TERMINATION ILLEGAL: Reinstatement not Justified
Where the workman was engaged as daily wager and he worked hardly for eight months, the award directing his reinstatement with continuity of service was held not justified even when his termination had been held to be in contravention of section 25F of the Industrial Disputes Act, 1947. The general rule in the absence of any special circumstances being of reinstatement, in exercising this discretion, fairplay towards the employee on the one hand and interest of the employer, including considerations of discipline in the establishment, on the other, require to be duly safeguarded. As held, it is one thing to say that services of a workman are terminated in violation of mandatory provisions of law but it is another thing to say that relief of reinstatement in service with back wages would be granted automatically. Setting aside the order of reinstatement with 25% back wages, the Supreme Court has awarded compensation in a sum of ` 50,000 in favour of the workman keeping in view the nature and period of service rendered by the workman.
Asst. Engineer, Rajasthan Dev. Corporation v. Gitam Singh , C.A. No. 8415 of 2009; Decided on 31-1-2013 (SC) [R.M. Lodha and Sudhansu Jyoti Mukhopadhaya, JJ.]
KIDNAPPING FOR RANSOM: Death Sentence
A perusal of section 364A, Indian Penal Code, 1860, leaves no room for any doubt, that the offence of kidnapping for ransom accompanied by a threat to cause death contemplates punishment with death. Therefore, even without an accused actually having committed the murder of the individual kidnapped for ransom, the provision contemplates the death penalty. In the instant case, the accused had been found to have kidnapped a minor child of 7 years for ransom, and had also actually committed his murder. As held, in the instant situation, therefore, the guilt of the accused (under section 364A, IPC) must be considered to be of the gravest nature, justifying the harshest punishment prescribed for the offence. The accused was guilty of two heinous offences, which independently of one another, provide for the death penalty. The murder of a child of 7 years without any previous enmity and without any provocation, makes this a case of extreme culpability. The parents of the deceased child had four children-three daughters and one son. Kidnapping the only male child was to induce maximum fear in the mind of his parents. Agony for parents for the loss of their only male child, who would have carried further the family lineage, and was expected to see them through their old age, was unfathomable, therefore, the Supreme Court upheld the death penalty awarded by the High Court.
Sunder @ Sundararajan v. State , 2013 (2) SCALE 204 (SC); Decided on 5-2-2013.
The law with regard to inter country adoption was in a state of flux until the principles governing giving of Indian children in adoption to foreign parents and the procedure that should be followed in this regard to ensure absence of any abuse, maltreatment or trafficking of children came to be laid down by the Supreme Court offering elaborate suggestions to ensure that the process of such adoption is governed by strict norms and a well laid down procedure.
Elaborate provisions have been made to regulate the pre-adoption procedure which culminates in a declaration by the Child Welfare Committee that the child is free for adoption. Once the child (abandoned or surrendered) is so available for adoption the Guidelines for Adoption from India 2006 envisage distinct and separate steps in the process of adoption. Even after the child leaves the country the Guidelines of 2006 contemplate a process of continuous monitoring of the welfare of the child through the foreign placement agency until the process of adoption in the country to which the child has been taken is completed, which process the Guidelines contemplate completion within two years. The Guidelines of 2006 stand repealed by a fresh set of Guidelines published by Notification dated 24-6-2011 of the Ministry of Women and Child Development.
Stephanic Joan Becker v. State , 2013 (2) SCALE 312 (SC); Decided on 8-2-2013. [P. Sathasivam, Ranjan Gogoi and V. Gopala Gowda, JJ.]
LAND ACQUISITION: Restoration of Possession
In a welfare State, it is not permissible to uproot a person and deprive him of his fundamental/constitutional/human rights, under the garb of industrial development. Successive Notifications under section 4 of the Land Acquisition Act, can be made but the market value is to be determined in terms of the later notification.
In the instant case, a Notification under section 4 was issued on 5-3-1963 in respect of the suit land but no award was made in respect of this land. However, the possession of the land in respect of which the award was made and the land transferred to the appellant was also taken and the land was transferred to DESU for construction of staff quarters. As the appellant claimed to have been deprived of his land without paying any compensation, section 4 Notifications were issued on 7-10-1968 and then on 26-3-1983, but the acquisition proceedings were abandoned. Now a full-fledged residential colony of employees of DESU has been constructed thereon. The appellant having been dispossessed without resorting to any valid law, he was held entitled for restoration of possession of the land but in such a fact situation, the Supreme Court has directed the Land Acquisition Collector to make the award treating section 4 notification as on 12-2-2013.
Bhimandas Ambwani (D) Thr. LRs v. Delhi Power Company Ltd ., Civil App. Nos. 204-205 of 2004; Decided on 12-2-2013 (SC) [Dr. B.S. Chauhan and V. Gopala Gowda, JJ.]
POLICE ENCOUNTER DEATHS
While inquiring whether the encounter is genuine or not, the inquiring authority must first focus its attention on the circumstances that led to the death of a person in an encounter. If it comes to a conclusion that it was the deceased who had attacked the police to prevent them from arresting him or to prevent them from performing their public duty and, therefore, the police had to retaliate, then the antecedents of the deceased could be taken into consideration as additional material at that stage to support the police version that it was a genuine encounter. But the inquiring authority cannot start the enquiry keeping in mind the antecedents of the deceased.
In the instant case, the two crucial guidelines which had been completely ignored by the police were that the investigation into the encounter death must be done by an independent investigation agency and that whenever a complaint is made against the police making out a case of culpable homicide, an FIR must be registered. In the instant case, the police had refused to even register the FIR on the complaint made by the appellant alleging that his son was killed by the police. Observing that starting a fresh investigation would be of no use at this stage, the Supreme Court has directed the State Government to pay a sum of ` 20 lakhs to the appellant as compensation.
Rohtash Kumar v. State of Haryana , Crl. App. No. 306 of 2013; Decided on 14-2-2013 (SC) [Aftab Alam and Ranjana Prakash Desai, JJ.]
DEBTS RECOVERY TRIBUNALS: Infrastructural Constraints
At present, Debts Recovery Tribunals (DRTs) and Appellate Tribunals (DRATs) suffer from severe infrastructural constraints. As per the information available, there are all in all 33 DRTs established in the entire country out of which Delhi, Mumbai, Chennai, Kolkata, Chandigarh and Ahmedabad have two or more DRTs each. However, there are only five DRATs, established in Allahabad, Chennai, Delhi, Kolkata and Mumbai, each covering multiple DRTs of a particular geographical zone. As a result, DRATs are overburdened and are also facing an acute shortage of infrastructure and staff.
Most of the DRTs are being run from rented premises and face acute shortage of space, exorbitant rents, limitations on non-renewal/ extension of leases etc. As observed, there is a need to increase the number of DRATs in the country to reduce the workload of the existing DRATs and many serving Recovery Officers lack a judicial background or are appointed on deputation raising serious questions about their independence, impartiality and fairness. Having taken note of the urgent need to address the abject conditions prevailing in the Tribunals, Union of India has agreed to provide adequate infrastructure to DRTs / DRATs.
Union of India v. Debts Recovery Tribunal Bar Assn ., C.A. Nos. 617-618 of 2013; Decided on 22-1-2013 (SC) [D.K. Jain and H.L. Dattu, JJ.]