LAW FOR ALL

Thursday, April 21, 2022

AIR BAGS NOT DEPLOYED= where in a collision, the airbags did not deploy. The complainant, driving the vehicle, suffered substantial injuries as a result thereof. The impact of the collision was such that it would have been reasonable for the respondent to assume that there would have been deployment of the airbags. The safety description of the goods fell short of its 15 expected quality. The content of the owners’ manual does not carry any material from which the owner of a vehicle could be alerted that in a collision of this nature, the airbags would not deploy. Purchase decision of the respondentcomplainant was largely made on the basis of representation of the safety features of the vehicle. The failure to provide an airbag system which would meet the safety standards as perceived by a carbuyer of reasonable prudence, in our view, should be subject to punitive damages which can have deterrent effect. And in computing such punitive damages, the capacity of the manufacturing enterprise should also be a factor. There was no specific exclusion clause to insulate the manufacturer from claim of damages of this nature. Even if there were such a clause, legality thereof could be open to legal scrutiny. But there is no reason for dilating on that aspect in this case. That question doesn’t arise here.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3001 OF 2022

(Arising out of Petition for Special Leave to Appeal (Civil)

No. 4881 of 2021)

Hyundai Motor India Limited ……...Appellant(s)

Versus

Shailendra Bhatnagar ……Respondent(s)

J U D G M E N T

ANIRUDDHA BOSE, J.

Leave granted.

2. The appellant are manufacturers of vehicles and the present

appeal arises out of a complaint made by the respondent

concerning defect in a vehicle, particularly in relation to its safety

features originating from the appellant, of the model Creta 1.6

VTVT SX+. The vehicle came with two front airbags. Purchase of the

vehicle was made on 21st August 2015. It met with an accident on

the DelhiPanipat highway on 16th November 2017 resulting in

substantial damage to its RH front pillar, RH front roof, side body

panels, front RH door panels and LH front wheel suspension. The

initials RH and LH appears to be used as short forms of Right Hand

and Left Hand sides of the vehicle. At that point of time, the

complainant (being the respondent herein), his mother and

daughter were in the vehicle. The airbags of the vehicle did not

deploy at the time of collision. The complainant suffered head,

chest as also dental injuries. He attributes such injuries to nondeployment of airbags at the time of accident. The appellant

themselves obtained an investigation report which has been

referred to as SRS report. The remarks and conclusion of the said

SRS Investigation Report, as it appears from pages 53 and 54 of the

paperbook were:

“Remarks:

 Vehicle found with major damage on RH front

pillar, RH Side body panels and LH front wheel

suspension.

 Under ride & Angular impact found on the RH

Front Pillar, Roof and Front RH Door panel.

 Grazing damages found on the RH side panels

due to the scratch against truck while moving towards

left.

Findings:

 No crash info recorded in SRSCM, hence no air

bags deployed.

 No impact damage observed on both side chassis

members, damages found away from impact sensors.

 Vehicle found completely dismantled and midrepair condition during inspection.

Conclusion:

 The major impact to the vehicle from RH pillar

resulted in under ride and angular condition.

 Both front chassis member found unaffected by

the frontal impact, hence no impact sensed by the

front impact sensors and not triggered any signal to

SRSCM (No crash info recorded in SRSCM for frontal

impact).

 After thorough study, it is confirmed that the

condition was not met for the air bag deployment,

hence no air bags deployed. The air bag system was

working proper at the time of accident.

Accident description:

 As per customer verbatim, while he was driving

at 100 kmph speed on Gannaur highway. A front going

truck applied sudden brake, his car hit to the truck

from the right side to the left rear corner of the Truck.

Further his car scratched against the truck while

moving towards left side of the road and finally hit to

some stones on the left front wheel and vehicle

stopped.”

(quoted verbatim)

3. The Delhi State Consumer Redressal Commission, in a

complaint raised by the respondent, upheld his claim. The main

theme of his complaint was that the main reason for his purchase

decision of the model was because of its safety features including

the airbags and the injury was suffered by him because of nondeployment of the airbags. The State Commission granted relief to

the following effect:

“19. Keeping in view of the facts and circumstances

of the present consumer complaint, we direct the

opposite party to:

a. Compensate the complainant an amout of

Rs.2,00,000/ for medical expenses and loss of income.

b. Compensate the complainant an amount of

Rs.50,000/ for mental agony.

c. Pay to the complainant an amount of

Rs.50,000/ as cost of litigation.

20. The aforesaid payment shall be made by

opposite party within two months from the date of this

order by way of demand draft. Failure of opposite party

in paying the said amount in stipulated period will

attract an interest of 7% per annum from the date of

default. Furthermore, failure in replacing the vehicle of

the appellant will also attract an interest of 7% per

annum of the value of the vehicle from the date of

default.”

4. The appellant preferred appeal before the National Consumer

Dispute Redressal Commission (“National Commission”). The

National Commission dismissed the appeal sustaining the

compensation awarded by the State Commission. The Order of the

National Commission, which was passed on 5th January 2021, is

under appeal before us. Neither the State Commission nor the

National Commission accepted the justification sought to be made

by the appellant referring to the said investigation report, having

regard to the fact of nondeployment of the airbags. It has been,

interalia, held by the National Commission:

“11.... Learned Counsel for the Appellant/Opposite

Party submitted that the airbags deploy only when

there is severe impact of force and airbags may not

deploy if the vehicle collides with objects like poles and

trees, when full force of the impact is not delivered to

the sensors. Learned Counsel for the Appellant argued

that the SRS Investigation report dated 01.12.2017

clearly stated that the impact of the accident was such

that the minimum threshold force required for the

deployment of the airbags was not delivered to the

front sensors installed in the engine compartment and

hence, the airbags did not deploy. No expert evidence

was produced by the Respondent to substantiate any

manufacturing defect. The Complainant contended

that he purchased the car for its safety features

highlighted by the Manufacturer, but the airbags did

not function when required, due to which he sustained

serious injuries as can be seen from the medical

prescriptions and bills furnished by the Complainant.

The impact/force required for triggering the front

airbags was not made known to the Complainant.

Nowhere has the minimum threshold force been

quantified and this defence can never be refuted.

Highlighting safety features including airbags while

selling the car and not elaborating and disclosing the

threshold limits for their opening is by itself an unfair

trade practice. Complainant, however, had filed

photographs of the accidental car. Major damage to RH

front pillar, RH front roof, side body panels front RH

door panels and LH front wheel suspension is seen in

the photographs of the car. Without forceful impact,

the car would not have been so badly damaged. The

accident was a major accident in which the entire

deriver side of the car, the side part and even the front

mirror of the car got smashed and broken. The impact

of the accident was so intense that the front bumper

grill, dash board and the radiator got totally damaged.

The State Commission rightly observed “that expert

evidence need not be relied upon where the facts speak

for themselves. This is a case of Res Ipsa Loquitur

where the photographs of the damaged vehicle placed

on record clearly show the impact of the accident on

the vehicle.”

5. One of the points argued on behalf of the appellant by Mr.

Huzefa Ahmadi, learned Senior advocate, is that the order for

replacement of the vehicle ought not to have been passed. The

respondent had not asked for replacement of the vehicle as part of

the reliefs claimed before the State Commission. He has otherwise

questioned legality of the decisions of the two fora citing certain

clauses from the owner’s manual. His argument on this count has

been that if force generated by the collision is lesser than a certain

degree, there would not be deployment of the airbags. Thus, there

was no defect in the security system according to him. He also

highlighted that impact of the accident was from the side and it was

not a frontal hit.

6. It is the case of the appellant that the airbag deployment

depends on a number of factors including vehicle speed, angle of

impact, density and stiffness of vehicles or objects which the

vehicle hits in the collision. The vehicle is designed to deploy the

front airbags only when an impact is sufficiently severe and when

the impact angle is less than 30 degrees from the forward

longitudinal axis of the vehicle. Mr. Ahmadi has submitted that the

front airbags are not intended to deploy if the impact is from the

side or in cases of rear impact or roll over crashes. He has referred

to a variety of circumstances in a collision which may not result in

deployment of the airbags. He has cited the investigation report to

which we have already referred to.

7. Before the Commission, point of limitation was also taken and

the appellant wanted the limitation to run from the date of

purchase of the vehicle and not the date of the accident. This

objection on maintainability has been rightly rejected by both the

State Commission and the National Commission. We do not find

any error in the view of the respective Commissions on this point.

Vehicles are goods within the meaning of Section 2(7) of The Sale of

Goods Act, 1930 and they carry implied conditions as to their

fitness. That is a statutory mandate and that mandate also

operates in respect of goods, whose defect is subject of proceeding

in a consumer complaint under the Consumer Protection Act,

1986. In the complaint, it has been pleaded that the respondent

had relied on the safety features of the vehicle projected by the

manufacturer. In such a situation, the limitation will run from the

day the defect surfaces in a case. There is no way by which the

nature of defect complained against could be identified in normal

circumstances at an earlier date, before the collision took place. In

this case, the safety feature of the vehicle fell short of the quality of

fitness as was represented by the manufacturer by implication. The

National Commission’s view is broadly based on the principle

incorporated in Section 16 of the 1930 Act. The defect in this case

ought to be treated to have had surfaced on the date of the accident

itself. We quote below the provisions of Section 16 of The Sale of

Goods Act, 1930:

“16. Implied conditions as to quality or fitness.—

Subject to the provisions of this Act and of any other

law for the time being in force, there is no implied

warranty or condition as to the quality or fitness for

any particular purpose of goods supplied under a

contract of sale, except as follows:—

(1)Where the buyer, expressly or by implication, makes

known to the seller the particular purpose for which

the goods are required, so as to show that the buyer

relies on the seller’s skill or judgment, and the goods

are of a description which it is in the course of the

seller’s business to supply (whether he is the

manufacturer or producer or not), there is an implied

condition that the goods shall be reasonably fit for

such purpose:

Provided that, in the case of a contract for the sale of a

specified article under its patent or other trade name,

there is no implied condition as to its fitness for any

particular purpose.

(2)Where goods are bought by description from a seller

who deals in goods of that description (whether he is

the manufacturer or producer or not), there is an

implied condition that the goods shall be of

merchantable quality:

Provided that, if the buyer has examined the goods,

there shall be no implied condition as regards defects

which such examination ought to have revealed.

(3)An implied warranty or condition as to quality or

fitness for a particular purpose may be annexed by the

usage of trade.

(4)An express warranty or condition does not negative

a warranty or condition implied by this Act unless

inconsistent therewith.”

8. The question on privity of contract was also raised before the

State as also the National Commission and from the decision under

appeal we find that this point was raised on the ground that the

dealer was not impleaded as a party and there was no contract

between the appellant and the respondent consumer. This issue

was rejected by both the consumer fora. No argument has been

advanced before us on this point and we do not find any error in

the reasoning of the National Commission on this point.

9. There are findings of the two fora about the defect in the

product sold, in this case being a vehicle. This was sold with front

airbags and there was frontal damage. The airbags did not deploy.

The accident caused injuries to the respondent. The appellant

referred to various portions from the owner’s manual to contend

that the impact of the collision was not sufficient to activate the

sensor which in turn would have resulted in deployment of the

airbags. We would not like to revisit the facts on which findings

have been returned by the two fora against the appellant. The State

Commission relied on the principle of Res Ipsa Loquitur to affix

the liability of the manufacturer as regards defect in the airbag

system, having regard to the nature of the collision. The National

Commission affirmed this finding referring to certain photographs

of the damaged vehicle, which showed substantial frontal damage.

In such circumstances, both the aforesaid fora took the view that

expert evidence was not necessary in the subject case. Such view

cannot be faulted as being unreasonable, in the given facts.

10. We do not find any reason to interfere with the finding of the

National Commission. We would like to add here that ordinarily a

consumer while purchasing a vehicle with airbags would assume

that the same would be deployed whenever there is a collision from

the front portion of the vehicle (in respect of front airbags). Both the

fora, in their decisions, have highlighted the fact that there was

significant damage to the front portion of the vehicle. Deployment of

the airbags ought to have prevented injuries being caused to those

travelling in the vehicle, particularly in the front seat. A consumer

is not meant to be an expert in physics calculating the impact of a

collision on the theories based on velocity and force. In such

circumstances, we do not find that there is any error in the findings

of the two fora as regards there being defect in the vehicle.

11. We shall now turn to the reliefs granted by the State

Commission and upheld by the National Commission. The first

point argued in this regard is that there was no prayer in the

petition for replacement of the vehicle. This is a case where the

1986 Act was applicable and Section 14 of the said statute lays

down the reliefs which may be granted. The directions as per the

statute, could be for replacement of defective goods as also punitive

damages. The appellant have also taken a point that so far as

replacement of the vehicle is concerned, there was no substantive

direction and no discussion either. The operative part of the order

suffers from a shortcoming on this count, but that is not fatal. On a

composite reading of the directions, we find from paragraph 20 of the

Order of the State Commission that such a direction was made. The

confusion, if any, arises because of construction defect in the Order of

the State Commission. Considering the fact that the dispute is pending

for a reasonably long period of time, we have ourselves applied our

mind on this issue and our view is that a direction for replacement of

the vehicle is justified in the facts of this case. The direction for

replacement of the vehicle would not be treated as nonest having

regard to paragraph 20 of the State Commission’s Order. The fact that

the consumer has got the car repaired on insurance money would not

impact the quantum of damages, which is partly punitive in nature in

this case.

12. Three cases arising out of motor accident claims were cited

before us. In Nagappa v. Gurudayal Singh & Others. [(2003) 2 SCC

274], it was held that there is no restriction that the Tribunal or

Court cannot award compensation amount exceeding the claimed

amount. Two other authorities were cited before us, by Ms. Tamta,

learned counsel for the respondent, being the cases of Sangita Arya

and Others v. Oriental Insurance Company Limited and Others

[(2020) 5 SCC 327] and Jitendra Khimshankar Trivedi and Others

v. Kasam Daud Kumbhar and Others [(2015) 4 SCC 237]. These two

cases lay down the principle of just and reasonable compensation

that may be paid. The ratio of these authorities, however, do not

directly apply in the facts of this case.

13. The damages awarded against the appellant may have gone

beyond the actual loss suffered by the respondent and may not

represent the actual loss suffered by him in monetary terms. But

the provision of Section 14 of the 1986 Act permits awarding

punitive damages. Such damages, in our view, can be awarded in

the event the defect is found to have the potential to cause serious

injury or major loss to the consumer, particularly in respect of

safety features of a vehicle. For instance, defective safety feature in

a vehicle has to be distinguished from a dysfunctional “courtesy

light”. The manufacturer should be under strict and absolute

liability in respect of the latter. Compensation in the form of

punitive damages ought to have a deterrent effect. We also refer to

the principles detailing the factors guiding quantification of liability

laid down by a Constitution Bench of this Court in the case of M.C.

Mehta and Another v. Union of India and Others [(1987) 1 SCC

395]. In this case it has been opined:

“32. We would also like to point out that the measure

of compensation in the kind of cases referred to in the

preceding paragraph must be corelated to the

magnitude and capacity of the enterprise because such

compensation must have a deterrent effect. The larger

and more prosperous the enterprise, the greater must

be the amount of compensation payable by it for the

harm caused on account of an accident in the carrying

on of the hazardous or inherently dangerous activity by

the enterprise.”

14. The aforesaid decision arose out of a case involving the death

of an individual and injuries to several others in an industrial

accident. But in our opinion, in the subject dispute also the same

principle can be extended. We are dealing with a case where in a

collision, the airbags did not deploy. The complainant, driving the

vehicle, suffered substantial injuries as a result thereof. The impact

of the collision was such that it would have been reasonable for the

respondent to assume that there would have been deployment of

the airbags. The safety description of the goods fell short of its

expected quality. The content of the owners’ manual does not carry

any material from which the owner of a vehicle could be alerted

that in a collision of this nature, the airbags would not deploy.

Purchase decision of the respondentcomplainant was largely made

on the basis of representation of the safety features of the vehicle.

The failure to provide an airbag system which would meet the

safety standards as perceived by a carbuyer of reasonable

prudence, in our view, should be subject to punitive damages

which can have deterrent effect. And in computing such punitive

damages, the capacity of the manufacturing enterprise should also

be a factor. There was no specific exclusion clause to insulate the

manufacturer from claim of damages of this nature. Even if there

were such a clause, legality thereof could be open to legal scrutiny.

But there is no reason for dilating on that aspect in this case. That

question doesn’t arise here.

15. If the reliefs granted in a consumer complaint fits any of the

statutory provision contained in sub clause (1) of Section 14 of the

Act, it would be well within the power and jurisdiction of the Forum

to pass directions irrespective of the fact as to whether specifically

certain reliefs have been claimed or not, provided that facts make

out foundations for granting such reliefs. In any event, it is within

the jurisdiction of the said forum to mould the reliefs claimed to do

effective justice, provided the relief comes within the stipulation of

Section 14(1) of the Act. We find that the relief granted to the

respondent comes within the statutory framework. We accordingly

do not want to interfere with the decision of the National

Commission. We do not find the reasoning of the Commission or

the operative part of the order awarding damages to be perverse.

We do not need the aid of the ratio of the three authorities cited

before us pertaining to motor accident claim to sustain the decision

under appeal. We are also of the view that the directions issued

against the appellant by the State Commission and upheld by the

National Commission cannot be said to have failed the test of

proportionality. We hold so as we find the subjectdefect to be of

such nature that the provisions relating to punitive damages ought

to be attracted against the appellant.

16. We accordingly dismiss the appeal. Interim order passed in

this matter shall stand dissolved.

17. Pending application(s), if any, shall stand disposed of.

18. There shall be no order as to costs.

………………………J.

(VINEET SARAN)

……………………….J.

(ANIRUDDHA BOSE)

NEW DELHI;

APRIL 20, 2022.

reinstatement -not correct - In any case in the facts and circumstances of the case and for the reasons stated above and considering the charge and misconduct of producing the fake and false SSLC Certificate proved, when a conscious decision was taken by the Disciplinary Authority to dismiss him from service, the same could not have been interfered with by the High Court in exercise of powers under Article 226 of the Constitution of India.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2911 OF 2022

M/s Indian Oil Corporation Ltd. ..Appellant

Versus

Shri Rajendra D. Harmalkar ..Respondent

J U D G M E N T

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 29.06.2015 passed by the High Court

of Judicature at Bombay at Goa in Writ Petition No.660 of 2013

by which the High Court has partly allowed the said writ petition

preferred by the respondent herein (hereinafter referred to as the

“original writ petitioner”) directing the petitioner herein to

reinstate the original writ petitioner without any back wages and

other benefits by substituting the punishment of dismissal

imposed by the Disciplinary Authority, the employer – Indian Oil

Corporation Ltd. has preferred the present appeal.

2. The facts leading to the present appeal in a nutshell are as

under:

That the respondent herein original writ petitioner was

initially appointed in the year 1982 as a casual employee. He

moved an application seeking the position of Refueling Helper,

wherein under the heading of qualifications, he mentioned that

he has passed Secondary School Leaving Certificate (hereinafter

referred to as “SSLC”) in April, 1986 from Karnataka Secondary

Education Board. That he was thereafter appointed as Helper as

per the regularization policy regularizing the casual employees,

inter alia, subject to the contents prescribed in the application

form for employment being correct. At that stage also the original

writ petitioner submitted SSLC of Karnataka Board bearing

No.206271 dated 19.05.1986.

2.1 In the year 2003, the Chief Vigilance Officer of the

Corporation received a complaint that the original writ petitioner

had secured his job as Refueling Helper by submitting a false

and forged SSLC. Similar complaint was also made to the police

authorities also.

2.2 Despite repetitive requests and follow up by the authorities,

original writ petitioner did not submit the original SSLC

Certificate. On the contrary, the original writ petitioner sent a

communication wherein it was mentioned that the original SSLC

has been misplaced. Thereafter the Manager, ER advised original

writ petitioner to obtain a duplicate copy of the original SSLC and

to submit the same to the Manager, ER. However, he continued

evading submission of the original certificate or even the

Duplicate SSLC from Karnataka Board.

2.3 The Manager, ER thereafter requested the authorities of the

Secondary Board to check up their records and confirm whether

they had issued any marks certificate carrying details available

on the photocopy of the SSLC marks sheet issued by them. In

response to the same, the Board informed the authority that “as

per the record, SSLC statement of marks for the year March,

1986 bearing Registration No.206271 relate to one Agrahar

Jayant S/o Satyanarayana A.L. DOB – 15.02.1968 and does not

belong to Rajendra Dattaram Harmalkar S/o Datta Ram

Harmalkar, DOB – 08.12.1962”.

2.4 In the above circumstances, a departmental enquiry was

initiated against the original writ petitioner. The original writ

petitioner was served with the chargesheet containing two

charges which read as under:

“1. Wilful insubordination or disobedience

whether or not in combination with another, of

any lawful and reasonable order of a superior.

2. Giving false information regarding one's age,

father's name, qualifications or previous

service at the time of employment.”

2.5 The original writ petitioner replied to the chargesheet. The

Inquiry Officer held that both the aforesaid charges were proved

and proposed the punishment of dismissal. After giving an

opportunity to the original writ petitioner on having agreed with

the findings of the Inquiry Officer, and after taking into

consideration the gravity of the acts of misconduct proved, the

Disciplinary Authority imposed the punishment of dismissal from

services. The appeal preferred by the original writ petitioner

came to be dismissed.

2.6 At this stage it is required to be noted that the original writ

petitioner was also prosecuted by the Criminal Court, however

the learned Trial Court acquitted him by giving benefit of doubt

mainly on the ground that the original SSLC was not brought on

record.

2.7 Feeling aggrieved and dissatisfied with the order of

dismissal passed by the Disciplinary Authority confirmed by the

Appellate Authority, the original writ petitioner preferred the writ

petition before the High Court. It was the case on behalf of the

original writ petitioner that he admitted the alleged guilt of

misconduct on the assurance of a lenient view being taken by the

authorities. It was also argued that there was no minimum

educational qualification and age limit (minimum or maximum)

prescribed to secure the job or even for the promotion. It was

submitted that therefore in such circumstances, it cannot be said

that he had submitted a false and forged certificate with an

attempt to secure the job or promotion. That the certificate was

produced only for the purpose of record and there was no

dishonest intention to grab the job or promotion. It was also

urged that the Criminal Court had acquitted him and that he had

a good service record and that the first charge of insubordination

is not established. The High Court framed only one point for

determination, namely, whether the punishment imposed upon

the petitioner is grossly disproportionate to the misconduct

committed by the petitioner. By the impugned judgment and

order the High Court observed and held that the punishment

imposed upon the original writ petitioner was grossly

disproportionate to the misconduct and interfered with the order

of punishment imposed by the Disciplinary Authority by

observing that the respondent was assured that on admission of

his guilt a lenient view may be taken while imposing the

punishment. The High Court also observed that the petitioner is

out of service from the year 2006 and as the counsel for the

petitioner had made a statement that he will forgive his back

wages and promotion, by the impugned judgment and order the

High Court allowed the said writ petitioner and the directed the

appellant to reinstate the original writ petitioner from the date of

dismissal from service in the post of Refueling Helper, however

without any back wages or benefits.

2.8 Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the High Court allowing the writ

petitioner and interfering with the order of punishment imposed

by the Disciplinary Authority, the Indian Oil Corporation –

employer – Disciplinary Authority has preferred the present

appeal.

3. Shri Rajiv Shukla, learned counsel appearing on behalf of

the appellant had vehemently submitted that in the facts and

circumstances of the case the High Court has committed a grave

error in interfering with the order of punishment imposed by the

Disciplinary Authority pursuant to the charge of giving false

information regarding his father’s name, his qualification by

producing a fake and false SSLC was held to be proved. It is

contended that the High Court materially erred in observing that

the punishment of dismissal imposed by the Disciplinary

Authority on the proved misconduct was disproportionate to the

misconduct established and proved.

3.1 It is urged that when an employee has produced a false and

forged SSLC of the Education Board the same can be said to be a

grave misconduct and therefore the Disciplinary Authority was

justified in imposing the punishment of dismissal.

3.2 It is further submitted by learned counsel for the appellant

that the grounds on which the High Court interfered with the

punishment imposed by the Disciplinary Authority namely that

original writ petitioner:

(i) has admitted the guilt on an assurance that a lenient

view shall be taken while imposing the punishment;

(ii) has been acquitted by the Criminal Court; and

(iii) that no minimum qualification or age limit was

prescribed for getting the job or promotion and that he

had a good service record, are all irrelevant and/or not

germane.

3.3 It is submitted that the High Court has not properly

appreciated the fact that the Criminal Court acquitted the

original writ petitioner by giving him a benefit of doubt and there

was no honorable acquittal.

3.4 It is contended that it is immaterial, whether, there was a

minimum qualification or age limit prescribed for the job or

promotion or not and therefore there was no intention to secure

the job by producing the fake/forged certificate. It is submitted

that it is a case of TRUST and therefore when the Disciplinary

Authority/employer loses the Confidence and TRUST in such an

employee who submitted a forged/fake certificate, the High Court

ought not to have interfered with the order of punishment

imposed by the Disciplinary Authority.

3.5 Relying upon the decision of this Court in the case of Om

Kumar v. Union of India, (2001) 2 SCC 386; Union of India v. G.

Ganayutham, (1997) 7 SCC 463; Union of India v. Dwarka Prasad

Tiwari, (2006) 10 SCC 388; and Union of India v. Diler Singh,

(2016) 13 SCC 71, it is submitted that while interfering with the

order of punishment imposed by the Disciplinary Authority the

High Court has exceeded in its jurisdiction while exercising its

powers under Article 226 of the Constitution of India. It is

submitted that as per the settled position of law unless there is a

procedural irregularity in conducting the disciplinary proceedings

and/or the punishment imposed is shockingly disproportionate

to the proved misconduct, then and then only, the High Court

can exercise powers under Article 226 of the Constitution of India

and interfere with the order of punishment imposed by the

Disciplinary Authority.

3.6 It is further submitted that even denying the back wages on

the concession given by the employee cannot be said to be a

sufficient punishment imposed. It is submitted that in the

present case as such during the interregnum period the

respondent original writ petitioner was working with the

petroleum unit of Reliance Industries as a driver for the period

between 2006 to 2017. Therefore, denying the back wages and

promotion by the High Court by the impugned judgment and

order cannot be said to be any punishment at all.

3.7 Making the above submissions and relying upon the above

decisions, it is prayed to allow the present appeal.

4. The instant appeal is vehemently opposed by Ms. Suruchi

Suri, learned counsel appearing on behalf of the respondent.

4.1 It is submitted by Ms. Suri, learned counsel appearing on

behalf of the respondent – original writ petitioner that in the

present case the respondent – original writ petitioner did produce

the fake/forged SSLC. However, the same had no relevance for

securing the job as there was no minimum qualification or age

limit prescribed for getting the job or promotion. It is submitted

that the same was produced only for the purpose of record.

4.2 Further, the original writ petitioner admitted his guilt of

producing the fake/forge certificate on an assurance that a

lenient view would be taken at the time of imposing the

punishment.

4.3 It is submitted that even the respondent – original writ

petitioner has been acquitted by the Criminal Court for the

offences punishable under Sections 468 and 471 IPC regarding

the said SSLC produced by him.

4.4 It is further urged that even the respondent had an

unblemished and good service record. Therefore, considering the

aforesaid overall facts and circumstances, when the High Court

has interfered with the order of punishment imposed by the

Disciplinary Authority and has ordered reinstatement without

any back wages and promotion, the same is not required to be

interfered with by this Court in exercise of powers under Article

136 of the Constitution of India.

4.5 Making the above submissions it is prayed to dismiss the

present appeal.

5. Heard learned counsel for the respective parties.

6. By the impugned judgment and order, the High Court, in

exercise of powers under Article 226 of the Constitution of India,

has interfered with the order of punishment imposed by the

Disciplinary Authority and has ordered reinstatement without

back wages and other benefits by observing that order of

punishment of dismissal from the service imposed by the

Disciplinary Authority is disproportionate to the misconduct

proved.

Therefore, the short question which is posed for

consideration by this Court is, whether, in the facts and

circumstances of the case the High Court is justified in

interfering with the conscious decision taken by the Disciplinary

Authority while imposing the punishment of dismissal from

service, in exercise of powers under Article 226 of the

Constitution of India.

7. On the question of judicial review and interference of the

courts in matters of disciplinary proceedings and on the test of

proportionality, a few decisions of this Court are required to be

referred to:

i) In the case of Om Kumar (supra), this Court, after

considering the Wednesbury principles and the doctrine of

proportionality, has observed and held that the question of the

quantum of punishment in disciplinary matters is primarily for

the disciplinary authority to order and the jurisdiction of the

High Courts under Article 226 of the Constitution or of the

Administrative Tribunals is limited and is confined to the

applicability of one or other of the wellknown principles known

as ‘Wednesbury principles’.

In the Wednesbury case, (1948) 1 KB 223, it was said that

when a statute gave discretion to an administrator to take a

decision, the scope of judicial review would remain limited. Lord

Greene further said that interference was not permissible unless

one or the other of the following conditions was satisfied, namely,

the order was contrary to law, or relevant factors were not

considered, or irrelevant factors were considered, or the decision

was one which no reasonable person could have taken.

ii) In the case of B.C. Chaturvedi v. Union of India, (1995) 6

SCC 749, in paragraph 18, this Court observed and held as

under:

“18. A review of the above legal position would

establish that the disciplinary authority, and on appeal

the appellate authority, being factfinding authorities

have exclusive power to consider the evidence with a

view to maintain discipline. They are invested with the

discretion to impose appropriate punishment keeping

in view the magnitude or gravity of the misconduct. The

High Court/Tribunal, while exercising the power of

judicial review, cannot normally substitute its own

conclusion on penalty and impose some other penalty.

If the punishment imposed by the disciplinary

authority or the appellate authority shocks the

conscience of the High Court/Tribunal, it would

appropriately mould the relief, either directing the

disciplinary/appellate authority to reconsider the

penalty imposed, or to shorten the litigation, it may

itself, in exceptional and rare cases, impose appropriate

punishment with cogent reasons in support thereof.”

iii) In the case of Lucknow Kshetriya Gramin Bank (Now

Allahabad, Uttar Pradesh Gramin Bank) v. Rajendra Singh,

(2013) 12 SCC 372, in paragraph 19, it was observed and held

as under:

“19. The principles discussed above can be summed up

and summarised as follows:

19.1. When charge(s) of misconduct is proved in an

enquiry the quantum of punishment to be imposed in a

particular case is essentially the domain of the

departmental authorities.

19.2. The courts cannot assume the function of

disciplinary/departmental authorities and to decide the

quantum of punishment and nature of penalty to be

awarded, as this function is exclusively within the

jurisdiction of the competent authority.

19.3. Limited judicial review is available to interfere with

the punishment imposed by the disciplinary authority,

only in cases where such penalty is found to be shocking

to the conscience of the court.

19.4. Even in such a case when the punishment is set

aside as shockingly disproportionate to the nature of

charges framed against the delinquent employee, the

appropriate course of action is to remit the matter back

to the disciplinary authority or the appellate authority

with direction to pass appropriate order of penalty. The

court by itself cannot mandate as to what should be the

penalty in such a case.

19.5. The only exception to the principle stated in para

19.4 above, would be in those cases where the codelinquent is awarded lesser punishment by the

disciplinary authority even when the charges of

misconduct were identical or the codelinquent was

foisted with more serious charges. This would be on the

doctrine of equality when it is found that the employee

concerned and the codelinquent are equally placed.

However, there has to be a complete parity between the

two, not only in respect of nature of charge but

subsequent conduct as well after the service of chargesheet in the two cases. If the codelinquent accepts the

charges, indicating remorse with unqualified apology,

lesser punishment to him would be justifiable.”

7.1 In the present case, the original writ petitioner was

dismissed from service by the Disciplinary Authority for

producing the fabricated/fake/forged SSLC. Producing the

false/fake certificate is a grave misconduct. The question is one

of a TRUST. How can an employee who has produced a fake and

forged marksheet/certificate, that too, at the initial stage of

appointment be trusted by the employer? Whether such a

certificate was material or not and/or had any bearing on the

employment or not is immaterial. The question is not of having

an intention or mens rea. The question is producing the

fake/forged certificate. Therefore, in our view, the Disciplinary

Authority was justified in imposing the punishment of dismissal

from service.

7.2 It was a case on behalf of the petitioner – original writ

petitioner before the High Court that he pleaded guilty and

admitted that he had submitted a forged and fake certificate on

the assurance that lesser punishment will be imposed. However,

except the bald statement, there is no further evidence on the

same. Nothing has been mentioned on record as to who gave him

such an assurance.

7.3 Even otherwise the conduct on the part of the original writ

petitioner is required to be considered.

As observed hereinabove, prior to the issuance of the

chargesheet and after the complaint was received by the

Vigilance Officer, there were repetitive requests and follow up by

the authorities requesting the original writ petitioner to produce

the original SSLC. Initially the original writ petitioner did not

even respond to the said requests. Thereafter, he came up with a

case that the original SSLC was misplaced. He was then called

upon to obtain a duplicate copy of the SSLC and to submit the

same to the Manager, ER. However, he continued to evade

obtaining the duplicate certificate from Karnataka Board. Only

thereafter the Manager, ER directly contacted the authorities of

the Board and requested the Education Board to check up from

their records and only thereafter it was revealed that the SSLC

produced by the original petitioner was forged and fake and

belonged to or related to some another student and it did not

belong to the original writ petitioner. This shows the malafide

intention on the part of the original writ petitioner.

7.4 Now, so far as the submission on behalf of the original writ

petitioner that he was acquitted by the Criminal Court for the

offences punishable under Sections 468 and 471 IPC in respect

of the same certificate is concerned, the said contention is neither

here nor there and is of no assistance to the original writ

petitioner. Apart from the fact that he was acquitted by the

Criminal Court by giving benefit of doubt and there was no

honourable acquittal, in the present case before the Disciplinary

Authority the original writ petitioner as such admitted that he

produced the fake and forged certificate. Therefore, once there

was an admission on the part of the respondent – original writ

petitioner, thereafter whether he has been acquitted by the

Criminal Court is immaterial.

7.5 Even from the impugned judgment and order passed by the

High Court it does not appear that any specific reasoning was

given by the High Court on how the punishment imposed by the

Disciplinary Authority could be said to be shockingly

disproportionate to the misconduct proved. As per the settled

position of law, unless and until it is found that the punishment

imposed by the Disciplinary Authority is shockingly

disproportionate and/or there is procedural irregularity in

conducting the inquiry, the High Court would not be justified in

interfering with the order of punishment imposed by the

Disciplinary Authority which as such is a prerogative of the

Disciplinary Authority as observed hereinabove.

7.6 From the impugned judgment and order passed by the High

Court, it appears that the High Court has denied the back wages

and other benefits and has ordered reinstatement on a

concession given by the learned counsel on behalf of the original

writ petitioner. However, it is required to be noted that for the

period between 2006 to 2017 i.e. during the pendency of the writ

petition the respondent was working in the Petroleum Division of

Reliance Industries. Therefore, he was aware that even otherwise

he is not entitled to the back wages for the aforesaid period.

Therefore, the concession given on behalf of the original writ

petitioner as such cannot be said to be a real concession. In any

case in the facts and circumstances of the case and for the

reasons stated above and considering the charge and misconduct

of producing the fake and false SSLC Certificate proved, when a

conscious decision was taken by the Disciplinary Authority to

dismiss him from service, the same could not have been

interfered with by the High Court in exercise of powers under

Article 226 of the Constitution of India. The High Court has

exceeded in its jurisdiction in interfering with the order of

punishment imposed by the Disciplinary Authority while

exercising its powers under Article 226 of the Constitution of

India.

8. In view of the above and for the reasons stated above, the

impugned judgment and order passed by the High Court in

interfering with the order of punishment imposed by the

Disciplinary Authority of dismissing the original writ petitioner

from service and ordering reinstatement without back wages and

other benefits is hereby quashed and set aside. The order passed

by the Disciplinary Authority dismissing the original writ

petitioner from service on the misconduct proved is hereby

restored.

The present appeal is accordingly allowed. In the facts and

circumstances of the case, there shall be no order as to costs.

…………………………………J.

(M. R. SHAH)

…………………………………J.

(B.V. NAGARATHNA)

New Delhi,

April 21, 2022.

whether in the facts and circumstances of the instant case, the appellants No.2 and 3 should also be held equally guilty as the appellant No.1.=there is no specific role with regard to the demand of dowry and nor has any specific instance of cruelty and harassment been ascribed to the appellants No.2 and 3 except for the general assertion. Moreover, in a circumstance where the charge was also under Section 120B IPC, there is no specific evidence led by the prosecution relating to the conspiracy allegedly hatched by the appellants. In the aforesaid circumstances, we are of the opinion that the appellants No.2 and 3 deserve to be given the benefit of doubt and their conviction would not be justified.

CRIMINAL APPEAL NO.383 OF 2018

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.383 OF 2018

Devender Singh & Ors. .… Appellants

Versus

The State of Uttarakhand …. Respondent

J U D G M E N T

Hima Kohli, J.

1. The appellants have assailed the judgment dated 14th September, 2017,

passed by the High Court of Uttarakhand at Nainital in Government Appeal No.57 of

2010, whereby the judgment dated 17th April, 2010 passed by the learned Sessions

Judge, Rudraprayag acquitting them from the charges under Section 498A, 304B

and 120B of the Indian Penal Code1

has been reversed and they have been

sentenced to undergo rigorous imprisonment for a period of seven year with a fine

of ₹10,000/- (Rupees Ten thousand) and in default, to undergo simple imprisonment

for three months for the offence under Section 304B IPC. The appellants have also

been sentenced to undergo rigorous imprisonment for one year under Section 120B

IPC and two years under Section 498A IPC. Being aggrieved by the said judgment

1 for short “IPC”

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CRIMINAL APPEAL NO.383 OF 2018

and order of conviction, the appellants are before this Court, in this appeal by way of

special leave.

2. The brief facts leading to the case are that the appellant No.1, Devender

Singh, son of appellant No. 3, Smt. Kunja Devi and Bhawan Singh was married to

the deceased, Sushila, the wedding having been solemnized on 20th October, 2007.

Sushila is stated to have gone missing from her matrimonial home since 24th April,

2008. This came to the knowledge of the mother of the deceased when the

appellant No.2 herein, Jagdish Singh, brother of the appellant No. 1 called her on

25th April, 2008, at 7.00 p.m. to inform her and enquire as to whether Sushila had

gone to the parental home. The mother of the deceased in turn informed her son,

the complainant, who resided at Haridwar. On returning to his house, the

complainant went to the matrimonial home of the deceased on 28th April, 2008. It

has been alleged by the complainant that keeping in view the fact that there were

repeated demands for dowry made by the appellants and the manner in which they

had behaved with him when he had gone to visit them, made him suspect that his

sister had been killed by the appellants but they were feigning ignorance and acting

as if his sister had gone missing.

3. Based on the complaint, investigation was carried out by the local police

and the body of Sushila was subsequently found in Ganga river. Having regard to

the fact that an unnatural death had taken place within about six months of the

marriage and since there was an allegation of cruelty relating to demand of dowry, a

case was registered against the appellants under Sections 498A, 304B and 120B of

IPC. The appellants having denied the allegations levelled against them, trial was

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CRIMINAL APPEAL NO.383 OF 2018

conducted in Sessions Trial No.18/2008 before the District and Sessions Judge,

Rudraprayag. In support of their case, the prosecution examined 14 witnesses

arrayed as PW-1 to PW-14. Besides denying their role while recording their

statements under Section 313 of the Criminal Procedure Code, the

appellants/accused also examined DW-1 to DW-3 as their witnesses. On

considering the evidence, the trial Court recorded findings in favour of the appellants

and acquitted all of them vide judgment dated 17th April, 2010.

4. Being aggrieved by the judgment dated 17th April, 2010, State of

Uttarakhand preferred an appeal before the High Court of Uttarakhand at Nainital

vide Government Appeal No.57 of 2010. On reappreciating the entire evidence

exhaustively and on applying the legal principles, the High Court has allowed the

said appeal. Consequently, the judgment and order dated 17th April, 2010 passed by

the Sessions Judge in Sessions Trial No.18 of 2018 was set aside. The appellants

have been convicted under Sections 498A, 304B and 120B of IPC and sentenced to

undergo rigorous imprisonment for a period of seven years and pay a fine of

₹10,000/- (Rupees Ten thousand) and in default, to undergo three months simple

imprisonment under Section 304B IPC. The appellants have also been sentenced to

undergo rigorous imprisonment of one year under Section 120B IPC and two years

under Section 498A IPC. The sentence was handed down by a separate order dated

05th October, 2017. Claiming to be aggrieved by the judgment of conviction and

sentence handed down by the High Court, the appellants are before this Court.

5. Mr. Robin R. David, learned counsel for the appellants while assailing the

judgment passed by the High Court has taken us through the records. It is his

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CRIMINAL APPEAL NO.383 OF 2018

contention that the High Court has committed an error by misdirecting itself to note

the conduct of the appellants in committing a delay in registering the missing

complaint relating to the deceased. He contended that a contradictory view has

been taken by the High Court while arriving at the conclusion that the complaint was

filed after more than 48 hours of the incident despite noticing the fact that the

appellant No.1 had telephonically informed the Patwari of the village on 26th April,

2008 and the appellant No.2 had informed the mother of the deceased of the latter

going missing from the matrimonial home since 24th April, 2008 itself. He submitted

that such an assumption on the part of the High Court has led to a wrong

conclusion. Further, it has been argued that the High Court has fallen into an error

by holding that there is material on record to indicate that the appellants had been

harassing the deceased for bringing insufficient dowry. He pointed out that the

mother of the deceased (PW-1) had admitted to the fact that the deceased was

staying at the parental home only to continue her studies. Therefore, the claim of

dowry demand being made, as stated, is unacceptable. He further pointed out that

DW-3 in whose presence the marriage talks had been held, had deposed in her

evidence that there was no demand for dowry and that the marriage expenses had

also been shared between the parties.

6. Learned counsel for the appellants further submitted that the fact of the

appellant No.1 having opened a bank account in the name of the deceased wherein

he was depositing a sum of ₹100/- (Rupees One hundred) on alternate days would

go to show that there was no reason for the appellants to have made any monetary

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CRIMINAL APPEAL NO.383 OF 2018

demands on her. He also contended that the High Court has erred in arriving at the

findings relating to the cause of death of Sushila. He alluded to the deposition of

PW-10, the doctor who had indicated that the cause of death was due to shock and

blood flow received from the injuries sustained and opined that such injuries could

occur if a person falls down from a standing rock. Judicial notice taken by the High

Court that villagers would go in groups to the forest to bring fodder and fuelwood, is

stated to be unwarranted in the facts and circumstances of the present case, without

there being any cogent evidence in this regard. It was argued that the trial Court

had in fact taken note of the evidence in its correct perspective and arrived at a valid

conclusion, which ought not to have been disturbed by the High Court more so,

when there was no strong basis for doing so. It was thus submitted that the appeal

be allowed and the impugned judgment be set aside.

7. Mr. Jatinder Kumar Bhatia, learned counsel for the State would seek to

sustain the judgment passed by the High Court. It was his contention that the trial

Court had in fact proceeded to analyse the evidence as if it was considering a

matter where the charge framed was for committing murder under Section 302 IPC,

whereas, in the instant case, the charges framed against the appellants was under

Sections 304B and 498A read with Section 120B IPC, in respect of “dowry death”.

The said provision itself raises certain presumptions against the accused. In a

matter where the death of the wife of the appellant No.1 had occurred within a few

months of her marriage when she was residing at the matrimonial home and such a

death is an unnatural one, it was for the appellants to have explained the

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CRIMINAL APPEAL NO.383 OF 2018

circumstance under which the death had occurred when prima-facie, the

prosecution had succeeded in proving the basic ingredients of the section. In that

light, it was sought to be urged that the trial Court had in fact completely misdirected

itself. It was further submitted that the High Court while deciding an appeal was

required to re-appreciate the evidence which has been meticulously done by

referring to the evidence tendered by each of the witnesses. Learned State counsel

contended that on analyzing the evidence brought on record in the context of the

legal position, as enunciated in various decisions of this Court which were taken

note of, the High Court has arrived at a just conclusion and has found the judgment

of the trial Court to be erroneous, resultantly setting aside the same.

8. In the light of the rival contentions and the charges levelled against the

appellants and to place the matter in its correct perspective, it is considered

necessary to take note of the provision as contained in Section 304B of IPC which

reads as follows :-

“304B. Dowry death.—(1) Where the death of a woman is caused by any

burns or bodily injury or occurs otherwise than under normal circumstances

within seven years of her marriage and it is shown that soon before her death

she was subjected to cruelty or harassment by her husband or any relative of

her husband for, or in connection with, any demand for dowry, such death

shall be called “dowry death”, and such husband or relative shall be deemed

to have caused her death.

Explanation.—For the purposes of this sub-section, “dowry” shall have the

same meaning as in section 2 of the Dowry Prohibition Act, 1961 [28 of 1961].

(2) Whoever commits dowry death shall be punished with imprisonment for a

term which shall not be less than seven years but which may extend to

imprisonment for life.”

9. A perusal of the above provision would indicate that the main ingredients

of the offence required to be established are :-

(i) that soon before the death, the deceased was subjected to cruelty and

harassment in connection with the demand of dowry;

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CRIMINAL APPEAL NO.383 OF 2018

(ii) the death of the deceased was caused by any burn or bodily injury or

some other circumstance which was not normal;

(iii) such a death has occurred within 7 years from the date of her marriage;

(iv) that the victim was subjected to cruelty or harassment by her husband or

any relative of her husband;

(v) such a cruelty or harassment should be for, or in connection with the

demand of dowry; and

(vi) it should be established that such cruelty and harassment were made

soon before her death.

10. The presumption drawn relating to dowry death has been contemplated in

Section 113B of the Indian Evidence Act, 1872, which states as follows :

“113B. Presumption as to dowry death - When the question is whether a

person has committed the dowry death of a woman and it is shown that

soon before her death such woman has been subjected by such person to

cruelty or harassment for, or in connection with, any demand for dowry, the

Court shall presume that such person had caused the dowry death.

Explanation - For the purposes of this section, “dowry death” shall have the

same meaning as in section 304B of the Indian Penal Code (45 of 1860).”

11. Section 304B IPC read along with Section 113B of the Indian Evidence

Act, 1872 makes it clear that once the prosecution has succeeded in demonstrating

that a woman has been subjected to cruelty or harassment for or in connection with

any demand for dowry soon after her death, a presumption shall be drawn against

the said persons that they have caused dowry death as contemplated under Section

304B IPC. The said presumption comes with a rider inasmuch as this presumption

can be rebutted by the accused on demonstrating during the trial that all the

ingredients of Section 304B IPC have not been satisfied. [Ref.: Bansi Lal vs. State

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CRIMINAL APPEAL NO.383 OF 2018

of Haryana2

, Maya Devi and Anr. vs. State of Haryana3

, G.V. Siddaramesh v.

State of Karnataka4

and Ashok Kumar vs. State of Haryana5

12. Having taken note of the relevant provision and the ingredients thereof,

the facts of the instant case would disclose that the deceased and the appellant

No.1 had got married on 20th October, 2007. Sushila, wife of the appellant No.1 had

gone missing from the matrimonial home from 24th April, 2008 and her dead body

was fished out on the 10th day from river Alakhnanda near Naragasu. From the

basic facts noted above, the basic ingredients of Section 304B IPC such as the

death not being normal and such a death having occurred within 7 years from the

date of her marriage would stand fully established. The question, therefore, is as to

whether the evidence tendered by the prosecution would be sufficient to establish

the remaining ingredients of Section 304B IPC with regard to the demand for dowry

and perpetration of cruelty and harassment in connection with such a demand.

Further, whether such cruelty and harassment were suffered by the deceased soon

before her death so as to constitute a dowry death. As to the phrase ‘soon before

her death’, it is well-settled that the same ought to be interpreted to mean proximate

and to be linked with but not to be understood to mean immediately prior to the

death.

2 (2011) 11 SCC 359

3 (2015) 17 SCC 405

4 (2010) 3 SCC 152

5(2010) 12 SCC 350

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CRIMINAL APPEAL NO.383 OF 2018

13. While taking note of the evidence and the other aspects of the matter,

what is also to be borne in mind in the instant case is that the death which did not

take place in normal circumstances, had occurred within just about 6 months from

the date of the marriage. In that context, a perusal of the evidence of Smt. Thapa

Devi (PW-1), mother of the deceased gains significance. She had categorically

stated that when the deceased had for the first time come to the parental home from

her in-laws, she had said that her in-laws and husband were demanding dowry and

had been harassing her. The nature of the demand was also specified to say that

they were seeking payment of a sum of ₹2,00,000/- (Rupees Two lakhs) as dowry

and in the alternative, to get a house constructed in Haridwar. PW-1 further stated

that on 10th April, 2008, when she had gone to her daughter’s house, the appellants

had at that stage quarrelled with her and placed a demand before her for

₹2,00,000/- (Rupees Two lakhs) or to have a house constructed for them in

Haridwar. She however came back on 11th April, 2008, leaving her daughter behind.

Within 2-4 days thereafter, the deceased is stated to have called PW-1 indicating

that she was disturbed as the appellants were harassing her badly and also beating

her. PW-1 stated that she had conveyed this to her brother-in-law, Mr. Rajendra

Singh and shared with him about such a demand and harassment faced by the

deceased. Her brother-in-law had assured her that he would come over after 2-3

days and attempt to sort out the matter.

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CRIMINAL APPEAL NO.383 OF 2018

14. When this was the position, on 25th April, 2008, PW-1 received a phone

call, from appellant No.2, brother of her son-in-law (appellant No.1) who had

enquired as to whether the deceased had come to the parental home as she was

missing from the matrimonial home. PW-1 thereafter informed her sons, who came

from Haridwar and thereafter went to the in-laws’ place. It is undisputed that the

body was traced after 10 days. The evidence tendered by PW-1 was not discredited

in the cross-examination. It was suggested to PW-1 that the deceased was staying

for most of the time at the parental home within about 10-11 days after the marriage

so as to complete her education and the said suggestion was made to indicate that

there was no scope for demanding dowry. However, this was clarified by PW-1 who

stated that though it was so, the deceased had gone back to the matrimonial home

on the very next day when her inter-examination was over. The further suggestion

made that the appellants No.2 and 3 were residing in a separate house away from

that of the appellant No.1 was also denied.

15. In addition to the aforesaid evidence, the High Court has noted the

evidence of Balbir Singh (PW-2), brother of the deceased, who corroborated the

version of the mother of the deceased (PW-1). In fact, PW-2 has also stated with

regard to the deceased having telephoned on the morning of 24th April, 2008 and

informed them that she was pregnant and had pain in her abdomen and when she

told her husband to bring medicine and a blouse piece, she was beaten by saying

that she should get it from her parents. The evidence of Smt. Mira Bhandari (PW-3),

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CRIMINAL APPEAL NO.383 OF 2018

sister-in-law of the deceased and Sh. Tajwar Singh (PW-4), brother of the deceased,

was also taken note of by the High Court in reasonable detail wherein the sequence

of the events as narrated by PW-1 and PW-2 stood corroborated by them. Further,

Sh. Rishipal Singh (PW-5), and Sh. Rajendra Singh (PW-7), uncles of the deceased

had also deposed with regard to the incident and that they were told about the dowry

demand and harassment caused to the deceased. Sh. Vijaypal Singh (PW-8), the

Pradhan of the village deposed that he was aware that the deceased had gone

missing on 24th April, 2008 and they were searching for her subsequently. He had

also visited the spot from where the body had been recovered.

16. Though, it was contended on behalf of the appellants that the Patwari had

been informed immediately, Sh. Jagdish Prasad Gairola (PW-9) who was the

Patwari, stated that appellant No.1 had informed him on the telephone only on 26th

April, 2008, that his wife had gone missing, which he is stated to have entered in the

G.D. The contention as put forth by learned counsel for the appellants regarding no

delay in making the complaint as noted by the High Court, loses significance in the

light of the other related aspects.

17. Though, the High Court has also referred to the evidence of the remaining

witnesses produced by the prosecution, keeping in view the fact that the evidence

as required for establishing the demand of dowry and harassment is to be noted

from the evidence as taken note of hereinabove, it would be clear that even though

the appellants have sought to urge that at the time of fixing the marriage, no dowry

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CRIMINAL APPEAL NO.383 OF 2018

was exchanged or demand placed and that the wedding expenses were also shared

by both sides, the categorical oral testimony of PW-1 to PW-4 that remained

unshaken would indicate that soon after the marriage, when the deceased for the

first time came to her parental home, she had stated about the demand for dowry

made on her and specified the demand, i.e., a sum of ₹2,00,000/- (Rupees Two

lakhs) or to construct a house in Haridwar. Even though it has been contended on

behalf of the appellant that the deceased was staying at her parental house to

complete her studies, as per the version of PW-1 while accepting that position, she

had asserted that about 10-11 days after the wedding, Sushila had gone to her

parental home but soon after sitting for the intermediate examination, she had gone

back to the matrimonial home. The fact however remains that she went missing from

the matrimonial home and the body was recovered from the river in the vicinity of the

matrimonial home. In that regard, apart from the testimony of the witnesses who

deposed that the deceased had told them about the dowry demand and harassment

during her first visit to the parental home, PW-1 referred to the incident that took

place on 10th April, 2008, when she herself had gone with her daughter to the inlaws’ house to drop her and all of them had quarrelled with her on the aspect relating

to dowry in the same terms, i.e., a demand of ₹2,00,000/- (Rupees Two lakhs) or for

a house to be built in Haridwar. She had thereafter returned on 11th April, 2008 which

was about two weeks prior to the date on which the deceased had gone missing.

Further, PW-1 has also stated that within 2-4 days from 11th April, 2008, after she

had returned, the deceased had made a phone call and was very disturbed since

Page 12 of 17

CRIMINAL APPEAL NO.383 OF 2018

she was being harassed badly and was being beaten. She had shared this with her

brother-in-law, Sh. Rajendra Singh, who has been examined as PW-7. In addition,

PW-2 also deposed with regard to the complaint made by the deceased over the

phone in the morning of the fateful day, i.e., 24th April, 2008, about her husband

treating her with cruelty when in her pregnant state, she had asked for medicine for

the pain in her abdomen.

18. In the above background, even if in the evidence, Smt. Maya Devi (DW-3)

who was the go-between for finalizing the marriage, had stated that there was no

demand for dowry at that point in time, it is of no consequence since what is relevant

is the demand which was made subsequent to the marriage and soon before the

incident to which the said witness was in any event, not privy.

19. Further, the evidence of Sh. Rakesh Bisht (DW-1) to the effect that the

appellant No.1 had opened a Bank account in the name of the deceased and was

depositing ₹100/- (Rupees one hundred) every other day in the said account with

effect from 07th December, 2007, cannot alter the situation since that, in any event,

cannot take away the specific nature of the dowry demand that was referred to by

PW-1 to PW-4, as having been made by the appellant No.1. The evidence of Shri

Prem Singh (DW-2) who stated that while he was travelling in a bus on 24th May,

2008, he had noticed a girl wearing red clothes falling from the cliff, has rightly been

held to be unreliable in as much as if such an incident had been noticed by him,

admittedly the said witness did not take any further steps in that regard.

Page 13 of 17

CRIMINAL APPEAL NO.383 OF 2018

20. A perusal of the impugned judgment would disclose that the High Court

has appreciated the evidence in the correct perspective. Though the trial Court also

referred to the very same evidence and the analysis commenced from para 27 of the

judgment, it indicates that the observation made by the trial Court that there was no

such evidence available on the file that the murder of the deceased, Sushila had

been committed, will disclose that the trial court was appreciating the evidence from

the prism of assessing the charge under Section 302 IPC, when the evidence on

record ought to have been analyzed and appreciated keeping in mind the

requirements of Section 304B and 498A IPC and the ingredients thereof.

21. In the above backdrop and keeping in view the fact that the deceased was

residing at the matrimonial home and had gone missing in circumstances where all

the ingredients of Section 304B stood satisfied, the evidence of Dr. Digvijay Singh

(PW-10) becomes relevant. The nature of injuries found on the body of the

deceased at the time of the post-mortem was adverted to and PW-10 has deposed

that the death had occurred about a week earlier to the examination. He opined that

death had occurred due to shock and blood flow from the injuries received before

the death. The doctor was categorical that the cause of death was not from

drowning as there was no water inside the lungs and abdomen. Though learned

counsel for the appellants referred to this aspect to contend that the High Court has

erred in not properly considering the same, in our opinion, when it is indicated that

the deceased had suffered injuries before her death and there was loss of blood and

Page 14 of 17

CRIMINAL APPEAL NO.383 OF 2018

also when it is medically indicated that the death was not caused due to drowning as

there was no water in her lungs and abdomen, the natural corollary and a fair

conclusion would be that the said death had occurred even before falling into the

river, which would rule out any accidental fall, as sought to be claimed by the

appellants. In fact, this would only increase the burden cast upon the appellants to

explain the situation.

22. Though, the appellants have attempted to set up a story that the deceased

had gone to hills to cut grass, as rightly noted by the High Court, she could not have

gone alone. Be that as it may, except for a bald statement, the appellants have not

brought any material on record to demonstrate that it was a normal practice for the

deceased to go to the hills for cutting grass more so in circumstances where she

was less than six months at her matrimonial home, pregnant and also during that

very period, she had been going to her parental house for continuing her education,

as has been contended by the appellants themselves. Therefore, in such a situation,

we have no hesitation in observing that the appellants have miserably failed to rebut

the presumption drawn against them under Section 113B of the Evidence Act, in a

matter relating to an offence under Section 304B of IPC.

23. Having arrived at the above conclusion, the issue before us is as to

whether in the facts and circumstances of the instant case, the appellants No.2 and

3 should also be held equally guilty as the appellant No.1. It is no doubt true that the

evidence of PW-1 indicates that the deceased had informed her that the husband

Page 15 of 17

CRIMINAL APPEAL NO.383 OF 2018

and the in-laws had been harassing her and when PW-1 had gone to drop her

daughter back to the matrimonial home on 10th April, 2008, the in-laws had raised a

dowry demand. However, what has also been brought on record is that the

appellants No.2 and 3 were residing separately, in a different house. In the crossexamination of PW-1, a suggestion was made to her about the distance between the

two houses. Further, fact remains that the trial Court also referred to this aspect in

para 31 of the judgment where learned counsel for the defence had brought to the

notice of the Court that there were two ration cards and the ration card of the

appellants No.2 and 3 is separate from that of the appellant No.1 which mentions his

name and that of the deceased. That apart, the nature of the demand made was for

a lumpsum amount of ₹2,00,000/- (Rupees Two lakhs) or for constructing a house in

Haridwar, either of which was essentially for the benefit of the appellant No.1.

Therefore, there is no specific role with regard to the demand of dowry and nor has

any specific instance of cruelty and harassment been ascribed to the appellants

No.2 and 3 except for the general assertion. Moreover, in a circumstance where

the charge was also under Section 120B IPC, there is no specific evidence led by

the prosecution relating to the conspiracy allegedly hatched by the appellants. In

the aforesaid circumstances, we are of the opinion that the appellants No.2 and 3

deserve to be given the benefit of doubt and their conviction would not be justified.

24. In the above backdrop, the conviction and sentence handed down by the

High Court to the appellant No.1 (husband of the deceased) is upheld. However,

Page 16 of 17

CRIMINAL APPEAL NO.383 OF 2018

the conviction and sentence handed down by the High Court to the appellants No.2

and 3 is set aside. The judgment dated 14th September, 2017 passed in Government

Appeal No.57/2010 stands modified to the said extent. It is ordered that the

appellant No.2 and 3 who were released on bail on 12th March, 2008, be set free.

The bail bonds executed by the appellants No.2 and 3 are, accordingly, cancelled.

Appellant No.1 shall, however, surrender within two weeks and serve the remaining

part of the sentence imposed on him.

25. The appeal is partly allowed on the above terms.

26. Pending applications, if any, shall stand disposed of.

..…………....................CJI.

[N.V. RAMANA]

…..…………....................J.

[A.S. BOPANNA]

..…..………......................J.

[HIMA KOHLI]

New Delhi,

April 21, 2022.

Page 17 of 17

whether, the appellantteacher is entitled to get the benefits of enhanced age of superannuation of 65 years at par with his counterpart teachers serving in Government Colleges and Universities.

whether, the appellant teacher is entitled to get the benefits of enhanced age of superannuation of 65 years at par with his counterpart teachers serving in Government Colleges and Universities.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2974 OF 2022

Dr. Jacob Thudipara ..Appellant (S)

Versus

The State of Madhya Pradesh & Ors. ..Respondent (S)

J U D G M E N T

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 09.05.2017 passed by the

Division Bench of the High Court of Madhya Pradesh,

Principal Seat at Jabalpur in Writ Appeal No. 667/2016,

by which the High Court has dismissed the said appeal,

original writ petitioner – appellant herein has preferred the

present appeal.

2. The appellant herein was serving as a teacher. The dispute

arose with respect to the age of

superannuation/retirement, namely, whether, the

appellantteacher is entitled to get the benefits of

enhanced age of superannuation of 65 years at par with

his counterpart teachers serving in Government Colleges

and Universities.

2.1 The appellant was serving in 1OO% government aided

private educational institution. At the relevant time, the

Full Bench of the High Court of Madhya Pradesh in the

case of Dr. S.C. Jain Vs. State of Madhya Pradesh and

others (W.A. No. 950/2015) took the view that the teachers

serving in the aided private educational institutions are

not entitled to get the benefit of enhanced age of

superannuation of 65 years. The appellant and others filed

Writ Appeals before the High Court which came to be

dismissed, relying upon the case of Dr. S.C. Jain (supra).

However, subsequently the decision of the Full Bench of

the High Court in the case of Dr. S.C. Jain (supra) has

been set aside by this Court vide judgment and order

dated 07.05.2019 in C.A. No. 46754676 of 2019 in the

case of Dr. R.S. Sohane Vs. State of M.P. & others;

(2019) 16 SCC 796, and it is held that the teachers like the

appellant are entitled to get the benefit of enhanced age of

superannuation of 65 years. The parties to the aforesaid

appeals filed M.A. Nos. 18381839 of 2019 with I.A. No.

119950 of 2019 before this Court claiming the payment of

outstanding salaries for the intervening period. This Court

disposed of the aforesaid interlocutory application and

clarified that they can approach the High Court for

redressal of their grievances with regard to the payment of

outstanding salaries of intervening period. As observed

hereinabove, the appeal preferred by the appellant before

the High Court has been dismissed by the Division Bench

of the High Court relying upon the decision of Full Court in

the case of Dr. S.C. Jain (supra), which has subsequently

been set aside by this Court. Therefore, it is the case on

behalf of the appellant that he shall be entitled to continue

up to enhanced age of superannuation i.e., 65 years and

shall be entitled to all the monetary benefits as if, he would

have been continued up to the age of 65 years.

2.2 Learned counsel appearing on behalf of the appellant has

heavily relied upon the subsequent decision of the Division

Bench of the High Court dated 29.11.2019 passed in Writ

Appeal No. 1857/2019 filed by a similarly situated teacher

of a government aided private college by which the Division

Bench of the High Court has condoned 1227 days of delay

in filing intracourt appeal and has held him entitled for

superannuation with all consequential and monetary

benefits including arrears of salaries and allowances of the

intervening period, by following the law laid down by this

Court in the case of Dr. R.S. Sohane (supra).

2.3 Learned counsel appearing on behalf of the appellant has

also relied upon the common judgment and order dated

07.09.2021 passed by the Division Bench of the High

Court in Writ Appeal No. 378/2018 and other allied

appeals, by which, after the review applications were

allowed, the aforesaid writ appeals were restored to the file

and the Division Bench of the High Court has directed the

State to pay all the consequential and monetary benefits to

all similarly situated teachers and assistant professors for

the intervening period between 62 years and 65 years of

age. It is submitted that all similarly situated teachers are

therefore, paid all consequential and monetary benefits for

the period between 62 years and 65 years of age, as if they

would have been continued up to 65 years of age.

3. Mrs. Mrinal Gopal Elker, learned counsel appearing on

behalf of the respondent State, as such, is not in a

position to dispute the aforesaid factual aspects. However,

she has tried to distinguish the facts by submitting that

when this Court passed an order earlier to pay the salaries

to them after they had completed the age of 62 years, all of

them were directed to be taken on duty by way of an

interim order and actually they worked up to the age of 65

years. In the present case, the appellant did not work and

therefore on the principle of ‘no work no pay’, he is not

entitled to any monetary benefits for the intervening

period, between 62 years and 65 years of age.

4. Having heard learned counsel appearing on behalf of the

respective parties and considering the various orders

passed by the High Court, by which in similar facts and

situation and not accepting the submission on behalf of

the State that on the principle of ‘no work no pay’ the

teachers are not entitled to any monetary benefits for the

intervening period between 62 years and 65 years of age,

we are of the opinion that appellant shall be entitled to all

consequential and monetary benefits including the arrears

of salaries and allowances for the intervening period, as if

he would have been retired at the age of 65 years. The

appellant being similarly situated teacher cannot be

singled out. Even in the case of Writ Appeal No. 378/2018

and other allied writ appeals, it was submitted by the State

that on the principle of ‘no work no pay’ such teachers are

not entitled to any monetary benefits. However, the High

Court vide detailed judgment and order has negated such

a plea and defence and has observed that as the teachers

were prevented from serving up to the age of 65 years

though they were entitled to, as held by this Court in the

case of Dr. R.S. Sohane (supra), they cannot be denied the

monetary benefits for the intervening period. It is reported

that the said judgment and order passed by the Division

Bench of the High Court has been implemented by the

State after the Special Leave Petition against the said

judgment and order has been dismissed by this Court.

5. In view of the above discussion and for the reasons stated

above, the present appeal succeeds. The impugned

judgment and order passed by the Division Bench of the

High Court in W.A. No. 667/2016 is hereby quashed and

set aside, which was passed relying upon the decision of

Full Bench of High Court in W.A. No. 950/2015, which has

been subsequently set aside by this Court in the case of

Dr. R.S. Sohane (supra). It is held that the appellant

herein is entitled to the benefit of enhanced age of

superannuation i.e., 65 years. He shall be entitled to all

the consequential and monetary benefits including arrears

of salaries and etc., as if, he would have been continued

up to the age of 65 years. The arrears etc., shall be paid to

the appellant within a period of six weeks’ from today.

However, considering the fact that there was a huge delay

in preferring the appeal, which has been condoned by this

Court, the appellant shall not be entitled to any interest on

the arrears for the period between 09.05.2017 till the filing

of the present appeal.

6. The present appeal is accordingly allowed. In the facts and

circumstances of the case, there shall be no order as to

costs.

…………………………………J.

(M. R. SHAH)

…………………………………J.

(B.V. NAGARATHNA)

New Delhi,

April 21, 2022.

imitation for invoking arbitration - legal notice was issued invoking arbitration clause after 32 years - barred by limitation . The appellant sent a legal notice through his advocate on 31.07.2019 invoking the arbitration clause and seeking appointment of an arbitrator by the office of the General Manager. However, the arbitrator was not appointed as per clauses 63 & 64 of GCC. The appellant hereafter filed the present Arbitration Petition before the High Court under Section 11(6) of the 1996 Act and prayed to appoint the arbitrator to resolve the dispute between the parties. By the impugned order, the High Court has dismissed the said application on the ground that the arbitration petition in 2019 is hopelessly barred by limitation.

limitation for invoking arbitration - legal notice was issued invoking arbitration clause after 32 years - barred by limitation . The appellant sent a legal notice through his advocate on 31.07.2019 invoking the arbitration clause and seeking appointment of an arbitrator by the office of the General Manager. However, the arbitrator was not appointed as per clauses 63 & 64 of GCC. The appellant hereafter filed the present Arbitration Petition before the High Court under Section 11(6) of the 1996 Act and prayed to appoint the arbitrator to resolve the dispute between the parties. By the impugned order, the High Court has dismissed the said application on the ground that the arbitration petition in 2019 is hopelessly barred by limitation.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2964 OF 2022

(Arising from SLP(Civil) No. 6386/2022)

Vishram Varu & Co. …Appellant

Versus

Union of India, represented by the

General Manager, South Eastern Railway, Kolkata …Respondent

J U D G M E N T

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned order dated

19.03.2021 passed by the Calcutta High Court in Arbitration Petition No.

748/2019, by which the High Court has dismissed the said application

under Section 11(6) of the Arbitration and Conciliation Act, 1996

(hereinafter referred to as the ‘1996 Act’), preferred by the appellant

herein, the original applicant has preferred the present appeal.

2. That the appellant herein was issued work order in the year 1982.

That the work was executed in the year 1986. According to the

appellant herein, he executed excess quantity of work beyond the

schedule quantity of work to be done. Therefore, he was entitled to the

additional amount for the excess quantity of work done. It is the case

on behalf of the appellant that a lot of correspondence was made by the

appellant, however, the amount due and payable with respect to the

excess quantity of work done was not paid. The appellant through letter

dated 31.05.2018 requested the General Manager of South Eastern

Railway to release the amount due or refer the dispute to the arbitrator

under clauses 63 & 64 of General Conditions of Contract (GCC) under

the 1996 Act, however, no action was taken on the said letter.

Thereafter vide letter/communication dated 22.10.2018, again the same

request was made to the General Manager, South Eastern Railway

either to pay the amount which was overdue or refer the dispute to the

arbitrator, which was repeated vide communications dated 11.01.2019

and 11.03.2019. According to the appellant, thereafter the appellant

sent the Statement of Claim which was payable to him as per the work

order dated 7.4.1982 issued by the railway authorities, which was

executed up to 11.05.1986 and the work order dated 15.01.1984, which

was executed up to 26.08.1985. According to him, as per the statement

of claim, the total amount due and payable was Rs. 1,19,46,297/-.

2.1 Thereafter, the appellant sent a legal notice through his advocate

on 31.07.2019 invoking the arbitration clause and seeking appointment

of an arbitrator by the office of the General Manager. However, the

arbitrator was not appointed as per clauses 63 & 64 of GCC. The

appellant hereafter filed the present Arbitration Petition before the High

Court under Section 11(6) of the 1996 Act and prayed to appoint the

arbitrator to resolve the dispute between the parties. By the impugned

order, the High Court has dismissed the said application on the ground

that the arbitration petition in 2019 is hopelessly barred by limitation.

2.2 Feeling aggrieved and dissatisfied with the impugned order passed

by the High Court dismissing the arbitration petition under Section 11(6)

of the 1996 Act on the ground that it is barred by limitation, the original

applicant has preferred the present appeal.

3. Shri Pijush K. Roy, learned counsel appearing on behalf of the

appellant has vehemently submitted that the High Court has materially

erred in dismissing the arbitration petition under Section 11(6) of the

1996 Act on the ground of limitation.

3.1 It is submitted that from the date of issuing the legal notice

invoking the arbitration clause and after waiting for 30 days and

thereafter when the application under Section 11(6) of the 1996 Act was

made, the same cannot be said to be barred by limitation.

3.2 It is submitted that the cause of action to file the application under

Section 11(6) of the 1996 Act can be said to have arisen after

completion of 30 days of service of legal notice invoking the arbitration

clause and the request to appoint the arbitrator was made. It is therefore

submitted that from the date of issuance of legal notice invoking the

arbitration clause and after expiry of period of 30 days, the limitation

would start from the date of completion of 30 days from the date of

serving the legal notice invoking the arbitration clause. Heavy reliance is

placed on the decision of this Court in the case of Bharat Sanchar

Nigam Limited v. Nortel Networks India Private Limited, (2021) 5 SCC

738 (paragraphs 14 & 15). Relying upon the aforesaid decision, it is

submitted that as observed and held by this Court, none of the Articles in

the Schedule to the Limitation Act, 1963 provides a time period for filing

an application under Section 11(6) of the 1996 Act and therefore it would

be covered by the residual provision Article 137 of the Limitation Act

which provides the period of limitation of three years from the date when

the right to apply accrues.

3.3 It is submitted that in the present case, right to apply under Section

11(6) of the 1996 Act can be said to have accrued when the legal notice

invoking arbitration clause and the request to appoint the arbitrator by

the General Manager was made and the period of limitation would

commence after 30 days of serving the legal notice invoking the

arbitration clause and making a request to appoint arbitrator.

3.4 Making the above submissions, it is prayed to set aside the

impugned order passed by the High Court.

4. We have heard Shri Pijush K. Roy, learned counsel appearing for

the appellant at length.

At the outset, it is required to be noted that in the present case,

work order was issued on 7.4.1982 and the work/excess work was

completed in the year 1986. Even as per the statement of claim, the

amount due and payable was under work order dated 7.4.1982, which

was executed up to 11.05.1986 and work order dated 15.01.1984 which

was executed up to 26.8.1985. Therefore, right to claim the amount, due

and payable, if any, can be said to have accrued in the year 1985/1986.

Thereafter, the correspondences under the RTI Act had taken from the

year 2012 onwards. Thereafter, for the first time, the appellant served a

legal notice upon the General Manager, South Eastern Railway on

22.10.2018 requesting either to release the amount which was overdue

or to refer the dispute to the arbitrator under clauses 63 & 64 of GCC

under the 1996 Act. The aforesaid legal notice is thereafter followed by

three to four letters/communications and thereafter the appellant herein

filed the present application under Section 11(6) of the 1996 Act before

the High Court in the year 2019. Merely because for the claim/alleged

dues of 1985/1986, the legal notice calling upon the respondent to pay

the amount due and payable or to refer the dispute to the arbitrator is

made after a period of approximately thirty-two years, the appellant

cannot be permitted to say that the cause of action to file the application

under Section 11(6) of the 1996 Act had accrued in the year 2018/2019.

In the present case, the legal notice has been served and the arbitration

clause is invoked and request to appoint the arbitrator was made after a

period of approximately thirty-two years from the date of completion of

work. Therefore, the appellant, who served the legal notice invoking the

arbitration clause and requesting for appointment of an arbitrator after a

period of approximately thirty-two years, cannot contend that still his

application under Section 11(6) of the 1996 Act be considered as the

limitation would start from the date of serving the legal notice and after

completion of 30 days from the date of service of the legal notice and

invoking arbitration clause.

5. Now, so far as the reliance placed upon the decision of this Court

in the case of Bharat Sanchar Nigam Limited (supra) is concerned, the

said decision shall not be applicable to the facts of the case on hand. In

the aforesaid decision, the Court was not dealing with such a situation

where the legal notice was issued and served and the arbitration clause

was invoked after a period of thirty-two years. In the aforesaid decision,

this Court has not stated and/or observed and/or held that despite the

fact that the legal notice invoking the arbitration clause and/or request for

referring the dispute to the arbitrator is made after 20/30 years, still the

application under Section 11(6) of the 1996 Act can be entertained.

6. Therefore, in the facts and circumstances of the case, narrated

hereinabove, the High Court has not committed any error in dismissing

the application under Section 11(6) of the 1996 Act on the ground that it

is hopelessly barred by limitation and is a stale claim. We are in

complete agreement with the view taken by the High Court.

7. In view of the above and for the reasons stated above, the present

appeal fails and the same deserves to be dismissed and is accordingly

dismissed. There shall be no order as to costs.

……………………………….J.

[M.R. SHAH]

NEW DELHI; ……………………………….J.

APRIL 21, 2022. [B.V. NAGARATHNA]

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Thursday, April 21, 2022

whether, the appellantteacher is entitled to get the benefits of enhanced age of superannuation of 65 years at par with his counterpart teachers serving in Government Colleges and Universities.

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Thursday, April 21, 2022

whether, the appellant­teacher is entitled to get the benefits of enhanced age of superannuation of 65 years at par with his counterpart teachers serving in Government Colleges and Universities.

whether, the appellantteacher is entitled to get the benefits of enhanced age of superannuation of 65 years at par with his counterpart teachers serving in Government Colleges and Universities.