Magnificent opening paragraph: To quote Shakespeare from fall of Wolsey, with a slight variation to suit the context “Had I served my God with half the zeal that I served my King, I would not have fallen in these days of impecuniosities”, is the cry of the petitioner in this petition seeking terminal benefits after having retired on attaining the age of superannuation twenty one years ago.
Para 20. KPTCL, is a State under Article 12 of the Constitution of India. The aforesaid act of leaving its employee in the lurch does not behove its status of being a State under Article 12 of the Constitution of India. Therefore, it is imperative to issue a mandamus for release of all the terminal benefits that are accrued in favour of the petitioner along with interest and also mulct the KPTCL with exemplary costs for harassing and driving its employee to this Court time and again and now for release of terminal benefits. Therefore, the petitioner would be entitled to release of all terminal benefits along with interest at 9% p.a. from the date it fell due i.e., 01.08.1999 till the date of its payment.
21. Before parting with the judgment it is necessary to remind the KPTCL that pension payable to its employees upon superannuation is a property under Article 300-A of the Constitution of India and it constitutes a fundamental right to livelihood under Article 21 of the Constitution of India. The deprivation of even a part of this amount cannot be accepted, except in accordance with law, as pension is neither a bounty, charity or a gratuitous payment but an indefeasible right of an employee in terms of the Rules. Terminal benefits will enable a retired employee to live a life free from want, with decency, independence and self-respect. Depriving such right to livelihood, will leave a pensioner fall on the thorns of life and bleed.
Relevant paragraphs: 18. Accused, as the evidence shows, has betrayed utter disdain to the inherent right of C.W.1 as a human; to her individual autonomy to choose who to love and to her right to choose a husband and even, to defer to the wishes of her parents in matters of significance in her life, which in itself is a conscious “choice”. This in essence is a fundamental right guaranteed to every individual under Articles 14, 19 (1) (a) and 21 of Constitution of India. To permit the accused to take a defence of ‘grave and sudden provocation’ in the facts and circumstances of this case apart from being “obnoxious”, (Pawan Kumar, at para-47) [(2017) 7 SCC 780] will result in negation of the fundamental rights of the deceased under Articles 14, 19 (1) (a) and 21 of the Constitution of India and, as such, opposed to public policy.
19.While on this, we must hasten to add that we are not unmindful of the general position that fundamental rights not excluding those under Articles 14, 19(1)(a) and 21 are all guarantees against actions of State and its instrumentalities and not against criminal offences by one citizen against another. We are even more conscious of the ‘felt necessities of the time’ that wherever text does not inhibit and context demands, ordinary laws of the land should be given such construction and, scope of defences available so mapped that lofty principles enshrined under the above Articles are given full effect to and dehumanizing effect of the defences are suitably pruned without doing violence to the statute creating such defence while at the same time making it resonate with the current understanding of the concept of gender justice and dignity of the individual. ‘The Declaration of Independence’ of July 4, 1776 says in ringing tones, “……..we hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, – That whenever any Form of Government becomes destructive of these ends, it is the Right of the people to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and happiness “.
20. Life, Liberty and pursuit of Happiness is an entitlement and a right without which there cannot be a ‘right to life’ for an individual and shorn of the same, it will only be a creature existence. Thus viewed, extending the protective umbrella of ‘grave and sudden’ provocation to the accused, in the facts and circumstances of this case, will have the effect of robbing the victim of her right to express her `choice’. In other words, the defence of ‘grave and sudden’ provocation shall not avail an accused if the result of permitting such a defence is to dehumanise the person of victim, stultify her individual autonomy, agency and dignity.
Held: Paragraph 21..Alternate remedy -…Rule 15 (1) provides that the validity of the election of the President or the Vice-President may be called in question by a petition presented to the District Judge, within seven days from the date of declaration of the election, by any candidate at such election or by three or more Councillors joined together as petitioners. Clause (3) of Rule 15 provides that the petitioner shall join as respondents to his petition where the petitioner in addition to claiming a declaration that the election of the returned candidate is void and claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and when no such further declaration is claimed, only the Returning Officer as respondent. Rule 17(a)(ii) enumerates the grounds for declaring the election of the returned candidate as void, that being, non-compliance of the provisions of the Act or any of the Rules.
22. …A plain reading of the above provisions, do not envisage or invest powers with the District Judge to go into the question of the validity of reservation notification. Rule 17 invests power in the District Judge, in a duly constituted Election Petition, to declare the election of the returned candidate to be void, if in the opinion of the District Judge the ‘result’ of the election has been materially affected by any non- compliance with the provisions of the Act or of any of the Rules. A plain reading of the said provision would mean and refer to the action and conduct of the returned candidate in not complying with the provisions of the Act or the Rules. By any stretch of imagination, these provisions cannot be interpreted in a manner that the law invests powers in the District Judge, while dealing with an Election Petition, to declare a notification issued under Rule 13 and 13-A of the Rules as void or illegal.
23. A co-ordinate Bench of this Court in the case of Mr.Ravindra Nayak Vs. Karnataka State Election Commission and Others reported in ILR 2019 KAR 1409, while considering the question of alternate remedy in the matter of reservation and rotation of seats arising out of the Karnataka Municipal Corporations Act, but while dealing with similar provisions of law, noticed the decision of the Apex Court in the case of Bharati Reddy Vs. State of Karnataka and Others (2018) 12 SCC 61. The Apex Court in the case of Bharati Reddy has held that judicial review is a part of basic structure and therefore the exercise of power under Article 226 of the Constitution of India cannot be said to be an absolute bar, though it is left to the discretion of the Court as to whether such power is to be exercised in a 65 particular case. While interpreting Section 35 of the Karnataka Municipal Corporations Act, 1976, which appears to state that the election petition could be preferred to redress a grievance where there has been non-compliance of the provisions of the Act or Rules, or orders made thereunder, the co-ordinate Bench has held that the principle of rotation as envisaged by the Guidelines is not merely a private right of a contestant but is a statutory requirement and such grievance if left open to be raised by every individual contestant subsequent to the announcement of results would not only be impractical, but an illusory alternative remedy, and in fact no remedy at all in the light of the discussion therein. This Court is in respectful agreement of the decision of the co- ordinate Bench. Therefore, in the matter of reservation of the Offices of President and Vice- President and for that matter to post of Councillors, Election Petition as provided under Rule 15 of the Rules is not a remedy.
Relevant paragraphs: 13 & 14. Negotiable Instruments Act are three in numbers- Promissory note, bill of exchange and cheque. The very commencement of the word in the definition states that cheque is a bill of exchange. As a matter of provision of law even certain gaps are permitted to be filled in by the drawee so long it does not cause prejudice to the drawer in the matter of date, amount, signature and related. In this connection any part of alteration that effects the very nature of the cheque would be a material alteration that renders the cheque invalid.
15. The plain reading of Section 20 of the Negotiable Instruments Act reveals that the instrument may be either wholly blank or having written thereon an incomplete negotiable instrument. Thus, even if a blank promissory note is given it cannot be taken as a defence to avoid a decree based on such instrument, once it is found that the document produced before the court satisfies the requirements of a promissory note within the meaning of the Act. In this connection I am guided by Judgment of this court in the case of H.Maregowda Vs Thippamma reported in AIR 2000 Kant 169.
Relevant paragraphs: 11….Permanent Lok Adalat constituted under section 22B(1) of the LSA Act is conferred with both conciliatory and adjudicatory functions; and Permanent Lok Adalat is invested with the power and jurisdiction to pass an award on merits as provided under sub-section (8) of section 22C after observing or following the procedure prescribed under section 22C of the LSA Act. Sub- section (8) of section 22C specifically provides that, “Where the parties fail to reach at an agreement under sub-section (7), the Permanent Lok Adalat shall, if the dispute does not relate to any offence, decide the dispute.”
12. The Act is silent as to whether Permanent Lok Adalat could proceed to decide the dispute ex-parte in the absence of the parties. But a conjoint reading of section 22C and section 22D of the Act which deals with the procedure of Permanent Lok Adalat, makes it evident that while conducting the conciliation proceedings or deciding a dispute on merit under the Act, Permanent Lok Adalat shall be guided by the principles of natural justice, objectivity, fair play, equity and other principles of justice and shall not be bound by the Code of Civil Procedure, 1908 and the Indian Evidence Act, 1872. There is nothing in the amended Chapter VIA to suggest that if any of the parties fail to respond to the notice or fail to participate in the proceedings, Permanent Lok Adalat is disabled to decide the dispute or pronounce the order. The only requirement laid down under section 22D of the amended Act is that while deciding the dispute, Permanent Lok Adalat shall be guided by the principles of natural justice, objectivity, fair play, equity and other principles of justice and nothing more. The Act does not prohibit Permanent Lok Adalat from passing any ex-parte award. If such restriction is read into the Act, it would frustrate the very object of constituting Permanent Lok Adalat, as the respondent in every case who is invariably interested in defeating the claim of the petitioner, may thwart the impending action or decision by Permanent Lok Adalat, by successfully evading service of notice or remaining absent during the conduct of the proceedings. Therefore, the argument of learned counsel for petitioners that Permanent Lok Adalat has no jurisdiction to pass exparte award does not find support from any provisions of the Act or the Rules framed thereunder.
14. …..No doubt the statute does not expressly require Permanent Lok Adalat to give reasons in support of its decision, but having assumed the jurisdiction to adjudicate the disputes touching upon the rights and liabilities of the parties, failure to give reasons would render the decision invalid for the added reason that the appellate or the revisional authority would be deprived of the opportunity to test the correctness or validity of the order passed by Permanent Lok Adalat.
Relevant portion: Para. 1. The present petition is filed by accused .. under Section 439 of Cr.P.C. praying to release him on bail …for the offences punishable under Section 306 of IPC.
5. SPP submits…that the deceased has left a death note by mentioning the name of the petitioner-accused No.1 and the said death note itself is self-explanatory to show that it is the petitioner- accused No.1 who is responsible for the death of the deceased.
7. But when the financial transactions have taken place in the year 2002 and on 28.7.2020 there was some conversation between the petitioner-accused No.1 and the deceased, the same was not disclosed as to when exactly and at what time the petitioner-accused No.1 told the deceased to die or whatever she wants to do she could do. In the absence of any specific period, it cannot be inferred that the deceased was not abetted by the petitioner-accused No.1 and because of such abetment said to have been made by the petitioner-accused No.1, the deceased has committed suicide by hanging herself. There is no clarity in mentioning the timings as to when exactly she called the petitioner-accused No.1 and who in turn told her to die. Be that as it may, even it is the specific case of the prosecution that the deceased has left a death note. Even though she has not informed the complainant about the factual matrix of the case, while writing the death note, at least she could have mentioned as to when exactly and at what time the petitioner-accused No.1 told her to die or whatever she wants to do she could do. In the absence of any particular material in the death note, it cannot be inferred that it is the petitioner-accused No.1 who abetted the deceased and because of the same, the deceased has committed suicide. The death note and other aspects which have been intended to be relied upon by the prosecution are the matters which have to be considered and appreciated during the course of trial.
Held: 9. On close reading of Section 41A of the Act, it indicates that where the arrest of a person is not required under the provisions of sub-section (1) of Section 41 of Cr.P.C., then the notice could be got issued to the person against whom a reasonable complaint has been made or credible information has been received or suspicion exists for having committed a cognizable offence to appear before him and it also makes it clear that it is the duty of the person to comply the terms of the notice and when the said person complies and continues to comply with notice, he shall not be arrested in respect of the offence referred to in the notice unless for the reasons to be recorded. The police officer is of the opinion that he ought to be arrested and in that regard he has to pass an order.
10. On going through the said provision and the records, admittedly a notice has been got issued under Section 41A of Cr.P.C. When once notice has been issued under Section 41A of Cr.P.C., that itself makes it clear that the arrest of the petitioner is not required. Be that as it may. It is the submission of the learned counsel for the petitioner that on 10.09.2020 at about 9.30 p.m. he has been taken to custody and was there till 14.09.2020. In that event, if police wanted to arrest him, definitely they could have done so. Not arresting and issuing notice under Section 41A of Cr.P.C. and sending him, goes to show that in terms of the provisions of Section 41A of Cr.P.C., they do not want to apprehend or arrest the petitioner.
11. …there is no apprehension of arrest of the petitioner-accused. Petition for anticipatory bail rejected.
Section 41A. (1) Notice of appearance before police officer.The police officer shall in all cases where the arrest of a person is not required under the provisions of sub- section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by the competent Court in this behalf, arrest him for the offence mentioned in the notice.
Relevant Paragraphs: While considering the bail application, the parameters which have to be considered has been stated in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others (cited supra) have to be kept in view. Keeping in view the said ratio laid down, on perusal of the factual matrix on hand, it indicates that while commission of the offences which have been alleged, the complainant has also joined his hands and subsequently he came up with a complaint, that is a matter which has to be considered and appreciated during the course of trial. The only consideration which has to be looked into for the purpose of granting or refusing bail is whether the accused would be readily available for trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. If there is no prima facie case, there is no question of considering other circumstances. Even where a prima facie case is established, the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment, but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Bhagirathsinh Judeja Vs. State of Gujarat, reported in 1984 AIR(SC) 372.
18. In catena of decisions, even in Constitutional Bench law relating to grant of anticipatory bail has been discussed and emphasized that the provisions of anticipatory bail enshrined in Section 438 of Cr.P.C. is conceptualized under Article 21 of the Constitution of India which relates to personal liberty and it shall be given a liberal interpretation. This aspect has also been upheld by the Hon’ble Apex Court in the case of Bhadresh Bipinbhai Sheth Vs. State of Gujarat & another
Succession to property. “Per Capita” and “Per Stripes” – explained in simple diagram & words.
In Per Stirpes a person’s share of the inheritance will go to his heir. In Per Capita heirs will not receive any share.
Consider an example where, Mr.X has two children A and B. A has a son S1 and daughter D1 and B has a son S2 and daughter D2. A dies before X. Then after the death of X
In per stripes, A and B each will get 1/2 the share after a notional partition and their share will go to their respective children according to the rules of intestate succession applicable.
In per capita the entire property will go to B and the heirs of A will not get any share. So Per Capita distribution looks at the number of surviving heads on the generational line.
Before the 1956 Act in the above example on death of X – B, S1 and S2 would be the coparcenors( per capita) and would hold the property as joint tenants and their share would decrease on birth of a new coparcenor and increase on death of an exsisting coparcenor.
After the 1956 Act, on death of X – since A and B have a class 1 female heir they hold the property as tenants in common. A notional partition would be done and A and B would first get 1/2 share each ( per stripe )
Then A’s 1/2 share would be divided between himself and his son. So A is left with 1/4 and S1 will get 1/4. Then the 1/4 share in the hands of A would become his separate property and in this his son and daughter would have equal share. So D1 would get 1/8 and S1 will finally get 1/8 + 1/4. same per stripe division will happen in B’s branch.
After the 2005 Amendment on the death of X, A and B will get 1/2 share and on death of A and B their children will get equal shares. So S1, S2, D1 and D2 will all get 1/4 share each.
Relevant Paragraphs: 4 (a) The essential grievance of the petitioner emanates from the so called ‘admitted’ charge of plagiarism. Ramanatha Aiyar’s “Advanced Law Lexicon” 3rd Edn, Wadhwa Nagpur states: “Plagiarism: Publishing borrowed thoughts as original; stealing literary matter from the work of another author. The act or an instance of copying or stealing another’s words or ideas and attributing them as ones own”; the learned Lexicographer also mentions about Paul Goldstein’s ‘Copyright’s Highway 12 (1994) which lucidly explains the concept as under: “Plagiarism, which many people commonlythink has to do with copyright, is not in fact a legal doctrine. True plagiarism is an ethical, not a legal, offense and is enforceable by academic authorities, not Courts. Plagiarism occurs when someone – a hurried student, a neglectful professor, an unscrupulous writer – falsely claims someone else’s words, whether copyrighted or not, as his own. Of course, if the plagiarized work is protected by copyright, the unauthorized reproduction is also a copyright infringement.”
4(c) Plagiarism is a very serious matter that involves ethics and reputation of the student/person concerned; proven plagiarism operates as a hazardous stigma at the campus and the person carrying the same is ordinarily shunned; it may affect his educational and employment opportunities as well; that is the reason, why the respondent-University has taken appreciable pains in meticulously structuring the provision in the extant Regulations so that the innocents are not victimized; however, it has not adhered to the minimum of the fairness standards enacted therein; ‘more is not necessary to specify and less is insufficient to leave it unsaid’.
4(d)The entire episode of so called ‘plagiarism’ is framed on the basis of a few notoriously cryptic mails exchanged between the Course Teacher and the Exam Department, detrimentally keeping the petitioner in darkness;
4(f) It has been a long settled position of law that a stray sentence giving the impression of admission of the guilt shall not be interpreted in isolation when the rest of the matter in the representations suggests the contra; one has to gather a holistic impression from reading the entire text and not a few sporadic sentences appearing here & there in a script, whilst considering if what is stated amounts to admission. An acclaimed jurist of yester decades Mr.Rupert Cross in his treatise ‘EVIDENCE’, (3rd Edn. London- Butterworks 1967) at page 433 states: “An admission being any statement … which is adverse to a party’s case, the only conditions of admissibility, when thestatement emanates from the party himself concern the capacity in which he is acting and the reception of the entirety of the statement…”; it is more so when one is dealing with the educational career of young minds like the petitioner herein; loose & lavish wording of the representations, need to be given a due discount; the respondent –University is not justified in seeking shelter under a leaking umbrella of a poor student.
4(g)What intrigues this Court is about the enormity of unfair treatment which the petitioner was meted out at the hands of a Law University, in a serious matter like this; it is anguishing that the University did not afford an opportunity of personal hearing despite his written requestin Biblical literature, even God is said to have given an opportunity of hearing to Adam & Eve before punishing them for consuming the proscribed fruit, in the Eden Garden; which heavens would have fallen down, had a reasonable opportunity of personal hearing been afforded, remains as a mystery rapped in enigma; after all, procedural fairness is a constitutional mandate when the answering respondent is an instrumentality of the “State” under Article 12 of the Constitution; it is high time thatthis University of national repute be reminded that it is dealing with our children and not others’ chattel.
ORDER. In the above circumstances, this writ petition succeeds; a Writ of Certiorari issues quashing the impugned orders at Annexures-H & L1; a Writ of Mandamus issues to the respondent-University to assess and award marks to the petitioner’s Project Work in question; petitioner shall be continued to keep the term by way of carry over/carry forward, disregarding the attendance shortage, if any.
Daksha Legal 