Consequential Order alone is challenged - writ not maintainable

1.      In Paritosh Singh & Ors v. State of UP & Ors, reported in 2011 (29) LCD 610, this Hon'ble Court has been pleased to hold that

 

"35. .. In the present case, the consequential order alone has been challenged and the original decision of the State Government dated 27.8.2007 has not been challenged. In the case of Government of Maharashtra v. Deokar's Distillery reported in (2003) 5 SCC 669 the Hon'ble Supreme Court  has held that when Writ Petition are filed challenging only consequential orders without challenging the original orders by which the cause of action arose, such Writ Petition deserve to be dismissed as not maintainable."

 

2.      The above stated principle has also been reiterated by this Hon'ble Court in  Writ A No. 51649 of 2011 (C/M Seth Basudeo Sahai Inter College, Kannauj v. State of UP) wherein it has been held by an order dated 14.9.2011 that:

 

"In  Maharastra v. Deokar's Distillery, reported in (2003) SCC 669, Barkat Ali v. Badri Narain, reported in AIR 2008 SC 1272 and P. Chithranja Menon v. A.Balakrishnan, reported in AIR 1977 SC 1720 has held that if the basic order is not under challenge, consequential order cannot be subjected to challenge.""

Court Interference in Transfer

1.      In Mohd Masood Ahmad v. State of UP & Ors, reported in (2007) 8 SCC 150, the Hon'ble Supreme Court has been pleased to hold that since the petitioner was on a transferable post, the High Court has rightly dismissed his Writ Petition because transfer is an exigency of service and is an administrative decision and further that interference by the courts with transfer orders should only be in very rare cases. Further, in Registrar General, High Court of Judicature at Madras v.  P. Perachi, (2011) 12 SCC 137 and in Shilpi Bose v. State of Bihar, (1991) Suppl (2) SCC 659 the Hon'ble Supreme Court has been pleased to hold that order of transfer cannot be made to subject of judicial review.

 

2.      State of U.P. v. Gobardhan Lal, III (2004) SLT 210=(2004) 11 SCC 402 followed in

"A Government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the Government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires"

 

Until rules are formulates guidelines to be adhered to fetch best price

Kerala Financial Corpn. v. Vincent Paul, (2011) 4 SCC 171

Public Law Remedy is not available for disputed questions of fact

 

The public law remedy should not be readily extended to settlement of private disputes between individuals. Even where such an order is sought against a public body the Writ Court may refuse to interfere, if in the process of determination disputed questions of fact or title would require to be adjudicated.

 CIVIL APPEAL No . 6383 o f 2012  dated 10th September, 2012 (Supreme Court) in M/s Real Estate Agencies v. Govt of Goa

Time period to challenge arbitral award starts when signed copy of the award is handed over to the party

Delivery of signed copy to the party is a material fact that triggers the time limit under Section 34 of the Arbitration & Conciliation Act, 1996. When a copy of the signed Award is not delivered to the party himself, it would not amount to compliance with the provisions of Section 31(5) of the Act.

SPECIAL LEAVE PETITION (CIVIL) No. 23860 of 2010
dated 21.9.2012 (Supreme Court)

Right of Cross Examination and Access to Documents

1.      Kashinath Dikshita vs. Union of India (1986) 3 SCC 229, the Apex Court was considering the importance of access to documents and statement of witnesses to meet the charges in an effective manner in disciplinary proceedings against a government servant. The court observed as under:-

 

"10. …. When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the employee concerned prepare his defence, cross-examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question: 'What is the harm in making available the material?' and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself. On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it."

 

2.      That, in State of Uttar Pradesh vs. Saroj Kumar Sinha (2010) 2 SCC 772,  the Apex Court has further dealt with the argument that no prejudice has been caused to the appellant in the following words:-

"12. Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he would have needed the copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross-examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself."

 

3.       That, in Bareilly Electric Supply Co. vs. Workmen AIR 1972 SC 330, this is what the learned Judges have held:-

"the application of the principles of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no material can be relied upon and to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used."

 

Decision at the behest of politicians / political persons - invalid

Partabpur Co. v. Cane Commissioner, Bihar at AIR 1970 SC 1896

Dictates of higher authorities

(i) Partabpur Co. Ltd. v. Cane Commissioner Bihar AIR 1970 SC 1896
(ii) State of U.P. v. Maharaja Dhaimander Prasad Singh AIR 1989 SC 997
(iii) Gujarat Gas Co. Ltd. v. CIT (2000) 245 ITR 84 (Guj)
(iv) Sheo Narain Jaiswal v. ITO (1989) 176 ITR 352 (Pat)
(v) Yeshwant Talkies v. CIT (1986) 157 ITR 103 (MP)
(vi) CIT v. T.R. Rajakumari (1974) 96 ITR 78 (Mad)
(vii) Asstt. CIT v. O.P. Gupta (2001) 71 TTJ (Del) 82 : (2000) 75 ITD 123 (Del)
(viii) Jawahar Lal v. Competent Authority (1982) 137 ITR 605 (Del)
(ix) Rajputana Mining Agencies v. ITO (1979) 118 ITR 585 (Raj).