State of Uttarakhand and others. vs Sureshwati. Civil Appeal 142/201 decided on 20 January 2021.

Judgment Link: https://main.sci.gov.in/supremecourt/2020/13459/13459_2020_38_1501_25605_Judgement_20-Jan-2021.pdf

Relevant paragraphs: 14.This Court has in a catena of decisions held that where an employer has failed to make an enquiry before dismissal or discharge of a workman, it is open for him to justify the action before the Labour Court by leading evidence before it. The entire matter would be open before the tribunal, which would have the jurisdiction to satisfy itself on the evidence adduced by the parties whether the dismissal or discharge was justified.

A four Judge Bench of this Court in Workmen of the Motipur Sugar Factory Private Ltd. v. Motipur Sugar Factory AIR 1965 SC 1803 held that “11. It is now well settled by a number of decisions of this Court that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the tribunal by leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic enquiries have been held. The entire matter would be open before the tribunal which will have jurisdiction not only to go into the limited questions open to a tribunal where domestic enquiry has been property held but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified.

Note: Apart from other judgments, the Supreme Court places heavy reliance on Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd. v. The Management of Firestone Tyre & Rubber Co. of India (P) Ltd and Other (1973) 1 SCC 813 and quotes the following paragraphs

1. The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
2. Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.
3. When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.
4. Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
5. The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
6. The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
7. It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
8. An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.
9. Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.
10. In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate v. Workmens within the judicial decision of a Labour Court or Tribunal.

15 & 19. We have perused the Award passed by the Labour Court, and find that a full opportunity was given to the parties to lead evidence, both oral and documentary, to substantiate their respective case. In view of the aforesaid discussion, we allow the present Appeal, and set aside the Judgment of the High Court. The Award dated 22.8.2016 is restored.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

M/s. Dream Logistics Company vs Karnataka State Pollution Control Board. Criminal Petition 101728/2017 decided on 6 November 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348072/1/CRLP101728-17-06-11-2020.pdf

Relevant paragraphs: 12. Point (v). Can a tenant or a licencee of the property contend that the liability of obtaining permission from the respective Pollution Control Board would be that of the owner and the tenant/licensee has nothing to do with it?

12.1 to 12.6 Neither the Air Act nor the Water Act makes any distinction between the owner and/or a tenant of a industry, factory or premises. The Act only refers to and applies itself to pollution being caused. Unless there is a contract to the contrary that an owner of the premises is to obtain permissions under the relevant pollution control Act, it would be for the alleged polluter to obtain necessary permissions and/or consent under the Air Act or Water Act. Section 21 of Act also does not make a distinction between the owner and/or a tenant insofar as it states “…. No person shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control area. ….”. Thus, the allegation in the present case being that the Petitioner has caused pollution and/or the Petitioner is operating the iron ore stackyard, it was for the Petitioner to obtain the necessary permission and/or consent from the jurisdictional Pollution Control Board.

12.7 From the reading of the above, it is seen that as per Condition No.8, the said Dream Logistics Company was required to obtain consent from KSPCB under Water Act and Air Act before the commencement of any activities as also to comply with several conditions as extracted above. Irrespective of whether the petitioner is an owner or a tenant or whether the land is owned by port authorities or otherwise, even at the time of allotment, it was made clear that it was for the petitioner to obtain consent from KSPCB. In the said background, it cannot now lie for the petitioner to contend that the consent was to be obtained by the port authorities. Be that as it may. This could also be a subject matter of trial. If at all, the port authorities are also liable, they can also be brought on record as additional accused in terms of Section 41 of the Air Act. Governmental authorities who violate Environmental Protection Act including the Air Act, Water Act could be liable for prosecution for such offences, the concerned persons who were incharge of such government department at that point of time can always be prosecuted.

12.8 1.1.            In view of the above, I answer Point No.(v) by holding that a tenant or a licensee of a property or anyone who operates any industrial plant or trade activity in the air pollution control area would have to obtain the necessary consent and/or permission from the jurisdiction Pollution Control Board unless there is a contract to the contrary between such tenant and owner of the premises or a licensee and licensor of the premises, requiring the Owner or Licensor to obtain such consent and/or permission.

Compiled by S.Basavaraj, Advocate, Daksha Legal

NOTE: The Karnataka High Court applies the principle of “Ecocide” in a case involving Air and Water pollution by trader who stacked iron ore in open place causing Air and Water pollution. Ecocide is criminalized human activity that violates the principles of environmental justice, as by substantially damaging or destroying ecosystems or by harming the health and well-being of a species. Though Ecocide has not yet been accepted as an internationally punishable crime by the United Nations, the municipal laws worldwide have made destruction of the environment, fauna and flora as punishable offences. In India, the Water (Prevention and Control of Pollution) Act- 1974 and the Air (Prevention and Control of Pollution) Act- 1981 have occupied the filed.

M/s. Dream Logistics Company vs Karnataka State Pollution Control Board. Criminal Petition 101728/2017 decided on 6 November 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348072/1/CRLP101728-17-06-11-2020.pdf

Relevant paragraphs: 10.11 In the present case, the Petitioner is stated to have dumped iron ore in the area allocated to it in an open space. Iron ore as a term would indicate is the mineral iron ore contained in soil, which needs to be extracted therefrom. Thus, in a sense what is dumped in port area is soil containing iron ore. Once the soil dries up, there is a great possibility of dry soil being blown away by the air spreading the dry soil along with iron ore in and around the area of port. If not  for the Petitioner having used the area for dumping of the iron ore, no pollution could have occurred. Whether it occurred or not  is a subject matter of trial? However, the allegation as regards occurrence of the air pollution on the basis of the iron ore being dumped by the Petitioner in the allocated area is something which requires investigation and if found to be true and correct, the same would require the Petitioner to stand trial.

10.15 The fact that the allocated area is a port area, there are villages around the area also ocean beside the area would also be of considerable importance. Since apart from dry iron ore being blown away by the wind, in the event of rains occurring, the water which mixes with the said iron ore could seep into the ground, polluting the groundwater and mixing with the ocean nearby, which would cause environmental damages to the habitat as also adversely affecting the fishes and other living creatures in the ocean. If there is large scale pollution of this kind, it could also result in an ecological disaster causing untold harm and misery to human beings and the environment, even resulting in large scale death of aquatic life.

10.16 Encyclopedia Britannica defines Genocide as “the deliberate and systematic destruction of   a   group   of   people   because   of their ethnicity, nationality, religion, or race. The     term,     derived     from     the Greek genos (“race,” “tribe,” or “nation”) and the Latin cide (“killing”),  was  coined by Raphael Lemkin, a Polish-born jurist who served as an adviser to the U.S. Department of War during World War II.”

10.17 The United Nations Office on Genocide prevention gives the background of Genocide asunder: The word “genocide” was first coined by Polish lawyer Raphäel Lemkin in 1944 in his book Axis Rule in Occupied Europe. It consists of the Greek prefix genos, meaning race or tribe, and the Latin suffix cide, meaning killing. Lemkin developed the term partly in response to the Nazi policies of systematic murder of Jewish people during the Holocaust, but also in response to previous instances in history of targeted actions aimed at the destruction of particular groups of people. Later on, Raphäel Lemkin led the campaign to have Genocide recognised and codified as an international crime.

10.18 In my opinion, the large scale destruction of environment and habitat of animals is no less than the offence of Genocide, since it is the destruction of the environment, the offence would qualify to be “Ecocide”, which would amount to causing the death and destruction of the environment and other living creatures. It is time that this aspect is recognised and due action thereon taken in our country, like that taken in other countries.

10.19 Dictionary.com defines ecocide as: “the destruction of large areas of the natural environment by such activity as nuclear warfare, overexploitation of resources, or dumping of harmful chemicals.”

10.20 Merrium Webster defines ecocide as: “the destruction of large areas of the natural environment as a consequence of human activity”.

10.21 It is now absolutely required for the preservation of human life as we now know it, to preserve the environment and nature. It is only by preservation of the environment and nature that mankind can be preserved. There is an absolute and imperative need for all to adopt sustainable living and development. Man must not only sustain himself but also sustain nature, which sustains him.

10.22 In view thereof, the Pollution Control Authorities are required to be ever vigilant to avoid, if possible, the occurrence, if not, when it occurs to stop such pollution, by taking necessary steps immediately. Thereafter to initiate necessary action by following due procedure of law to punish the guilty so that the same has a deterrent effect as against future violators. The principle of “Polluter Pays” would also be applicable to take restorative action for such pollution or environmental destruction caused.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Read judgment:

Dr. Raghavendra H.K. vs The State of Karnataka and others. Writ Petition 4923/2020 decided on 16 January 2021.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/360403/1/WP4923-20-16-01-2021.pdf

Relevant paragraphs: 17. Insofar as the contention of the respondents that the petitioner is estopped from challenging the selection process after having participated on the ground of acquiescence is concerned, the said principle is not a panacea to all the ills and illegalities committed by the Selecting Authorities. It is noticed that the Selecting Authorities time and again commit glaring illegalities in selections contrary to the statute, appoint candidates contrary to law and try to take shelter under the plea of estoppel against the candidates who challenge the act of the Selecting Authorities and consequent appointments, on a specious plea that the candidate cannot turn around and challenge the selection process or procedure stipulated for selection, after having participated in the selection process. The same plea is advanced in unison by the respondent – University and the selected candidate. The plea of the said respondents is unacceptable to me.

18. The University has made selections blatantly contrary to Rule 6 of the Special Rules which has resulted in the appointment of respondent No.7 to the post of Assistant Professor in the Department of English and denial of the entitlement of the petitioner to be considered for such appointment. The petitioner has not questioned the notification, process of selection or procedure adopted, but has questioned the selection of respondent No.7 as contrary to law. Such a challenge can be made only after the outcome of the selection process for which the candidate should partake in the said selection process. This view of mine, in this regard, is fortified by judgments of the Apex Court in the case of Raj Kumar vs shakri raj reported in (1997) 9 SCC 527.….But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955  Rules,  so  also  in  the  method  of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case.

19. The Apex Court in the latest judgment, in the case of Dr.(Major) Meeta Sahai Vs. Union of India reported in (2019) 20 SCC 17, considering the entire case law in point has held as follows:,,,,,,However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.

If the facts obtaining in the case at hand is considered in the light of law laid down by the Apex Court in the afore-extracted judgment, the petition cannot be shown the doors of the Court for an exit, merely because the petitioner has participated in the selection process as it is only the outcome of selection that has brought out the illegality committed by the University in selecting respondent No.7 contrary to the Special Rules.

21. Thus, in terms of the afore-extracted judgment of the Apex Court considering all the judgments on the issue of estoppel, acquiescence and waiver as in the case of Dr.(Major) Meeta Sahai (supra) held that illegality in a selection process can be found by a candidate only on its participation and not otherwise.

Writ Petition allowed.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Full Judgment:

Noor Aftab Parveen and others vs H.N. Chandrashekar by lrs. Regular Second Appeal 864/2015 decided on 15 January 2021.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/359967/1/RSA864-15-15-01-2021.pdf

Relevant portion page 23: The claim of adverse possession requires fulfillment of the three criteria concurrently which are:- (a) nec vi – adverse in continuity (b) nec clam – adverse in publicity (c) nec precario – adverse to a competitor in denial of title and to his knowledge.

The claim of adverse possession cannot run concurrently with acceptance of title. The judgment of Apex Court in the case of Karnataka Board of Wakf v. Government of India and Others (2004) 10 SCC 779 as regards this aspect further sheds light and the following extract need be noticed.

“12. A plaintiff filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See S.M.Karim v. Bibi Sakina [AIR 1964 SC 1254].) In P. Periasami v. P. Periathambi [(1995) 6 SCC 523] this Court ruled that: (SCC p.527, para 5) “Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.” The pleas on title and adverse possession are mutually inconsistent and the latter does not  begin to operate until the former is renounced.

Another aspect that needs to be noticed is that mere possession without the requisite animus would not turn possession into possession which is adverse. In fact, as regards to the construing of “intention to dispossess” in the case of Powell  v.  McFarlane  and  Another 1979 (38) P. & C.R. 452, it was observed as follows:-

“(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (“animus possidendi”)

“…..If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.”

The right of the plaintiff to sue for possession would remain till the defendant acquires positive title by adverse possession so as to extinguish the plaintiff’s right, which alone would result in extinguishment of plaintiff’s right under Section 27 of the Limitation Act.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

The High Court of Karnataka has constituted a constituted a
Committee chaired by Hon’ble Smt. Justice B.V. Nagarathna to bring out a book entitled “History of Courts of Karnataka”.

The High Court has made general appeal to persons with knowledge in this behalf and tapping all sources of information. The High Court has requested such persons to share any information as regards the legal, legislative and judicial history of Karnataka; in other words, any information on and relevant to the history of Courts in Karnataka.

India Awake for Transparency vs The Director Directorate of Enforcement and others. Writ Petition 12073/2020 decided on 21 January 2021.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/359840/1/WP12073-20-21-01-2021.pdf

Relevant paragraphs: 3. In this writ petition, petitioner has inter alia prayed for a direction against Director of Enforcement to register a case of money laundering arising out of scheduled offences set out in Special Case No.69/2020 on the file of learned XXIII Additional City Civil and Sessions Judge, Bengaluru based on the information given by petitioner in its representation dated January 31, 2020.

4. Shri. Nagesh, learned Senior Advocate made following submissions. Petitioner has unconditionally withdrawn the PIL. Therefore, this petition is not maintainable on  the  ground of public policy.

13. In the PIL, Director of Enforcement was arrayed as respondent No.7. As recorded hereinabove, petitioner had sought for a direction against respondents No. 1 to 10 therein to constitute a multi-Disciplinary Team to investigate and prosecute Mr. Azim Premji and his associates. Prayer clause (i) in this writ petition is for a direction against  the Enforcement Directorate to register a case for offences of money laundering arising out of the scheduled offences in Special Case No.69/2020. The trial of the said case has been stayed by the Hon’ble Supreme Court of India.

16. This Court, after considering the rival contentions and the authorities in Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P.Gwalior and  others (1987)1 SCC 5 and Sheonandan Paswan Vs. State of Bihar and  others (1987)1 SCC 288 in W.P. No.13838/2020 filed by the petitioner herein, has held that the said writ petition was not maintainable on the ground of public policy.

17 & 18. The ratio in the case of Sarguja is fully applicable   to the facts of this case also. In view of the above, the preliminary objection raised by learned Senior Advocates for private  respondents that this writ petition is not maintainable on the ground of public policy is sustained. Resultantly, writ petition stands dismissed.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Dr. M.G. Gopal vs State by Central Police (CCB). Criminal Revision Petition 34/2018 and connected matter decided on 18 January 2021.

Judgement Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/359830/1/CRLRP34-18-18-01-2021.pdf

Held: 14. What constitutes a police station has been defined in Section 2(s) of the Code, which reads as under:- “2(2): “police station” means any post or place declared generally or specially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf.”

15. As per Section 2(o) of the Code, “officer in charge of a police station” includes, when the officer in charge of the police station is absent from the station- house or unable from illness or other cause to perform   his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank  of constable or, when the State Government so directs, any other police officer so present.”

16. On going through the scheme of the Code, Section 173(2) of the Code contemplates submission of report of investigation. From plain reading of the said provision it is evident that it is the officer in-charge of a police station who is authorized to forward and submit the report in the prescribed form to the jurisdictional Magistrate to take cognizance. The words  used  in  Section 173(2) are “shall forward” which themselves give the meaning that it is the officer in-charge of the police station to file the final report. Though it is contended by the learned SPP-I that under Section 36 of the Code, the superior officer of the police station may exercise the same powers, as  could be seen from the said Section, it  is the police officers superior in rank to an officer-in- charge of the police station have been conferred  with such power as that of the officer in-charge of the police station. But in the case on hand, CCB police are not the officers superior in rank to an officer in-charge of the police station in the local jurisdiction. In that light, the contention which has been taken up by the learned SPP-I is not acceptable. It is even not much denied that the  CCB is not a police station by itself.

17. When CCB is not a police station then admittedly the final report filed by CCB which is an Investigating Agency is not in contemplation with the provisions of Section 173(2) of the Code.

18..…As per Section 2(s) of the Code the State Government has   to declare either generally or specially any post or place  to be a police station, but no such declaration is forthcoming before this Court. In that light, admittedly  the investigation has been done by the CCB and it is he who had submitted the report in terms of Section 173 of the Code and in view of the discussion made by  me above, he cannot be considered to be an officer-in- charge. In that light, the trial Court ought not to have taken cognizance on the report submitted by the CCB.

Compiled by S. Basavaraj, Advocate, Daksha Legal.