REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 486 OF 2016
(Arising out of Special Leave Petition (Crl.) No. 5839 OF 2013)
Parag Bhati (Juvenile) .... Appellant(s)
thrgh. Legal Guardian-Mother-Smt. Rajni Bhati
Versus
State of Uttar Pradesh and Anr. .... Respondent(s)
J U D G M E N T
R.K. Agrawal, J.
1) Leave granted.
2) This appeal is directed against the final judgment and order
dated 24.05.2013 passed by the learned single Judge of the
High Court of Judicature at Allahabad in Criminal Revision
No. 4377 of 2011 whereby the High Court dismissed the
revision filed by the appellant herein against the judgments
and orders passed by the Juvenile Justice Board and the
Court of District & Sessions Judge, Meerut dated 07.09.2011
and 04.10.2011 respectively.
1
3) Brief facts:
(a) On 29.06.2011, one Shri Rajpal Singh (the
complainant)-Respondent No. 2 herein lodged a complaint
with P.S. Kasana, Dist. Gautambudh Nagar, informing that his
son-Satender, who was residing with his family at Greater
Noida, was found dead in his house.
(b) On the basis of the said complaint, a First Information
Report (FIR) being No. 360 of 2011 dated 29.06.2011 got
registered under Sections 302, 394, 504 and 506 of the Indian
Penal Code, 1860 (in short ‘the Code’) at P.S. Kasana, Dist.
Gautambudh Nagar.
(c) During investigation, the appellant herein got arrested on
05.07.2011 with regard to the crime in question and was
produced before the Juvenile Court and was remanded and
kept in Juvenile Home.
(d) The father of the appellant-accused filed an application
before the Juvenile Justice Board stating that the date of birth
of the appellant-accused is 13.09.1995. The application on
behalf of the appellant-accused for proving his juvenility was
2
supported with various school certificates issued by the
competent authorities from time to time.
(e) The Juvenile Justice Board, after considering the
evidence on record came to the conclusion that the date of
birth, as recorded in various School Certificates, submitted by
the father of the appellant-accused on his behalf, is doubtful
and the juvenile was referred to the Medical Board for
determination of age.
(f) On 23.08.2011, the Office of the Chief Medical Officer,
Meerut, opined that the age of the appellant-accused is about
19 years. The charge sheet in the case was filed on 07.09.2011
before the Court of Juvenile Justice Board (in short ‘the
Board’), Meerut. The Board, placing reliance on the opinion of
the Medical Board, vide order dated 07.09.2011, held that the
appellant-accused is a major and accordingly, transferred the
case before the Chief Judicial Magistrate, Gautambudh Nagar.
(g) Aggrieved by the order dated 07.09.2011, the
appellant-accused preferred an appeal before the District &
Sessions Judge, Meerut by filing Criminal Appeal No. 319 of
2011. Learned Additional Sessions Judge, Meerut, vide order
3
dated 04.10.2011, dismissed the appeal filed by the
appellant-accused.
(h) Being aggrieved by the orders dated 07.09.2011 and
04.10.2011, the appellant-accused preferred a revision before
the High Court. Learned Single Judge of the Allahabad High
Court, vide judgment and order dated 24.05.2013, dismissed
the revision filed by the appellant-accused.
(i) Aggrieved by the order dated 24.05.2013, the
appellant-accused has preferred this appeal by way of special
leave before this Court.
4) Heard the arguments advanced by Dr. V.P. Appan,
learned senior counsel for the appellant-accused and Mr. R.
Dash, learned senior counsel for the State and perused the
records.
Points for consideration:
5) The only point for consideration before this Court is
whether in the facts and circumstances of the present case
when the date of birth mentioned in the matriculation
certificate is doubtful, the ossification test can be the last
resort to prove the juvenility of the accused?
4
Rival Submissions:
6) Dr. V.P. Appan, learned senior counsel appearing for the
appellant-accused contended before this Court that the
appellant-accused was arrested on 05.07.2011 and produced
before the Juvenile Court and was remanded and kept in
Juvenile Home. The father of the appellant-accused filed an
application before the Board stating that the date of birth of
the appellant-accused is 13.09.1995. He supported his claim
by producing a copy of the Secondary School Certificate for
Class Xth issued by the Controller of Examinations of
Secondary School Examination (Session 2009-2011) wherein
the date of birth of the appellant-accused was shown to be
13.09.1995 and on the date of occurrence, i.e., on 29.06.2011,
he had not attained majority or was below 18 years of age. It
was further contended by learned senior counsel that the
appellant-accused studied from Class 1st to 5th in the Saint
Joseph School, Greater Noida. He studied in Class 6th and 7th
in Kisan Vaidik Junior High School. Though the date of birth
is wrongly mentioned in the records therein as 17.09.1994,
5
affidavit for correction of the same had been filed with the
competent authority. Learned senior counsel for the
appellant-accused further contended that the procedure for
determination of the age is to be followed in terms of Section
7A of the Juvenile Justice (Care and Protection of Children)
Act, 2000 (in short ‘the JJ Act’) which was not scrupulously
adhered to. The courts below should have acted on the
certificate issued by the Controller of Examinations,
Secondary School Examination wherein the date of birth of the
appellant-accused is recorded as 13.09.1995. Learned senior
counsel further stressed upon the fact that the entry relating
to the date of birth entered in the marks sheet is one of the
valid proofs of evidence for determination of age of a person.
Finally, learned senior counsel contended that the Board
committed grave illegality in directing the ossification test of
the appellant-accused for determining the age on the face of
undisputed certificates issued by the two schools wherefrom it
is clear that the date of birth of the appellant-accused is
13.09.1995.
6
7) In support of his claim, learned senior counsel for the
appellant-accused relied upon a decision of this Court in
Rajinder Chandra vs. State of Chhattisgarh and Another
(2002) 2 SCC 287, wherein it was held as under:-
“5….on a review of judicial opinion, held that while dealing
with the question of determination of the age of the accused
for the purpose of finding out whether he is a juvenile or not,
a hypertechnical approach should not be adopted while
appreciating the evidence adduced on behalf of the accused
in support of the plea that he was a juvenile and if two views
may be possible on the said evidence, the court should lean
in favour of holding the accused to be a juvenile in
borderline cases…..”
8) He further relied upon a decision of this Court in Hari
Ram vs. State of Rajasthan & Another (2009) 13 SCC 211
in which it was held as follows:-
“27. Sub-rules (4) and (5) of Rule 12 are of special
significance in that they provide that once the age of a
juvenile or child in conflict with law is found to be less than
18 years on the date of offence on the basis of any proof
specified in sub-rule (3) the court or the Board or as the case
may be the Child Welfare Committee appointed under
Chapter IV of the Act, has to pass a written order stating the
age of the juvenile or stating the status of the juvenile, and
no further inquiry is to be conducted by the court or Board
after examining and obtaining any other documentary proof
referred to in sub-rule (3) of Rule 12. Rule 12, therefore,
indicates the procedure to be followed to give effect to the
provisions of Section 7-A when a claim of juvenility is
raised.”
7
9) Further, reliance was placed upon Ashwani Kumar
Saxena vs. State of Madhya Pradesh (2012) 9 SCC 750.
10) While referring to a decision of this Court in Mahadeo
s/o Kerba Maske vs. State of Maharashtra and Another
(2013) 14 SCC 637, learned senior counsel submitted that
only in the absence of alternative methods described under
Rules (12)(3)(a)(i) to (iii), the medical opinion can be sought for
and in no other case. He further relied upon a decision of this
Court in the State of Madhya Pradesh vs. Anoop Singh
(2015) 7 SCC 773 and contended that the decision in the case
of Mahadeo (supra) has been followed.
11) On the other hand, Shri R. Dash, learned senior counsel
for the State submitted that in the Secondary School
Examination Certificate, the date of birth mentioned is
13.09.1995 but this date of birth is not correct. In the
statement given by the father of the appellant-accused before
the Board that the appellant-accused studied in Saint Joseph
School, Greater Noida from 1st to 5th standard, the date of birth
mentioned in the school form is 13.09.1996 and it bears
8
father’s signature. Thereafter, he studied in Kisan Vaidic
Junior High School, Latifpur wherein the date of birth is
recorded as 17.09.1994. After leaving this school, the
appellant-accused again took admission in Saint Joseph
School in 8th standard. Learned senior counsel for the State
submitted that a report from the Saint Joseph School was
produced before the Board in which it was mentioned that his
date of birth was recorded in the register on the basis of
transfer certificate issued by Kisan Vaidic Junior High School.
An official of the Kisan Vaidic Junior High School was
examined before the Board who stated on oath that the
appellant-accused never studied in that school and the alleged
certificate was not issued by the School authorities. Learned
senior counsel for the State further contended that since the
transfer certificate on the basis of which entries were made in
Saint Joseph School was not found to be genuine, the date of
birth mentioned in the Secondary School Certificate was also
not at all reliable.
9
12) In support of his claim, learned senior counsel relied
upon a decision in Om Prakash vs. State of Rajasthan and
Another (2012) 5 SCC 201 wherein it was held as under:-
“22. It is no doubt true that if there is a clear and
unambiguous case in favour of the juvenile accused that he
was a minor below the age of 18 years on the date of the
incident and the documentary evidence at least prima facie
proves the same, he would be entitled for this special
protection under the Juvenile Justice Act. But when an
accused commits a grave and heinous offence and thereafter
attempts to take statutory shelter under the guise of being a
minor, a casual or cavalier approach while recording as to
whether an accused is a juvenile or not cannot be permitted
as the courts are enjoined upon to perform their duties with
the object of protecting the confidence of common man in the
institution entrusted with the administration of justice.
23. Hence, while the courts must be sensitive in dealing
with the juvenile who is involved in cases of serious nature
like sexual molestation, rape, gang rape, murder and host of
other offences, the accused cannot be allowed to abuse the
statutory protection by attempting to prove himself as a
minor when the documentary evidence to prove his minority
gives rise to a reasonable doubt about his assertion of
minority. Under such circumstance, the medical evidence
based on scientific investigation will have to be given due
weight and precedence over the evidence based on school
administration records which give rise to hypothesis and
speculation about the age of the accused. The matter
however would stand on a different footing if the academic
certificates and school records are alleged to have been
withheld deliberately with ulterior motive and authenticity of
the medical evidence is under challenge by the prosecution.”
13) Learned senior counsel further referred to a decision in
Abuzar Hossain alias Gulam Hossain vs. State of West
Bengal (2012) 10 SCC 489, wherein a three-Judge Bench of
10
this Court had summarized the position for determining the
juvenility of an accused. In para 39.3 of the judgment, it has
been held as under:-
“39.3. As to what materials would prima facie satisfy the
court and/or are sufficient for discharging the initial burden
cannot be catalogued nor can it be laid down as to what
weight should be given to a specific piece of evidence which
may be sufficient to raise presumption of juvenility but the
documents referred to in Rules 12(3)(a)(i) to (iii) shall
definitely be sufficient for prima facie satisfaction of the
court about the age of the delinquent necessitating further
enquiry under Rule 12. The statement recorded under
Section 313 of the Code is too tentative and may not by itself
be sufficient ordinarily to justify or reject the claim of
juvenility. The credibility and/or acceptability of the
documents like the school leaving certificate or the voters’
list, etc. obtained after conviction would depend on the facts
and circumstances of each case and no hard-and-fast rule
can be prescribed that they must be prima facie accepted or
rejected. In Akbar Sheikh and Pawan these documents were
not found prima facie credible while in Jitendra Singh the
documents viz. school leaving certificate, marksheet and the
medical report were treated sufficient for directing an inquiry
and verification of the appellant’s age. If such documents
prima facie inspire confidence of the court, the court may act
upon such documents for the purposes of Section 7-A and
order an enquiry for determination of the age of the
delinquent.”
14) He further stated that in view of the documents produced
by the father of the appellant-accused and the statement given
by the concerned school, the date of birth of the
appellant-accused is unsubstantiated, therefore, the Board
rightly directed for conducting the ossification test of the
11
appellant-accused. Learned senior counsel for the State
finally submitted that the Court of Sessions as well as High
Court rightly rejected the claim of the appellant-accused.
Statutory Provisions:
15) In view of the above, it is useful to refer certain relevant
provisions of the JJ Act which are as under:-
“2. Definition.—
(k) “juvenile” or “child means a person who has not
completed eighteenth year of age;
(l) “juvenile in conflict with law” means a juvenile who is
alleged to have committed an offence and has not completed
eighteenth year of age as on the date of commission of such
offence;
“[7A. Procedure to be followed when claim of juvenility is
raised before any court.-(1) Whenever a claim of juvenility
is raised before any court or a court is of the opinion that an
accused person was a juvenile on the date of commission of
the offence, the court shall make an inquiry, take such
evidence as may be necessary (but not an affidavit) so as to
determine the age of such person, and shall record a finding
whether the person is a juvenile or a child or not, stating his
age as nearly as may be:
Provided that a claim of juvenility may be raised before any
court and it shall be recognized at any stage, even after final
disposal of the case, and such claim shall be determined in
terms of the provisions contained in this Act and the rules
made thereunder, even if the juvenile has ceased to be so on
or before the date of commencement of this Act.
(2) If the court finds a person to be a juvenile on the date
of commission of the offence under sub-section (1), it shall
forward the juvenile to the Board for passing appropriate
orders and sentence, if any, passed by a court shall be
deemed to have no effect.]”
12
Juvenile Justice (Care and Protection) Rules, 2007
“12. Procedure to be followed in determination of age.-
(1) In every case concerning a child or a juvenile in conflict
with law, the court or the Board or as the case may be the
Committee referred to in rule 19 of these rules shall
determine the age of such juvenile or child or a juvenile in
conflict with law within a period of thirty days from the date
of making of the application for that purpose.
(2) The Court or the Board or as the case may be the
Committee shall decide the juvenility or otherwise of the
juvenile or the child or as the case may be the juvenile in
conflict with law, prima facie on the basis of physical
appearance or documents, if available, and send him to the
observation home or in jail.
(3) In every case concerning a child or juvenile in conflict
with law, the age determination inquiry shall be conducted
by the court or the Board or, as the case may be, the
Committee by seeking evidence by obtaining-
(a)(i) the matriculation or equivalent certificates, if available;
and in the absence whereof;
(ii) the date of birth certificate from the school (other than a
play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a)
above, the medical opinion will be sought from a duly
constituted Medical Board, which will declare the age of the
juvenile or child. In case exact assessment of the age cannot
be done, the Court or the Board or, as the case may be, the
Committee, for the reasons to be recorded by them may, if
considered necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the margin of
one year.
and, while passing orders in such case shall, after taking
into consideration such evidence as may be available, or the
medical opinion, as the case may be, record a finding in
respect of his age and either of the evidence specified in any
of the clauses (a) (i), (ii), (iii) or in the absence whereof,
13
clause (b) shall be the conclusive proof of the age as regards
such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in
conflict with law is found to be below 18 years on the date of
offence, on the basis of any of the conclusive proof specified
in sub-rule(3), the Court or the Board or as the case may be
the Committee shall in writing pass an order stating the age
and declaring the status of juvenility or otherwise, for the
purpose of the Act and these rules and a copy of the order
shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is
required, inter alia in terms of Section 7A, Section 64 of the
Act and these rules, no further inquiry shall be conducted by
the court or the Board after examining and obtaining the
certificate or any other documentary proof referred to in
sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply
to those disposed of cases, where the status of juvenility has
not been determined in accordance with the provisions
contained in sub-rule (3) and the Act, requiring dispensation
of the sentence under the Act for passing appropriate order
in the interest of the juvenile in conflict with law.”
16) From a reading of the aforementioned statutory
provisions, it is clear that under Section 7A of the JJ Act, the
court is enjoined to make an inquiry and take such evidence
as may be necessary to determine the age of the person who
claims to be a juvenile. However, under Rule 12, the Board is
enjoined to take evidence by obtaining the matriculation
certificate if available, and in its absence, the date of birth
certificate from the school first attended and if it is also not
available then the birth certificate given by the local body. In
14
case any of the above certificates are not available then
medical opinion can be resorted to. However, if the Board
comes to the conclusion that the date of birth mentioned in
the matriculation certificate raises some doubt on the basis of
material or evidence on record, it can seek medical opinion
from a duly constituted medical board to determine the age of
the accused person claiming juvenility.
17) It is also pertinent to mention here the order passed by
the Chief Medical Officer, Meerut with regard to the age of the
appellant-accused which reads as under:-
“OFFICE OF THE CHIEF MEDICAL OFFICER, MEERUT
No. M.7/CMO/11-7939
Dated:
23.08.11
AGE CERTIFICATE
Certified that I examined Sh. Parag Bhati S/o Anil Bhati R/o
C-16, Swarn Nagar, Greater Noida, P.S. Kasna, Gautambudh
Nagar, U.P. brought by /identified Ct. 506 Kiranpal Singh,
Police Line, Meerut ….. referred by …. for ascertaining
his/her present age required for the purposes of Juvenile
Justice Board, Meerut vide his letter No./endorsement No.
……………dated ……………..Sh. Parag Bhati states that
his/her age is about 16 years at present. He brought no
documentary evidence to substantiate his age. He also
states that he has not obtained any certificate from
15
anywhere about his age. On examination: Height 171 Cms.,
Weight 56 Kgs., Teeth 15/16 permanent.
Tiny Black mole on latral aspect of middle bhelants of
left little finger.
On X-ray Examination Plate No. 10569/70/71/72 dated
08.08.11 done at P.L. Sharma Hospital, Meerut (report given
by Dr. Deepak Saxena) Senior Radiologist P.L. Sharma
Hospital, Meerut)
Shows:-
1. XR (1) elbow, ® knee- All epiphyses around the joints
are fused.
2. XR (L) wrist-epiphyses of lower end of radious and
ulna are fused visible sear.
3. XR ® Clavide medical end-epiphyses around joints is
not fused. Opinion: on the basis of the above, general
appearance and physical built I am of the opinion that
the age of Shri Parag Bhati is about 19 years.
Chief Medical Officer”
18) The only question to be determined is whether the
appellant-accused was juvenile or not on the date of
occurrence, i.e., 29.06.2011. From the documents on record, it
is seen that the father of the appellant-accused submitted an
application stating that his son passed High School
examination from Vishwa Bharti Public School, Greater Noida
and as per the school records his date of birth is 13.09.1995.
It was further informed that the appellant-accused studied
from Class 1st to 5th in Saint Joseph School, Greater Noida and
studied Class 6th and 7th in Kisan Vaidik Junior High School,
Latifpur. Again in Class-8th, he studied in Saint Joseph
16
School. Though the date of birth mentioned in the records of
the above school is 17.09.1994, the father of the appellant
claimed it to be wrong and submitted that an affidavit had
been filed for its correction. During cross-examination, it was
further admitted that the date of birth in the transfer
certificate of Kisan Vaidik Junior High School is recorded as
17.09.1994 whereas it is recorded as 13.09.1996 in the Saint
Joseph School. In this manner, the date of birth of the
appellant-accused is 13.09.1995 in the records of the High
School and 17.09.1994 is mentioned in the records of Kisan
Vaidik Junior High School. If the date of birth mentioned in
such certificate is proved wrong then it cannot be relied upon.
19) This fact is further corroborated with the affidavit filed by
the State which reads as under:-
“9. That the father of the petitioner filed an
application before the Juvenile Justice Board stating
therein that the date of birth of the petitioner is
13.09.1995. The application on behalf of the petitioner
for declaring him juvenile was supported with the
following documents along with affidavit of his father.
(i) The Secondary School Certificate for class X
issued by Controller of Examinations of Secondary
School Examination for the year (2009-2011), where
the date of birth is mentioned as 13.09.1995.
(ii) The petitioner (juvenile) had studied from class 1
to 5 in Saint Joseph School, where his date of birth is
17
mentioned as 13.09.1996. And the form bears the
signature of his father.
(iii) The petitioner date of birth in Transfer
Certificate of Kisan Vaidik Junior High School is also
mentioned as 17.9.1994.
(iv) The petitioner (juvenile) alleges to had studied
upto class VI in Aster Public School, JA-1, Silver Oak
estate, Delta-II, Greater Noida. In the registration form
of this school, the date of birth is mentioned as
13.09.1995.
That while considering the aforesaid documents the
Juvenile Justice Board came on the conclusion as
follows :-
a. In the evidence Smt. Jyotsana Bhati, Principal,
Arayans Academy, Mandi Shyam Nagar was
summoned according to her statement Parag Bhati
never studied in their school. However, it has been
mentioned in the column No. 14 of T.C. of Kisan
Vaidik Junior High School, that earlier institute of
Parag Bhati was Aryans Academy Mandi Shyam
Nagar. Similarly, Manohar Lal Sharma, C.W. 03,
Assistant Teac her, Kisan Vaidik Junior High School,
Latifpur has stated in his statement that the Transfer
Certificate available at the case file was not issued by
their school and the same is forged. Parag Bhati never
studied in their school.
b. Smt. Rachna D/o Devender, Principal of Saint
Joseph School has sent a certificate in writing
according to which Parag Bhati has studied in their
school from 04.04.2008 to April 2009 only. Before
that, he never studied in their school. However, Anil
Bhati father of the juvenile has stated in his statement
that he has studied in Saint Joseph School from class
1 to 5.
c. Therefore, on the basis of documents available
at the case file, date of birth of Parag Bhati is
mentioned 13.09.1995 in the documents of High
School and 17.09.1994 is mentioned in the document
of Kisan Vedic Junior High School. On 30.08.2011, the
board, has conducted proceedings to register case
against Anil Bhati for producing forged evidence and
giving false statement before the Hon’ble Chief Judicial
Magistrate, Meerut.
18
In view of the above facts and circumstances of the
case, all the documents before class 10th produced on
behalf of applicant are forged.”
20) The Board summoned Smt. Jyotsana Bhati, Principal,
Aryans Academy Mandi Shyam Nagar and she stated that the
appellant-accused never studied in their school. It may be
mentioned here that in Column No. 14 of Transfer Certificate
of Vaidik Junior High School, the name of the earlier institute
attended was Aryans Academy Mandi, Shayam Nagar. Shri
Manohar Lal Sharma, Assistant Teacher, Kisan Vaidik Junior
High School, Latifpur was also summoned who stated on
solemn affirmation that the transfer certificate available in the
case file was not issued by the school and that is forged as the
appellant-accused never studied in their school. Similarly,
the Principal, Saint Joseph School, sent a certificate in writing
stating therein that the appellant-accused had studied in their
school from 04.04.2008 to April, 2009 only and before that he
never studied in their school.
21) As the date of birth which is alleged to have been
recorded in Saint Joseph School is on the basis of the transfer
19
certificate issued by the Kisan Vaidik Junior High School,
Latifpur and such transfer certificate has been found to be
forged, therefore, the Board came to the conclusion that the
date of birth mentioned in the certificate issued by the
Secondary School Examination mentioning it as 13.09.1995
on the basis of Vishwa Bharti Public School, Greater Noida
cannot be believed. It may also be mentioned here that the
date of birth which was recorded in Vishwa Bharti Public
School, Greter Noida was on the basis of the date of birth
recorded in Saint Joseph School and the date of birth recorded
in the Saint Joseph School had been found to be without
having any basis. On 30.08.2011, the Board, on merits,
conducted proceedings to register case against Anil
Bhati-father of the appellant-accused for producing forged
evidence and giving false statement before the Court which
fact has already been proved that the documents which were
produced on behalf of the appellant-accused were forged.
22) Due to this discrepancy, the Medical of the
appellant-accused got conducted by the Medical Board
wherein on 23.08.2011, his age was assessed about 19 years
20
and the Board fixed the age of the appellant-accused as 18
years, 10 months and 6 days and he was ordered to be tried
by the Session Court. The Board did not give the benefit of
one year as provided in Rule 12 of the Rules in favour of the
appellant-accused on the ground that the
complainant-Respondent No. 2 herein had filed the photocopy
of Panchayat Electoral Roll 2009 Development Block Dankaur,
according to which, the age on 01.01.2009 has been
mentioned as 19 years and the date of the incident is
29.06.2011. Therefore, the Board rightly did not give the
benefit of one year to the appellant-accused under the Rules.
23) We may also mention here that before this Court, an
entirely new case has been set up by the appellant-accused
that he studied up to Class 6th in Aster Public School, Greater
Noida, and thereafter, in Mussoorie Modern School, Mussoorie
and lastly studied for Class 9th and 10th in Vishwa Bharti
Public School, Greater Noida. The plea that the
appellant-accused studied in Aster Public School and
Mussoorie Modern School was never raised before the Board
for reasons best known and the appellant cannot take
21
advantage of a new case being set up before this Court for
determination of age under the JJ Act.
24) While considering a similar question, this Court in
Ashwani Kumar (supra) held as under:-
“32. “Age determination inquiry” contemplated under
Section 7-A of the Act read with Rule 12 of the 2007 Rules
enables the court to seek evidence and in that process, the
court can obtain the matriculation or equivalent certificates,
if available. Only in the absence of any matriculation or
equivalent certificates, the court needs to obtain the date of
birth certificate from the school first attended other than a
play school. Only in the absence of matriculation or
equivalent certificate or the date of birth certificate from the
school first attended, the court needs to obtain the birth
certificate given by a corporation or a municipal authority or
a panchayat (not an affidavit but certificates or documents).
The question of obtaining medical opinion from a duly
constituted Medical Board arises only if the abovementioned
documents are unavailable. In case exact assessment of the
age cannot be done, then the court, for reasons to be
recorded, may, if considered necessary, give the benefit to
the child or juvenile by considering his or her age on lower
side within the margin of one year.
33. Once the court, following the above mentioned
procedures, passes an order, that order shall be the
conclusive proof of the age as regards such child or juvenile
in conflict with law. It has been made clear in sub-rule (5) of
Rule 12 that no further inquiry shall be conducted by the
court or the Board after examining and obtaining the
certificate or any other documentary proof after referring to
sub-rule (3) of Rule 12. Further, Section 49 of the JJ Act also
draws a presumption of the age of the juvenility on its
determination.
34. Age determination inquiry contemplated under the JJ
Act and the 2007 Rules has nothing to do with an enquiry
under other legislations, like entry in service, retirement,
promotion, etc. There may be situations where the entry
22
made in the matriculation or equivalent certificates, date of
birth certificate from the school first attended and even the
birth certificate given by a corporation or a municipal
authority or a panchayat may not be correct. But court,
Juvenile Justice Board or a committee functioning under the
JJ Act is not expected to conduct such a roving enquiry and
to go behind those certificates to examine the correctness of
those documents, kept during the normal course of
business. Only in cases where those documents or
certificates are found to be fabricated or manipulated, the
court, the Juvenile Justice Board or the committee need to
go for medical report for age determination.
(emphasis supplied by us)
25) In Abuzar Hossain (supra), wherein a three-Judge Bench
of this Court has already summarized the position regarding
what materials would prima facie satisfy the court and/or are
sufficient for discharging the initial burden cannot be
catalogued nor can it be laid down as to what weight should
be given to a specific piece of evidence which may be sufficient
to raise presumption of juvenility but the documents referred
to in Rules 12(3)(a)(i) to (iii) shall definitely be sufficient for
prima facie satisfaction of the court about the age of the
delinquent necessitating further enquiry under Rule 12. The
credibility and/or acceptability of the documents would
depend on the facts and circumstances of each case and no
hard-and-fast rule can be prescribed that they must be prima
23
facie accepted or rejected and if such documents prima facie
inspire confidence of the court, the court may act upon such
documents for the purposes of Section 7-A and order an
enquiry for determination of the age of the appellant.
26) It is no doubt true that if there is a clear and
unambiguous case in favour of the juvenile accused that he
was a minor below the age of 18 years on the date of the
incident and the documentary evidence at least prima facie
proves the same, he would be entitled to the special protection
under the JJ Act. But when an accused commits a grave and
heinous offence and thereafter attempts to take statutory
shelter under the guise of being a minor, a casual or cavalier
approach while recording as to whether an accused is a
juvenile or not cannot be permitted as the courts are enjoined
upon to perform their duties with the object of protecting the
confidence of common man in the institution entrusted with
the administration of justice.
27) The benefit of the principle of benevolent legislation
attached to the JJ Act would thus apply to only such cases
wherein the accused is held to be a juvenile on the basis of at
24
least prima facie evidence regarding his minority as the benefit
of the possibilities of two views in regard to the age of the
alleged accused who is involved in grave and serious offence
which he committed and gave effect to it in a well-planned
manner reflecting his maturity of mind rather than innocence
indicating that his plea of juvenility is more in the nature of a
shield to dodge or dupe the arms of law, cannot be allowed to
come to his rescue.
28) It is settled position of law that if the matriculation or
equivalent certificates are available and there is no other
material to prove the correctness, the date of birth mentioned
in the matriculation certificate has to be treated as a
conclusive proof of the date of birth of the accused. However,
if there is any doubt or a contradictory stand is being taken by
the accused which raises a doubt on the correctness of the
date of birth then as laid down by this Court in Abuzar
Hossain (supra), an enquiry for determination of the age of
the accused is permissible which has been done in the present
case.
25
29) In view of the foregoing discussion, we do not find any
illegality in the orders passed by the Board and the Court of
Sessions and also of the High Court which requires our
interference.
30) The appeal fails and is accordingly dismissed.
...…………….………………………J.
(A.K. SIKRI)
.…....…………………………………J.
(R.K. AGRAWAL)
NEW DELHI;
MAY 12, 2016.
26
advocatemmmohan
- advocatemmmohan
- since 1985 practicing as advocate in both civil & criminal laws. This blog is only for information but not for legal opinions
Friday, May 13, 2016
whether in the facts and circumstances of the present case when the date of birth mentioned in the matriculation certificate is doubtful, the ossification test can be the last resort to prove the juvenility of the accused? - Only in the absence of any matriculation or equivalent certificates, the court needs to obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court needs to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents)-The question of obtaining medical opinion from a duly constituted Medical Board arises only if the abovementioned documents are unavailable. = It is settled position of law that if the matriculation or equivalent certificates are available and there is no other material to prove the correctness, the date of birth mentioned in the matriculation certificate has to be treated as a conclusive proof of the date of birth of the accused. However, if there is any doubt or a contradictory stand is being taken by the accused which raises a doubt on the correctness of the date of birth then as laid down by this Court in Abuzar Hossain (supra), an enquiry for determination of the age of the accused is permissible which has been done in the present case.
There is no question of `come and get' the compensation while compulsorily acquiring the land; the approach required under law is `go and give'. In this case, no award has been passed and the land value has not been given to the owner. The impugned order is hence set aside. The appellant and the Acquisitioning Authority are directed to complete the acquisition proceedings by passing an award under the provisions of the 2013 Act. This shall be done within a period of six months and needless also to say that the entire compensation due to respondent No.1 would be calculated in terms of the 2013 Act and the same shall either be deposited with the Land Acquisition Collector or disbursed to the respondent No.1 within one month thereafter.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4821 OF 2016
(Arising out of SLP ( C) No. 4282 of 2011)
ALIGARH DEVELOPMENT AUTHORITY APPELLANT
VERSUS
MEGH SINGH & ORS. RESPONDENTS
J U D G M E N T
KURIAN,J.
1. Leave granted.
2. The appellant- Aligarh Development Authority took steps for
acquisition of land belonging to the respondent No.1 as per Notification
issued under Section 4(1) of the Land Acquisition Act, 1894 (For short
`1894 Act') on 09.08.2004. Simultaneously emergency clause was also invoked
under the provisions of Section 17 followed by Section 6 declaration dated
03.08.2005. According to the appellant possession of the land was taken
and part of the compensation was deposited with the Special Land
Acquisition Officer.
3. The respondent No.1 challenged the acquisition on various
grounds and the High Court of Judicature at Allahabad by the impugned
Judgment dated 21.10.2010 allowed the writ petition and quashed the
Notification dated 09.08.2004 and the declaration dated 03.08.2005. Among
other reasons, the main reason for taking such a view is that after
invoking emergency clause, no award was passed even after the expiry of
four years. Thus aggrieved, the Requisitioning Authority -Aligarh
Development Authority is before this Court. When the matter was pending
before this Court, the land owner non-applicant filed I.A.No.3/2015
contending that respondent No.1 is entitled to a declaration that
acquisition proceedings have lapsed in view of the operation of Section 24
of the Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (For short `2013 Act'), since
neither compensation has been paid to the owner nor possession has been
taken by the Land Acquisition Collector.
4. The appellant-Authority has filed reply to the affidavit
stating that the compensation has been deposited with the Land Acquisition
Collector. As far as the possession is concerned, it is stated in the
affidavit that the land has already been taken in possession and a `full-
fledged and complete residential colony has been developed'.
5. It is however an admitted position that no Award either under
the 1894 Act or under the 2013 Act has been passed in respect of the land
of respondent No.1. Section 24 of the 2013 Act reads as follows:
“24. Land acquisition process under Act No.1 of 1894 shall be deemed to
have lapsed in certain cases.- (1) Notwithstanding anything contained in
this Act, in any case of land acquisition proceedings initiated under the
Land Acquisition Act,1894 (1 of 1894),-
a) Where no award under section 11 of the said Land Acquisition Act has
been made, then, all provisions of this Act relating to the determination
of compensation shall apply; or
b) Where an award under said section 11 has been made, then such
proceedings shall continue under the provisions of the said Land
Acquisition Act, as if the said Act has not been repealed.
(2) Notwithstanding anything contained in sub-section (1), in case of land
acquisition proceedings initiated under the Land Acquisition Act, 1894 (1
of 1894),, where an award under the said section 11 has been made five
years or more prior to the commencement of this Act but the physical
possession of the land has not been taken or the compensation has not been
paid the said proceedings shall be deemed to have lapsed and the
appropriate Government, if it so chooses, shall initiate the proceedings of
such land acquisition afresh in accordance with the provisions of this Act:
Provided that where an award has been made and compensation in respect of a
majority of land holding has not been deposited in the account of the
beneficiaries, then, all beneficiaries specified in the notification for
acquisition under section 4 of the said Land Acquisition Act, shall be
entitled to compensation in accordance with the provisions of this Act.”
6. Section 24 of the 2013 Act envisages mainly two situations; i)
where the land acquisition proceedings had already been initiated under the
1894 Act but no award was passed till the date the new Act came into
force. (ii) where the Award has been passed but neither the owner has been
dispossessed nor has he been paid the compensation. Under the first, where
the award had not been passed, the acquisition proceedings could continue;
but the compensation will have to be determined under the scheme of 2013
Act. Under the second category, there is a statutory lapse of the
proceedings. There is also an incidental third situation, where award under
the 1894 Act had already been passed prior to coming into force of the 2013
Act, but payment is yet to be made and possession is yet to be taken. In
that case, the further proceedings after the award could continue under the
old Act of 1894; but if either payment or possession has not taken effect
in five years prior to the 2013 Act, then proceedings will lapse.
7. In the case before us, since admittedly the award has not been
passed, there arises no question of lapse. The land acquisition
proceedings would continue but with the rider that the award will have to
be passed and compensation determined under the provisions of 2013 Act.
8. In that view of the matter, it is not necessary to go into various
other aspects. Having regard to the factual matrix of the residential
colony having been set up, which fact is not controverted also, it cannot
be said that there was an urgency for the acquisition. Therefore, the
approach made by the High Court is not correct. However, the stand of the
Authority that it had deposited 80% of the compensation with the land
acquisition officers and hence it was for the owner to collect the money,
cannot be appreciated. That is a matter between the Requisitioning
Authority and the Acquisitioning Authority. There is no question of `come
and get' the compensation while compulsorily acquiring the land; the
approach required under law is `go and give'. In this case, no award has
been passed and the land value has not been given to the owner. The
impugned order is hence set aside. The appellant and the Acquisitioning
Authority are directed to complete the acquisition proceedings by passing
an award under the provisions of the 2013 Act. This shall be done within a
period of six months and needless also to
say that the entire compensation due to respondent No.1 would be calculated
in terms of the 2013 Act and the same shall either be deposited with the
Land Acquisition Collector or disbursed to the respondent No.1 within one
month thereafter.
9. The appeal is disposed of as above. No costs.
................J.
[KURIAN JOSEPH]
....................J.
[ROHINTON FALI NARIMAN]
NEW DELHI;
MAY 05, 2016
the acquisition proceedings get lapsed.- due to non payment of compensation- a fresh acquisition and a fresh award should be passed = Under Section 24(2) of the 2013 Act, where an Award under Section 11 of the 1894 Act has been passed and in case compensation has not been paid to the land owner or deposited before the Court in terms of the requirements under the 1894 Act, the acquisition proceedings get lapsed. In case compensation has not been paid, the land acquisition proceedings in respect of that acquisition will stand lapsed, as if there is no acquisition. =When a land is compulsorily acquired, it is for the Requisitioning Authority to make the payment and does not require the land owner to come and receive the payment.= In case there is any dispute as to who is to be paid the amount, the same is to be deposited in Court in terms of Section 31 of the 1894 Act. In this case before us, the stand of the Requisitioning Authority, namely, Haryana Development Authority is that the money is ready with them and it is for the land owner to come and receive the payment. This stand is not permissible under the law. It is for the authorities concerned to pay the money and take the land and in case there is any dispute as to whom the money should be paid, then the same has to be deposited in Court. As admittedly no compensation has been paid to the appellants in terms of the above mentioned Award passed in the year 2005, the appellants are entitled to succeed. Accordingly, the appeal is allowed. The proceedings for acquisition of land of the appellants and covered by the Notification issued under Section 4(1) of the Land Acquisition Act, 1894 and leading to the Award referred to above stand set aside as having been lapsed.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4864 OF 2016
(Arising out of SLP (C)No. 22578 of 2008)
VIJAY LATKA & ANR. APPELLANTS
VERSUS
STATE OF HARYANA & ORS. RESPONDENTS
J U D G M E N T
KURIAN, J.
Leave granted.
The appellants are aggrieved by the judgment dated 01.05.2008 in Civil
Writ Petition No. 4118/2006 of the High Court of Punjab and Haryana. The
writ petition was filed by the appellants challenging the Notification
dated 11.11.2002 issued under Section 4 of the Land Acquisition Act, 1894
(For short `1894 Act') and the declaration dated 07.11.2003 and Award dated
31.10.2005. The High Court dismissed the writ petition on the sole ground
that since Award had already been passed, the writ petition was not
maintainable.
Be that as it may, during the pendency of the writ petition, in view
of Section 24(2) of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 (For short `2013
Act') appellants have filed an additional affidavit stating therein that
the land acquisition proceedings have lapsed as far as the land of the
appellants are concerned. Since according to the appellants, the
respondent State has neither paid the compensation nor taken physical
possession of the land, this court directed the State to respond to the
affidavit. Accordingly, an affidavit dated 19th April, 2016 has been filed
before this Court by the Administrator, Haryana Urban Development
Authority. At paragraph 3 of the affidavit, it is stated that the award
was made on 31.10.2005 and “that possession of the land was taken over on
as is where is basis by the Land Acquisition Collector on 31.10.2005.....”.
Whether taking over the possession in such a manner would satisfy the
statutory requirement of taking physical possession is a question to be
addressed.
4. However, since the appellants are otherwise entitled to succeed
in this case we leave that question open. It is the case of the appellants
that no compensation in respect of the acquired land has been paid to them.
Learned counsel for the respondents submits that whoever approached the
Authority, the compensation has been paid. The learned counsel also
invited our attention to paragraph 8 of the affidavit which reads as
follows:
“That as regards the compensation amount for acquired land,
office of the Land Acquisition Officer, Panchkula has reported that the
compensation has not been obtained by the petitioners though compensation
to the extent of Rs.4,00,93,086/- has already been obtained by other land
owners who came forward to take the compensation. Therefore, there was due
offer of compensation and the present case does not fall within the meaning
of provision contained in Section 31(2) of the Act, 1894.”
5. Under Section 24(2) of the 2013 Act, where an Award under
Section 11 of the 1894 Act has been passed and in case compensation has not
been paid to the land owner or deposited before the Court in terms of the
requirements under the 1894 Act, the acquisition proceedings get lapsed.
In case compensation has not been paid, the land acquisition proceedings in
respect of that acquisition will stand lapsed, as if there is no
acquisition.
6. The contention of the learned counsel appearing for the
respondents is that whoever approached the Haryana Urban Development
Authority or the competent authority has been paid compensation and since
the appellants failed to approach the quarters concerned for the
compensation, they cannot be granted any relief. We find this contention
difficult to appreciate. When a land is compulsorily acquired, it is for
the Requisitioning Authority to make the payment and does not require the
land owner to come and receive the payment.
7. As and when land is taken over by way of acquisition, the land
owner has to be compensated with the amount of compensation duly determined
under the Act. In case there is any dispute as to who is to be paid the
amount, the same is to be deposited in Court in terms of Section 31 of the
1894 Act. In this case before us, the stand of the Requisitioning
Authority, namely, Haryana Development Authority is that the money is
ready with them and it is for the land owner to come and receive the
payment. This stand is not permissible under the law. It is for the
authorities concerned to pay the money and take the land and in case there
is any dispute as to whom the money should be paid, then the same has to be
deposited in Court.
8. As admittedly no compensation has been paid to the appellants
in terms of the above mentioned Award passed in the year 2005, the
appellants are entitled to succeed. Accordingly, the appeal is allowed.
9. The proceedings for acquisition of land of the appellants and covered
by the Notification issued under Section 4(1) of the Land Acquisition Act,
1894 and leading to the Award referred to above stand set aside as having
been lapsed.
10. The learned counsel for the Haryana Urban Development
Authority submits that the land of the appellants has been acquired for the
purpose of development scheme and it comes under the Green Belt. We make
it clear that this judgment would not stand in the way of the HUDA taking
fresh steps for requisition of the land of the appellants under the
provisions of the 2013 Act.
11. The appeal is allowed. No costs.
................J.
[KURIAN JOSEPH]
....................J.
[ROHINTON FALI NARIMAN]
NEW DELHI;
MAY 05, 2016
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4864 OF 2016
(Arising out of SLP (C)No. 22578 of 2008)
VIJAY LATKA & ANR. APPELLANTS
VERSUS
STATE OF HARYANA & ORS. RESPONDENTS
J U D G M E N T
KURIAN, J.
Leave granted.
The appellants are aggrieved by the judgment dated 01.05.2008 in Civil
Writ Petition No. 4118/2006 of the High Court of Punjab and Haryana. The
writ petition was filed by the appellants challenging the Notification
dated 11.11.2002 issued under Section 4 of the Land Acquisition Act, 1894
(For short `1894 Act') and the declaration dated 07.11.2003 and Award dated
31.10.2005. The High Court dismissed the writ petition on the sole ground
that since Award had already been passed, the writ petition was not
maintainable.
Be that as it may, during the pendency of the writ petition, in view
of Section 24(2) of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 (For short `2013
Act') appellants have filed an additional affidavit stating therein that
the land acquisition proceedings have lapsed as far as the land of the
appellants are concerned. Since according to the appellants, the
respondent State has neither paid the compensation nor taken physical
possession of the land, this court directed the State to respond to the
affidavit. Accordingly, an affidavit dated 19th April, 2016 has been filed
before this Court by the Administrator, Haryana Urban Development
Authority. At paragraph 3 of the affidavit, it is stated that the award
was made on 31.10.2005 and “that possession of the land was taken over on
as is where is basis by the Land Acquisition Collector on 31.10.2005.....”.
Whether taking over the possession in such a manner would satisfy the
statutory requirement of taking physical possession is a question to be
addressed.
4. However, since the appellants are otherwise entitled to succeed
in this case we leave that question open. It is the case of the appellants
that no compensation in respect of the acquired land has been paid to them.
Learned counsel for the respondents submits that whoever approached the
Authority, the compensation has been paid. The learned counsel also
invited our attention to paragraph 8 of the affidavit which reads as
follows:
“That as regards the compensation amount for acquired land,
office of the Land Acquisition Officer, Panchkula has reported that the
compensation has not been obtained by the petitioners though compensation
to the extent of Rs.4,00,93,086/- has already been obtained by other land
owners who came forward to take the compensation. Therefore, there was due
offer of compensation and the present case does not fall within the meaning
of provision contained in Section 31(2) of the Act, 1894.”
5. Under Section 24(2) of the 2013 Act, where an Award under
Section 11 of the 1894 Act has been passed and in case compensation has not
been paid to the land owner or deposited before the Court in terms of the
requirements under the 1894 Act, the acquisition proceedings get lapsed.
In case compensation has not been paid, the land acquisition proceedings in
respect of that acquisition will stand lapsed, as if there is no
acquisition.
6. The contention of the learned counsel appearing for the
respondents is that whoever approached the Haryana Urban Development
Authority or the competent authority has been paid compensation and since
the appellants failed to approach the quarters concerned for the
compensation, they cannot be granted any relief. We find this contention
difficult to appreciate. When a land is compulsorily acquired, it is for
the Requisitioning Authority to make the payment and does not require the
land owner to come and receive the payment.
7. As and when land is taken over by way of acquisition, the land
owner has to be compensated with the amount of compensation duly determined
under the Act. In case there is any dispute as to who is to be paid the
amount, the same is to be deposited in Court in terms of Section 31 of the
1894 Act. In this case before us, the stand of the Requisitioning
Authority, namely, Haryana Development Authority is that the money is
ready with them and it is for the land owner to come and receive the
payment. This stand is not permissible under the law. It is for the
authorities concerned to pay the money and take the land and in case there
is any dispute as to whom the money should be paid, then the same has to be
deposited in Court.
8. As admittedly no compensation has been paid to the appellants
in terms of the above mentioned Award passed in the year 2005, the
appellants are entitled to succeed. Accordingly, the appeal is allowed.
9. The proceedings for acquisition of land of the appellants and covered
by the Notification issued under Section 4(1) of the Land Acquisition Act,
1894 and leading to the Award referred to above stand set aside as having
been lapsed.
10. The learned counsel for the Haryana Urban Development
Authority submits that the land of the appellants has been acquired for the
purpose of development scheme and it comes under the Green Belt. We make
it clear that this judgment would not stand in the way of the HUDA taking
fresh steps for requisition of the land of the appellants under the
provisions of the 2013 Act.
11. The appeal is allowed. No costs.
................J.
[KURIAN JOSEPH]
....................J.
[ROHINTON FALI NARIMAN]
NEW DELHI;
MAY 05, 2016
whether the respondent No.1 is fit and proper for election as a Director of the appellant-bank. This is for the reason that in the impugned order dated 24th May, 2013 before the High Court, the said committee took into account only the fact that the respondent No.1 was over age and the fact that he had already been Director in the appellant-bank for more than two terms. We, therefore, remit the matter to the nomination committee to decide this case after a consideration of all the criteria laid down in the RBI Circular dated 1st November, 2007 and the Guidelines dated 10th December, 2007 issued by the Ministry of Finance, Government of India. Needless to add, all these criteria will be taken into account without giving any one or more criteria undue weightage, the idea being tha ultimately the nomination committee has to decide, in accordance with Section 9 (3AA) of the Act, whether the respondent No.1 is a fit and proper person to be elected as a Director of the appellant-bank. = We, therefore, set aside the order of the learned Single Judge and Division Bench of the High Court of Calcutta and remit the matter to the committee as aforesaid. The committee will decide in accordance with what is stated in our judgment within a period of four weeks from receiving our order.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4820 OF 2016
(Arising out of SLP (C) No.14209 of 2014)
UCO BANK APPELLANT
VERSUS
SAUMYENDRA ROY CHOUDHURY & ORS. RESPONDENTS
J U D G M E N T
R.F.NARIMAN,J.
1. Leave granted.
2. The matter arises out of a decision by the nomination committee set
up under an RBI Circular dated 24th May, 2013, in which it has decided,
having regard to the fact that the respondent no.1 before us is over aged,
i.e. above 65 years, and the fact that he has already served for a period
of two terms as Director of the Appellant Bank is disqualified therefore
from standing for any further election as Director of the said Bank.
3. The said decision was challenged before the High Court in Civil
Suit No. 212 of 2013. By an interim order dated 29th November, 2013, the
learned trial Judge allowed the interim prayer of the respondent no.1
before us, namely, Prayer (e), by which an interim mandatory injunction was
ordered to deem the said Director as having been elected as a shareholder
director notwithstanding the impugned order dated 24th May, 2013. This
was for the reason that prima facie the learned Single Judge held that the
Government of India Guidelines dated 10th December, 2007, which alone
contained the twin disqualifications of being above age as well as having
stood for election as a Director twice, could not apply to persons who are
elected Directors as opposed to non-official Directors, who are only the
Directors nominated under a Statutory Scheme under Section 9(3) of the
Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970. It
was further held that the RBI Guidelines dated 1st November, 2007, issued
pursuant to the Statutory Power contained in Section 9 (3AA) of the said
Act, alone governed the facts of these cases, and that no other criteria de
hors the criteria in these guidelines could possibly be taken into account.
4. The appeal from the aforesaid judgment met with the same fate,
as the Division Bench, by the impugned Judgment and Order dated 15th May,
2014, reiterated the findings of the learned Single Judge and granted the
same relief based on the same view taken of the respective guidelines
issued by the Government of India and by the Reserve Bank of India.
5. Considering that the Suit is yet to be decided, and that we are
only confronted with an interim order passed by the High Court, we do not
propose to go into the merits of the contentions raised by learned counsel
on either side. Suffice it to say that, prima facie, the RBI Guidelines
dated 1st November, 2007 framed under Section 9 (3AA) of the said Act would
apply to the facts of the case. What is important under the Section itself
is to determine the fit and proper status of a person who wishes to be
elected as a Director in the appellant-Bank based on track record,
integrity and such other criteria as the RBI notifies from time to time in
this regard. The RBI, in the Guidelines dated 1st November, 2007 has
expressly stated that in determining the fit and proper status of an
existing elected Director/proposed candidate, the nomination committee
should determine his educational qualification, his experience and field of
expertise, track record and integrity. What is important to note is that
the aforesaid list, as stated by the said Guidelines, is only illustrative
and not exhaustive. Further, what is important is that the committee
should see whether non adherence to any of the aforesaid criteria would
hamper the existence of the elected Director/proposed candidate from
discharging his duties as Director on the Board of the bank.
6. We have been shown a letter dated 3rd September, 2013, written by the
Under Secretary, Ministry of Finance, Department of Financial Services, to
the appellant-bank. This letter is set out by us hereinbelow:
“ As you are aware, the election of shareholder director in Public
Sector Banks is administered by RBI guidelines no. DBOD No. BC NO.
471/29.39.001/2007-08 dated 01.11.2007 as per which the Nomination
Committee of the Bank's Board is to undertake a process of due diligence to
determine the `fit and proper' status of persons to be elected under
Section 9(3)(i) of the Banking Companies Act, 1970/80. These guidelines
are broad, illustrative and largely indicative.
2. Therefore, I am directed to state that in order to ensure that the
candidates elected as shareholder director discharge their duties as
director on the Board with greatest transparency and in public interest, it
is desirable that Government guidelines dated 01.06.2011 regarding
appointment of part-time non-official director also be kept in mind while
carrying out determination of `fit and proper' status of the candidates.
You are requested to advice the board of your bank accordingly.
3. This issues with approval of S(FS).”
7. We are prima facie of the view that this letter applies to cases like
the present. This being the case, we are of the view that the present case
should be remanded to the nomination committee so that the committee takes
a fresh decision as to whether the respondent No.1 is fit and proper for
election as a Director of the appellant-bank. This is for the reason that
in the impugned order dated 24th May, 2013 before the High Court, the said
committee took into account only the fact that the respondent No.1 was over
age and the fact that he had already been Director in the appellant-bank
for more than two terms. We, therefore, remit the matter to the nomination
committee to decide this case after a consideration of all the criteria
laid down in the RBI Circular dated 1st November, 2007 and the Guidelines
dated 10th December, 2007 issued by the Ministry of Finance, Government of
India. Needless to add, all these criteria will be taken into account
without giving any one or more criteria undue weightage, the idea being
that ultimately the nomination committee has to decide, in accordance with
Section 9 (3AA) of the Act, whether the respondent No.1 is a fit and proper
person to be elected as a Director of the appellant-bank.
8. We, therefore, set aside the order of the learned Single Judge
and Division Bench of the High Court of Calcutta and remit the matter to
the committee as aforesaid. The committee will decide in accordance with
what is stated in our judgment within a period of four weeks from receiving
our order. We request a Single Judge of the High Court to take up Civil
Suit No. 212/2013 for hearing within a period of eight weeks from today.
We expect that the learned Single Judge will decide the said suit finally
within six months from today.
10. With the above observations, the aforesaid civil appeal is disposed
of.
.....................J.
[KURIAN JOSEPH]
....................J.
[ROHINTON FALI NARIMAN
NEW DELHI;
MAY 05, 2016
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4820 OF 2016
(Arising out of SLP (C) No.14209 of 2014)
UCO BANK APPELLANT
VERSUS
SAUMYENDRA ROY CHOUDHURY & ORS. RESPONDENTS
J U D G M E N T
R.F.NARIMAN,J.
1. Leave granted.
2. The matter arises out of a decision by the nomination committee set
up under an RBI Circular dated 24th May, 2013, in which it has decided,
having regard to the fact that the respondent no.1 before us is over aged,
i.e. above 65 years, and the fact that he has already served for a period
of two terms as Director of the Appellant Bank is disqualified therefore
from standing for any further election as Director of the said Bank.
3. The said decision was challenged before the High Court in Civil
Suit No. 212 of 2013. By an interim order dated 29th November, 2013, the
learned trial Judge allowed the interim prayer of the respondent no.1
before us, namely, Prayer (e), by which an interim mandatory injunction was
ordered to deem the said Director as having been elected as a shareholder
director notwithstanding the impugned order dated 24th May, 2013. This
was for the reason that prima facie the learned Single Judge held that the
Government of India Guidelines dated 10th December, 2007, which alone
contained the twin disqualifications of being above age as well as having
stood for election as a Director twice, could not apply to persons who are
elected Directors as opposed to non-official Directors, who are only the
Directors nominated under a Statutory Scheme under Section 9(3) of the
Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970. It
was further held that the RBI Guidelines dated 1st November, 2007, issued
pursuant to the Statutory Power contained in Section 9 (3AA) of the said
Act, alone governed the facts of these cases, and that no other criteria de
hors the criteria in these guidelines could possibly be taken into account.
4. The appeal from the aforesaid judgment met with the same fate,
as the Division Bench, by the impugned Judgment and Order dated 15th May,
2014, reiterated the findings of the learned Single Judge and granted the
same relief based on the same view taken of the respective guidelines
issued by the Government of India and by the Reserve Bank of India.
5. Considering that the Suit is yet to be decided, and that we are
only confronted with an interim order passed by the High Court, we do not
propose to go into the merits of the contentions raised by learned counsel
on either side. Suffice it to say that, prima facie, the RBI Guidelines
dated 1st November, 2007 framed under Section 9 (3AA) of the said Act would
apply to the facts of the case. What is important under the Section itself
is to determine the fit and proper status of a person who wishes to be
elected as a Director in the appellant-Bank based on track record,
integrity and such other criteria as the RBI notifies from time to time in
this regard. The RBI, in the Guidelines dated 1st November, 2007 has
expressly stated that in determining the fit and proper status of an
existing elected Director/proposed candidate, the nomination committee
should determine his educational qualification, his experience and field of
expertise, track record and integrity. What is important to note is that
the aforesaid list, as stated by the said Guidelines, is only illustrative
and not exhaustive. Further, what is important is that the committee
should see whether non adherence to any of the aforesaid criteria would
hamper the existence of the elected Director/proposed candidate from
discharging his duties as Director on the Board of the bank.
6. We have been shown a letter dated 3rd September, 2013, written by the
Under Secretary, Ministry of Finance, Department of Financial Services, to
the appellant-bank. This letter is set out by us hereinbelow:
“ As you are aware, the election of shareholder director in Public
Sector Banks is administered by RBI guidelines no. DBOD No. BC NO.
471/29.39.001/2007-08 dated 01.11.2007 as per which the Nomination
Committee of the Bank's Board is to undertake a process of due diligence to
determine the `fit and proper' status of persons to be elected under
Section 9(3)(i) of the Banking Companies Act, 1970/80. These guidelines
are broad, illustrative and largely indicative.
2. Therefore, I am directed to state that in order to ensure that the
candidates elected as shareholder director discharge their duties as
director on the Board with greatest transparency and in public interest, it
is desirable that Government guidelines dated 01.06.2011 regarding
appointment of part-time non-official director also be kept in mind while
carrying out determination of `fit and proper' status of the candidates.
You are requested to advice the board of your bank accordingly.
3. This issues with approval of S(FS).”
7. We are prima facie of the view that this letter applies to cases like
the present. This being the case, we are of the view that the present case
should be remanded to the nomination committee so that the committee takes
a fresh decision as to whether the respondent No.1 is fit and proper for
election as a Director of the appellant-bank. This is for the reason that
in the impugned order dated 24th May, 2013 before the High Court, the said
committee took into account only the fact that the respondent No.1 was over
age and the fact that he had already been Director in the appellant-bank
for more than two terms. We, therefore, remit the matter to the nomination
committee to decide this case after a consideration of all the criteria
laid down in the RBI Circular dated 1st November, 2007 and the Guidelines
dated 10th December, 2007 issued by the Ministry of Finance, Government of
India. Needless to add, all these criteria will be taken into account
without giving any one or more criteria undue weightage, the idea being
that ultimately the nomination committee has to decide, in accordance with
Section 9 (3AA) of the Act, whether the respondent No.1 is a fit and proper
person to be elected as a Director of the appellant-bank.
8. We, therefore, set aside the order of the learned Single Judge
and Division Bench of the High Court of Calcutta and remit the matter to
the committee as aforesaid. The committee will decide in accordance with
what is stated in our judgment within a period of four weeks from receiving
our order. We request a Single Judge of the High Court to take up Civil
Suit No. 212/2013 for hearing within a period of eight weeks from today.
We expect that the learned Single Judge will decide the said suit finally
within six months from today.
10. With the above observations, the aforesaid civil appeal is disposed
of.
.....................J.
[KURIAN JOSEPH]
....................J.
[ROHINTON FALI NARIMAN
NEW DELHI;
MAY 05, 2016
thousands of employees have been discharged on VRS by the Management and having regard to the fact that out of the 65 people who pursued the litigation, 59 people have already gone on VRS or otherwise, and having regard to the age factor of the appellants, we are of the view that the interest of justice would be advanced if the appellants are paid a lump sum amount towards settlement of all their dues. Though neither the Management nor the workmen could agree on the offers made from either side, having regard to all the aspects which we have referred to above, we feel that to do complete justice between the parties, it will be appropriate that the appellants are given an amount of Rs. 10 Lakhs (Rupees Ten Lakhs) each. The said amount of Rs. 10 Lakhs will be paid to the appellants within six weeks from today and in case of default in making the payment, the amount shall carry interest at the rate of 18% from the date of the award passed by the Industrial Tribunal. We make it clear that the said amount of Rs. 10 Lakhs will not include the claim of the workmen for Gratuity and Provident Fund. We also clarify that the Gratuity will be calculated on the basis of the wages drawn by the workmen as of now and with continuous service till today.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs 4858-4859 OF 2016
[@ SPECIAL LEAVE PETITION (C) 35984-35985 OF 2015]
GHANSHYAM SUKHDEO GAIKWAD AND ORS Appellant(s)
VERSUS
BAJAJ AUTO LTD. & ORS. Respondent(s)
WITH
CIVIL APPEAL NOs. 4860-4862 OF 2016
[@ SPECIAL LEAVE PETITION (C) 35986-35988 OF 2015]
J U D G M E N T
KURIAN, J.
1. Leave granted.
2. The appeals have a chequered history. The appellants started the
litigation way back in the year 1991 by approaching initially the Labour
Court and thereafter, the Industrial Court at Pune. The Labour Court
dismissed their complaint. The Industrial Court remanded the matter to the
Labour Court, which was pursued by the Management before the High Court.
The High Court set aside the orders of the Labour Court and the Industrial
Court by consent, and the matter was remanded to the Labour Court by order
dated 09.04.1996. The Labour Court, by order dated 12.12.1997, dismissed
the complaint. The appellants pursued the matter before the Industrial
Tribunal. The Industrial Tribunal allowed the complaint and directed
reinstatement of the workmen, however, without backwages, by its order
dated 22.01.1998.
3. Both sides, feeling aggrieved, approached the High Court of
judicature of Bombay, which has led to the impugned Judgment and Order
dated 07.05.2015, by which the High Court has dismissed the writ petition
filed by the appellants and allowed the writ petition filed by the
Management, holding that the retrenchment was in order.
4. Thus aggrieved, the workmen are before this Court in these appeals.
5. We have heard the learned counsel on both sides extensively. During
the course of hearing, it was noticed by this Court that in the year 2007,
one of the appellants (according to the learned counsel for the Management,
all the appellants) was offered Voluntary Retirement (VRS), by which
Scheme, the appellant would be receiving an amount of Rs.20,40,981/-,
inclusive of Provident Fund and Gratuity. It appears that the workman was
not happy with the offer. According to Mr. Sanjay Singhvi, learned senior
counsel appearing for the appellants, some of them were not offered the
said Scheme.
6. Be that as it may, it is not in dispute that all the appellants have
been getting regular wages ever since 2002, as applicable to permanent
workers. According to Mr. Singhvi, learned senior counsel, the wages of
regular workers did not actually include certain allowances. It is also
not in dispute that the Management has not been extracting any work from
the appellants since April, 2003, though according to the appellants, they
have been reporting everyday for work and they have been sitting in the
premises of the Company only.
7. Having regard to the background of the litigation, having regard to
the fact that thousands of employees have been discharged on VRS by the
Management and having regard to the fact that out of the 65 people who
pursued the litigation, 59 people have already gone on VRS or otherwise,
and having regard to the age factor of the appellants, we are of the view
that the interest of justice would be advanced if the appellants are paid a
lump sum amount towards settlement of all their dues. Though neither the
Management nor the workmen could agree on the offers made from either side,
having regard to all the aspects which we have referred to above, we feel
that to do complete justice between the parties, it will be appropriate
that the appellants are given an amount of Rs. 10 Lakhs (Rupees Ten Lakhs)
each. The said amount of Rs. 10 Lakhs will be paid to the appellants
within six weeks from today and in case of default in making the payment,
the amount shall carry interest at the rate of 18% from the date of the
award passed by the Industrial Tribunal.
8. We make it clear that the said amount of Rs. 10 Lakhs will not
include the claim of the workmen for Gratuity and Provident Fund. We also
clarify that the Gratuity will be calculated on the basis of the wages
drawn by the workmen as of now and with continuous service till today.
9. In view of the above observations and directions, the appeals are
disposed of with no order as to costs.
10. It is made clear that we have invoked our special jurisdiction under
Article 142 of the Constitution and, therefore, this Judgment will not be
treated as a precedent.
.......................J.
[ KURIAN JOSEPH ]
.......................J.
[ ROHINTON FALI NARIMAN ]
New Delhi;
May 05, 2016.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs 4858-4859 OF 2016
[@ SPECIAL LEAVE PETITION (C) 35984-35985 OF 2015]
GHANSHYAM SUKHDEO GAIKWAD AND ORS Appellant(s)
VERSUS
BAJAJ AUTO LTD. & ORS. Respondent(s)
WITH
CIVIL APPEAL NOs. 4860-4862 OF 2016
[@ SPECIAL LEAVE PETITION (C) 35986-35988 OF 2015]
J U D G M E N T
KURIAN, J.
1. Leave granted.
2. The appeals have a chequered history. The appellants started the
litigation way back in the year 1991 by approaching initially the Labour
Court and thereafter, the Industrial Court at Pune. The Labour Court
dismissed their complaint. The Industrial Court remanded the matter to the
Labour Court, which was pursued by the Management before the High Court.
The High Court set aside the orders of the Labour Court and the Industrial
Court by consent, and the matter was remanded to the Labour Court by order
dated 09.04.1996. The Labour Court, by order dated 12.12.1997, dismissed
the complaint. The appellants pursued the matter before the Industrial
Tribunal. The Industrial Tribunal allowed the complaint and directed
reinstatement of the workmen, however, without backwages, by its order
dated 22.01.1998.
3. Both sides, feeling aggrieved, approached the High Court of
judicature of Bombay, which has led to the impugned Judgment and Order
dated 07.05.2015, by which the High Court has dismissed the writ petition
filed by the appellants and allowed the writ petition filed by the
Management, holding that the retrenchment was in order.
4. Thus aggrieved, the workmen are before this Court in these appeals.
5. We have heard the learned counsel on both sides extensively. During
the course of hearing, it was noticed by this Court that in the year 2007,
one of the appellants (according to the learned counsel for the Management,
all the appellants) was offered Voluntary Retirement (VRS), by which
Scheme, the appellant would be receiving an amount of Rs.20,40,981/-,
inclusive of Provident Fund and Gratuity. It appears that the workman was
not happy with the offer. According to Mr. Sanjay Singhvi, learned senior
counsel appearing for the appellants, some of them were not offered the
said Scheme.
6. Be that as it may, it is not in dispute that all the appellants have
been getting regular wages ever since 2002, as applicable to permanent
workers. According to Mr. Singhvi, learned senior counsel, the wages of
regular workers did not actually include certain allowances. It is also
not in dispute that the Management has not been extracting any work from
the appellants since April, 2003, though according to the appellants, they
have been reporting everyday for work and they have been sitting in the
premises of the Company only.
7. Having regard to the background of the litigation, having regard to
the fact that thousands of employees have been discharged on VRS by the
Management and having regard to the fact that out of the 65 people who
pursued the litigation, 59 people have already gone on VRS or otherwise,
and having regard to the age factor of the appellants, we are of the view
that the interest of justice would be advanced if the appellants are paid a
lump sum amount towards settlement of all their dues. Though neither the
Management nor the workmen could agree on the offers made from either side,
having regard to all the aspects which we have referred to above, we feel
that to do complete justice between the parties, it will be appropriate
that the appellants are given an amount of Rs. 10 Lakhs (Rupees Ten Lakhs)
each. The said amount of Rs. 10 Lakhs will be paid to the appellants
within six weeks from today and in case of default in making the payment,
the amount shall carry interest at the rate of 18% from the date of the
award passed by the Industrial Tribunal.
8. We make it clear that the said amount of Rs. 10 Lakhs will not
include the claim of the workmen for Gratuity and Provident Fund. We also
clarify that the Gratuity will be calculated on the basis of the wages
drawn by the workmen as of now and with continuous service till today.
9. In view of the above observations and directions, the appeals are
disposed of with no order as to costs.
10. It is made clear that we have invoked our special jurisdiction under
Article 142 of the Constitution and, therefore, this Judgment will not be
treated as a precedent.
.......................J.
[ KURIAN JOSEPH ]
.......................J.
[ ROHINTON FALI NARIMAN ]
New Delhi;
May 05, 2016.
Subscribe to:
Comments (Atom)