Review: Karnataka HC Rules That Returning Officers Cannot Search or Seize Any Material Before Declaration of Elections.
Sai Krishna Muthyanolla
April 19, 2023
In this edition of court judgements review, we look at Supreme Court’s judgements on applicability of annual increment for government employees, forfeiting deposit by banks after auction, Madras High Court’s decision on deletion of tweets, Karnataka High Court’s decision on authority of election officials, and Jammu and Kashmir and Ladakh High Court’s decision on disciplinary action on employees.
Supreme Court: Entitlement of annual increment is for the services already rendered subject to good behaviour; cannot be denied merely because they retire the next day after earning the increment.
In The Director (Admn. and HR) KPTCL & Ors. vs. C.P. Mundinamani & Ors., the apex court held that superannuation on the next day of earning increment shall not merely deny the employees of their annual increment, and the employees are entitled to annual increment because of the services already rendered with good conduct.
The two-judge bench comprising of Justice MR Shah and Justice CT Ravikumar was hearing an appeal petition filed by the Karnataka Power Transmission Corporation Limited (KTPCL) against the Karnataka High Court’s judgement that allowed the employees for the entitlement of their annual increment. KTPCL has earlier denied the employees of their annual increment based on the Regulation 40(1) of the Karnataka Electricity Board Employees Service Regulations, 1997 which specified that increment is accrued from the day following its earning, whereas the employees were retired on the next day itself.
The counsel for the appellant argued that increment is an incentive for the employees to perform well in the following year and when no longer in service, there is no point of giving increment. The counsel also brought the divergent views held by various High Courts on similar issues. The question before the consideration of the bench is whether an employee can be denied annual increment merely because of superannuation on the following day.
On the argument that there is no purpose in giving increment when the employee is no longer in service, the apex court rejected the argument by noting that the increment is earned on one year past service rendered in a time scale. On the submission that increment is accrued from the day following its earning, the bench held that the object and purpose of grant of annual increment is required to be considered before deciding on such matters.
Further, the court held that interpreting the Regulation 40(1) in a manner that denies the benefit of annual increment to the government employees would be akin to punishment for no fault of theirs. The increment can be withheld only by way of punishment, or he has not performed the duty efficiently. Any interpretation which would lead to arbitrariness and/or unreasonableness should be avoided.
Accordingly, the bench expressed its agreement with the decision of Karnataka High Court and dismissed the appeal.
Supreme Court: If the bidder wasn’t informed that a challenge was pending against the sale, the bank cannot forfeit the deposit it received after the auction.
The Supreme Court, in Mohd. Shariq vs. Punjab National Bank and Others, held that banks cannot forfeit the deposit paid by the bidder in the auction when he/she was uninformed of the challenge pending against the sale.
The two-judge bench comprising of Justice Ajay Rastogi and Justice Bela M Trivedi, was hearing an appeal against the judgement of division bench of Uttarakhand where the bench reversed the order passed by the single judge which set aside the re-auction proceedings.
The facts of the case are as follows. The borrower took money from the Punjab National Bank, and he later became a defaulter leading to his accounts becoming NPA. The Bank issued notice and took the possession of the property under section 13(4) of the SARFAESI Act, 2002. The borrower approached the Debt Recovery Tribunal (DRT) on this matter and the issue was pending. Meanwhile the bank put up the auction notice and the appellant (in this case, the highest bidder) deposited the deposit amount (25% of the bid amount). However, the DRT held that since auction was held on the same day as of hearing, the bank is at liberty to go ahead with the auction, but confirmation of sale is put in abeyance until further orders.
Upon subsequent communication between the appellants and the bank, the appellant volunteered to pay the rest amount once the matter is decided. However, the bank informed the appellant that the deposit amount shall be forfeited if the rest amount is not paid. The bank-initiated re-auction proceedings against which the appellant approached the High Court.
The High Court asked the Appellant to deposit the balance and the Appellant abided by the same. The Single Judge of High Court set aside the re-auction proceedings and directed the Bank to execute the sale deed in favour of the Appellant. However, in appeal, the Division Bench of the High Court upheld the re-auction and directed the Bank to return the bid amount received from Appellant. Further, with respect to the money, which was forfeited by the Bank, the High Court granted liberty to Appellant to initiate independent proceedings before the competent forum for recovery of the amount.
Upon hearing both sides, the court held that Rule 9(5) of the SARFAESI Rules 2002 applies for a default case, and this instance is not the same. In present case, the appellant was not informed of the pending proceedings before DRT at the time of auction.
Consequently, the bank is directed to return the money within two months failing which it shall carry interest of 12% per annum.
Madras HC: Follower counts, speed of dissemination are to be looked at when considering application for deletion of tweets.
The Madras High Court, in V Senthil Balaji vs. Nirmal Kumar and others  held that while deciding the applications for deletion of defamatory tweets, the number of followers, the speed and frequency with which messages can be disseminated to users of social media platforms and the interactive nature of these platform shall be considered.
The single judge bench headed by Justice Senthil Kumar Ramamoorthy was hearing an application filed by the DMK Minister seeking to restrain the BJP IT Cell head of Tamil Nadu wing from making defamatory allegations against him. The appellant argued that he has been in public life for 25 years and has earned a respectable name in society, thereby seeking relief in respect of the allegedly defamatory tweets and a video, while agreeing that criticism of the public functions of a Minister is necessary and welcome in a constitutional democracy as long as such criticism is not defamatory and malicious.
The court looked at law relating to libel actions on whether a different standard should be adopted while considering libel actions in private and public life.
Regarding the phrase ‘reckless disregard for the truth’, the court relied on the judgement of apex court in R.Rajagopal @ R.R.Gopal and another vs. State of Tamil Nadu and others (Auto Shankar case), and held that the contours of ‘reckless disregard for the truth’ would encompass all defamatory statements made without being concerned as to whether such statements are true or false, such as where such statements were made without any verification. Further, a broad-push approach should not be adopted while deciding on the tweets, individual tweets are to be considered.
Accordingly, the court found few tweets defamatory, and ordered for its removal. It granted interim injunction with respect to defamatory tweets and restrained the respondent from publishing or disseminating information further.
Karnataka HC: Merely because they are appointed as officers for conduct of elections, they cannot search or seize any material before the declaration of elections.
The Karnataka High Court recently held that the Returning Officers or the election officials would not get any jurisdiction to search or seize any material before the announcement of elections. Once the declaration is done, the entire domain is open for them but not until then.
The single judge bench of the High Court headed by Justice M. Naga Prasanna, in Isthiyak Ahmed vs. Election Commission of India & Others, was hearing an application by the petitioner seeking the release of rice bags that were seized from him. The petitioner claimed to be a prominent social worker involved in charitable activities. The Returning Officer visited the petitioner’s place and seized rice bags that were meant for distribution alleging that the material was being held for distribution among the public for favouring his candidature in the ensuing election. However, the rice bags were not released despite the reply by the petitioner to the notice sent by the election officials.
Upon considering the facts of the case, the court held that election schedule was not announced when the search and seizure was made.
Further, since the elections are declared, the court asked the petitioner to furnish an Indemnity bond saying that he shall not violate the code of conduct and satisfy the conditions imposed for the release of bags.
Accordingly, the petition is allowed, and writ of Mandamus is issued to release the rice bags subject to the satisfaction of the conditions imposed.
Jammu and Kashmir and Ladakh HC: ‘Wilful’ absence from duty must be proved by the Disciplinary Authority before deciding on the question of absence from duty.
In Mohd Ashraf Shah vs. Union of India, the Jammu and Kashmir and Ladakh High Court held that mere absence from duty shall not lead to the termination of an employee, the disciplinary authority must prove ‘wilful’ absence.
The bench headed by Justice Wasim Sadaq Nargal was hearing a petition challenging the termination from employment. The petitioner was a CRPF Constable and had suffered from Encephalitis Sequelae (seizure) disorder, due to which he was absent for duty for a period of 39 days. Considering this absence as wilful, the disciplinary authority ordered the termination of the employment. However, the petitioner argued that the absence is due to medical illness and not a wilful absence. The respondents objected to the petitioner saying that as per the medical documents, the petitioner was fit for light duties and was given best available treatment.
Upon hearing both sides, the court looked at whether the punishment rendered is disproportionate to the offence alleged. The court relied on section 9(f), and 10(n) and 10(q) of the Central Reserve Police Force act, 1949. On joint reading with rule 31 of the CRPF Rules, 1955 that outlines the criteria for desertion and absence without leave and on the apex court clarification on the word ‘desertion’ and absence from duty in Krushnakant B Parmar vs. Union of India & Anr. , the High Court held that the punishment is disproportionate to the framed charge and is not warranted by law.
The court further held that the disciplinary authority failed to prove the ‘wilful’ absence of the employee. The disciplinary authority showed non-application of mind in reaching conclusion on the absence from duty, despite the sufficient evidence presented before him. The Court alleged the abuse of principles of natural justice on the part of the disciplinary authority.
On the question whether relief of reinstatement with continuity in service can be granted when the removal is found to be invalid, the High Court relied on the apex court judgement in  Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya and Ors, which held that in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
Accordingly, the High Court set aside the termination and reinstated the petitioner.