rejecting a petition assailing the correctness of the answer keys of examinations held for the posts of Lok Rakshaks (Class-III). The Single Judge Bench reiterated:

"…when there are conflicting views, judges are not expected to act as experts in the fields and overstep."

Prosecutrix Travelling & Enjoying Hospitality Of Accused After Alleging Rape Belies The Allegations: Gujarat High Court Grants Bail

Case Title: Pragnesh Harshadbhai Patel @ P.G. @ Pragnesh Gota v/s State Of Gujarat

Citation: 2022 LiveLaw (Guj) 338

The Gujarat High Court granted bail to a man accused of participating in gang-rape of the prosecutrix, after noting that the latter was on very friendly terms with the accused and even after levelling such grave allegations, she had been travelling with him and had been enjoying his hospitality.

Justice Rajendra Sareen observed,

"The facts narrated hereinabove prima facie reveal that the first informant was on very friendly terms with the applicant. It also appears that allegation of rape appears to be unjustified, since all the while the first informant, had been enjoying the hospitality of the applicant and other accused, as the case may be, and there does not appear to be any justification for the first informant in continuously accepting the hospitality of the accused, when according to the first informant, she was being subjected to such a heinous crime."

Statutory Power Of Authority Not Diluted Merely By Mention Of Wrong Provision While Exercising Such Power: Gujarat High Court

Case Title: Jaferkhan Allarakabhai Radhanpuri V/S Dholka Nagar Palika

Citation: 2022 LiveLaw (Guj) 339

The Gujarat High Court has reiterated that merely because a wrong provision is quoted by the authority for exercising its power, it would not invalidate the order if it is shown that such an order could otherwise be passed under other provisions of the statute.

Accordingly, Justice AS Supehia declined to quash an order of eviction against the writ petitioner by holding:

"The petitioner has no right to keep on occupying the property of the respondent Nagarpalika even after the demise of his father, to whom the property was given on rent for 11 months in the year 1971. The provisions of the Eviction Act has been precisely invoked in the case of the petitioner and hence, no interference by this Court is necessitated."

Gujarat High Court Grants Bail To Person Alleged Of Creating Fictitious Entity To Pass Ineligible ITC

Citation: Mohmed Hasan Aslam Kaliwala Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 340

The Gujarat High Court has granted bail to a person alleged to have created a fictitious entity to pass an ineligible Input Tax Credit (ITC).

The single bench of Justice Ilesh J. Vora has directed the release of the applicant on bail, subjected to a deposition of Rs. 2 crore before the office of the Deputy Commissioner of State Tax, Division 8, Enforcement, Surat within a period of 2 months from the applicant's release.