Month: May 2016

Chandra Shipping And Trading … vs Beerapalli Chenchu Subba Reddy … on 2 May, 2003 Equivalent citations: 2003 (4) ALD 572, 2004 55 SCL 501 AP

Bench: J Chelameswar, D Subrahmanyam
JUDGMENT Dubagunta Subrahmanyam, J.
1. All these three matters arise out of interim orders passed in O.S. No. 4 of 2003 on the file of IV Additional District & Sessions Judge, Kakinada. These three matters are being disposed of by a common order. The parties will be referred to in the course of this order as they are arrayed in the civil suit.
2. Necessary facts for the disposal of these three matters are as follows:
Plaintiffs land 2 and defendants 2 and 3 are partners of first defendant-partnership firm. There is a written partnership deed dated 1.4.1997. Clause 15 of the partnership deed provides that in the event of disputes, the matter shall be referred to a single Arbitrator whose decision shall be binding on all the parties. Clause 12 of the partnership deed stipulates that death, retirement or insolvency of any of the parties shall not dissolve the business of the firm and the remaining parties shall carry on the business. Clause 13 stipulates that retiring party shall give three months notice to the remaining parties. Plaintiffs decided to retire from the partnership firm and they intimated their intention to retire to the second defendant on 30.6.2002 and on 31.7.2002 first plaintiff demanded settlement of accounts and for payment of their respective capital, etc. On 31.8.2002 all the partners entered into a retirement agreement permitting the plaintiffs 1 and 2 to retire from the first defendant – partnership firm. For the disposal of these three matters, it is not necessary to consider under what circumstances the retiring agreement was entered into between the parties. The plaintiffs claimed that as per the retirement agreement, first plaintiff is to be paid a sum of Rs. 36,00,000-00 and second plaintiff is to be paid another sum of Rs. 29,50,000-00 by the firm, and other partners of the firm. The plaintiffs filed a suit to recover the above sums with interest at 18% per annum from 1.9.2002 to 24.1.2003. The value of the suit is Rs. 70,21,200-00.
3. The plaintiffs filed an interim application in I.A. No. 169 of 2003 under Order 39 Rule 7 and Order 26 Rules 11, 12 and Section 151 C.P.C., requesting the trial Court to appoint a commissioner for the purpose of detention, preservation and inspection of the properties of the first defendant – firm and seize them from the custody of defendants 1 to 5 and produce the same before the Court. On 24.1.2003 the trial Court passed an ex parte order appointing Sri P. Rajesh Babu, Advocate as Commissioner to inspect the premises of the first defendant firm and the properties and prepare an inventory of all relevant books and other material which are in the form of statements, vouchers, contracts, accounts and contained in the computer of the firm kept in the Accounts Section of the first defendant firm and seize them from the custody of defendants 1 to 5and prepare an inventory in the presence of the parties after giving notice to both parties. Questioning the said ex parte order dated 24.1.2003, defendants 1 and 2 filed the revision in C.R.P. No. 548 of 2003. It is stated across the Bar that the Commissioner took inventory of the various accounts and documents found at the premises of the first defendant – firm and returned all the original documents to the contesting defendants under proper acknowledgment.
4. The plaintiffs filed another interim application in LA. No. 172 of 2003 under Order 38 Rule 5 and Section 151 C.P.C. to direct the defendants 1 to 3 to deposit the suit amount into Court together with costs of the suit and if they failed to do so, to order attachment before judgment of the movable/immovable properties of the defendants 1 to 3 described in the petition schedule. On 24.1.2003 the trial Court passed an ex parte conditional order of attachment in the said petition. Aggrieved by that ex parte order of attachment, revision in CRP No. 412 of 2003 is filed.
5. The plaintiffs filed another interim application in I.A. No. 170 of 2003 under Order 39 Rule 1(b) and Section 151 C.P.C., requesting the Court to grant temporary injunction restraining defendants 2 and 3 in any manner alienating or transferring or trying to otherwise deal with the movable assets of the first defendant firm described in the petition schedule. In this petition also on 24.1.2003 the trial Court passed an ex parte order of injunction. Aggrieved by the said ex parte order of injunction, C.M.A. No. 449 of 2003 is filed.
6. The contesting defendants did not file any written statement in the suit in the trial Court. They did not also file any counter in any of the above three interim applications. They did not also file any petition to vacate or modify ex parte orders passed by the trial Court. It is pertinent to point out that defendants 1 to 3 and 5 filed an application in I.A. No. 185 of 2003 in the trial Court under Section 8(1) of Arbitration and Conciliation Act, 1996, requesting the trial Court to refer the matter to the Arbitrator to decide whether the plaintiffs are entitled to the amount or not as per the partnership deed dated 1.4.1997 as per Section 8(1) of Arbitration and Conciliation Act. It is not in dispute that the plaintiffs filed a counter in the said application opposing the request of the defendants 1 to 3 and 5. The said petition is still pending for consideration by the trial Court. The said petition in I.A. No. 185 of 2003 is not the subject-matter of any of the three matters pending before this Court.
7. The learned Counsel for the contesting defendants contended that as per Clause 15 of the partnership deed, the dispute between the parties is to be referred to an Arbitrator and therefore the suit is not maintainable. It is his contention that when there is an arbitration agreement, the Civil Court has no jurisdiction to entertain the suit and pass any interim orders. It is his contention that even though there is retirement agreement, still Clause 15 of the partnership deed binds the parties and therefore the dispute involved in the suit is liable to be referred to for arbitration. The learned Counsel for the plaintiffs contended that after retirement agreement was entered into between all the partners, the partnership deed including Clause 15 in the said deed ceased to operate and the contesting defendants cannot request the trial Court to refer the suit dispute for arbitration. At this juncture, it is pertinent to point out that the retirement agreement is not on record. It is in the custody of the contesting defendants. All its terms are not known to the Court at this stage.
8. The learned Counsel for the contesting defendants relied upon some decisions in support of his contentions. This Court in a decision reported in Gousia Javed v. Jagdish Pershad Associates, , whereunder an agreement various amounts were borrowed, they were not paid, there was an amicable settlement and the amount was settled, in discharge of the said amount, cheques were issued, the cheques were dishonoured and where a suit for recovery of the amount covered by the settlement was filed, held that the suit for recovery of the amount covered by the said settlement would be a suit based on original agreement which provided for an arbitration clause and was liable to be stayed under Section 34 of Arbitration Act, 1940, pending reference of the matter to the Arbitrator. The Apex Court in F.C.I. v.
Yadav Engineer & Contractor, AIR 1982 SC 1302, held that the conduct of the defendant contesting interlocutory orders or filing application for setting aside ex parte interim injunction does not disentitle him from claiming stay of the suit under Section 34 of Arbitration Act, 1940. The Apex Court in Damodar Valley Corporation v. K.K. Kar, , held that the question whether there had been a full and final settlement of a claim under the contract was itself a dispute arising upon or in relation to or in connection with the contract. It also held that a claim for damages was a dispute or difference which arose between the respondent and the appellant and was upon or in relation to or in connection with the contract, and the reference to the Arbitrator by the respondent was not barred. In Kalpana Kothari v. Sudha Yadav, , the Apex Court explained the scope and object of Section 8 of the New Act and Section 34 of the Old Act. In P. Anand Gajapathi Raju v. P.V.G. Raju, AIR 2000 SC 1886, the Apex Court held that a reference under Section 8 of New Act can be made even during the pendency of the appeal. The Apex Court in Vishnu Chandra v. Chandrika Prasad, , considered and decided the effect of retirement of a partner on the partnership agreement.
9. We are of the considered opinion that there is no need for this Court to refer to the principles of law as well as the facts in any of the above decisions for the disposal of these three matters pending before this Court. It is already noticed that a petition in LA. No. 185 of 2003 filed by the contesting defendants under Section 8 of the New Act is pending consideration before the trial Court. The trial Court has to consider in the said application whether Clause 15 of the partnership deed still survives and binds the parties even after the parties have entered into a fresh agreement, namely, retirement agreement permitting the plaintiffs to retire from the partnership firm by 1.9.2003.
10. The learned Counsel further contended that as the contesting defendants filed a petition under Section 8 of Arbitration and Conciliation Act, 1996, they cannot disclose their stand or defence in the suit. This contention also need not be decided by us for disposal of any of the matters pending before this Court.
11. As far as the two revision petitions are concerned, final orders are not yet passed by the trial Court. It is not shown that the impugned orders are passed by the trial Court exercising a jurisdiction not vested in it by law. The learned Counsel for the contesting defendants relied upon a decision of Apex Court reported in Padam Sen v. State of U.P., , wherein it was held that the Civil Court exercising its inherent powers under Section 151 CPC, cannot appoint a commissioner to seize account books in possession of the plaintiff on ground of defendant’s apprehension that they would be tampered with. As the interim applications are still pending before the trial Court, it is open for the contesting defendants relying upon this decision or any other provision or decision request the trial court to dismiss the application filed for appointment of the commissioner to take inventory of the accounts, etc.,
from the custody of the first defendant firm.
12. The learned Counsel for the contesting defendants relied upon a decision of Apex Court reported in Syed Dastagir v. T.R. Gopalakrishna Setty, , holding that to gather a true spirit behind a plea, the entire pleadings should be read as a whole. In the plaint the plaintiffs pleaded that their signatures on the retirement agreement were obtained by undue influence of 4th defendant. Even after making such a plea, the plaintiffs filed the suit to recover a particular sum from the other partners on the ground that at the time of retirement of the plaintiffs from the partnership firm, the other partners agreed to pay the said amount. This contention is not relevant for the disposal of any of the matters pending before this Court.
13. The learned Counsel for the contesting defendants relied upon a decision of Apex Court reported in A. Venkatasubbiah Naidu v. S. Challappan and Ors., . It is relied upon to show that an appeal against ex parte order of injunction is maintainable. There is no dispute that an appeal can be filed by the aggrieved party even against an ex parte order of injunction. In the appeal only one ground is raised. The said ground is that the trial Court failed to appreciate the partnership deed in proper manner and granted an injunction without looking into Clause 15 of partnership deed and the trial Court has no jurisdiction to number the suit in view of Clause 15 of the partnership agreement. No other ground is mentioned in the appeal questioning the ex parte order of injunction passed by the trial Court. We are unable to accept the contention that in view of Clause 15 of the partnership deed providing for settlement of the disputes by a sole Arbitrator, the civil Court has no jurisdiction to entertain the suit and pass interim orders. We give below the reasons for our conclusion.
14. In this regard it is necessary to refer to the provision in Section 9 of Arbitration and Conciliation Act, 1996. The said provision reads as follows:
“Section 9, Interim measures, etc. by Court :–A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with Section 36, apply to a Court,–
(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or
(ii) for an interim measure of protection in respect of any of the following matters, namely :–
(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;
(b) securing the amount in dispute in the arbitration;
(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;
(d) interim injunction or the appointment of a receiver;
(e) such other interim measure of protection as may appear to the Court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.
The above provision clearly indicates that even before or during arbitral proceedings, a party is entitled to apply to a Court for an interim measure of protection in respect of the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement, for securing the amount in dispute in the arbitration, for the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration. It also entitles a party to obtain interim injunction or appointment of a receiver
from a civil Court. This provision, therefore, clearly indicates that the civil Court has jurisdiction to entertain any civil suit even in cases where there is an arbitration agreement and pass necessary interim orders as envisaged in Section 9 of the Arbitration and Conciliation Act, 1996. If either of the parties to any contract with an arbitration clause does not refer or take steps to refer the disputes to arbitration, the law does not bar either of them to have a recourse to a civil Court and seek appropriate remedies. If the Legislature wanted to bar the jurisdiction of civil Court in cases arising out of a contract with an arbitration clause, it would not have inserted a specific provision like Section 9 in the above Act empowering the civil Court to grant certain interim orders. If a party to the arbitration agreement wants the matter to be decided by arbitration, then, as laid down in Section 8(1) of the Act, he can request the civil Court by filing appropriate application under Section 8 of the above Act to refer the parties to arbitration. As already noticed the contesting defendants have already exercised their right by filing a petition in. I.A. No. 185 of 2003 before the trial Court. That petition will be decided by the trial court in accordance with law. As the sole ground raised in the grounds of appeal that the civil Court has no jurisdiction to entertain the suit is not tenable, there are no other reasons for this Court to set aside the ex parte order of injunction granted by the trial Court. It is always open for the contesting defendants to contest the injunction application on any of the grounds open to them and seek dismissal of the said application on merits. We do not find any merits in the appeal or in the two revisions.
15. In the result, the appeal as well as the two revisions are dismissed, but in the circumstances without costs. The trial Court is directed to dispose of I.A. No. 185 of 2003 as well as the other interim applications pending before it as expeditiously as possible.
2.5.2003 After the order is pronounced, the learned Counsel for the appellant sought ‘leave’ of this Court to prefer appeal to the Supreme Court. We do not see any substantial issue which requires the grant of ‘leave’ to the appellant to approach the Supreme Court. The request is therefore rejected.

Qualified still idle …No maintenance

Family Court, Mumbai:Looking at the burden on the husband to provide maintenance to his wife even in cases wherethe wife is well educated and capable enough to earn for her living, a bench of S.A. Morey J gave a landmark judgment in favour of husband to curb the misuse of the provision of maintenance, and held thata wife who is well qualified and is capable toearn cannot sit idle and claim maintenance from her husband.In the instant case, petitioner-wife moved an application before this Court for grant of maintenance from the respondent-husband during the pendency of petition under Section 125 CrPC. The petitioner alleged that she was forced to live separately as the respondent and his family members ill-treated and harassed her for bringing less dowry. The petitioner contended that the respondent is a successful businessman and is doing business not only inIndiabut also inDubaiand other countries, and that his total income per month is more than Rs. 15 lakhs, and therefore considering the status of her husband, she prayed for grant of maintenance @ Rs. 2 lakhs per month.Firstly, the Court rejected the contention of the respondent that the petitioner is notentitled to get maintenance as she is not legally wedded wife and that marriage between them was dissolved by way of talaq, and held that Section 125 CrPC itselfhas given definition of ‘wife’ which includesdivorcee wife and makes clear that a Muslim woman who is either divorcee or who obtained divorce is entitled to get maintenance till her remarriage, and therefore respondent’s contention does notaffect the right of the petitioner to claim maintenance. Secondly, the Court observed that the petitioner is well qualified, has completed degree in Food and Science Nutrician, is Post Graduate in Dietician field, had worked as a dietician with an income of Rs. 50000 per month, and has experience of working with reputed companies like Larsen and Toubro etc but atpresent she is not working.The Court relied onMamta Jaiswal v. RajeshJaiswal, 2000 (3) MPLJ 100, where it was held that “well qualified wife is not entitledto remain as an idle and claim maintenance from her husband”. The Court noted that the facts of the present case clearly showsthat the petitioner is having good capacity to earn and therefore held that “the wife who is well qualified and claiming maintenance by sitting idle is not entitled to get maintenance”. Accordingly, the Court rejected the application filed by the petitioner.Firdos Mohd. Shoeb Khan v. Mohd. Shoeb Mohd. Salim Khan,decided on 20.02.2015.

LABOUR LAW REFORMATION IS A NEED

Mahatma Gandhionce said:

“When I despair, I remember that all through history, the way of truth and love has always won. There have been tyrants and murderers and for a time they seem invincible but in the end, they always fall—think of it—always.”

As always, the Mahatma was right. Labour reform was almost a political untouchable for decades; so the progress made in 2014 seems unbelievable.

The central government amended the Apprentices Act, revamped the labour inspector regime, gave employers and employees unique numbers, and is moving to online compliance. More importantly, its willingness to use Section 254 (2) of the Constitution (this allows states to diverge their labour laws from the national norm) ensures that there is no such thing as an Indian labour market: There are, however, local ones. An economic wasteland like Uttar Pradesh has very different labour dynamics from, say, Karnataka. Rajasthan pioneered this route and now seven more states are following. This is wonderful because competition is a killer app. And 29 CMs matter more for job creation than one PM.

Informal employment is the slavery of the 21st century, yet India’s labour laws declare war on formal employment; 100 percent of net job creation in the last 20 years has happened informally. Our labour law regime has poisonous consequences: Poor productivity, poor working conditions, lower taxes, small firm size (85 percent of manufacturing comes from firms with less than 50 employees) and informal firms (60 million enterprises translate to only 7,500 companies with a paid up capital of more than Rs 10 crore).

Anybody who believes that massive job creation will happen without radical surgery to our labour law agenda is delusional. But it’s also unwise to equate labour law reform with Chapter 5B of the Industrial Disputes Act (the so-called hire-and fire-clause), given the many other reforms that are less radioactive.

Fixing our employment contract—the corporate equivalent of marriage without divorce—is important, but the realities of our political economy need distinguishing between the recipe and list of ingredients. Reforms should be sequenced into five buckets: Plumbing, definitions and consolidation, benefits, trade unions, and the employment contract.

The plumbing agenda is about making compliance for employers frictionless; the first step is single interface with a single number. This should be followed by collapsing the 44 central labour laws into the five clusters identified by the second Labour Commission. Fixing benefits is about cost, competition, and affordability. Fixing trade union law is about making trade unions more representative; the politicisation of trade unions and criminalisation of politics is a toxic combination. The last phase is amending Chapter VB of the Industrial Disputes Act to give flexibility to employers in managing their fixed costs because 300 secure jobs are better than 400 shaky ones.
INS LAW NETWORK will SUPPORT REFORMATION IN INDUSTRIAL LAWS

International Court of Justice (ICJ) and India

The States parties to the Statute of the Court may “at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court” (Art 36, para. 2 of the Statute).

Each State which has recognized the compulsory jurisdiction of the Court has in principle the right to bring any one or more other State which has accepted the same obligation before the Court by filing an application instituting proceedings with the Court, and, conversely, it has undertaken to appear before the Court should proceedings be instituted against it by one or more such other States.

The Declarations Recognizing as Compulsory the Jurisdiction of the Court take the form of a unilateral act of the State concerned and are deposited with the Secretary-General of the United Nations.

The texts of declarations under Article 36, paragraph 2, of the Statute, which, based on the information provided by the depository, had not expired by effluxion of time, or whose withdrawal or replacement had not been notified by 11 May 2016 will be found below. The fact that a declaration is or is not included in this section, is without prejudice to its possible application by the Court in a particular case.

In view of the provisions of Article 36, paragraph 5, of the Statute of the International Court of Justice, the present section also contains the texts of declarations made under the Statute of the Permanent Court of International Justice which have not lapsed or been withdrawn. There are now six such declarations.

The declarations, deposited by a total of 72 States, are given here in English. Where this is not the original language of the declaration, the translations used, except where otherwise indicated, are by the Secretariat of the United Nations or of the League of Nations.

The following declaration have been filed with the Secretary-General of the United Nations (the date shown after the name of the State is that on which the declaration was deposited) :

India
18 September 1974

I have the honour to declare, on behalf of the Government of the Republic of India, that they accept, in conformity with paragraph 2 of Article 36 of the Statute of the Court, until such time as notice may be given to terminate such acceptance, as compulsory ipso facto and without special agreement, and on the basis and condition of reciprocity, the jurisdiction of the International Court of Justice over all disputes other than:

(1) disputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement;
(2) disputes with the government of any State which is or has been a Member of the Commonwealth of Nations;
(3) disputes in regard to matters which are essentially within the domestic jurisdiction of the Republic of India;
(4) disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence, resistance to aggression, fulfilment of obligations imposed by international bodies, and other similar or related acts, measures or situations in which India is, has been or may in future be involved;
(5) disputes with regard to which any other party to a dispute has accepted the compulsory jurisdiction of the International Court of Justice exclusively for or in relation to the purposes of such dispute; or where the acceptance of the Court’s compulsory jurisdiction on behalf of a party to the dispute was deposited or ratified less than 12 months prior to the filing of the application bringing the dispute before the Court;
(6) disputes where the jurisdiction of the Court is or may be founded on the basis of a treaty concluded under the auspices of the League of Nations, unless the Government of India specially agree to jurisdiction in each case;
(7) disputes concerning the interpretation or application of a multilateral treaty unless all the parties to the treaty are also parties to the case before the Court or Government of India specially agree to jurisdiction;
(8) disputes with the Government of any State with which, on the date of an application to bring a dispute before the Court, the Government of India has no diplomatic relations or which has not been recognized by the Government of India;
(9) disputes with non-sovereign States or territories;
(10) disputes with India concerning or relating to:

(a) the status of its territory or the modification or delimitation of its frontiers or any other matter concerning boundaries;
(b) the territorial sea, the continental shelf and the margins, the exclusive fishery zone, the exclusive economic zone, and other zones of national maritime jurisdiction including for the regulation and control of marine pollution and the conduct of scientific research by foreign vessels;
(c) the condition and status of its islands, bays and gulfs and that of the bays and gulfs that for historical reasons belong to it;
(d) the airspace superjacent to its land and maritime territory; and
(e) the determination and delimitation of its maritime boundaries.

(11) disputes prior to the date of this declaration, including any dispute the foundations, reasons, facts, causes, origins, definitions, allegations or bases of which existed prior to this date, even if they are submitted or brought to the knowledge of the Court hereafter.
(12) This declaration revokes and replaces the previous declaration made by the Government of India on 14th September 1959.

Mohd Aftab vs state

was gutted. It was contended that the situation in Charare Sharif town itself and in Chadoora were different, in that, within Charare Sharif town the Police were engaged with the militants directly as they had moved into the shrine itself, whereas in Chadoora the duty performed on the said two days was one of containment. Regarding the incident at Badipora, 0the same was also aimed against communal forces who were trying to burn down the temple, but the same also involved containment and not a direct and active confrontation with militants. It was submitted that in the different circumstances, involving the S.H.O. of Charare Sharif and the Appellant, it could not be said that the Appellant had been discriminated against in the matter of out-of-turn promotion.

  1. Having considered the submissions made on behalf of the parties and the materials on record, as also the judgments of the learned Single Judge and the Division Bench of the High Court, it does appear that the circumstances prevailing within the town of Charare Sharif and in Chadoora were different during the disturbance and the decision to grant out-of-turn promotion to Shaikh Hamidulla, who was the Station House Officer, Charare Sharif, during those fateful days was fully justified. In the absence of any glaring discrepancy or bias in the decision-making process, ordinarily the Court does not normally take upon itself the task of making a subjective assessment of an officer’s performance in relation to matters of promotion and that too of the nature contemplated in the present case.

However, at the same time, the Court is also entitled to consider the materials placed before it in order to arrive at a conclusion as to whether an injustice has been caused to the concerned officer. In the present case, both the Superintendent and Senior Superintendent of Police, Budgam District, had a chance to observe the Appellant’s performance on the ground on 10th and 11th of May, 1995, when the incident was actually taking place and they have recommended that the Appellant should be given out-of-turn promotion. The Director General of Police has also recognized the exemplary performance of the appellant. All such recommendations seemed to suggest that the performance of the Appellant merited special consideration. Of course, the Appellant has already been promoted to the post of Inspector on 19th August, 2000, and the only question which now survives is whether such promotion should be given retrospective effect from the date on which Shaikh Hamidulla and Sub-Inspector Sonaullah were given such promotion.

  1. While considering the Appellant’s claim for out-of-turn promotion or accelerated promotion in the Writ Petition filed by him, the learned Single Judge took special note of the condition, procedure and norms which provided that out-of-turn promotion would be considered only for consistently exceptional performance on the anti-militancy front. The learned Judge took note of the fact that except for two episodes, which, in any event, were performed in the usual course of duties, the same did not constitute any consistent exceptional performance on the part of the Appellant which would entitle him to out-of-turn promotion. The said view was endorsed by the Division Bench while dismissing the Letters Patent Appeal filed by the Appellant herein.

  2. Neither the learned Single Judge nor the Division Bench of the High Court appears to have given proper attention to the Circular No.14-GR of 1990 dated 6th March, 1990, in relation to the recommendations which had been made by the Superintendent and the Senior Superintendent of Police, Budgam District. However, the final assessment for giving out-of-turn promotion lay with Director General of Police and in his judgment a cash reward of Rs.2,000/- was felt to be appropriate in recognition of the exemplary services rendered by the Appellant.

  3. However, from the materials on record it is quite clear that the claim of the Appellant is covered by the policy decision of the Government contained in Circular No.14-GR of 1990 dated 6th March, 1990, which provided an incentive to all Government employees to give their best performance of duties in the service of the people and in meeting the challenge of the anti-national forces to disturb the law and order situation in the State. It is only subsequently that on 6th January, 2000, that a Government Order No.Home-3(P) of 2000 was published by the State in its Home Department regarding the procedure for out-of-turn promotion in the Police Department. It is in the said circular that it has been indicated that out-of-turn promotion could be considered only for consistently exceptional performance on the anti-militancy front and that the recommendations of the Director General of Police, along with the dossier of the concerned employee, along with other formalities and the extent of deviation from the seniority rule, would have to be placed before the Home Department Select Committee for consideration and recommendation which would then be placed before the Chief Minister with the prior approval of the Minister of State, Home Department.

  4. The aforesaid circular dated 6th January, 2000, directly links up out-of-turn promotion with the concept of consistently exceptional performance on the anti-militancy front, which did not figure in the earlier Circular No.14-GR of 1990 dated 6th March, 1990. Both the learned Single Judge and the Division Bench appear to have overlooked the difference in the two different circulars and the decision of the learned Single Judge is based on the later Circular dated 6th January, 2000, while the Appellant’s claim is under the earlier Circular of 6th March, 1990, in relation to incidents which had taken place prior to the promulgation of the Government Order dated 6th January, 2000. In fact, in the Supplementary Affidavit filed on behalf of the State of Jammu and Kashmir on 3rd August, 2010, the said two circulars have been referred to and it has been submitted that the Circular of 6th January, 2000, had been issued in continuation and in addition to the Circular dated 6th March, 1990.

It has also been stated that since the Circular dated 6th January, 2010, was issued subsequent to the circular issued in the year 1990, cases which have occurred after the issuance of the 2000 Circular would be subject to the same. It has been categorically stated that the case of the Appellant belongs to the period prior to the issuance of the 2000 Circular and, therefore, he would be governed by the 1990 Circular. Of course, it has also been submitted that the said Circular dated 6th March, 1990, does not confer any legal right on the Appellant nor does it cast any obligation on the State of Jammu and Kashmir, since it was only an internal guideline which authorized the State Government to grant out-of-turn promotion in cases where the officials of the Jammu and Kashmir Police display exemplary bravery and courage in confronting terrorists, militants and insurgents. In the said affidavit it has been sought to be justified that the case of the Appellant did not merit out-of-turn promotion and he deserved a cash reward which had been duly awarded to him.

  1. It is clear that the Respondent State of Jammu and Kashmir is also alive to the fact that the claim of the Appellant has to be considered in the light of the earlier Circular dated 6th March, 1990, and not by the subsequent Circular dated 6th January, 2000.

  2. In these circumstances, we are of the view that the Appellant’s claim for out-of-turn promotion, on the basis of the facts disclosed, require reconsideration in the light of the Circular dated 6th March, 1990, and not the Circular dated 6th January, 2000, as has been sought to be done in his case.

  3. Accordingly, we set aside the orders passed by the learned Single Judge and the Division Bench of
    of the High Court and direct that the case of the Appellant be reconsidered by the concerned Respondents in accordance with the Circular No.14-GR of 1990 dated 6th March, 1990, for the purpose of granting retrospective effect to the promotion already granted to him on 19th August, 2000, and if such retrospective effect is given, to consider such other benefits that he may, thereafter, become entitled to in accordance with law. The said exercise should be completed within three months from the date of communication of this order.

  4. The appeals are allowed.

  5. There will be no order as to costs.

…………………………………………J. (ALTAMAS KABIR)

…………………………………………J. (CYRIAC JOSEPH)

Appointment of Judges

Breaking; Four New Judges of Supreme Court likely to be sworn-in on Friday

Madhya Pradesh Chief Justice Ajay Manik Rao Khanwilkar, Allahabad Chief Justice Dhananjaya Y. Chandrachud, Kerala Chief Justice Ashok Bhushan, and Senior Advocate Mr. L. Nageswara Rao are likely to be sworn as Judges of Supreme Court of India on Friday.

There will be a full Court reference at High Court of Kerala at 10.30 AM Tomorrow in honour of Chief Justice Ashok Bhushan on his elevation to Supreme Court.

Justice Ajay Manik Rao Khanwilkar is currently the Chief Justice of the High Court of Madhya Pradesh started his career as an Advocate in 1982.He was appointed as Additional Judge of the Bombay High Court on March 29, 2000 and confirmed as permanent Judge on April 8, 2002. Later he was appointed as Chief Justice of the High court of Himachal Pradesh on 4th April, 2013 and he is Chief Justice of the High Court of Madhya Pradesh since November 24, 2013

Justice Dhananjaya Y. Chandrachud, the Chief Justice of Allahabad High Court, did his Masters in Law from Harvard University. He was appointed as Additional Judge of High Court of Bombay on Mar 29, 2000. He has been Chief Justice of Allahabad High Court since Oct 31, 2013.

Justice Ashok Bhushan, currently Chief Justice of High Court of Kerala was elevated as permanent Judge of the Allahabad High court on 24th April, 2001.He was Judge of the High Court of Kerala on 10-07-2014, and took charge as Acting Chief Justice later confirmed as Chief Justice.

Nageswara Rao is a Senior Advocate and former Additional Solicitor General of India. He has been appearing in very prominent cases and enjoys a good reputation among the members of the Bar. He was also a member of the Supreme Court-appointed Mudgal Committee headed by Justice Mukul Mudgal, tasked with conducting an independent inquiry into allegations of corruption, betting and spot-fixing in Indian Premier League matches.

The word ‘Company’ is an amalgamation of the Latin word ‘Com’ meaning “with or together” and ‘Pains’ meaning “bread”. Originally, it referred to a group of persons who took their meals together. A company is nothing but a group of persons who have come together or who have contributed money for some common person and who have incorporated themselves into a distinct legal entity in the form of a company for that purpose. Under Halsbury’s Laws of England, the term “company” has been defined as a collection of many individuals united into one body under special domination, having perpetual succession under an artificial form and vested by the policies of law with the capacity of acting in several respect as an individual, particularly for taking and granting of property, for contracting obligation and for suing and being sued, for enjoying privileges and immunities in common and exercising a variety of political rights, more or less extensive, according to the design of its institution or the powers upon it, either at the time of its creation or at any subsequent period of its existence. However, the Supreme Court of India has held in the case of State Trading Corporation of India v/s CTO that a company cannot have the status of a citizen under the Constitution of India.

A company as an entity has several distinct features which together make it a unique organization. The following are the defining characteristics of a company:-

Separate Legal Entity :
On incorporation under law, a company becomes a separate legal entity as compared to its members. The company is different and distinct from its members in law. It has its own name and its own seal, its assets and liabilities are separate and distinct from those of its members. It is capable of owning property, incurring debt, borrowing money, having a bank account, employing people, entering into contracts and suing and being sued separately.

Limited Liability :
The liability of the members of the company is limited to contribution to the assets of the company upto the face value of shares held by him. A member is liable to pay only the uncalled money due on shares held by him when called upon to pay and nothing more, even if liabilities of the company far exceeds its assets. On the other hand, partners of a partnership firm have unlimited liability i.e. if the assets of the firm are not adequate to pay the liabilities of the firm, the creditors can force the partners to make good the deficit from their personal assets. This cannot be done in case of a company once the members have paid all their dues towards the shares held by them in the company.

Perpetual Succession:
A company does not die or cease to exist unless it is specifically wound up or the task for which it was formed has been completed. Membership of a company may keep on changing from time to time but that does not affect life of the company. Death or insolvency of member does not affect the existence of the company.

Separate Property:
A company is a distinct legal entity. The company’s property is its own. A member cannot claim to be owner of the company’s property during the existence of the company.

Transferability of Shares:
Shares in a company are freely transferable, subject to certain conditions, such that no share-holder is permanently or necessarily wedded to a company. When a member transfers his shares to another person, the transferee steps into the shoes of the transferor and acquires all the rights of the transferor in respect of those shares.

Common Seal:
A company is a artificial person and does not have a physical presence. Therefore, it acts through its Board of Directors for carrying out its activities and entering into various agreements. Such contracts must be under the seal of the company. The common seal is the official signature of the company. The name of the company must be engraved on the common seal. Any document not bearing the seal of the company may not be accepted as authentic.

Supreme Court on NEET


&nbspNEET issue: SC says states can’t hold separate exam
JK seats reserved for state subjects, says State’s counsel in apex court
The Supreme Court on Monday upheld its decision to hold entrance examination to medical courses—MBBS, BDS and MD—only through the National Eligibility and Entrance Test (NEET) in different States, including Jammu and Kashmir.