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Media trials, Mahatma Gandhi and law

The Bombay High Court issued notices to lawyers regarding their conduct, not as citizens but as advocates and pleaders. The court observed that it had “nothing to do with their political views” nor “with expressions of opinion on their part, however strong, against any particular measure proposed by the legislature”.

Aman Hingorani

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The news these days is dominated by media trials invariably sensationalising some case or the other. Media trials, including newspaper trials, have become so systemic over a period of time that they have assumed the visage of being natural and normal. This is despite the fact that courts have traditionally frowned upon such practice.

An early Indian authority — exactly 100 years old — pertained to the publication of a document that was part of a pending case and of comments upon such document by none other than Gandhi in the newspaper, Young India. In its decision pronounced on 12 March 1920 (In Re: Mohandas Karamchand Gandhi (1920) 22 Bom LR 368), the Bombay High Court explained that: “(s)peaking generally, it is not permissible to publish comments on or extracts from any pending proceedings in this Court, unless the leave of the Court be first obtained. Many good reasons may be advanced for this but the underlying principle is, I think, that of the due administration of justice for the public benefit, one incident of which demands that as a matter of common fairness, both parties shall be heard at the same time and in the presence of each other on proper evidence by an independent and unprejudiced tribunal. That object would be frustrated if newspapers were free to comment on or to make extracts from proceedings which were still sub judice. It matters not whether those comments and extracts favour prosecutor or accused, plaintiff or defendant. The vice is the interference with what is the Court’s duty and not a newspaper’s, viz., the decision of the pending case.”

The High Court relied upon an old English case, Rex v. Empire News Limited, which dealt with a situation where a newspaper had commented on a pending murder case. The Bench led by the Chief Justice of England had held that “(t) he Court could not permit the investigation of murder to be taken out of the hands of the proper authorities and to be carried on by newspapers”, and that the “liberty of the individual even when he was suspected of crime and indeed even more so when he was charged with crime must be protected”.

The High Court similarly deprecated the practice of premature publication of document, while observing that “(o)ne can easily see the evils which would arise if it were permissible to publish a plaint containing (say) charges of fraud against some respectable man before he could even put in his answer, and long before the charges could be judicially determined.”

Few would disagree with these propositions. This article proceeds to examine the more ticklish aspect as to the legal consequences that ought to ensue for those conducting a media or newspaper trial.

For centuries, the making of comments on pending cases or premature publication of documents has been viewed as contempt of Court. Halsbury’s Laws of England declares that it is “a contempt to publish copies of the pleadings or evidence in a cause, while proceedings are pending.” Oswald on Contempt opines that “(p)rinting, even without comments, and circulating the brief, pleadings, petition, or evidence of one side only, is a contempt”. Such view can be illustrated by a brief discussion on In Re: Mohandas Karamchand Gandhi. Let us consider how this case came about.

Gandhi was a Barrister from Inner Temple, one of the four Inns of Court in the U.K.. The Inner Temple website documents in a post that Gandhi left Bombay for Britain on 4 September 1888 on the steamer Clyde and disembarked seven weeks later after ‘celebrating’ his 19th birthday at sea. Gandhi was called to the English Bar on 10 June 1891 and sailed for home two days later, after having enrolled in the High Court there. Gandhi sought to set up his practice as a Barrister in Bombay. As a matter of fact, he had applied for enrolment with the Bombay High Court on 16 November 1891 – much before his travel to South Africa in 1893. Gandhi’s struggles in South Africa led to him to formulate the idea of Satyagraha or non-violent civil resistance, which he later put to good use during the Indian freedom movement against the British.

The year 1919 witnessed the draconian Rowlatt legislation, which inter alia permitted arbitrary arrests, preventive incarceration and closed trials of suspected political dissidents. Gandhi’s response was a call for Satyagraha. It appears from the decision of the Bombay High Court of 15 October 1919 (In Re: Jivanlal Varajrai Desai, (1920) 22 Bom. LR 13) that several pleaders of the Ahmedabad District Court had signed what was known as the Satyagrahi pledge that obliged them to “civilly”, or as the High Court put it, “politely”, refuse to obey the law. In those days, the Bombay High Court had the disciplinary jurisdiction over the pleaders in Ahmedabad. B.C. Kennedy, the then District Judge of Ahmedabad, sent a letter dated 22 April 1919 to the Bombay High Court stating that on 16 April 1919 he had an interview with some of these pleaders, namely, Gopalrao Ramohandra Dabholkar, Krishnalal Narsilal Desai, Manilal Vallabhram Kothari and Kalidas Jaskaran Jhaveri, and had sought an explanation which left “matters much where they are”. Kennedy stated that since these gentlemen had the impression “that the Rowlatt Bill legislation is a crime” he “would not blame them for going to the edge of the law to oppose it” and that they were all men for whom he had “considerable esteem” and had “known them and appreciated them for some years”. Kennedy wrote that it was “very painful” for him to raise their case, but he was “of the opinion that they are unfit to practise until they have severed their connection with this league in the same public way in which they have joined it.” Kennedy also named two Barristers who were prominent members of the local Satyagrahi league, namely, Jivanlal Varajrai Desai and Vallavbhai Jhaverbhai Patel, and over whom he had no power.

The Bombay High Court issued notices to the named lawyers regarding their conduct, not as citizens but as advocates and pleaders. The Court observed that it had “nothing to do with their political views” nor “with expressions of opinion on their part, however strong, against any particular measure proposed by the Legislature”. The question was formulated as to whether the signing of the pledge to civilly disobey the law was consistent with the duties which they owed as officers of the Court. The Court took the view that “(t)heir duty as pleaders and advocates under their sanads is to advise their clients to the best of their abilities as to what the law is, not as to what the law should be in their opinion”, and that “(a) very sound principle to remember is that those who live by the law should keep the law”. The Court held that “it would be impossible for them to keep their duties to the League separate from their professional duties”, since it would be “the respondent’s duty as a Satyagrahi to persuade the client to disobey the law, it would be his duty as an officer of the Court to tell the client to obey”. The Court observed that it had asked the counsel appearing in the matter, Chimanlal Setalvad, “whether his clients would be able to give advice conscientiously to their clients without being influenced by their pledge” and that he “replied that they would give advice as lawyers conscientiously and not as Satyagrahis.” The Court opined that “(h) e was bound to say that, but the atmosphere of this Court, before which his clients have been arraigned, is somewhat different to the atmosphere of their consulting chambers in Ahmedabad.” 

 It transpires that during the pendency of this matter, one of the aforenamed pleaders, Kalidas Jaskaran Jhaveri, handed over a copy of Kennedy’s letter to Gandhi, whom he knew to be the editor of Young India, and who was reputed to be the author of the Satyagraha pledge. Gandhi not only published the said letter in Young India on 6 August 1919 but also commented on it. On 10 November 1919, the High Court severely reprimanded Jhaveri for giving a copy of the letter to Gandhi, holding that “(a)ll proceedings in cases pending before a Court of Justice are privileged, and they must not be published until the case comes on for hearing before the Court”(In Re Kalidas J. Jhaveri,(1919) 22 Bom. L.R. 31). The view of the Court was that Jhaveri “should have specially prohibited Mr. Gandhi from making any use of that letter as a journalist” and “that he had no business whatever to have given a copy of this letter to a person in Mr. Gandhi’s position, unless he took precautions that it should not be published until the notices were heard in Court”.

The High Court then proceeded to charge Gandhi and Mahadev Haribhai Desai, the editor and publisher respectively of Young India, for contempt of Court on the footing that Kennedy’s letter was a private official letter forming part of pending proceedings, and that the comments made in Young India were comments on the pending case. These comments, as documented by the Court in In Re: Mohandas Karamchand Gandhi, were contained in an article titled ‘“Shaking Civil Resistors” published on page 2 of Young India, which was preceded by the publication of Kennedy’s letter on page 1 under the heading “O’Dwyerism in Ahmedabad”. The article referred to the declaration by Michael O’Dwyer “of his intention of taking note of the anti-Rowlatt legislation agitation and passive resistance demonstration before there was any disturbance of the peace”. The article stated that O’Dwyer had succeeded “to an eminent degree in disturbing the peace in the Punjab, and that ‘the O’Dwyrean spirit’ had travelled to Burma”. The article asserted that the “echo of the spirit is heard nearer Bombay”, while referring to Kennedy’s letter and to the imputation that Kennedy had made as being “impudent” and “unpardonable”. The article insisted “that the Government of Burma, the Government of the Punjab and the District Judge of Ahmedabad, are all in their own way endeavouring forcibly to impose their will upon civil resisters” and “those who are trying to crush the spirit of civil resistance are but fanning the fire of Bolshevism”.

The Chief Justice of the Bombay High Court, through its Registrar, asked Gandhi on 1 October 1919 to give an explanation regarding the publication of the letter and the above comments. Gandhi sent a letter to the Court on 22 October 1919 to the effect that he was “within the rights of a journalist in publishing the letter in question and making comments thereon” and that he “believed the letter to be of great public importance and one that called for public criticism.” The Chief Justice replied that he “was willing to concede that the editor was unaware that he was exceeding the privilege of a journalist, provided he would publish in Young India an apology in the form therewith enclosed”. Gandhi, through his letter of 11 December 1919, “expressed his inability to publish the suggested apology, and stated that in publishing and commenting on the letter, he had performed a useful public duty”. Gandhi, “after referring to the honour of journalism and to his membership of the Bombay Bar and its traditions”, stated “that he could not conscientiously offer any apology, and that, if that explanation was not considered sufficient, he would respectfully suffer the penalty”.

The Court found Gandhi (and Desai, who had concurred with Gandhi) guilty of contempt of Court for publication of Kennedy’s letter before the trial of the matter and for making comments that tended “to interfere with a fair trial”, “prejudice public justice” and “substitute what has been termed a newspaper trial for the regular proceedings before the established tribunal, the High Court”. Having done so, the Court somewhat meekly held that “(t)he respondents seem to have posed not as law-breakers but rather as passive resistors of the law” and that it would be sufficient “to enunciate unmistakeably for them the law in these matters, to severely reprimand them for their proceedings and to warn them of the penalties imposable by the High Court”.

 Such was the moral strength of the cause spearheaded by Gandhi, and his convictions – whether as a lawyer, a journalist, a Satyagrahi or a popular leaderthat the British legal institutions, including its colonial judges, had no option but to pay due regard to him. It may be recalled that Gandhi had been tried for sedition for publishing three articles in Young India during 1921- 1922. It was at this trial that Gandhi delivered his famous speech on 18 March 1922, where he highlighted the horrors of British colonialism in India and called upon the presiding judge, C.N. Broomfield, the then District and Sessions Judge, Ahmedabad, and the jury assessors to resign from their posts and “thus dissociate” themselves “from evil”. The Inner Temple website records that following the sentence on 7 November 1922 upon Gandhi pleading guilty “to three counts of seditiously inciting disaffection towards the Imperial Government”, he was, “as with any member of the Inn convicted of a criminal offence…ordered to be disbarred at a meeting of the Bench Table, on 10 November 1922.” Gandhi never sought readmission during his lifetime. It was the Inner Temple that felt compelled to readmit Gandhi posthumously on 3 November 1988.

But then, that was Gandhi. Not only are the protagonists different today, but so are the times. Should the mere making of comments on pending cases or premature publication of documents now attract contempt charges when petitions, pleadings, affidavits and evidence are routinely uploaded on social media platforms, especially legal platforms, and circulated even prior to the matter being taken up in Court. Probably not, given the right of the public in general, and the legal fraternity in particular, to be informed, and the need for transparency and public scrutiny. The proposition would be that Courts in a constitutional democracy are created with tax-payers money to deliver justice to the people – a service – and that people are undoubtedly entitled to be made aware of the quality of justice being dispensed in their name. Further, many would argue that contempt law has long been discarded in mature democracies and, consistent with such international practice, the Supreme Court and the High Courts should rarely, if at all, exercise their contempt powers even though conferred by the Constitution by virtue of being Courts of Record. It is pointed out that Section 33 of the U.K. Crime and Courts Act 2013 has abolished the scandalising of the judiciary as a form of contempt of Court under the common law of England and Wales. The very fact that a species of criminal contempt could be simply buried by law for the original Courts of Record would necessarily imply that contempt jurisdiction is not that integral to the judicial function or, for that matter, to judicial independence. Yet others would claim that the exercise of contempt powers is inherently subjective and serves no real purpose. After all, Courts do not enjoy respect just because they threaten – rather, judicial authority, dignity and credibility, we are told, must rest on firmer foundations. This wider debate on contempt law, challenging as it is, would merit another article.

That said, the making of comments on pending cases or premature publication of documents could, in certain circumstances, lead to a media trial and interference with the administration of justice. How does one check such media trial if not by contempt law? I believe that the ordinary criminal law of the country would suffice for this purpose. There is nothing to prevent Parliament from making the commission of a media trial into a criminal offence along the lines of provisions like Section 186 in the Indian Penal Code 1860, which penalises anyone who voluntarily obstructs any public servant in the discharge of his public functions. Any judge who feels handicapped in administrating justice in a given case on account of a media trial could then direct criminal prosecution. This would obviate the ills of contempt jurisdiction since the same judge would not act as the complainant, the trier and the executioner, and the accused would be afforded a regular trial, rather than a summary one. The criminal justice system, which is deemed to be good enough for the average Indian, should surely be good enough for the judiciary that runs it. And where the media trial is conducted with the full or active participation of lawyers, as is common nowadays, such lawyers can, and must, also be tried for professional misconduct. It would perhaps be apt to conclude with the observations of the Supreme Court in its judgement delivered way back on 29 July 2009 (R. K. Anand v. Registrar, Delhi High Court, (2009) 8 SCC 106)) that express its anguish at the decline in ethical and professional standards amongst such lawyers:

“…some highly successful lawyers seem to live by their own rules of conduct. We have viewed with disbelief Senior Advocates freely taking part in TV debates or giving interviews to a TV reporter/anchor of the show on issues that are directly the subject matter of cases pending before the court and in which they are appearing for one of the sides or taking up the brief of one of the sides soon after the TV show. Such conduct reminds us of the fictional barrister Rumpole, ‘the Old Hack of Bailey’, who self deprecatingly described himself as an ‘old taxi plying for hire’. He at least was not bereft of professional values. When a young and enthusiastic journalist invited him to a drink of Dom Perignon, vastly superior and far more expensive than his usual ‘plonk’, ‘Chateau Fleet Street’, he joined him with alacrity but when in the course of the drink the journalist offered him a large sum of money for giving him a story on the case; ‘why he was defending the most hated woman in England’, Rumpole ended the meeting simply saying “In the circumstance I think it is best if I pay for the Dom Perignon”.”

 Dr. Aman Hingorani, Advocate-on-Record, Supreme Court of India & Mediator, Author, Unravelling the Kashmir Knot.

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Seeking Information From States/UTs On Old Age Homes In Each District, Pension For Elderly & Geriatric Care: Supreme Court

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Seeking Information From States/UTs On Old Age Homes In Each District, Pension For Elderly & Geriatric Care: Supreme Court

The Supreme Court in the case Ashwani Kumar vs Union Of India And Ors. Ministry Of Social Justice and Empowerment Secretary & Ors observed and has directed that all the States and Union Territories to furnish information on their existing schemes operating for the welfare of the elderly with respect of (i) Pension for the elderly, (ii) old age homes in each District and (iii) the level of geriatric care.

In the present case, the bench also asked the State and Union Territories to file the present status regarding implementation of the Maintenance and Welfare of Parents and Senior Citizens Act and has asked them to furnish the information to the Advocate-on-Record of the Union of India and the Union shall thereafter file a revised status report within a period of one month. 

The Apex Court bench comprising of Justice Aniruddha Bose and the Justice Sudhanshu Dhulia observed while hearing a petition filed under Article 32 of the Constitution of India by former Union Law Minister Dr. Ashwani Kumar regarding the enforcement of the rights of an elderly person.  

It was observed that the Supreme Court had earlier in 2018 passed similar directions while passing a judgment in the matter. It was directed to Union of India for obtaining necessary information from all the State Governments and the Union Territories about the number of old age homes and medical facilities and geriatric care facilities that are available to senior citizens in each district and file a status report, also the Union of India was directed to prepare a plan of action for giving publicity to the provisions of the MWP Act and for making senior citizens aware of the provisions of the said Act and the statutory and constitutional rights of senior citizens.

Also, the court had directed that the Government of India to issue appropriate directions to the State Government for effective implementation of the MWP Act and also conduct a review for the purpose of monitoring the progress. It stated that the Government of India was also directed to revisit the schemes and overhaul them so that it may be more realistic.

The Court observed while passing the judgment and order in 2018 that there is a need to continuously monitor the progress in the implementation of the constitutional mandate to make available to the elderly the right to live with dignity and to provide them with reasonable accommodation, the medical facilities and the geriatric care and had noted that focused and more vigorous efforts were needed in the case.

Accordingly, the matter was kept open by the court.

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Centre proposes to submit before Supreme Court a model builder-buyer agreement with mandatory RERA clauses

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Centre proposes to submit before Supreme Court a model builder-buyer agreement with mandatory RERA clauses

The Central Government in the case Ashwini Kumar Upadhyay versus Union of India observed and has proposed to submit before the Supreme Court a model builder-buyer agreement with mandatory clauses which cannot be altered by the Union Territories or the States.

Before the Court, Additional Solicitor General Aiswharya Bhati and amicus curiae Devashish Bharuka submitted that the Court that the model agreement will have Part A which will have core clauses with the mandatory provisions of the Real Estate (Regulation and Development) Act 2016 for the purpose of protection of the home buyers and the Part B which will contain additional clauses as per the requirements of the individual UTs /States. Thereafter, these additional clauses will not be contrary to or dilute in any manner the clauses in Part ‘A’.

The bench comprising of Justice DY Chandrachud and the Justice Hima Kohli observed and has posted the matter for further consideration on November 28, while taking the note of these submissions.

It stated that the development happened in the PIL filed by Ashwini Upadhyay seeking a model builder-buyer agreement. Earlier, it was observed by the Supreme Court that a model agreement was necessary to protect the interests of home buyers and had asked the Union to frame a model agreement after taking inputs from the States. Later, it was asked by Court to the Union to scrutinize the rules framed by the States under RERA to ascertain if essential norms have been incorporated.

Further, it was observed that on September 30, the following States have not submitted their responses:

(i)Andhra Pradesh; (ii) Gujarat; (iii) Chhattisgarh; (iv) Jharkhand;(v) Madhya Pradesh;(vi) Maharashtra;(vii) Manipur;(viii) Mizoram;(ix) Odisha;(x) West Bengal; and (xi) Uttar Pradesh.

On the other hand, the response has been filled by the thirteen States and two Union Territories. 

Thus, the States which have not filed their responses were directed to do so positively within a period of four weeks and failing which the Principal Secretaries of the State Government in the Ministry of Affairs/Urban Development shall personally remain present before the Court on the next date of hearing and to explain as to why they should have not been proceeded with under the coercive arm of the law created.

The court was informed by the Haryana and Maharashtra wings of the Confederation of Real Estate Developers Associations of India (CREDAI) that they will give their responses.

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Centre Appoints Delhi HC Judge Justice Dinesh Kumar Sharma As Presiding Officer Of UAPA Tribunal: PFI Ban

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Centre Appoints Delhi HC Judge Justice Dinesh Kumar Sharma As Presiding Officer Of UAPA Tribunal: PFI Ban

Delhi High Court judge Justice Dinesh Kumar Sharma has been appointed by the Central Government as the Presiding Officer of the Unlawful Activities (Prevention) Tribunal which will be reviewing the ban imposed on the Popular Front of India (PFI) and the organisations affiliated.

On 28th February, 2022, Justice Sharma was appointed as a judge of the Delhi High Court, after being elevated from the Delhi Higher Judicial Service.

On September 28, the Ministry of Home Affairs declared the PFI and its affiliates or associates or fronts as “unlawful associations” with immediate effect starting for a period of 5 years in exercise of the powers provided under Section 3(1) of UAPA. However, citing links with terrorist organizations and involvement in the terror acts, the Centre proscribed its affiliates Rehab India Foundation (RIF) and PFI, Campus Front of India (CFI), National Confederation of Human Rights Organization (NCHRO), All India Imams Council (AIIC), Junior Front, Empower India Foundation, National Women’s Front and Rehab Foundation, Kerala.

It is stated that as per Section 3 of the UAPA Act, where any association has been declared as unlawful, the Central Government shall, within thirty days from the date of the publication of the notification, while referring to the notification to the Tribunal for the purpose of adjudicating whether or not there is sufficient cause for declaring the association as unlawful.

Adding to it, as per Section 5 of the UAPA Tribunal should consist of one person and the person should be a High Court judge. On receipt of the notification, the Tribunal will be calling upon the affected association affected by notice in writing to show cause, within thirty days from the date of the service of such notice, why the association should not be declared as unlawful.

Further, the notification of the Centre will have no effect until the Tribunal has confirmed the declaration and the order is published in the Official Gazette by an order made under Section 4.

As per the notification issued by the Ministry of Law & Justice of appointing Justice Sharma and the time spent by him in performing the duties of the UAPA Tribunal will count as “actual service” within the meaning of para 11(b)(i) of Part D of the second schedule of the Constitution reading with Section 2(1)(c)(i) of the High Court Judges (Salaries and Conditions of Service) Act 1954.

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Supreme Court Dismisses Plea Against EVM: ‘Party Without Recognition From Electorate Seeking Recognition By Filling Petitions’

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SUPREME COURT

The Supreme Court in the case Madhya Pradesh Jan Prakash Party versus Election Commission of India observed and has recently dismissed a petition challenging the use of Electronic Voting Machines in the election process with a cost of Rupees 50,000.

The Court observed while dismissing the petition filed by Madhya Pradesh Jan Prakash Party and stated that it appears that party which may not have got much recognition from the electorate now seeks recognition by filing petitions.

The bench comprising of Justice Sanjay Kishan Kaul and Justice Abhay S Oka observed and has stated in the order that the election process under the representation of the People Act, 1951 is being monitored by a Constitutional Authority like the Election Commission. Thus, in our country, the Electronic Voting Machines (EVM) process has been utilized for decades now but periodically issues are sought to be raised and this is one such endeavour in the abstract.

The Court while observing that the filing of such petitions must be deterred, the bench imposed costs of Rs.50,000 on the petitioner and which was being directed to be deposited with Supreme Court Group-C (Non-Clerical), the Employees Welfare Association within a period of four weeks.

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NCLAT: Withdrawal Of Resolution Plan Will Have Disastrous Effect.

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NCLAT: Withdrawal Of Resolution Plan Will Have Disastrous Effect.

The National Company Law Appellate Tribunal (NCLAT) in the case Shardha Buildcon Pvt. Ltd v. The Dhar Textile Mills Ltd, the bench comprising of Justice Ashok Bhushan and Justice Mr. Barun Mitra observed and has dismissed the appeal filed by the Resolution Applicant seeking permission to withdraw its resolution plan and held that allowing withdrawal of a resolution plan will be having serious disastrous effect on the whole purpose of the Insolvency & Bankruptcy Code, 2016.

Before the NCLAT, the appellant filled an appeal against the order dated 21.07.2022 passed by NCLT Indore which relying upon the judgment of Supreme Court in the case Ebix v. Educomp dismissed the application filed by the Appellant wherein seeking for the withdrawal of the resolution plan.

The Appellant contended that the judgement of Ebix is not applicable as the same deals with the cases where the Corporate Debtor has undergone changes but in the present case, wherein the Appellant is seeking withdrawal due to the financial difficulty that is being faced by the Appellant.

The argument of the Appellant was rejected by the bench and has held that even if the Appellant is allowed to withdraw from the plan due to financial difficulty and the same will be amounting to go back from the commitment made in the resolution plan which is not permissible.

The bench observed that the IBC is process consists of different steps with a ultimate object of reviving the Corporate Debtor. Thus, permitting Successful Resolution Applicant to withdraw after the Plan has been approved will have serious disastrous effect on whole purpose and object of IBC.

Accordingly, the NCLAT bench dismissed the appeal filed by the Appellant and has upheld the order of NCLT, Indore.

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Supreme Court: Order Of Termination Approved By Industrial Tribunal Is Binding On Parties, Labour Court Can’t Take Contrary View.

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SUPREME COURT

T

he Supreme Court of India in the case Rajasthan State Road Transport Corporation vs Bharat Singh Jhala (Dead) Son of Shri Nathu Singh, through Legal Heirs & Anr observed that the that an order of termination approved by an Industrial Tribunal is binding on the parties and a Labour Court cannot take a contrary view against it.

The bench comprising of Justice MR Shah and Justice Krishna Murari observed and has stated that once the order of termination was approved by the Industrial Tribunal on appreciation of the evidence led before it, thereafter it was stated that the findings recorded by the Industrial Tribunal were binding between the parties and no contrary view could have been taken by the Labour Court contrary to the findings being recorded by the Industrial Tribunal.

However, the court was considering an appeal plea by the Rajasthan State Road Transport Corporation.

The bench observed that a workman was subjected to departmental enquiry for not issuing tickets to 10 passengers after collecting the fare. Thus, on conclusion of the departmental enquiry, his services were terminated. The termination was the subject matter of the approval application before the Industrial Tribunal in an application under Section 33(2)(b) of the Industrial Act. In the said proceedings, it was permitted by the management to lead the evidence and prove the charge/misconduct before the Tribunal. By order, the Tribunal approved the order of termination.

It was observed that after a judgment and an award in 2019, the Labour Court, Jaipur allowed the said reference and set aside the order of termination. An order was passed by the Labour Court while awarding 50% back wages from the date of termination till his death i.e., December 10, 2018. The Award and the judgement passed by the Labour Court was challenged before both, Single and Division Benches of the High Court. However, the petitions were dismissed both the times.

The Court observed after going through the relevant facts of the case that once the order of termination was approved by the Industrial Tribunal, thereafter the fresh reference under Section 10 of the Industrial Disputes Act, wherein challenging the order of termination was not permissible.

Adding to it, the court stated that though it is required to be noted that the order dated 21.07.2015 passed by the Industrial Tribunal which as such is a higher forum than the finality has been attained by the Labour Court.

Before the High Court, though the aforesaid fact was pointed out, the court did not consider this aspect and confirmed the judgment and award passed by the Labour Court for setting aside the order of termination, which has been approved by the Industrial Tribunal. 

It was held by the Supreme Court that the judgment and award passed by the Labour Court, confirmed by the High Court is unsustainable and allowed the appeal plea.

It has been committed by the High Court that a very serious error in dismissing the writ petition/writ appeal confirming the judgment and award passed by the Labour Court setting aside the order of termination.

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