Advocatemmmohan

Seasons

Seasons http://wp.me/s2qleP-seasons

Seasons

walk in every life

Nothing to worry as Spring smiles again

Certainly in one fine morning walk mists wink at you

Take it easy as every thing passes simply as seasons of a year

                                                                               …………advocatemmmohan

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GOOD WILL

Body & Soul

Two separate entities 

Like Persona designata & Persona juridica

Interact frequently for fetching a GOOD WILL

                                            ………………….advocatemmmohan

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Departmental enquiry - charges proved and upheld from bottom to top - But D.B. modified the punishment - Apex court held that the DB traveled beyond it’s jurisdiction and set aside the order and held that However, the Division Bench chose to tinker with the quantum of punishment imposed by the disciplinary authority. Though it upheld the punishment of recovery of loss, the punishment of reduction in pay scale has been set aside and substituted by the punishment of withholding of one increment with cumulative effect for a period of one year as per Regulation 39(1)(b) of the L.I.C. of India (Staff) Regulations, 1960. We are of the opinion that the High Court transgressed its limits of judicial review by itself assuming the role of sitting as departmental appellate authority, which is not permissible in law. =CIVIL APPEAL NO. 7717 OF 2014 (arising out of Special Leave Petition (Civil) No. 39113 of 2013) |THE LIFE INSURANCE CORPORATION | | |OF INDIA & OTHERS |…..APPELLANT(S) | |VERSUS | | |S. VASANTHI |…..RESPONDENT(S) = 2014- Aug. Part – http://judis.nic.in/supremecourt/filename=41829

Departmental enquiry – charges proved and upheld from bottom to top – But D.B. modified the punishment – Apex court held that the DB traveled beyond it’s jurisdiction and set aside the order and held that However, the Division Bench chose to tinker with the quantum of punishment imposed by the disciplinary authority. Though it upheld the punishment of recovery of loss, the punishment of reduction in pay scale has been set aside and substituted by the punishment of withholding of one increment with cumulative effect for a period of one year as per Regulation 39(1)(b) of the L.I.C. of India (Staff) Regulations, 1960. We are of the opinion that the High Court transgressed its limits of judicial review by itself assuming the role of sitting as departmental appellate authority, which is not permissible in law. =CIVIL APPEAL NO. 7717 OF 2014 (arising out of Special Leave Petition (Civil) No. 39113 of 2013) |THE LIFE INSURANCE CORPORATION | | |OF INDIA & OTHERS |…..APPELLANT(S) | |VERSUS | | |S. VASANTHI |…..RESPONDENT(S) = 2014- Aug. Part – http://judis.nic.in/supremecourt/filename=41829

  Departmental enquiry – charges proved and upheld from bottom to top – But D.B. modified the punishment – Apex court held that the DB traveled beyond it’s jurisdiction and set aside the order and held that However, the Division Bench chose to tinker with the quantum  of  punishment

imposed by the disciplinary authority.  Though it upheld the  punishment  of recovery of loss, the punishment of…

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Service Matter - Higher post salary when entitled for - whether the appellant is entitled to salary of high post where in he had worked for few years as in charge with specific terms - Apex court held that The order dated 28th February, 2001, by which the appellant was allowed to discharge duties in the post of Assistant Manager had made it clear that the appellant would not be entitled to claim any benefit therefrom including higher salary and further that he would continue to draw his salary in the post of Assistant Labour Welfare Officer. If the above was an express term of the order allowing him to discharge duties in the higher post, it is difficult to see as to how the said condition can be overlooked or ignored and dismissed the appeal =CIVIL APPEAL NO.7692 OF 2014 (Arising out of SLP (C) No. 5396 OF 2013) A. FRANCIS … APPELLANT (S) VERSUS THE MANAGEMENT OF METROPOLITAN … RESPONDENT (S) TRANSPORT CORPORATION LTD., TAMIL NADU = 2014- Aug. Part – http://judis.nic.in/supremecourt/filename=41827

Service Matter – Higher post salary when entitled for – whether the appellant is entitled to salary of high post where in he had worked for few years as in charge with specific terms – Apex court held that The order dated 28th February, 2001, by which the appellant was allowed to discharge duties in the post of Assistant Manager had made it clear that the appellant would not be entitled to claim any benefit therefrom including higher salary and further that he would continue to draw his salary in the post of Assistant Labour Welfare Officer. If the above was an express term of the order allowing him to discharge duties in the higher post, it is difficult to see as to how the said condition can be overlooked or ignored and dismissed the appeal =CIVIL APPEAL NO.7692 OF 2014 (Arising out of SLP (C) No. 5396 OF 2013) A. FRANCIS … APPELLANT (S) VERSUS THE MANAGEMENT OF METROPOLITAN … RESPONDENT (S) TRANSPORT CORPORATION LTD., TAMIL NADU = 2014- Aug. Part – http://judis.nic.in/supremecourt/filename=41827

Service Matter – Higher post salary when entitled for – whether the appellant is entitled to salary of high post where in he had worked for few years as in charge with specific terms – Apex court held that The order dated 28th  February,  2001,  by  which  the  appellant  was allowed to discharge duties in the post of Assistant  Manager  had  made  it clear that the  appellant  would  not  be…

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Service Matter - Seniority - Promotion - mere having B.Ed. Degree can the junior as a senior in Trained Graduates cadre over power the senior candidate and can be designated as senior for promotion - Apex court set aside the order of High court and held that we find that in the case at hand there is a specific Rule, namely, Rule 12 of the Rules, which deals with seniority. The clear and unambiguous criteria for determining seniority is the continuous officiation counted from the date of acquiring the educational qualification as prescribed under Schedule “B”. since the appellant was holding the requisite qualifications, i.e. D.Ed., for appointment to the post of Assistant Teacher in Primary School, as prescribed under Schedule “B” to the Rules, her seniority was to be counted on the basis of continuous officiation. Since she joined the post of Assistant Teacher on 24.08.1979 and respondent No.4 came to be appointed subsequently, i.e. on 01.09.1980. The appellant would naturally be senior to respondent No.4.Insofar as manning the post of Head of the School is concerned, Rule 3 of the Rules provides for the qualifications. It is not in dispute that as on the date of which the Head of the School was to be appointed, the appellant fulfilled all the requisite qualifications mentioned in the said Rule. Further, as already found, she was senior to respondent No.4 as well. Therefore, it is the appellant who was the rightful claimant to the post of Head of the School. Depriving her of this legitimate right and making the appointment of respondent No.4 as the Head Master of the School was, therefore, clearly erroneous, which resulted in infringement of the rights of the appellant to hold that post. Accordingly, this appeal is allowed. Judgment of the High Court is set aside and a direction is issued to appoint the appellant as Head of the School by replacing respondent No.4 therefrom. This direction shall be carried out within a period of four weeks from today.= CIVIL APPEAL NO. 7699 OF 2014 (arising out of Special Leave Petition (Civil) No. 29696 of 2013) |VIMAN VAMAN AWALE |…..APPELLANT(S) | |VERSUS | | |GANGADHAR MAKHRIYA CHARITABLE TRUST & |…..RESPONDENT(S) | |ORS. | | = 2014- Aug. Part – http://judis.nic.in/supremecourt/filename=41826

Service Matter – Seniority – Promotion – mere having B.Ed. Degree can the junior as a senior in Trained Graduates cadre over power the senior candidate and can be designated as senior for promotion – Apex court set aside the order of High court and held that we find that in the case at hand there is a specific Rule, namely, Rule 12 of the Rules, which deals with seniority. The clear and unambiguous criteria for determining seniority is the continuous officiation counted from the date of acquiring the educational qualification as prescribed under Schedule “B”. since the appellant was holding the requisite qualifications, i.e. D.Ed., for appointment to the post of Assistant Teacher in Primary School, as prescribed under Schedule “B” to the Rules, her seniority was to be counted on the basis of continuous officiation. Since she joined the post of Assistant Teacher on 24.08.1979 and respondent No.4 came to be appointed subsequently, i.e. on 01.09.1980. The appellant would naturally be senior to respondent No.4.Insofar as manning the post of Head of the School is concerned, Rule 3 of the Rules provides for the qualifications. It is not in dispute that as on the date of which the Head of the School was to be appointed, the appellant fulfilled all the requisite qualifications mentioned in the said Rule. Further, as already found, she was senior to respondent No.4 as well. Therefore, it is the appellant who was the rightful claimant to the post of Head of the School. Depriving her of this legitimate right and making the appointment of respondent No.4 as the Head Master of the School was, therefore, clearly erroneous, which resulted in infringement of the rights of the appellant to hold that post. Accordingly, this appeal is allowed. Judgment of the High Court is set aside and a direction is issued to appoint the appellant as Head of the School by replacing respondent No.4 therefrom. This direction shall be carried out within a period of four weeks from today.= CIVIL APPEAL NO. 7699 OF 2014 (arising out of Special Leave Petition (Civil) No. 29696 of 2013) |VIMAN VAMAN AWALE |…..APPELLANT(S) | |VERSUS | | |GANGADHAR MAKHRIYA CHARITABLE TRUST & |…..RESPONDENT(S) | |ORS. | | = 2014- Aug. Part – http://judis.nic.in/supremecourt/filename=41826

Service Matter – Seniority – Promotion – mere having B.Ed. Degree can the junior  as a senior in Trained Graduates cadre over power the senior candidate and can be designated as senior for promotion – Apex court set aside the order of High court and held that we find that in the case at  hand  there  is  a  specific  Rule, namely, Rule 12 of the Rules, which deals with  seniority.   

The  clear…

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Writ - Civil Suit by Auction Purchaser - Inter pleader suit by Tenant against the owner who purchased the property under court auction sale and also Union of India who claims to be owner under a Grant - who are entitled for rents is the question to be decided - High court held that since there are complicated issues writ not maintainable - with out evicting the auction purchaser due to process of law - Union of India not entitled for any rent from inter pleader suit plaintiff/ tenant and dismissed the writ and decreed the inter pleader suit in second appeal - Apex court held that The subject matter of the inter-pleader suit and the proceedings arising therefrom clearly pertains to the entitlement of the presently contesting parties to receive rent in respect of the property in question. The subject matter of the two proceedings i.e. inter-pleader suit and the appeals arising therefrom and the writ petitions filed by the appellant are, therefore, not directly and substantially the same so as to attract the principle of res judicata enshrined in Section 11 of the Code of Civil Procedure. the High Court had dismissed the Writ Petitions leaving it open for the appellant to avail the remedy of civil suit to get the title to the property adjudicated by a competent civil court, no fault, muchless any infirmity, can be found so as to warrant our interference. Accordingly, the civil appeal will have to be dismissed which we hereby do.The stand of the cantonment authority in the Civil Misc. Writ Petition No.175 of 1969, noted by us, is based on the terms of the old grant issued by the Governor General in Council on 12.09.1836. The legal effect of the terms of the said grant has been dealt with by this Court in Chief Executive Officer Vs. Surendra Kumar Vakil & Ors.[1]and Union of India & Ors. Vs. Kamla Verma[2] and have been understood to be conveying a lease of the building standing on the cantonment land with the power of resumption in the cantonment authority subject to payment of compensation for the cost of the building and not as a lease of the land itself. The above position has been emphasised for being kept in mind while dealing with all possible future litigations concerning the property in question without, of course, expressing any opinion on the merits of the claims/contention of any of the parties.= CIVIL APPEAL NO. 2147 OF 2006 PURSHOTTAM DAS TANDON DEAD BY LRS. … APPELLANT (S) VERSUS MILITARY ESTATE OFFICER & ORS. …RESPONDENT (S) = 2014- Aug. Part – http://judis.nic.in/supremecourt/filename=41825

Writ – Civil Suit by Auction Purchaser – Inter pleader suit by Tenant against the owner who purchased the property under court auction sale and also Union of India who claims to be owner under a Grant – who are entitled for rents is the question to be decided – High court held that since there are complicated issues writ not maintainable – with out evicting the auction purchaser due to process of law – Union of India not entitled for any rent from inter pleader suit plaintiff/ tenant and dismissed the writ and decreed the inter pleader suit in second appeal – Apex court held that The subject matter of the inter-pleader suit and the proceedings arising therefrom clearly pertains to the entitlement of the presently contesting parties to receive rent in respect of the property in question. The subject matter of the two proceedings i.e. inter-pleader suit and the appeals arising therefrom and the writ petitions filed by the appellant are, therefore, not directly and substantially the same so as to attract the principle of res judicata enshrined in Section 11 of the Code of Civil Procedure. the High Court had dismissed the Writ Petitions leaving it open for the appellant to avail the remedy of civil suit to get the title to the property adjudicated by a competent civil court, no fault, muchless any infirmity, can be found so as to warrant our interference. Accordingly, the civil appeal will have to be dismissed which we hereby do.The stand of the cantonment authority in the Civil Misc. Writ Petition No.175 of 1969, noted by us, is based on the terms of the old grant issued by the Governor General in Council on 12.09.1836. The legal effect of the terms of the said grant has been dealt with by this Court in Chief Executive Officer Vs. Surendra Kumar Vakil & Ors.[1]and Union of India & Ors. Vs. Kamla Verma[2] and have been understood to be conveying a lease of the building standing on the cantonment land with the power of resumption in the cantonment authority subject to payment of compensation for the cost of the building and not as a lease of the land itself. The above position has been emphasised for being kept in mind while dealing with all possible future litigations concerning the property in question without, of course, expressing any opinion on the merits of the claims/contention of any of the parties.= CIVIL APPEAL NO. 2147 OF 2006 PURSHOTTAM DAS TANDON DEAD BY LRS. … APPELLANT (S) VERSUS MILITARY ESTATE OFFICER & ORS. …RESPONDENT (S) = 2014- Aug. Part – http://judis.nic.in/supremecourt/filename=41825

Writ – Civil Suit by Auction Purchaser – Inter pleader suit by Tenant against the owner who purchased the property under court auction sale and also Union of India who claims to be owner under a Grant – who are entitled for rents is the question to be decided – High court held that since there are complicated issues writ not maintainable – with out evicting the auction purchaser due to process…

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Arbitration proceedings -Court can appoint any arbitrator other than the prescribed arbitrator as per the terms of agreement - disputes between contractors and Railways - as per the terms of agreement a railway Officer was to be appointed as arbitrator - decades lapsed no award was passed - High court appointed former Chief Justice of the Sikkim High Court - challenged as invalid and beyond conditions of arbitration agreement - Apex court held thatA period of nearly two decades has elapsed since the contractor had raised his claims for alleged wrongful termination of the two contracts. The situation is distressing and to say the least disturbing. The power of the Court under the Act has to be exercised to effectuate the remedy provided thereunder and to facilitate the mechanism contemplated therein. In a situation where the procedure and process under the Act has been rendered futile, the power of the Court to depart from the agreed terms of appointment of arbitrators must be acknowledged in the light of the several decisions noticed by us. We are, therefore, of the view that no infirmity muchless any illegality or failure of justice can be said to be occasioned by the order passed by the High Court so as to warrant any interference. We, therefore, unhesitatingly dismiss this appeal filed by the appellant-railways. = CIVIL APPEAL NO.6275 OF 2014 (Arising out of SLP (C) No. 20427 OF 2013) NORTH EASTERN RAILWAY & ORS. … APPELLANT (S) VERSUS TRIPPLE ENGINEERING WORKS … RESPONDENT (S) = 2014- Aug. Part - http://judis.nic.in/supremecourt/filename=41824

Arbitration proceedings -Court can appoint any arbitrator other than the prescribed arbitrator as per the terms of agreement – disputes between contractors and Railways – as per the terms of agreement a railway Officer was to be appointed as arbitrator – decades lapsed no award was passed – High court appointed former Chief Justice of the Sikkim High Court – challenged as invalid and beyond conditions of arbitration agreement – Apex court held thatA period of nearly two decades has elapsed since the contractor had raised his claims for alleged wrongful termination of the two contracts. The situation is distressing and to say the least disturbing. The power of the Court under the Act has to be exercised to effectuate the remedy provided thereunder and to facilitate the mechanism contemplated therein. In a situation where the procedure and process under the Act has been rendered futile, the power of the Court to depart from the agreed terms of appointment of arbitrators must be acknowledged in the light of the several decisions noticed by us. We are, therefore, of the view that no infirmity muchless any illegality or failure of justice can be said to be occasioned by the order passed by the High Court so as to warrant any interference. We, therefore, unhesitatingly dismiss this appeal filed by the appellant-railways. = CIVIL APPEAL NO.6275 OF 2014 (Arising out of SLP (C) No. 20427 OF 2013) NORTH EASTERN RAILWAY & ORS. … APPELLANT (S) VERSUS TRIPPLE ENGINEERING WORKS … RESPONDENT (S) = 2014- Aug. Part – http://judis.nic.in/supremecourt/filename=41824

    Arbitration proceedings -Court can appoint any arbitrator other than the prescribed arbitrator as per the terms of agreement –   disputes between contractors and Railways – as per the terms of agreement a railway Officer was to be appointed as arbitrator – decades lapsed no award was passed – High court appointed  former Chief Justice of the  Sikkim  High  Court – challenged as invalid and…

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Nightmares

Desperate thought

like a comet falling down 

from the finger tips of dark night

before reaching to the ground – burn to ashes

Don’t hunt the mirages – they haunt as Nightmares 

lit the lamp of discretion for choosing righteous path in life

                                                                          ………………………..advocatemmmohan

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Whether a Magistrate after accepting a negative final report submitted by the Police can take action on the basis of the protest petition filed by the complainant/first informant?= Apex court held YES = CRIMINAL APPEAL NO.1412 OF 2014 (Arising out of SLP(CRL.) No.3308 of 2013) RAKESH & ANR … APPELLANTS VERSUS STATE OF U.P. & ANR. .. RESPONDENTS = 2014 - Aug.Part - http://judis.nic.in/supremecourt/filename=41823

Whether a Magistrate after accepting a negative final report submitted by the Police can take action on the basis of the protest petition filed by the complainant/first informant?= Apex court held YES = CRIMINAL APPEAL NO.1412 OF 2014 (Arising out of SLP(CRL.) No.3308 of 2013) RAKESH & ANR … APPELLANTS VERSUS STATE OF U.P. & ANR. .. RESPONDENTS = 2014 – Aug.Part – http://judis.nic.in/supremecourt/filename=41823

Whether  a  Magistrate  after  accepting  a  negative  final   report submitted by the Police  can  take  action  on  the  basis  of  the  protest petition filed  by  the  complainant/first  informant?= Apex court held YES

Respondent No.2 herein lodged an FIR which  was  registered  as  Crime

Case No.480 of 2000 under Section 364  of  the  Indian  Penal  Code  at  the

Police Station Gosai Ganj…

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