Gururaj Shenoy vs The Deputy Chief Labour Commissioner. and ohers. Writ Petition 11249/2015 decided on 9 October 2020. Justice N.S. Sanjay Gowda.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/343703/1/WP11249-15-09-10-2020.pdf

Relevant Paragraphs: 4. In all these writ petitions, the validity of the orders passed in favour of the contract labour working at the Food Storage Depot at Udupi and Mysuru, whereby they are entitled for the same wages and the same service conditions on par with the other labour engaged under  the No Work No Pay system in the Food Storage Depot of FCI at Udupi and Mysuru and the Direct Payment system being paid at Food Storage Depot FCI at K.R.Nagar and Nanjangud, are under challenge by the  FCI and also by a Contractor, who had supplied labour to the FCI.

9. The FCI, as recorded by the Authority in its order at paragraph 2, admitted that the labour engaged through the Contractors and the labour paid through the Direct Payment system were doing the same work.

14. The Competent Authority, on consideration of the stand taken by the FCI, proceeded to record a finding  that the labour working at Mysuru and Udupi were doing the same and similar nature of work as the  labour working in the depots of FCI at K.R.Nagar  and  Nanjangud under the Direct Payment system and so also the labour working in the Food Storage Depot at Gadikoppa and Shivamogga under the No Work No Pay system and they were, therefore, entitled to be paid wages and be provided with the service conditions on   par with the labour working under the Direct Payment system in K.R.Nagar and Nanjangud and under No Work No Pay system in Gadikoppa and Shivamogga.

23. Thus, from the facts narrated above, the principal question that arises for consideration in these writ petitions is: “Whether the FCI can pay only minimum wages to the labour engaged through the contractors under the shield of a Labour  Contract and thereby deprive the  labour  who are doing the same or similar work as other labour in other Depots, the wages and the service conditions that the labour in the other depots were being given?”

32. In view of the above fact, the further question that would arise for consideration is that, when the  FCI  decide to engage labour through a Contractor, whether they could resort to payment of merely the minimum wages and thereby get over the requirement of paying to the labour wages on the Equal Pay for Equal Work principle. In other words, whether the FCI could pay different wages to the labour who were engaged in discharging the same nature of work, merely because some of the labour were engaged through a Contractor.

41……even in respect of labour supplied through a Contractor, the mandate of the law is that those labour supplied by the Contractor would have to be necessarily paid the same rate of wages and be given the same benefit of the same service conditions as that of the labour who had been directly employed by the principal employer who were discharging the same or similar nature of work.

44. If the law itself mandates that a Contractor, who is licensed to supply contract labour, should pay the same rate of wages and provide the same service conditions to his labour as the labour directly employed by the  principal employer, the principal employer cannot get  over this statutory mandate by entering into a contract which stipulates that the Contractor would only be required to pay minimum wages and thereby defeat the constitutional principle of Equal Pay for Equal Work.

46.A Contract is basically an agreement between two consenting parties, who are competent to contract and who have entered into an agreement for a lawful consideration and with a lawful object. If the consideration or object of the contract is to do an act which is forbidden by law or is of such a nature that if it  is permitted, would result in defeating the provisions of any law, then such a Contract, in law, is void (vide Section 10 and Section 23 of the Indian Contract Act).

50. ..the provisions of the Contract Labour  (Regulation  and Abolition) Act, 1970 would override any agreement that has been entered into between the principal employer and the Contractor, in respect of payment of wages to labour on the principle of Equal Pay for Equal Work.

58. The FCI, being a public sector undertaking, cannot seek to avoid its liability to pay the same wages to all its workers engaged in the task of loading and unloading in its depots, by resorting to a contract which basically nullifies a statutory term of the license. It is, therefore, necessary that the FCI be directed to pay the  difference of wages that becomes payable to the labour under the impugned orders by applying the principle of Equal Pay  for Equal Work.

Compiled by S.Basavaraj, Daksha Legal.

Dilip vs Nitin Jain. M.F.A. 200139/2018. Decided on 7 October 2020. Justice Siddappa Sunil Dutt Yadav and Justice P. Krishna Bhat. Judgment link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/343597/1/MFA200139-18-07-10-2020.pdf

Relevant Paragraphs. 4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the appellant places reliance on the observations of the Hon’ble   Supreme  Court  in  the   case  of   Amrit  Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC 558.

5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections l22 & l26 of the Motor Vehicles Act, l988.

7. It is necessary to  refer  to  the  observations  of  the  Hon’ble  Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable ƒrom the materials brought on record that the vehicle at the time oƒ the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind oƒ permit. The exceptions that have been carved out under Section 66 oƒ the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.

8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3.

Compiled by S.Basavaraj, Daksha Legal

K.A.Priyanka vs The Superintendent of Police, Kalburgi. Writ Petition 226407/2020. Decided on 25 September 2020. Justice Hanchate Sanjeevkumar.

Judgment link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/343068/1/WP226407-20-25-09-2020.pdf

Relevant Paragraphs : Paragraph 6. Regarding controversy involved into the case, the relevant provisions has to be considered Sections 177, 178 and 179 of Cr.PC. stipulate as follows.“177. Ordinary place of inquiry and trial– Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. 178. Place of inquiry of trial-  (a) When it  is uncertain in which of several local areas an offence is committed, or (b) where an offence is committed partly in one local area and partly in another, or (b) where an offence is a continuing one, and continues to be committed in more local areas than one, or (d) where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas. 179 .Offence triable where act is  done or consequence ensues.- When an  act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within shoes local jurisdiction such thing has been done or such consequence has ensued.”

7. In Priti Kumari’s case the Hon’ble Supreme Court has followed the previous judgment of the Hon’ble Supreme Court in Rupali Devi’s V/s State of Uttar Pradesh and others, (2019) 5 SCC 384. Hence formed opinion that the transfer of the complaint and FIR from jurisdiction of one police station to another jurisdiction police station is not correct, since the offences under Section 498-A is having continuously effect, even the complainant is residing / taking shelter in parents’ home or under shelter of anybody else where the complainant is residing and lodged complaint, then those concerned police have power to conduct the investigation.

8. I place reliance on the decision of Hon’ble Supreme Court in Rupali Devi’s case (supra). In the above stated case, the question for determination was observed as follows: – “Whether a woman forced to leave her matrimonial home on account of acts and conduct that constitute cruelty can initiate and access the legal process within the jurisdiction of the courts where she is forced to take shelter with the parents or other family members?” .

10…the Hon’ble Supreme Court in the above said judgment ultimately were pleased to lay down the law which is at para No.16. “16. We, therefore, hold that the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of  offences     under      Section      498-A     of    the Penal Code.”

11…the mental trauma out of the said cruelty as observed by the Hon’ble Supreme Court is having continuing effect, therefore the Ballary Women Police Station have jurisdiction to entertain the complaint and competent enough and having jurisdiction to investigate into the matter and to file final report. But without doing so the Ballary Women Police Station have transferred the complaint and FIR to the Shahapur Police Station is not correct as per the principle of law laid down by the Hon’ble Supreme Court in Rupali Devi’s case (supra). Therefore, the present petition succeeds and accordingly the respondent police are hereby directed that the complaint and FIR registered in the Ballary Women Police Station shall be revived and respondent Nos.2, 5 and 6 shall continue the investigation in Crime No.82/2020 of Ballary Women Police Station and file final report as per law. Therefore, it is directed the respondent Nos.3 and 4 to retransfer the complaint and FIR to the Ballary Women Police Station as stated above as per observations made. Accordingly, the petition is allowed.

Compiled by S.Basavaraj, Daksha Legal

Prakash Raj @ Praksah Rai vs State of Karnataka and another. Criminal Petition 2394/2020 decided on 28 September 2020. Justice Sreenivas Harish Kumar.

Judgment link: https://karnatakajudiciary.kar.nic.in/noticeBoard/CRL-P-2394-2020.pdf

Held: Paragraph 8 The conspectus of the ratio is that affidavit is necessary to be filed with the complaint only in those cases where the police fail to take any action when a
report of commission of an offence is made to them according to section 154(1) of the Code and the Superintendent of Police also fails to initiate action when his attention is drawn as required under section 154(3) of the Code. Affidavit is insisted upon with a view to binding the complainant to the allegations that he has made in the complaint and taking action against him in case these allegations turn out to be false. To illustrate, if a person files a private complaint alleging an offence of hurt caused
to him by another, he must have exhausted the remedy under section 154(1) and section 154(3) of the Code and state about it in the affidavit besides giving a brief account of the incident in which he was hurt. But there are certain offences in respect of which the aggrieved person should make a complaint only under section 200 as prescribed in sections 195, 198 and 199 of the Code; compliance of section 154(1) and 154(3) is not contemplated, and in respect of such offences, an affidavit in support of the complaint is not required. The complaint under section 138 of the Negotiable Instruments Act also falls under this category.

9. Occasion to take cognizance under section 190(c) of the Code arises under two circumstances, firstly when any person other than a police officer makes a complaint, and secondly when the Magistrate takes cognizance upon his own knowledge about commission of offence, i.e., a situation where offence takes place in his presence. But where any person other than a police officer makes a complaint, affidavit is not necessary for, any person here refers to a public authority who is authorized or empowered under certain statutes to make a complaint. Since the public authority makes a complaint in exercise of statutory duty, affidavit cannot be insisted upon.

Compiled by S.Basavaraj, Daksha Legal.

Selvina Kom Peter Byarko vs Ganesh P and another. Criminal Appeal 2593/2020 decided on 18:8:2020. Justice M.G. Uma. Judgment link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/340573/1/CRLA2593-11-18-08-2020.pdf

Relevant Paragraphs: 19. Under Section 499 of IPC, if any imputation concerning a person is published with an intention or knowledge or having reason to believe that such imputation will harm the reputation of such person, it amounts to defamation of that person, except under Ten Exceptions contained therein.

20. Section 105 of the Indian Evidence Act deals with the burden of proving existence of circumstances bringing the case within any of the general exceptions in the IPC or within special exception or proviso containing in other parts of the same Code or in any law defining the offence, on the accused and mandates the Court to presume the absence of such circumstances.

25. …Eighth Exception refers to such accusation made to the authorized person. But in the present case, since the article was published in  the magazine, the said exception cannot be made applicable.

26….accused does not fall under eighth exception, since the article in question was published in a magazine but not a representation submitted to an authorized person.

27.To attract the Ninth Exception to Sec. 499 IPC, the imputation must be made in good faith for protection of his or other’s interest. It is not explained by the accused as to how their interest or interest of others was involved in the case and how they have protected it by publishing the news item.

28.The position of law with regard to defamation is very well settled. If once publication is proved to be defamatory in nature, harming the reputation of the complainant, the burden shifts on the accused to claim exemption under any of the exceptions under Section 499 of IPC. Even when the accused takes a defence that publication containing the imputation was a true fact, he is required to prove that the said publication was for the public good, in order to attract the first exception. If on the other hand accused seeks exemption under the ninth exception, he has to prove that the imputation was made in good faith for his protection or of any other person. Moreover the person who makes such imputation and his position will determine the standard of care and caution he has to take, while making such publication.

29.When we speak of right to life, it definitely includes the life with human dignity and reputation. This right of a citizen is very precious and recognized as fundamental under Article 21 of the Constitution of India. It cannot be invaded under the garb of freedom of speech and expression. Even though the freedom  of speech and expression is recognized as a right under Article 19 of the Constitution of India, it is not an absolute right but is subject to reasonable restrictions.

30.If the accused prefers to seek shelter under the first exception to Section 499 of IPC, he has to prove that it was imputation of truth, which was published for public good. Imputation of truth by it self is not a defence available to the accused, when publication of imputation was not for public good. On the other hand if he invokes ninth exception, it is for him to prove that the imputation was made in good faith for protection of his own or other’s interests. Public good referred to in the first exception or good faith referred to in the ninth exception to Section 499 IPC, are definitely the questions of fact, which have to be gathered from the facts and circumstances of each case and to be established by the accused.

34.When the publication is not covered under any of the Exceptions, after the same is held as an imputation that has harmed the reputation of the complainant, commission of the offence punishable under Section 500 of IPC is complete. The conduct of the Accused in using objectionable and defamatory words only to have rhyming caption and the article is not at all acceptable and therefore both the accused are liable to be convicted.

Compiled by S.Basavaraj, Daksha Legal

Savitramma and others vs The State of Karnataka and others. Writ Petition 10824/2009 decided on 5 October 2020. Justice M.I. Arun. Judgment link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/343263/1/WP10824-09-05-10-2020.pdf

Legislation: Bangalore Development Authority Act, 1976. Sections 27 and 36. Land Acquisition Act.

Relevant Paragraphs: 12. The question that arises for consideration in the present writ petition is whether the scheme  in respect of  the petitioners’ property has lapsed and if yes, what is the effect of it.

Section 27 of the Bangalore Development Authority Act, 1976 reads as follows:-“27. Authority to execute the scheme within five years.- Where within a period of five years from the date of the publication in the Official Gazette of the declaration under sub-section (1)  of section 19, the authority fails to execute the scheme substantially, the scheme shall lapse and the provisions of section 36 shall become inoperative.”

17. Section 16 of the Land Acquisition Act, 1894 as applicable in the State of Karnataka reads as under:-

“16. Power to take possession. – (1) When the Deputy Commissioner has made an award under Section 11, he may take  possession  of the land, which shall thereupon [vest absolutely in the [Government]], free from all encumbrances.

(2) The fact of such taking possession may be notified by the Deputy Commissioner in the Official Gazette, and such notification shall be evidence of such fact.”

18. ..the land shall vest absolutely in the Government free from all encumbrances only upon the Deputy Commissioner making an award and after taking possession of the land.

20(a) Decision of Hon’ble Supreme Court of India reported in (2011) 3 SCC 139 (Offshore Holdings vs. BDA and others), paragraphs 38, 39 and 93 reads as under: On a conjunctive reading of the provisions of Sections 27 and 36 of the State Act, it is clear that where a scheme lapses, the acquisition may not. This, of course, will depend upon the facts and circumstances of a given case. Where, upon completion of the acquisition proceedings, the land has vested in the State Government in terms of Section 16 of the Land Acquisition Act, the acquisition would not lapse or terminate as a result of lapsing of the scheme under Section 27 of the BDA Act.

Reference made to decisions in ILR 2005 KAR 295 D.Narayanappa vs. State of Karnataka and others, ILR 2012 KAR 5634 Gautam Kamat Hotels Pvt. Ltd., and others vs. Bangalore Development Authority, (1994) 1 SCC 44 Ram Chand and others vs. Union of India and others, ILR 2018 KAR 2144 BDA  vs.  State  of Karnataka and others, 2020 SCC Online SC 316 Indore Development Authority vs. Manoharlal, ILR 2003 KAR 3206 Narayana Setty and others vs. State of Karnataka and others, 2018 (3) SCC 412 Indore Development Authority vs. Shailendra (dead) through legal representatives and  others, .

23.To sum up the ratio laid down in the aforementioned decisions states that the purpose of BDA is to ensure organized development of the city of Bengaluru.  In order to achieve it, it can acquire lands but land acquisition is not the main purpose of BDA. When  it  acquires land pursuant to a particular scheme and that scheme is not implemented within a time frame as prescribed in Section 27 of the Bangalore Development Authority Act, the scheme lapses. If a scheme has lapsed and the lands sought to be acquired has not already vested with the BDA, acquisition proceedings in respect of those lands cannot proceed and the right of the land owners in respect of those lands revives.

25…vesting does not depend upon payment   of compensation, vesting of land happens upon passing of award and taking possession of the same. Lapsing of  scheme is different from lapsing of acquisition. A scheme may lapse, however, if acquisition is complete, the acquisition does not lapse. The acquiring authority can use the land for any other public purpose.

On Facts: 26. …if the land has not vested with the BDA before the lapse of the scheme, the rights of the owners revive. The main objective of BDA is  development  of city of Bengaluru and it can acquire lands for the said purposes.  It has to acquire land only  when it is required.   In the instant case, though the final notification was issued in the year 1985  and possession taken in the year 2008,  the land remained unutilized and has been transferred to respondent No.4 in the year  2019.  Before  taking possession in the year 2008, BDA contemplated to denotify the land. It goes to show that the respondent no.2 never required the land in question. Further the award was passed in the year 1988 and the amount was deposited in the Civil Court in the year 2009.

(Since there was no challenge to acquisition for Metro, the proceedings only in respect of BDA acquisition are quashed.)

Compiled by S.Basavaraj, Daksha Legal.

Savitha Seetharam vs Rajiv Vijayasarathy Rathnam. M.FA. 1536/2017 decided on 11 September 2020. Justice B.V. Nagarathna and Justice N.S. Sanjay Gowda. Judgment link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/340069/1/MFA1536-15-11-09-2020.pdf

HELD: 8. Whenever, the husband and wife seek to dissolve their marriage, the conflict over the custody of the child, particularly a minor child, assumes significance. Whenever there is opposition by a party for giving custody of the child to another party and vice versa, the conflict can become extreme and aggravated sometimes resulting in dilution of any settlement that could be arrived at between the parties to seek dissolution of their marriage. One cannot underestimate the fact that in the case of separation of parents on account of dissolution of marriage by a decree of divorce, the children of the marriage are most affected physically, emotionally and their upbringing would take a beating.

9. One of the ways to resolve the conundrum is, by the emerging concept of shared parenting. In some overseas jurisdictions, the concept of shared parenting has been in vogue and prevalent but not so well entrenched in India and has been ordered only in a handful of cases. It  is necessary to remind ourselves that a child requires both parents, the mother and the father in jointly bringing up the child which would have a holistic impact on the overall growth of the child. This is because both parents have a joint responsibility in bringing up their children as each parent would contribute in a unique way to the mental, physical and emotional/psychological development of the child. Hence, whenever there is a separation between the parents, shared parenting would mean that the joint responsibility would continue subject to certain arrangements being put in place.

10. In this context, it is necessary to understand two terminologies, namely, joint physical custody and joint legal custody. Joint legal custody means that both parents have equal rights and responsibilities towards the child including the child’s education and upbringing, whereas the joint physical custody would mean, both parents would share the physical custody of the child by spending equal time and having equal contact with the child.

The International Council on Shared Parenting (ICSP) at its conference held at Bonn, Germany, in July 2014 has arrived at certain areas of consensus as under:

(i) That “shared parenting” is defined to include both the shared parental authority (decision making) and shared parental responsibility for the day-to-day upbringing and welfare of the children, between both the parents keeping in mind children’s age and stage of development. Thus, “shared parenting” is defined as the presumption of shared rights in regard to the parenting of children by fathers and mothers who are living together or apart.

(ii)Shared parenting is a post-divorce parenting arrangement for the optimal development of the child including children of high conflict parents. That if there is a 50-50 parent  time, it would be an optimal time that each parent could expect during week days or week-ends, as the case may be.

(iii) There is also a consensus that shared parenting orders could be passed even if one parent opposes it. As shared parenting is in consensus with International Human Rights and Constitutional Rights of the children to be raised by both their parents.

(iv)Any judicial discretion to be exercised by the Court must be in the best interest of the children.

(v) Though the shared parenting would not apply to situations where there is violence and child abuse or maltreatment of the child in any form including parental alienation.

(vi) Accessible network of family relationship centers that would render relevant support services and family mediation are necessary and vital for the success of shared parenting.

12. At the outset, it would be useful to refer to a decision of the Hon’ble Supreme Court in the case  of Thrity Hoshie Dolikuka  vs.  Hoshiam  Shavaksha  Dolikuka, [(1982) 2 SCC 544], wherein it has been observed as under:

“17. The principles of law in relation to the custody of a minor appear to be well established. It is well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the court has a special responsibility and it is the duty of the court to consider the welfare of the minor and to protect the minor’s interest. In considering the question of custody of a minor, the court has to be guided by the only consideration of the welfare of the minor.”

14. The United Nations Convention of Rights of the Child, 1989 is an International Treaty which encompasses civil, political, economic, social, health and cultural rights of children, to which India is a signatory. The  quintessence of the right of the child in the context of separated parents is that a child should not be separated from his or her parents against his will except when the court determines so in accordance with the applicable law, to the effect that such separation is necessary and in the best interest of the child.

15. Thus, the concept of shared parenting would assume greater importance after the divorce of parents by a dissolution of their marriage. Questions such as custody and visitation rights would then assume significance in the context of the responsibilities of the parents towards their children. Thus, the concepts such as “joint legal custody” or “joint physical custody” have emerged over a period of time in several legal regimes.

23 ….the principle of shared parenting which is defined to include shared parenting authority as well as shared parenting responsibility in the day-to-day upbringing and welfare of the children, as it has evolved over the decades, in the context of custody of minor children. The Hon’ble Supreme Court in a catena of decisions has held that in dealing with the matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor’s interest. Over a period of time, the concepts of custody and visitation rights have transformed themselves into the responsibility of parents towards children. A central theme of this transformation is the emphasis on parental responsibility which requires that the child should be treated as an individual having his or her own capabilities and limitations as well as independent opinions.

A child is not an appendage  of his parents.   The focus of attention must actually be on the child.

Compiled by S.Basavaraj, Daksha Legal.

K.S. Nanjegowda vs The State of Karnataka and others. Writ Petition  30375/2010. Decided on 1 October 2020. Justice P.B.Bajanthri. Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/343323/1/WP30375-10-01-10-2020.pdf

Held 10…Status of the employees is temporary or daily wagers, still having regard to the serious allegations leveled against the petitioners that they were involved in alleged demand and acceptance of illegal gratification and they were subjected to criminal proceedings. Having regard to  the judicial pronouncements in the aforesaid four decisions, suffice that before taking any penal action against temporary employee or daily wager based on the allegations/misconduct stated to have been committed, minimum requirement is to hold a domestic enquiry in order to prove the alleged allegations leveled against such of those employees. Judicial pronouncements overrides the Government circular. …time  and again, Courts have held that, if any penal action is taken against an employee on the allegations and if it  is disputed by such an employee, it is mandatory to initiate domestic enquiry and conclude the  same before taking any impugned action like termination/discharge..

11. Judgments in The Constitutional Bench of the Apex  Court in Delhi Transport Corporation vs D.T.C. Mazdoor Congress And Others. (1991)  SCC (L&S) 1213 at paragraph  264,335,&  337  and D K Yadav vs J M A Industries Ltd (1993) 3 SCC 259, Smt. Shanthalakshmi vs The Commissioner for Sericultural Development, Writ Petition No. 26851/1998 (S-KAT) decided on 24/06/2002 relied on.

13….Therefore, this Court is of the considered opinion that once the order passed by the respondents is stigmatic in  nature,  the  petitioners  will certainly not get any job in future on account of stigmatic order.   This Court is of the opinion that in  all fairness, an opportunity of hearing should have been granted to the petitioners while  terminating  their services and thereafter, they should have taken appropriate action in accordance with law.

Compiled by S.Basavaraj, Daksha Legal.

Criminal Revision Petition 152/2014 decided on 1 October 2020. Dr. Justice Prabhakar Shastry. Between Sushma Rani vs H.N. Nagaraja Rao. Judgment link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/342116/1/CRLRP152-14-01-10-2020.pdf

Paragraph 11. Section 499 of the Indian Penal Code, 1860, defines as to what is ‘defamation’. A reading of the said Section goes to show that, in order that, an act to become a ‘defamation’, there must be (i) an imputation concerning any person; (ii) such an imputation may be by words, either spoken or written or even by signs or by visible representations; (iii) such an imputation must be intending to harm the other person or knowing or having reason to believe that it would harm the reputation of other person. Thus, such an imputation must be made or published and its effect. must harm the reputation of the other person against whom such imputations are made. In order to be defamatory, a publication must tend to lower the complainant in the opinion of men whose standard of opinion, the Court can properly recognise or tend to induce them to entertain an ill-opinion of him. However, the complainant need not show a tendency of imputation to prejudice him in the eye of every one in the community or all of his associates, but it is sufficient to establish that the publication tends to lower him in the estimation of a substantial, respectable group, even though they are of a totally different community or of the complainant’s associates.

15. Learned Amicus Curiae for the respondent/complainant in Criminal Revision Petition relied on few judgments. In the case of Smt. Madhuri Mukund Chitnis Vs. Mukund Martand Chitnis and another reported in 1990 CRL.L.J. 2084, the Bombay High Court was pleased to observe that, the imputations made in a proceeding which is filed in a Court is clearly a publication.  It further observed that even a publication to an authority over the person against whom the imputations are made must be held to be sufficient publication which falls within the purview of the said Section 499 of IPC.

In the case of Thangavelu Chettiar Vs. Ponnammal reported in AIR 1966 Mad 363, the Madras High Court was pleased to observe that, there can be no doubt that the defamation contained in the plaint was published by the plaint being filed in the Court.

It is clear that apart   from   filing   the   statements, in the form of statement of objections, in the matrimonial case, she has also revealed the contents of the same to the relatives and a friend of the complainant, which clearly establishes that there was publication as required under Section 499 of IPC of the alleged defamatory statement by the accused.

The contents of the statements of the accused, suffice it to say, would per  se reveal that the said statements are defamatory in nature unless they are shown to be falling within any one of the Exceptions to Section 499 of IPC.

The accused has not even attempted to show that they were the imputation of truth or that they were made in good faith. Therefore it can be safely held that the complainant has proved beyond reasonable doubt that the accused has committed an offence of defamation punishable under Section 499 of IPC, which is punishable under Section 500 of IPC.

Section 499. Defamation – Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Explanation 1.- It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.

Explanation 2.- It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Explanation 3.- An imputation in the form of an alternative or expressed ironically, may amount to defamation.

Explanation 4.- No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

First Exception.– Imputation of truth which public good requires to be made or published.- It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.

Second Exception.– Public conduct of public servants.- It is not defamation to express in a good faith any opinion whatever respecting the conduct of a

public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.

Third Exception.– Conduct of any person touching any public question.- It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.

Fourth Exception.– Publication of reports of proceedings of Courts.- It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.

Explanation.- A justice of the Peace or other officer holding an inquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.

Fifth Exception.– Merits of case decided in Court or conduct of witnesses and others concerned.- It is not defamation to express in good faith any opinion whatsoever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.

Sixth Exception.– Merits of public performance.- It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.

Explanation.- A performance may be substituted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.

Seventh Exception.– Censure passed in good faith by person having lawful authority over another.- It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.

Eighth Exception.– Accusation preferred in good faith to authorised person.- It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.

Ninth Exception.– Imputation made in good faith by person for protection of his or other’s interests.- It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.

Tenth Exception.– Caution intended for good of person to whom conveyed or for public good.- It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.”

Compiled by S.Basavaraj, Daksha Legal.

Daksha Legal Seminar

Topic- “Doctrine of Proportionality under the Constitutional and Administrative Law”

10 October 2020 at 7pm

Meeting Link: https://us02web.zoom.us/j/81264648761

Meeting ID: 812 6464 8761
Passcode: 824208

Watch on Daksha Legal YouTube channel: https://us02web.zoom.us/j/81264648761