High Court Of Jammu And Kashmir At … vs State & Ors on 24 November, 2010

Jammu High Court
High Court Of Jammu And Kashmir At … vs State & Ors on 24 November, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
CDLSW No. 81 OF 2010 AND LPASW No. 123 OF 2010         
Satpaul Shamotra & Ors. 
Petitioners
State & Ors 
Respondent  
!Mr. I.H.Bhat, Advocate
^NEMO  

Honble Mr. Justice J.P.Singh, Judge.
Honble Mr. Justice Hasnain Massodi, Judge. 
Date: 24.11.2010 
:J U D G M E N T :

The Contractors engaged by the Government Medical
College, Jammu had employed the appellants for doing
annual service, maintenance/running of Steam Boiler, Hot
Water Generator, Water Softening Plant, Electric Sub-
Station Cum Diesel Generator Sets, CSSD, Laundry and
Kitchen etc.
Their claim to regularization in Government Service
was rejected by the Principal, Government Medical College,
Jammu vide Office Order No. 175/AHJ of 2000 dated
12.09.2000 while considering it, in compliance to the
directions issued in their earlier Writ Petition SWP No.
1820/99, on the ground that being not on the
establishment of the Executive Engineer, Mechanical
Hospital and Central Heating Division, Jammu, they were
not entitled to entry or regularization in the Government
Service.

They filed another Writ Petition questioning the
rejection of their case, besides seeking issuance of
directions to the State-respondents to take them in
Government Service, regularizing their past service.

2

Finding the plea untenable, their Writ Petition was
dismissed by a learned Single Judge of this Court vide
Order dated 20.03.2009, however, with a direction to the
State-respondents to undertake the Selection process for
filling up available posts created for the jobs, which the
appellants had been doing on behalf of the Contractors
engaged by the State Government, considering the
appellants too therefor, if found otherwise eligible.
Aggrieved by the judgment, they have filed this
Letters Patent Appeal along with CDLSW No. 81/2010
seeking condonation of 502 days delay in filing the Appeal.
According to the appellants, after getting information
regarding disposal of their Writ Petition, they delivered a
Certified copy of the judgment along with the relevant
records to their Counsel, Suresh Kumar, Advocate, without
any loss of time, instructing him to file Appeal against the
judgment. They were under a bonafide impression that the
Appeal stood so filed, which they, however, later come to
know had not been so filed by their Advocate because of
his domestic problems. Getting the brief back, the Appeal
was filed through the appellants new Counsel.
We have heard appellants learned counsel on the
merits of the Appeal also to examine as to whether a case
for Condonation of delay was made out.

The view taken by the learned Single Judge declining
appellants entry into Government Service on the basis of
their past Service with the Contractor engaged by the
Government, is unexceptionable, in that, being the
employees of the Contractor who had been allotted work by
the Government, the appellants do not become entitled to,
either as of right or on preference, to entry into
Government Service, which in terms of the rules in force, is
permissible only by competition in selection.

3

That apart, the appellants have neither produced the
Affidavit of their Advocate-Suresh Kumar nor any other
material to substantiate the plea of negligence of their
counsel in not filing the Appeal.

Even otherwise, after having handed over the brief to
their Counsel, within the time prescribed for filing Appeal,
no sufficient and plausible reason has been assigned by
the appellants justifying huge delay of more than 500 days
in not finding out as to whether or not the Appeal had been
filed by their Advocate. The Certified copy of the judgment
of the learned Single Judge, which has been annexed, with
the Memo of Appeal, indicates it to be a fresh copy of the
judgment obtained on 27.09.2010, which fact too
demonstrates that the plea projected by the appellants in
the application that they had obtained the Certified copy of
the judgment immediately after it was announced and
handed over to their Advocate to file the Appeal, which was
later given back to them, for engaging a new Counsel, is a
plea without substance, which appears to have been
coined only with a view to facilitate the filing of the Appeal,
seeking Condonation of delay on flimsy grounds.
After having known about the judgment delivered by
the Writ Court, the appellants were required to
demonstrate due diligence in taking resort to the remedies
available to them under law. There inaction in ensuring
filing of the Appeal within the prescribed period of
limitation and approaching the Court after a period of
about 1= years, cannot thus be justified on the cause
projected.

Accordingly, finding that the view taken by the
learned Single Judge, does not suffer from any error of law
warranting hearing of the Appeal on merits, we find that no
4
sufficient cause has been made out by the appellants for
Condonation of delay in filing the Appeal.
CDLSW No. 81/2010 is, therefore, dismissed along
with LPA(SW) No. 123/2010.

(Hasnain Massodi) (J.P.Singh)
Judge Judge
Jammu:

24.11.2010
Pawan Chopra

Mohammad Taj vs State on 16 November, 2010

Jammu High Court
Mohammad Taj vs State on 16 November, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
CRA No. 55 OF 2009 AND CRREF No. 78 OF 2009       
Mohammad Taj   
Petitioners
State of J&K
Respondent  
!M/S K. L. Pandita and Samir Pandita, Advocates 
^Mr. A. H. Qazi, AAG 

Honble Mr. Justice Virender Singh, Judge
Honble Mr. Justice Mansoor Ahmad Mir, Judge  
Date: 16.11.2010 
:J U D G M E N T :

Per Mansoor J.

This criminal appeal is directed against the judgment and order of
conviction dated 30th of September, 2009 and order dated 1st of October, 2009,
whereby accused was sentenced to death subject to confirmation of this court, on
the grounds taken in the memo of appeal.

BRIEF FACTS:-

Police Station Budhal received information from reliable sources that on 9th
of October, 2005 at about 7.00 pm a group of militants entered into the house of one
Munshi Ram S/o Nihal Chand R/o Raj Nagar Budhal and killed five persons by
slitting their throats. This report set the police in motion. FIR No. 46/2005 for the
commission of offences punishable under Sections 302, 120-B, 121, 122 of Ranbir
Penal Code, (hereinafter for short as RPC) and Section 4/27 Arms Act came to be
registered. Mohammad Bashir, ASI, was entrusted with the investigation; he
conducted the investigation and during investigation prepared site-plan of the place
of occurrence, seized dead bodies of the five persons, prepared seizure memos, took
photographs of the place of occurrence and of dead bodies and samples of ordinary
and blood stained soil (earth) were taken from spot. The team of doctors conducted
postmortem, blood samples were taken during conducting of postmortem and were
sent to FSL for opinion. The dead bodies were handed over to their relations.

The Investigating Officer prepared a final report in terms of Section 173 of
Criminal Procedure Code (hereinafter for short as Cr.P.C) and came to the prima-
facie conclusion that on 4th of October, 2005, accused Altaf Hussain met
Mohammad Yaseen Alias Amir Khan, Sanghar Pathan and Shakeel Ahmad in the
Guhar forests and stayed during the intervening night of 4/5th October, 2005 in the
house of Mohammad Bashir S/o Saleh Mohammad R/o Mahora Gabbar. On 5th of
October, 2005 Altaf got clothes of the aforesaid persons washed by Ashiq Ali S/o
Hassan Mohammad and also arranged food/fruits from Mohammad Tariq S/o
Mohammad Bashir. In the intervening night of 5th/ 6th October, 2005 they stayed in
the house of Mohammad Iqbal S/o Raj Mohammad R/o Mahora Gabbar and at
about 11. pm accused Mohammad Taj (nephew of Mohammad Iqbal) reached there.
Thereafter they stayed in forest (Chakhari) in order to trace-identify the informers.
In the intervening night of 9th/ 10th of October, 2005 all the five persons i.e. Altaf,
Mohammad Taj and aforesaid three militants entered into the house of Munshi Ram
and Sobha Ram and killed Munshi Ram, his two sons Rajender Kumar alias Kala
and Hans Raj and Sobha Ram his son Suresh alias Vicky by slitting their throats.

In terms of final report submitted by Investigating Officer under Section 173
Cr.P.C., three militants namely Mohammad Yaseen, Sanghara Pathan, Shakeel
Ahmad were prima-facie found to be involved in the commission of offences
punishable under Sections 302, 120-B, 121, 122 RPC and 4/27 Arms Act, whereas
the offences punishable under Section 302/120-B of RPC were prima-facie proved
against Mohammad Taj and Altaf Hussain.

Three militants were absconding whereas Mohammad Taj and Altaf Hussain
were arrested, challan was presented before the court of Chief Judicial Magistrate,
Rajouri, committed it to the court of Sessions Judge, Rajouri for trial after drawing
proceedings against the said militants in terms of Section 512 Cr.P.C.

Appellant and Altaf Hussain came to be chargesheeted, they denied the
charges and claimed to be tried.

Prosecution examined PW 3 Mst. Amro Devi, PW 4 Mst. Jatti Devi, PW 5
Mst. Shanti Devi, PW 6 Babu Ram, PW 7 Krishan Lal, PW 9 Munshi Ram, PW 10
Mohammad Rafiq, PW 11 Mohammad Iqbal, PW 12 Mohammad Bashir, PW 13
Mohammad Tariq, PW 14 constable Ramesh Kumar, PW 15 Dr. Mohammad
Ashraf.

Prosecution has failed to examine PWs 6, 8, 16, 17, 18 and 19.
Accused Altaf Hussain and Mohammad Taj have not examined any witness
in defence.

In terms of Section 273 of Cr.P.C, the trial court after hearing arguments,
acquitted Altaf Hussain, while as accused Mohammad Taj came to be convicted and
sentenced to death only for the commission of offence punishable under Section
302 RPC.

Feeling aggrieved Mohammad Taj questioned the same by the medium of
this appeal. The trial court has made a reference for confirmation of the death
sentence. Brief resume of evidence of the prosecution:-

P.W. No. 3 Amro Devi deposed that she knows the accused present before
the court. Near about nine months ago at about 7.00 p.m. she and her husband were
sitting under the Tarpolene Sheet. Four persons came, out of them three were
militants and fourth one was accused Mohammad Taj who was accompanying
them. They asked her and her family members whether they had their meals. They
replied that they had cooked the meals in the house of Sobha Ram. All of them went
into the house of Sobha Ram. Accused Taj and other two militants out of three
entered into the house of Sobha Ram. One militant stayed outside the house.
Militants who had gone inside the house had already taken Mushi Ram, Sobha
Ram, Suresh, Rajinder Kumar and Hans Raj with them. One militant came outside
the house while as accused Taj and another militant remained inside the door. The
militant who came out demanded from them instrument of wood cutting. On their
refusal he went inside the cowshed and brought out two sickles. She requested the
militants not to kill them and were ready to leave all property. The militant who
brought sickles pushed aside the witness and went inside the house. They heard
noise of slitting/ cutting. She fell down unconscious and gained senses
(consciousness) after some time. Thereafter those persons asked Jatti Devi and
Shanti Devi to go and see inside that five persons were killed by the militants. In
cross-examination she has stated that Taj was bearing mask/ veil on his face and
three militants were without mask/ veil.

PW No. 4 Mst. Jatti Devi has deposed that she knows the accused present in
the court. Occurrence took place last year prior to nine months at about 7.00 pm.
They were residing in a tent because their house was damaged. Four persons came
and asked them about the meals. They went to Sobha Rams house, out of these
four persons three were having arms and accused Taj was bearing mask on his head
and face. Militants took four persons namely Hans Raj, Rajinder Kumar, Sobha
Ram and Munshi Ram inside the room. Accused Mohammad Taj called Rajinder
Kumar. They bolted the room from inside. One militant asked them and the children
to remain near the kitchen. They tied the hands of the aforesaid five persons one of
the militants came outside and asked for axe and sickles and brought out two sickles
from the cowshed. They were gheored by one militant and other three militants slit
the throats of aforesaid five persons. Taj was also in the group of those three
militants who murdered the aforesaid five persons. Accused Taj was bearing mask
on his head and face. However, she easily identified him by his voice.
PW No. 5 Shanti Devi:- has deposed that she knows the accused present in the
court. Prior to one and a half year at about 7.00 pm she was cooking meals when
four persons entered into their house, one of them was Taj. She does not know the
other three persons. Accused Altaf was not present on spot. They were all armed.
They forcibly entered into their house and took her husband and son, Munshi Ram,
Hans Raj, Rajinder Kumar inside the room and they closed the room. One person
who was having long hair came outside and took a sickle with him and killed all
those persons who were taken inside. Thereafter accused locked them in another
room. In cross examination she has deposed that accused were not bearing veils.
They have not seen who was murdered by whom.

PW No. 7 Krishan Lal:- has deposed that he came on spot after deceased were
murdered by slitting of throat. He admitted the contents of seizure memos of dead
bodies, samples of soil, clothes of deceased as true and correct and exhibited as
EXPW7 to EXPW7/Q. He has not admitted the contents of seizure memo relating
to seizure of clothes of accused Mohammad Taj. He admitted the seizure of one
sickle-EXPW7/10. In cross examination he has deposed that he was not present in
the house on the date of occurrence and does not know who murdered the deceased.
PW 9 Munshi Ram is not witness to occurrence. However, he deposed that he came
on spot next day. Sickle was seized on spot in his presence, admitted the signatures
on EXPW7/A, EXPW7/L to EXPW7/P.

PW 10 Mohammad Rafiq: has deposed that he is a chowkidar of village Rajnagar
Budhal. Last year in the month of October, militants murdered 10 people belonging
to the family of Munshi Ram and Kartar Singh. Police came on spot and seized the
dead bodies. Weapon of offence i.e. one sickle having wooden handle was seized,
EXPW7/10 was prepared. He identified the sickle shown to him in the open court
and came to be marked as R. In cross examination he has deposed that documents
i.e. seizure memos prepared were blank and his signatures were taken in one go in
Police Station. Being chowkidar of village he has knowledge that militants are
involved in the killings of the said persons and not the accused present in the court.
PW 11 Mohammad Iqbal:- has deposed that he has no knowledge about the
occurrence and came to be declared hostile. PP was permitted to cross-examine
him. On cross examination he has deposed that in the intervening night of 5/6th
October, 2005 he was present in his house. It is wrong that in next morning three
militants including accused Altaf entered into his house and demanded meals by
threatening.

PW No. 12 Mohammad Bashir:- has deposed that he has no knowledge about the
occurrence and came to be declared hostile. PP was permitted to cross-examine
him. On cross-examination PP was not in a position to extract any incriminating
material against the accused. Virtually he has deposed nothing against the accused.
PW No. 13 Mohammad Tariq:- has deposed that he has no knowledge about the
occurrence, the witness was declared hostile and PP was permitted to cross-examine
him. During cross-examination he has deposed nothing against the accused.
PW No. 14 Constable Ramesh Kumar:- has deposed that he is not knowing the
accused present in the court. In the month of October, 2005 he was posted at Police
Station Budhal, he took the sealed packets as per the directions of the Investigating
Officer to FSL Jammu.

PW No. 15 Dr. Mohammad Ashraf:- has deposed as under:-

That on 10.10.2005 I conducted the post mortem on the dead body of
Munshi Ram S/o Nihal Chand R/o Rajnagar Mohra Dhar, Budhal, Rajouri at 1 PM
identified by Babu Ram S/o Karam Chand R/o Rajnagar and Munshi Ram S/o
Karam Chand R/o Rajnagar Budhal brought by ASI Mohammad Bashir P/s Budhal.
On examination and during autopsy, I found the following injuries:

1. Big incised wound over anterior aspect of neck just below the hyoid bone with
injuries over Oesophagus, trachea and both sides of large vessels and vagus
nervous. In my opinion after conducting the autopsy of the deceased the case of
death is irreversible hemorrhage shock due to injuries. The postmortem report on
the file is in my hand writing and bears my seal and signature. The contents are
correct. It is exhibited as EXPW-15/1.

On the same day, I also conducted the postmortem on the dead body of
Rajinder Kumar son of Munshi Ram R/o Rajnagar Mohra Dhar, Budhal Rajouri
identified by Babu Ram S/o Karam Chand R/o Rajnagar Budhal and Munshi Ram
S/o Karam Chand, Rajnagar Budhal, brought by ASI Mohammad Bashir P/s
Budhal.

On examination and during autopsy, the following injuries were found:-

1. Big incised wound over anterior aspect of neck just below the hyoid bone
with injuries over Oesophagus, trachea ands both sides of large vessels and vagus
nervous. In my opinion after conducting the autopsy of the deceased the cause of
death is irreversible hemorrhage shock due to injuries. The postmortem report on
the file is in my hand writing and bears my seal and signature. The contents are
correct. It is exhibited as EXPW-15/2.

On the same day, I conducted the postmortem of Hans Raj S/o Munshi Ram
R/o Rajnagar Mohra Dhar Budhal, Rajouri, identified by Babu Ram S/o Karam
Chand, R/o Rajnagar Budhal and Munshi Ram S/o Karam Chand R/o Rajnagar
Budhal, brought by ASI Mohammad Bashir P/s Budhal.

On examination and during autopsy, I found the following injuries:

1. Big incised wound over anterior aspect of neck just below the hyoid bone
with injuries over Oesophagus, trachea ands both sides of large vessels and vagus
nervous. In my opinion after conducting the autopsy of the deceased the cause of
death is irreversible hemorrhage shock due to injuries. The certificate placed on the
file is in my hand writing and bears my seal and signature. The contents are correct.
It is exhibited as EXPW-15/3.

On the same day, I also conducted the postmortem of Suba Ram S/o Karam
Chand R/o Rajnagar Mohra Dhar, Budhal, Rajouri, identified by Babu Ram S/o
Karam Chand R/o Rajnagar, Budhal and Munshi Ram S/o Karam Chand R/o
Rajnagar, Budhal, brought by ASI Mohammad Bashir P/S Budhal.

On examination and during autopsy I have found the following injuries:

1. Big incised wound over anterior aspect of neck just below the hyoid bone
with injuries over Oesophagus, trachea ands both sides of large vessels and vagus
nervous. In my opinion after conducting the autopsy of the deceased the cause of
death is irreversible hemorrhage shock due to injuries. The postmortem report on
the file is in my hand writing and bears my seal and signature. The contents are
correct. It is exhibited as EXPW-15/4.

On the same day, I have also conducted the autopsy of Suresh Kumar S/o
Soba Ram R/o Rajnagar Mohra Dhar, Budhal, Rajouri, identified by Babu Ram S/o
Karam Chand R/o Rajnagar, Budhal and Munshi Ram S/o Karam Chand R/o
Rajnagar, Budhal, brought by ASI Mohammad Bashir P/S Budhal.

On examination and during autopsy I found the following injuries:

1. Big incised wound over anterior aspect of neck just below the hyoid bone
with injuries over Oesophagus, trachea ands both sides of large vessels and vagus
nervous. In my opinion after conducting the autopsy of the deceased the cause of
death is irreversible hemorrhage shock due to injuries. The postmortem report on
the file is in my hand writing and bears my seal and signature. The contents are
correct. It is exhibited as EXPW-15/5.

On cross examination, no question was put to the witness by the Ld counsel
for accused, although opportunity was granted.
Prosecution has not examined PWs 6, 8, 16, 17, 18 and 19 who are
important and material witnesses.

Neither the names of FSL experts are figuring in the witness calendar nor
examined by the prosecution as witness(es).

According to the prosecution story appellant Mohammad Taj and Altaf
Hussain had hatched a conspiracy with other three accused-three militants and
Investigating Officer found them involved in the commission of offence punishable
under Section 302 read with 120-B, RPC. Accused Altaf Hussain came to be
acquitted and State has not questioned the same, thus the acquittal of Altaf Hussain
has attained finality. In this background the question is whether the conviction
recorded and sentence awarded is legally tenable?

We are of the considered view that the entire case of the prosecution is
shrouded in doubts and the very foundation of the case i.e hatching of criminal
conspiracy by Mohammad Taj and Altaf Hussain has not been proved by the
prosecution for the following reasons:-

CRIMINAL CONSPIRACY:-

The statements of PWs 3, 4, 5 and 10 are relevant. None of them have said
about hatching of conspiracy. Neither there is direct evidence nor circumstantial
evidence on the file. The story of the prosecution is that accused Altaf Hussain
accompanied three militants at the first instance i.e. on 4th and 5th of October and
thereafter on 5th and 6th of October, accused Mohammad Taj met them, but failed to
prove. PW Mohammad Rafiq has deposed that only militants were involved in the
commission of offences and not the accused Mohammad Taj and Altaf Hussain
present in the court. Altaf Hussain accused stands acquitted and appellant has not
been convicted by the trial court for the commission of offence punishable under
Section 120-B RPC and the State has not questioned the same.

It is apt to reproduce para 57 of the judgment in case Musheer Khan vs State
of Madhya Pradesh, 2010 AIR SCW 996.

57. As a result of acquittal of A-1, A-2, A-3 and A-6, the conspiracy theory
of the prosecution in this case fails. A substantial part of the prosecution
case has not been accepted on valid grounds either by the High Court or by
this Court. Thus, a very vital part of the prosecution case is finally knocked
off. As the prosecution fails to prove its case of conspiracy, the motive angle
behind the alleged crime committed by A-4 and A-5 disappears. The
prosecution case is that A-4 and A-5 are hired criminals and were engaged
on payment by A-1, A-2, A-3 and A-6 for killing the deceased. The acquittal
of A-1, A-2, A-3 and A-6 which is upheld by this Court casts a serious
doubt on the entire prosecution and its case against A-4 and A-5 suffers a
serious setback.
Even otherwise prosecution has failed to bring charge of conspiracy home to
appellant Mohammad Taj. Apex Court in the cases titled as B. H. Narasimha Rao
versus Government of Andhra Pradesh reported as AIR 1996 SC 64 Para 4, Hardeo
Singh versus State of Bihar and others reported as AIR 2000 SC 2245, Para 10,
State of Kerala versus P. Sugathan and another reported as AIR 2000 SC 3323 Para
17, Saju versus State of Kerala reported as AIR 2001 SC 175 Para 16, Hira Lal Hari
Lal Bhagwati versus C.B.I. New Delhi reported as AIR 2003 SC 2545, Para 37,
Ram Narain Poply versus Central Bureau of Investigation reported as AIR 2003 SC,
2748 Paras 345 and 349 has laid down the test. It is apt to reproduce Para 345 of
AIR 2003 SC 2748 herein:-

345. No doubt in the case of conspiracy there cannot be any direct
evidence. The ingredients of offence are that there should be an agreement
between persons who are alleged to conspire and the said agreement should
be for doing an illegal act or for doing illegal means an act which itself may
not be illegal. Therefore, the essence of criminal conspiracy is an agreement
to do an illegal act and such an agreement can be proved either by direct
evidence or by circumstantial evidence or by both, and it is a matter of
common experience that direct evidence to prove conspiracy is rarely
available. Therefore, the circumstances proved before, during and after the
occurrence have to be considered to decide about the complicity of the
accused.

It is also profitable to reproduce Para 10 of AIR 2000 SC 2245 :-
10. . As a matter of fact some connecting link or connecting
factor somewhere would be enough for framing of charge since framing of
charge and to establish the charge of conspiracy cannot possibly be placed at
par: To establish the charge of conspiracy, there is required cogent evidence
of meeting of two minds in the matter of commission of an offence-in the
absence of which the charge cannot be sustained-.

(Para 37 of AIR 2003 SC 2545)
CONTRADICTIONS:-

The Investigating Officer came to the conclusion that Altaf Hussain and
Mohammad Taj were not directly involved in the commission of offence punishable
under Section 302 RPC but were involved with the aid of Section 120-B RPC and
accordingly submitted the final report in terms of Section 173 Cr.P.C. But despite
of that trial court has convicted the appellant Mohammad Taj for the commission of
offence punishable under Section 302 RPC holding that direct evidence was
available. Amro Devi, Jatti Devi and Shanti Devi, PWs 3, 4 and 5 respectively are
the only eye witnesses and their evidence is contradictory on material particulars.
Amro Devi and Jatti Devi have deposed that Mohammad Taj was bearing mask/
veil on his head and face while as three militants were not bearing mask/ veil.
Shanti Devi has deposed that all the accused were without masks; now whom to
believe? Whether the statement of PW Shanti Devi is correct or PW Amro Devi is
correct. PW Shanti Devi has specifically stated that accused Altaf Hussain was not
present on spot. PW Jatti Devi and Amro Devi have said nothing on this count; PW
10 Mohammad Rafiq has deposed that Mohammad Taj and Altaf Hussain were not
involved in the commission of offence and even he was not declared hostile by the
prosecution. His statement gets corroboration by the acquittal of Altaf Hussain and
cannot be brushed aside in the given circumstances. The Apex Court in the cases
titled Harkirat Singh versus State of Punjab reported as AIR 1997 SC 3231 Para 3,
Kalyan and others versus State of U.P. 2001 Cr.L.J 4677 Para 19, Krishna Mochi
and others versus State of Bihar AIR 2002 SC 1965, Para 94, State of U.P. versus
Bhagwant and others AIR 2003 SC 2293 Para 7, State of Madhya Pradesh versus
Chamru @ Bhagwandas etc. etc. 2007 AIR SCW 4260 Para 10 has laid down tests.
It is apt to reproduce Para 3 of AIR 1997 SC 3231 herein:-

3. Having regard to the facts that except the evidence of the
two eye-witnesses there is no other legal evidence to connect the appellant
with the offences for which he has been found guilty and that in view of the
material contradictions the evidence of the two eye-witnesses cannot be
safely relied upon the appellant is entitled to the benefit of doubt. We,
therefore, allow this appeal and set aside the order of conviction and
sentence recorded against the appellant. The appellant, who is on bail, is
discharged from his bail bonds.

WEAPON OF OFFENCE.

The case of the prosecution is that accused used weapon of offence i.e.
sickle while as PWs 3, 4 and 5 have deposed that two sickles were taken by one
militant from the cowshed and used for the commission of offence. If the statements
of the said witnesses are to be believed then the prosecution story is not correct and
true.

The question is who used the seized weapon and what about second sickle?
There is evidence on the file that three militants and appellant (whose identity has
not been established) were on spot out of the three, one militant came out, took two
sickles and used the same. None of the witnesses have said that Taj was a militant.
There is no evidence on the file that Taj has used the sickle(s). All these doubts
would have been cleared by the Investigating Officer who has not been examined.
The fingerprints of Mohammad Taj have also not been taken in order to ascertain
whether he has used the seized sickle. The seized sickle has not been put to doctor
in order to prove that the injuries sustained by the deceased were caused by the said
sickle. Even that question has not been put to the doctor.

Prosecution has neither arrayed the expert of FSL in the witness calendar as
a witness nor has been produced before the court in order to prove that the seized
sickle was the same which was produced before the court and was having the blood
stains. Virtually the prosecution has failed to prove the FSL report. It is apt to
reproduce relevant portion of Para 7 and 8 of the Apex Court judgment reported as
AIR 2002 SC 2707 titled Mathura Yadav alias Mathura Mahato and others versus
State of Bihar:-

7. We notice that the Courts below have implicitly accepted the
evidence of PWs, 1, 2, 4 and 5 without properly considering the deficiencies
and the contradictions in their evidence. Of course, in regard to the nature of
the attack, the injuries suffered by the deceased and the individual overt act
of the accused person, there is a possibility of some discrepancy which
should not in the normal course affect the prosecution case.It is also
relevant to notice the fact that the seizure of the blood-stained mud and grass
is not established beyond reasonable doubt and there has been no recovery
of any weapon from the accused..

8. In the above doubtful circumstances, we consider it unsafe to
place reliance on the evidence produced by the prosecution to hold the
appellants guilty for offence charged against them.
NEW STORY
Keeping in view the discussion made hereinabove the witnesses have put a
new story different than the one given in the final report. Thus appellant is entitled
to benefit of doubt. It is apt to reproduce Para 175 of the Apex Court judgment
reported as AIR 2003 SC 2748 titled as Ram Narain Poply versus Central Bureau of
Investigation:-

I would also state that it is not properly understood by the
prosecuting agency that by introducing or adding a new story in a
criminal prosecution, in most of the cases, it adversely affects or
destroys the prosecution case. Not only it creates doubts with regard
to that part of the prosecution version but on occasions casts doubt
about the motive. Result is under our criminal jurisprudence, benefit
of doubt may go to the accused.

IDENTITY OF THE ACCUSED
The prosecution has failed to prove the identity of Mohammad Taj. As
discussed hereinabove one version is that he was wearing veil but other is he was
not wearing veil. Amro Devi has not disclosed that how she identified appellant
despite wearing mask. Mst. Jatti has said that she identified him by voice. The
statements of PWs 3, 4 and 5 are contradictory on material particulars; they are
interested and close relatives of deceased. Their evidence is to be scrutinized very
carefully and cautiously. The Apex Court in case titled State of Bihar versus
Brahmdeo Prasad & Ors reported as AIR 1980 SLJ SC 9 has held that if the identity
of the accused is doubtful, accused is entitled to acquittal.

In the given circumstances the identification parade was a must which has
not been conducted. PW Rafiq has categorically said that Altaf Hussain and
Mohammad Taj were not there. Thus it can be safely held that identity of
Mohammad Taj has not been established.

MATERIAL WITNESSES WITHHELD
The prosecution has withheld the material prosecution witnesses i.e. PWs 6,
8, 16, 17, 18 and 19. PW 6 Babu Ram is a witness of circumstances, seizure memo
and Fard Superdnama; PW 8 Jagan Nath is a witness of circumstances and seizure
of dead bodies; PW 16 is a Naib Tehsildar, in his presence the seized pockets were
resealed; PW 17 Mohammad Bashir is the Investigating Officer, who is a star
witness; PW 18 Shri Veer Singh is the SHO who has recorded satisfaction that the
investigation conducted by the Investigating officer was to his satisfaction; PW 19
Kewal Krishan, Inspector, has prepared the Final report in terms of Section 173
Cr.P.C. In the given circumstances adverse inference is to be drawn against the
prosecution. Apex Court has laid down the same principle in cases titled Bahadur
Naik versus State of Bihar reported as AIR 2000, SC 1582, Para 2, and Raj Kishore
Jha versus State of Bihar and others, AIR 2003, SC 4665 Para 11. It is apt to
reproduce said Paras herein:-

2. The appellant has not been able to shake the credibility of the eye-
witness. No material contradiction in the case of the prosecution has been
shown to us. Under facts and circumstances, the non-examination of the
Investigating Officer as a witness is of no consequence. It has not been
shown what prejudice has been caused to the appellant by such non-
examination.

(AIR 2003 SC 4664 Para 11)
Mere non-examination of Investigating Officer does not in every
case cause prejudice to the accused or affects the creditability of the
prosecution version. In Ram Dev and another v. State of U.P (1995 Supp (1)
SCC 547), it was noted that non-examination of the Investigating Officer
does not in any way create any dent in the prosecution case much less affect
the credibility of otherwise trustworthy testimony of the eye-witnesses. It
was, however, indicated that it is always desirable for the prosecution to
examine the Investigating Officer. In the present case after examination-in-
chief and partial cross-examination, the Investigating Officer had died.
Therefore, this cannot be a case which can be stated to have caused any
prejudice to the accused on account of Investigating Officers non-
examination. The prosecution cannot be attributed with any lapse or ulterior
motives in such circumstances. In Behari Prasad and others, v. State of
Bihar (1996 (2) SCC 317) it was held that case of prejudice likely to the
suffered mostly depends upon facts of each case and no universal straight-
jacket formula should be laid down that non-examination of Investigating
Officer per se vitiates the criminal trial. The said view has been found
echoed in Ambika Prasad and another v. State (Delhi Administration) (200
(2) SCC 646), Bahadur Naik v. State of Bihar (2000 (9) SCC 153) and Ram
Gulam Chaudhury and others v. State of Bihar (JT
2001 (8) SC 110).
Having glance of the above discussion we are of the view that non
examination of all material witnesses particularly the Investigating Officer, has
seriously caused prejudice to the appellant. The prosecution story is that three
militants have committed offence punishable under Section 302, 120-B, 121, 122 of
RPC and 4/27 of Arms Act, while as accused Altaf Hussain and Mohammad Taj
have committed offence punishable under Section 302 and 120-B of RPC. Accused
Altaf Hussain has been acquitted by the trial court as discussed hereinabove but
Mohammad Taj has been convicted though prosecution has failed to prove charge
for the commission of offence punishable under Section 302, 120-B RPC. There is
nothing on the file to show, as discussed hereinabove, that Mohammad Taj has used
the seized weapon and killed any person. Witnesses have deposed that they have
not seen who was murdered by whom. Then how appellant came to be convicted is
not forthcoming.

In the given circumstances we would have directed retrial of the case, but
handicap is the clean acquittal of Altaf Hussain, accused and acquittal of the
appellant for the commission of offence punishable under Section 120-B RPC
which has attained finality as discussed hereinabove. Apex court in case reported as
AIR 1989 131 Para 10, observed as under:-

10. Lastly, we are constrained to observe that the High Court has not
examined the merits of the case at all. If it had done so, it could not have
come to the conclusion that there was any material defect or omission in the
framing of the charges or giving the particulars thereof or any failure of
justice was occasioned thereby. It failed to appreciate that in an appeal by
the respondents under S. 374(2) of the Code, the order of acquittal passed by
the learned Additional Sessions Judge as against the 26 other accused could
not be interfered with. The High Court also failed to appreciate that there
cannot be a piecemeal trial. The retrial directed by the High Court must
necessarily revise the prosecution and must result in a trial de novo against
the 42 accused. The 26 other accused acquitted by the learned Additional
Sessions Judge were not impleaded as parties to the appeals before the High
Court. In the absence of an appeal preferred by the State Government
against their acquittal, the High Court could not under S. 386(b) on an
appeal by the respondents against their conviction alter the acquittal nor can
there be a splitting up of the trial. See State of Karnataka v. Narsa Reddy,
(1987) 4 SCC 170: (AIR 1987 SC 2104).

The Apex Court has laid down the same principle in case reported as AIR
1962, SC 240 Para 9.

Having glance of the above discussion, we are of the considered view that
the prosecution has failed to bring home guilt of appellant-accused Mohammad Taj
beyond any shadow of reasonable doubt and also has failed to prove his identity.
Therefore, this appeal succeeds and is accordingly allowed. Impugned orders of
conviction and sentence are set-aside and accused Mohammad Taj is acquitted of
the charges while giving him the benefit of doubt.

Criminal reference No. 19/2009 is answered accordingly.

         (Mansoor Ahmad Mir)    (Virender Singh)        
                                     Judge                          Judge
Jammu  
16.11.2010.
Amjad lone 



Union Of India & Ors vs Harish Chander on 10 November, 2010

Jammu High Court
Union Of India & Ors vs Harish Chander on 10 November, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
LPASW No. 254 OF 2002    
Union of India & ors
Petitioners
Harish Chander 
Respondent  
!Mr. N. A. Choudhary, CGSC  
^Mr. R.K. Gupta, Advocate 

Honble Mr. Justice Dr. Aftab H. Saikia, Chief Justice
Honble Mr. Justice Muzaffar Hussain Attar, Judge
Date: 10.11.2010 
:J U D G M E N T :

Dr. Saikia, CJ:

Heard Mr. N. A. Choudhary, learned Central Government Standing
Counsel, appearing for the appellants as well as Mr. R. K. Gupta, learned counsel
appearing for the sole respondent.

2. The correctness and legality of the order dated 16.08.2001 passed by Writ
Court in SWP no. 2460/1999, whereby the petitioners prayer for regularization in
the post he was claiming to work as Casual Labour since 1989 till 1999, was
acceded to by the Writ Court, with a direction to the respondents to give benefit to
the writ petitioner taking note of the Casual Labourers (Grant of Temporary Status
and Regularization) Scheme of Government of India, 1993, (for short the
Scheme), and the law laid down by the Honble Supreme Court, has been assailed
in this Letters Patent Appeal.

3. During the course of hearing, Mr. Gupta, learned counsel for the
respondent- writ petitioner has fairly submitted that he does not want to press the
issue as regards the applicability of Section 25 (H) of the Industrial Dispute Act, as
observed by the Writ Court, which has also been assailed by Mr. Choudhary,
learned counsel for the Union of India.

4. In consideration of above submission, we now take up the limited issue as to
whether the Scheme, formulated by the appellants in the year 1993, would be
applicable to the present case.

5. The case of the respondent before the Writ Court, as the writ petitioner, was
that he was appointed as casual labourer in the year 1989. Since then he had been
working in the same capacity till 1999 and had completed ten years of continuous
service in the capacity of a casual labour in the department concerned. He has
sought for writ of mandamus commanding the respondents to regularise his service
as Class IV employee in the Department.

6. Appellants, as respondents in the Writ Court, while refuting the said averments
and contentions made in the writ petition, have taken the stand by filling an
affidavit that petitioner was never appointed as casual labourer. Rather he was
temporarily engaged on oral understanding only for some days in a month on
contractual basis and after the month of September 1999, he was disengaged as no
work was available for the petitioner. As such, it has been averred that petitioner is
not entitled for his regularization.

7. Having given our due consideration to the arguments so advanced on behalf of
learned counsel for the parties and also upon careful consideration of the impugned
judgment and order, it appears that respondent had been working in the
establishment of the appellants since 1989 upto 1999. However according to the
appellants, he was engaged only on temporary basis of oral arrangement. It is the
admitted position that the aforesaid Scheme, came into force with effect from
01.09.1993 and the respondent had been admittedly working till 1999 within the
operational period of the Scheme.

8. Even though, it is claimed by the appellants that respondent had been
engaged on oral arrangement, but, on pointed queries, it could not be brought to
the notice of the Court as to how a government department can utilize services
of a person without issuing a written order. The business in government
departments is not being conducted orally but is being transacted through
written orders /communications. As it is admitted by learned counsel for
appellants that respondent-writ petitioner was in their temporary engagement,
though on the strength of oral agreement, for the purpose of this case, it can be
easily said that respondent-writ petitioner was in the service of appellants.

9. The Scheme aforementioned has come into force on 1st of Sept. 1993 and
on that date the respondent-writ petitioner was in the service of the appellants. It
is the duty of the Court of law to ensure that a person, who is in a lower
bargaining position, is not subjected to any kind of exploitation by his
employer. The appellants, in view of the mandate contained in the Constitution
of India, are duty bound to deal with the citizens in a manner so as to achieve
the purpose underlying the constitutional provisions as contained in Articles
14, 16 and 21 of the Constitution of India.

9. This Court, being a constitutional Institution is, in law, the sentinel and
repository of the rights of the people. When it is brought to the notice of the
Court that injustice is meted out, a duty is cast on it to undo the same.

10. The appellants, Union of India, and its authorities, in view of facts which
have come on record, are duty bound to address to the grievance of respondent,
are obliged to accord consideration to his claim in terms of the Scheme.

11. The position which has emerged in this case calls for issuance of
appropriate directions.

12. The appellants are, accordingly, directed to consider the case of the
respondent-writ petitioner in terms of the aforesaid Scheme. The process of such
consideration shall be undertaken and concluded within a period three months from
today.

13. The judgment and order passed by learned Single Judge on 16.08.2001
stands modified accordingly.

14. This disposes of the Letters Patent Appeal along with all connected CMP(s).

              (Muzaffar Hussain Attar)    (Dr. Aftab H. Saikia)                                 
Judge                                    Chief Justice
Jammu:  
10.11.2010 
Sunita, JS.



Mariyam Akhter & Anr vs Wazir Mohd on 14 October, 2010

Jammu High Court
Mariyam Akhter & Anr vs Wazir Mohd on 14 October, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
Cr Rev No. 51 OF 2005 AND Cr M P No. 15 OF 2005    
Mariyam Akhter & anr 
Petitioners
Wazir Mohd  
Respondent  
!Mr. Nirmal Kotwal, Advocate
^Mr. S. S. Ahmed, Advocate 

Honble Mr. Justice Dr. Aftab H. Saikia, Chief Justice
Date: 14.10.2010 
:J U D G M E N T :

Introduction:

Before delving upon to resolve the issue raised in the instant revision petition, it is
considered that the judgment will be benefited if the status of Muslim women, vis-
`-vis, the scope and effect of valid divorce as mandated under the Mohammadan
law is highlighted. The same is, accordingly, discussed hereinunder.

During the early period of Islam, Muslim women were held in high esteem and they
occupied exalted positions and in the days of Holy Prophet Mohammad, a Muslim
woman was given in the society a position of equality with the opposite gender.
Equal treatments were meted out to the women. The ladies of the family of the
Prophet were noted for their learning, their virtue, courage and their strength of
character. (See S.A.Kaders Muslim Law of Marriage and Succession in India, p.
80-81)

Even, in the terms of modern concept of giving gender justice, which is essential,
integral and inseparable part of human rights, women, who form one half of the
human race, have every right to claim equality before law and equal protection of
laws as envisaged under Article 14 of the Constitution of India.

Therefore, when women have the right to marry, they have also the right to be
maintained by their husbands. This right has been emphasized in Article 6(1) of
Universal Declaration of Human Rights adopted and proclaimed by the General
Assembly of the United Nations on 10th December 1948 declares thus:-
Men and women, of full age, without any limitation due to race, nationality or
religion, have the right to marry and to found a family. They are entitled to equal
rights as to marriage, during marriage and at its dissolution.

5. The Verse 35 Sura Al-Ahzab (35) of the Holy Quran would clearly show that
how the women were treated as equals with men. The Verse 35 reads thus-

For Muslim men and women,
For believing men and women,
For devout men and women,
For true men and women,
For men and women who are
Patient and constant, for men
And women who humble themselves,
For men and women who give
In charity, for men and women
Who fast
For men and women who
Guard their chastity, and
For men and women who
Engage much in Allahs remembrance
For them has Allah prepared
Forgiveness and great reward.

However, in post-Islamic period, it is seen that the degradation and degeneration set
in, in the status of women. In male-dominated world, Muslim women were pushed
to the whims and fancies of the men- folk and this is reflected primarily in the case
of dissolution of marriage, i.e., divorce, which is known as Talaq in Arabic
meaning. The doctrine of talaq-ul-bidet (triple talaq-one form of talaq) was evolved
as a convenient divorce to dissolve the marriage at the will and whims of the
Muslim husband.

None the less, it is incumbent on the part of Muslim husband to maintain his wife so
long as she is loyal and faithful to him and obeys his reasonable orders. But once
she is divorced, she is entitled to maintenance as per law being in force in India, i.e.,
Muslim Women (Protection of Rights on Divorce) Act, 1986.

In the above background, it is to be considered that under what circumstances a
Muslim married woman can be divorced and what are the essential conditions for
causing divorce and procedure to be followed to effect a valid divorce.

The instant revision petition witnesses the deliberation of these fundamental issues
pertaining to the validity of the pronouncement of the divorce to a Muslim woman,
vis-`-vis, her entitlement to maintenance, as married woman. Maintenance
includes food, raiment and lodging (Mulla-Mohammedan Law, para-369)

Factual Matrix in brief outlined:

The petitioner herein was married to the respondent on 12.5.1991 and the marriage
between them was solemnized according to Muslim rites (Sharah Mohmdi) at Incha
Mohra Kula Tehsil Ramnagar. After marriage, both of them lived like husband and
wife at the respondents residence. As luck would have it, the petitioners marriage
life experienced turbulence. She was meted out ill-treatment by the respondent. The
respondent used to beat her and made false allegations of unchastity on her.

Eventually, she was driven out of her husbands house five and half months after
the marriage and, on the relevant time, she was pregnant. The respondent also
snatched her ornaments and clothes and did not care to look after her till date and
she was compelled to stay at her parental house, since she was turned out from her
matrimonial house.

Meanwhile, she had born the respondent a female child. Even after the birth of their
daughter, the respondent refused to pay any maintenance either to the petitioner or
to her baby child.

Finding no other alternative, the petitioner initiated proceeding under Section 488
of the Code of Criminal Procedure Svt. 1989 (for short Cr. P. C) for granting
maintenance allowance of Rs. 1000/- per month to her and Rs. 500/- per month to
her daughter against the respondent-husband before the Court of Sub-Judge(Judicial
Magistrate Ist Class), Ramnagar.

It is on record that on 22.6.1994, the respondent, on being noticed, appeared before
the Court and granted opportunities to file objections from 22.6.1994 to 24.9.1994.

On 17.10.1994, being an adjourned date, neither the respondent nor his engaged
counsel appeared in the Court and their absence resulted in ex-parte proceedings
against the respondent.

Meanwhile, the respondent moved a revision petition before this High Court for
transfer of the present petition, but the same was dismissed by the High Court on
6.5.1995 with a direction to the Court of Sub-Judge (Judicial Magistrate Ist Class),
Ramnagar to decide the claim of the petitioner within a period of three months,
directing the parties to appear before the Court on 29.5.1995.

But on 29.5.1995 also, neither the respondent nor his counsel appeared before the
Court despite directions given by the High Court and, ultimately, the matter was
fixed on 2.6.1995, on which date also the respondent preferred not to appear in
person or through counsel.

Finally, the matter was heard on 24.6.1995 and after having considered the evidence
and arguments on behalf of the petitioner, maintenance allowance of Rs. 350/- per
month and Rs. 250/- per month were granted to the petitioner as well as petitioner
no. 2, daughter of the petitioner respectively.

Being dis-satisfied with the granting of such maintenance, respondent-husband
moved the Court of Sessions, Judge, Udhampur by filing a revision petition being
no. 3/1996, which was dismissed by the learned Judge by his order dated
19.12.1997.

It is pertinent to mention herein that meanwhile, the respondent has contracted
second marriage and has been living with his second wife and a daughter has been
born to his second wife from him.

Be it also noted herein that the respondent, on 8.8.1995, made an application before
the Magistrate for setting aside the ex-parte order of maintenance granted by order
dated 24.6.1995 in file no. 17/Misc of 1995. The application for setting aside the
ex-parte order of maintenance is extracted below:

The respondent applicant most respectfully submits this application as under:-
That the above titled proceedings were pending in this court against the applicant
respondent for maintenance.

That the applicant had filed a Criminal Transfer application No. 66 of 1994 in the
High Court to transfer the said proceedings to any court at Jammu because the
applicant respondent apprehended harm at the hands of the relatives of the
petitioner in this above titled maintenance application.
That the Criminal Transfer application of the applicant respondent was dismissed
by the Honble Court on 6th May, 1995. The applicant was not personally present in
the Honble High Court when the order was made. A photo copy of the order is
filed and marked Annexure-1.

That the applicant received information by post from the advocate vide his letter
dated 16th June, 1995 photo copy whereof isw filed and marked Annexure-2.
That therefore the applicant did not know that the applicant had to appear in this
court on 29th of May, 1995 and was, therefore, not present on that day in this court.
That it appears that the advocate of the applicant did not take steps to inform the
applicant respondent in the above proceedings because his clerk was absent and he
was busy. In any case, for the negligence of the advocate, the applicant should not
suffer because the applicant had properly instructed and engaged the said advocate.
That the absence of the applicant respondent was, therefore, for the reasons beyond
the control of the applicant respondent who all along remained under the impression
that the transfer matter is still pending in the High Court. The absence of the
applicant respondent was, therefore, not deliberate and the applicant had,
therefore, not been absent wilfully or deliberately.

That, however, it appears that the exparte proceedings were ordered against the
applicant herein on 2nd June, 1995 and exparte order directing the payment of
maintenance was made on 24th of June, 1995.

That the applicant Marriyam Akhtar in the absence of the applicant respondent
concealed the fact that she had been divorced vide divorce deed dated 18.5.1992. A
legible copy of the divorce deed is also filed herewith for ready reference.
That in this court Shri Sudesh Kumar Advocate represented the applicant
respondent. However, it appears that no notice was sent to him by this court after
the file was received from the Honble Court.

That all the proceedings under Sec. 488 Cr. P. C had to be conducted in the
presence of respondent. However, in this case the respondent has been proceeded
against exparte and as stated above the absence was neither wilful nor deliberate.

An affidavit duly sworn in is enclosed herewith in support of this application.

IN THE PREMISES
It is most respectfully prayed that your honour may be pleased to allow this
application and to set aside the exparte order dated 24.6.95 and to afford the
applicant an opportunity to appear and contest the application of the petitioner
referred above.

Sd/-

Applicant-respondent
through counsel
Dated 1.8.1995.

Having failed to get any relief against the order of granting of maintenance
allowance, the respondent preferred an application under Section 489 of the Cr. P.
C being file no. 19-A/Misc before the Judicial Magistrate Ist Class, Ramnagar for
cancellation of the Courts order dated 24.6.1995, which awarded monthly
maintenance allowance to the petitioner and her child, claiming that she was not
entitled for any maintenance for the reasons that:

the respondent divorced the petitioner through written divorce executed on
18.5.1992, which was duly communicated to her through registered post;
such divorce was admitted by the petitioner by executing an agreement on 4.1.1993;
and
the petitioner admitted voluntarily to be divorcee while making a statement before
the Tehsildar, Ramnagar in a proceeding for seeking Residents of Backward Area
Certificate for her.

The learned Magistrate by order dated 22.2.2002, having considered the statements
made in the application as well as upon hearing the parties, found that the petitioner
was divorced on 8.8.1995 or on 18.5.1992 as stated in para 9 of the application for
seeking to set aside the exparte order dated 24.6.1995, as quoted herein above at
paragraph 22 of the judgement and the Ruling that the respondent-husband had
unfettered power of divorce and, accordingly, it was held that the petitioner, being
the divorcee wife, should have no claim to maintenance after 8.8.1995. However,
according to Court, the child would continue to get the maintenance, as awarded.

The order dated 22.2.2002 was carried to the High Court by the petitioner in Cr.
Rev. no. 27/2002. This Court vide order dated 10.12.2002 refraining itself from
rendering any decision as to whether there was a valid divorce against the
petitioner, only dealt with the quantum of maintenance and modified the
maintenance allowance granted under order dated 22.2.2002 holding that the
daughter would be held entitled to interim maintenance at the rate of Rs. 1000/- per
month to the exclusion of the petitioner. It was further held as under:-
As to whether valid divorce or not, parties are left free to put this aspect
before the Court below. This issue would be settled and the parties can lead
evidence. Parties would appear before the trial Court on 24th of January, 2003.
Further maintenance would depend on the final verdict of the Court.

With the above directions, this Court remitted the matter back to the Court below.

The learned Magistrate on receipt of the order of the High Court and in compliance
of the directions to resolve the issue of divorce between the parties, proceeded to
decide the application and examined three witnesses adduced by the petitioner-
wife, when two witnesses were examined for the respondent-husband.
Having appreciated the evidence so recorded and also upon hearing the learned
counsel for the parties, learned Magistrate came to the conclusion that the
respondent-husband divorced his wife/ the petitioner in accordance with the
Mohammadan Law, and, as such, the petitioner is not entitled to claim maintenance
from the respondent being the divorcee wife. Accordingly, the application under
Section 489 Cr. P. C was disposed of, maintaining the modified order passed by the
High Court on 10.12.2002, as regard the maintenance allowance to petitioner no. 2,
their daughter

(C) Order under challenge:

Order dated 26.2.2005, as mentioned above, has been assailed by the petitioner
pleading that:

There is no valid divorce ever pronounced by the respondent against her;
The procedure of divorce, i.e., Talaq has not been strictly followed; and
Petitioner, being continued to be wife, is entitled to get the maintenance.

In consideration of the above, it is the case of the petitioner that the impugned order
is liable to be set aside and quashed.

(D) Arguments Against the impugned order:

Mr. Nirmal Kotwal, learned counsel representing the wife-petitioner has
vehemently contended that the learned Magistrate committed error both in law and
on facts in entertaining the application under Section 489 Cr. P. C. itself and
thereby disentitling the petitioner from getting maintenance. According to him, such
finding was legally incorrect, based on no evidence, and against the basic principles
of Muslim law.

Rejecting the divorce, at the very outset, the learned counsel has submitted that no
divorce was ever pronounced by the respondent to the petitioner at any point of
time. The divorce deed dated 18.5.1992 produced by the respondent and relied by
the Magistrate was never received by the petitioner and the same has already been
disputed and rejected by her. The finding of the learned Magistrate to the effect that
the divorce was pronounced by the husband much earlier before the maintenance
proceedings, i.e., the divorce was pronounced on 18.5.1992 and the petition for
maintenance was instituted on 4.11.1992, i.e., after six months, cannot be legally
accepted, for the simple reason that it is on the record that after institution of
petition for maintenance on 4.11.1992, due notices were sent to the respondent and
he, for the reasons best known to him, neither appeared nor filed any written
statement through which he could have informed the court the factum of divorce
against his wife. Instead, he preferred an application before the Honble High Court
for transfer of the case from Ramnagar to Jammu in Cr. Revision no. 63/1994 on
the ground that it was not convenient for him to go to Ramnagar and faced a threat
to his life from his wife/ the petitioner and the said application was rejected by the
High Court by order dated 6.5.1995. Conveniently the respondent did no mention or
divorce caused on 18.5.1992 in the said application so as to bring it to the
knowledge of the petitioner.

The submissions of the learned counsel is that the respondent having got ample
opportunities to file written statement, neither he appeared before the Court nor did
he file the written statement.

It is further contended that reliance on the cutting of the daily English newspaper
Kashmir Times as a proof of factum of divorce and its knowledge to the petitioner
by the court below is not tenable under law. The petitioner, being a lady from
Ramnagar, did not have any knowledge about such paper publication not being
prominently exhibited in the concerned newspaper which was not in wide
circulation in the area where the petitioner did reside and the same is clearly evident
from such publication itself. In a case of divorce, of present nature, such publication
is not acceptable under the law.

As regards the finding of the learned Magistrate pertaining to the admission made
before the Tehsildar, Ramnagar by the petitioner on her divorce, it is contended
that said admission is valid in law because the same was not made in any
proceedings in the Court of law and was not to be put any cross-examination. Even
the Tehsildar, before whom such statement was made, was not examined by the
respondent to prove the said factum. According to the learned counsel this is not
acceptable under the law of evidence. Mere making of such statement before a
Tehsildar in a matter of seeking Residence of Backward Area Certificate will not
go to show that the petitioner was a divorcee and thereby to make her
disentitlement from getting maintenance.

The last contention advanced on behalf of the petitioner is that the alleged divorce
was not pronounced in terms of the provisions of Muslim law based on Quranic
injunction and, as such, the instant divorce, genuineness of which has been strongly
objected and refuted by the petitioner, is not a divorce in the eye of law.
In order to bolster up his submission, Mr. Kotwal has relied on the following
judicial authorities of the Supreme Court and of this Court:-
Shamim Ara v. State of U. P. and anr (AIR 2002 SC 3551);

Manzoor Ahmad Khan v. Mst. Saja and ors (2003 (II) SLJ 619); and
Mst. Amina Banoo v. Abdul Majid Ganai (2005 (I) SLJ 341).

(E) Submission and contention in support of the impugned judgment:

supporting of the impugned judgment, Mr. S. S. Ahmed, learned counsel for the
respondent has forcefully argued that under the Muslim Law, right of pronouncing
divorce has been absolutely bestowed upon the husband who can only pronounce
the Talaq in any form as Mohammadan law does not prescribe any particular form
for causing divorce. A divorce can be effected either by orally by spoken word or
by written document. In the instant case, the petitioner was divorced by written
divorce deed on 18.5.1992, six months before the initiation of the maintenance
proceedings by the petitioner on 4.11.1992. Even thereafter also, divorce was
effected by an agreement executed by both the parties on 4.1.1993 and the
petitioner was very much aware of both the written documents, more particularly
agreement of 4.1.1993, where she was a party.

His further contention is that assuming, divorce was not effected by those above
mentioned documents, it is the petitioner, who herself admitted about her divorce
by making a statement in file no. 143/NB dated 28.7.1995, wherein her statement
was recorded on 21.12.1997 by the Tehsildar, Ramnagar, before whom she sought
for a Residence of Backward Area certificate, to the effect that she was a divorcee.
Her this statement itself was sufficient to prove that the petitioner was divorced by
the respondent.

To substantiate his submission, he has relied upon a decision of the Apex Court in a
case of Thiru John v. The Returning Officer and ors, reported as AIR 1977 SC
1724, wherein in paragraph 15, it was held that it was well settled that a party s
admission as defined in Sections 17 to 20 of the Evidence Act, 1872 (the Act)
fulfilling the requirements of Section 21, of the Act, was substantive evidence
proprio vigore. An admission, if clearly and unequivocally made was the best
evidence against the party making it and though not conclusive, shifted the onus on
to the maker on the principle that what a party himself admits to be true may
reasonably be presumed to be so and until the fact admitted was rebutted the fact
admitted must be taken to be established.

(F) Issues to be decided:

39. Having heard learned counsel for the parties at length as well as on
thorough scrutiny of the factual situation emerged from the arguments advanced on
behalf of the parties, the basic questions that have arisen for resolution in this case,
are:

Whether there had been a divorced duly effected under the Mohammadan law
against the petitioner.

Whether the divorce was proved.

(G) Tenets of Mohammadan Law on Divorce:

40. According to Mulla in his Principles of Mohammadan law (19th Edition) By
M. Hidayatullah and Arshad Hidayatullah, the contract of marriage under
Mohammadan law may be dissolved in any one of the following ways : (1) by the
husband at his will, without the intervention of a Court; (2) by mutual consent of
the husband and wife, without the intervention of a Court; (3) by a judicial decree at
the suit of the husband or wife. However, the wife cannot divorce herself from her
husband without his consent, except under a contract whether made before or after
marriage, but she may, in some cases, obtain a divorce by judicial decree( Section
307 page 258).

41. When the divorce proceeds from the husband, it is called talak; when it is
effected by mutual consent, it is called khula or mubaraat, according to the terms of
the contract between the parties.{ (Mullas Principles of Mohammadan Law
(supra) (Section 307) By M. Hidayatullah and Arshad Hidayatullah at page 258)}.

42. A talak may be effected (1) Orally (by spoken words) or (2) by a written
document called a talaknama. So far oral talak is concerned, no particular form of
words is prescribed for effecting a talak. If the words are express (saheeh) or well
understood as implying divorce, no proof of intention is required. If words are
ambiguous (kinayat), the intention must be proved. It is not necessary that talak
should be pronounced in presence of the wife or even addressed to her.

43. As regards talak in writing, talak can be effected by a written document
called talaknama. It is required that such type of deed may be executed in presence
of the kazi or of the wifes father or of the other witnesses. The deed is said to be in
the customary form if it is properly superscribed and addressed so as to show the
name of the writer and the person addressed. If it is in customary form it is called
manifest provided that it can be easily read and comprehended. If the deed is in
customary form and manifest the intention to divorce is presumed. Otherwise, the
intention to divorce must be proved. {Mullas Principles of Mohammadan Law
(supra) (Section 310 page 259)}.

44. There are two kinds of talaq as recognized under HanafIs Mohammedan
Law namely; (i) Talaq-us-sunnat and (ii) Talaq-ul-bidat or (iii) Talaq-ul-badai.
Talaq-us-sunnat is effected in accordance with the rules laid down in the traditions,
i.e., Prophet Sunnat headed down by him or by his principle disciples. On the other
hand, the talaq-ul-bidat is heretical or irregular mode of divorce which was
introduced in 2nd Century of Mohammedan era. In this kind of talaq, as a matter of
fact, there is capricious and irregular power of divorce ,which was, in the
beginning, left to the husband, was strongly disapproved by the Prophet.

45. Talaq-us-sunnat is either Talaq Ashan or Talaq Hasan. The mode of giving
this talaq may be discussed as under:-

(1) Talak ashan, which consists of a single pronouncement of divoce made during a
tuhr (period between menstruations) followed by abstinence from sexual
intercourse for the period of iddat.

(2). Talak hasan that consists of three pronouncements made during successive
tuhrs, no intercourse taking place during any of the three tuhrs. And

(3) Talak-ul bidaat or talak-i-badai which consists of three pronouncements made
during a single tuhr either in one sentence, e.g., I divorce thee thrice, – or in a
separate sentences, e.g., I divorce thee, I divorce thee, I divorce thee.

The above proposition of law as regards divorce or talaq primarily emerged from
the text of Holy Quran, which is the primary source of Muslim law on the
relationship between the husband and the wife as well as pronouncement of divorce
by the husband against the wife.

The mode and procedure to effect a valid divorce has been mandated in the Holy
Quran. The Holy Quran ordains in clear and un-equivocal terms for re-conciliation
to effect a valid divorce in Sura Nisa (4). In this regard Verses Nos. 128 to 130,
being relevant, may be quoted as under:-

128. If a wife fears
Cruelty or desertion
On her husbands part,
There is no blame on them
If they arrange
An amicable settlement
Between themselves;

And such settlement is based;
Even though mens souls
Are swayed by greed.

But if ye do good
And practice self-restraint,
Allah is well-acquainted
With all that ye do.

129. Ye are never able
To do justice
Between wives
Even if it is
Your ardent desire;

But turn not away
(From a woman) altogether,
So as to leave her
(as it were)
Hanging (in the air).

If ye come to a friendly
Understanding, and practice
Self-restraint, Allah is
Oft-forgiving,
Most merciful.

But if they separate
Allah will provide abundance
For each of them from His
All-reaching pounty;

For Allah is He
That careth for all
And is wise.

(see the Holy Quran English Translation of the
Meaning and the Commentary (Revised and Edited) by
the Presidency of Islamic Researchers, IFTA, Mushaf Al-Madinah).

48. Even recognition of the institution of marriage is manifest from the Quranic
Verses in Sura Nisa (4). In Verse No. 1 wherein, it is mandated as under:

1. O mankind ! fear
Your Guardian Lord,
Who created you
From a single Person,
Created, out of it,
His mate, and from them twain
Scattered (like seeds)
Countless men and women;-
Fear Allah, through Whom
Ye demand your mutual (rights),
And be heedful of the wombs
(That bore you): for Allah
Ever watches over you.

{see the Holy Quran (Supra)}.

49. The learned Commentator Yousuf Ali in his Book Translation and
Commentary of Holy Quran at note 254 page 90, commenting on the subject of
talaq has observed;-

Islam tried to maintain the married state as far as possible. Especially where
children are concerned, but it is against the restriction of the liberty of men and
women in such vitally important matters as love and family life. It will check hasty
action as far as possible and leave the door to reconciliation open at many stages.
Even after divorce a suggestion of reconciliation is made, subject to certain
precautions against thoughtless action. A period of waiting (iddet) for three
monthly courses is prescribed in order to see if the marriage conditionally dissolved
is likely to result in issue. But this is not necessary where the divorced woman is
virgin: it is definitely declared that woman and man shall have similar rights
against each other.

Yousuf Ali (Supra at note 256 page 90) has further observed:

Where divorce for mutual incompatibility is allowed, there is danger that the
parties might act hastly, then repent, and again wish to separate. To prevent such
capricious action repeatedly, a limit is prescribed. Two divorce (with a
reconciliation between) are allowed after that the parties must unitedly make up
their minds , either to dissolve their union permanently or to leave honourable lives
together in mutual love and forbearance to hold together or equitable terms,
neither party worrying the order nor grumbling nor evading the duties and
responsibilities of marriage.

Yousuf Ali proceeds:

All the prohibitions and limits prescribed here are in the interest of good
and honourable lives for both sides, and in the interest s of a clean and honourable
social life without public or private scandals..

50. The Holy Quran lays down the procedure for effecting a re-
conciliation. Verse No. 35 Sura Nisa (4) provides as under:-

35. If ye fear a breach
Between them twain,
Appoint (two) arbiters,
One from his family,
And other from hers;

If they seek to set thighs aright,
Allah will cause
Their reconciliation:

For Allah hath full knowledge,
And is acquainted
With all things.

51. In the above verses, the Holy Quran stipulated a condition precedent to
divorce. Yusuf Ali, the great Jurist and Commentator (Supra) at Note 549 page 191,
observed about the above those verses as follows:

An excellent plan for settling family disputes, without too much publicity or mud-
throwing, or resort to the chicaneries of the law. The Latin countries recognize this
plan in their legal system. It is a pity that Muslim do not resort to it universally, as
they should. The arbiters from each family would know the idiosyncraeies of both
parties, and would be able, with Gods help, effect a real reconciliation.

Maulana Mohammad Ali in his book Religion of Islam at page 671 commented
that:

This verse lays down the procedure to be adopted when a case for divorce arises. It
is not for the husband to put away his wife; it is the business of the judge to decide
the case. Nor should the divorce case be made too public. The Judge is required to
appoint two arbitrators, one belong to the wifes family and the other to the
husbands. These two arbitrators will find out the facts but their objective must be
to effect a reconciliation between the parties. If all hopes of reconciliation fail a
divorce is allowed. But the final decision rests with the judge who is legally entitled
to pronounce a divorce. Cases were decided in accordance with the directions
contained in this verse in the early days of Islam.

53. Commenting further on these verses, Maulana Mohammad Ali (Supra)
observed:

From what has been said above, it is clear that not only must there be a good cause
for divorce, but that all means to effect reconciliation must have been exhausted
before resort is had to this extreme measure. The impression that a Muslim husband
may put away his wife at his mere caprice, is a grave distortion of the Islamic
institution of divorce.

Keeping in view these teachings of the Holy Quran, the Prophet declared divorce to
be a most hateful of all things permitted. The mentality of the Muslim is to face
difficulties of the married life along with its comforts and to avoid disturbing the
disruption of the family relations as long as possible, turning to divorce only as a
last resort.

A close perusal of our Quranic verses as quoted above and commentaries thereon
by well recognised scholars of great eminence would come to indicate that no
divorce is duly effected if it is in violation of injunction of Holy Quran. Ameer Ali
in his treaties on Mohammedan Law observed :

The Prophet pronounced talak to be a most destable thing before the Almighty
God of all permitted things. If talak is given without any reason it is stupidity and
ingratitude to God.

(I) Judicial Interpretation:

It is said that talaq is a sword which is brandished by the Muslim husband against
his wife with whims and caprice. Even judicial authorities gave in the past its nod
to this concept of talaq to be exercised by the husband.

In the case of Ahmad Kasim Mulla v. Khatun Bibi, reported in ILR 59 Calcutta 833,
which has so long been regarded as a leading case on the law of divorce, Justice
Costello held as under:-

Upon that point (divorce), there are a number if authorities and I have carefully
considered this point as dealt with in the very early authorities to see whether I am
in agreement with the mere recent decisions of the Courts. I regret that I have to
come to the conclusion that as the law stands at present, any Mohamedan may
divorce his wife at his mere whim and caprice.

In another case of Sarabai v. Babiabai (ILR 30 Bombay 537), while observing that
divorce can be effected mere on whims, held:

It is good in law, though bad in theology.

59. However, the whole approach to Muslim divorce has started changing with
the deeper study of the subject that discloses significantly realistic, rational and
modern law divorce. Those are effectively reflected in the judicial decisions of the
recent years. The Kerala High Court speaking through Krishna Ayer, J (as the then)
in case of A. Yusuf Rawther v. Sawramma, reported in AIR 1971 Kerala 261, took a
revolutionary view as regards divorce of Muslim women. In paragraphs 6 & 7 it
was held as under:-

6. The interpretation of a legislation, obviously intended to protect a weaker
section of the community, like women, must be informed by the social perspective
and purpose and, within its grammatical flexibility, must further the beneficent
object. And so we must appreciate the Islamic ethos and the general sociological
background which inspired the enactment of the law before locating the precise
connotation of the words used in the statute.

. . . . . . . . .

Since infallibility is not an attribute of the judiciary, the view has been ventured by
Muslim jurists that the Indo-anglian judicial exposition of the Islamic law of
divorce has not exactly been just to the Holy Prophet or the Holy Book. Marginal
distortions are inevitable when the Judicial Committee in Downing Street has to
interpret Manu and Muhammad of India and Arabia. The soul of a culture-law is
largely the formalised and enforceable expression of a communitys cultural norms-
cannot be fully understood by alien minds. The view that the Muslim husband
enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with
Islamic injunctionsIndeed, a deeper study of the subject discloses a
surprisingly rational, realistic and modern law of divorce..It is a popular
fallacy that a Muslim male enjoys, under the Quaranic law, unbridled authority to
liquidate the marriage. the whole Quoran expressly forbids a man to seek pretexts
for divorcing his wife, so long as she remains faithful and obedient to him, if they
(namely, women) obey you, then do not seek a way against them Quoran IV:
34..

Commentators on the Quoran have rightly observed and this tallies with the
law now administered in some Muslim countries like Iraq _ that the
husband must satisfy the Court about the reasons for divorce. However,
Muslim law, as supplied in India, has taken a course contrary to the spirit of what
the Prophet or the Holy Quoran laid down and the same misconception vitiates the
law dealing with the wives right to divorce

Quoting Dr. Galwash, the learned Judge opined :

Marriage being regarded as a civil contract and as such not indissoluble,
the Islamic law naturally recognises the right in both the parties, to dissolve the
contract under certain given circumstances. Divorce, then, is a natural corollary to
the conception of marriage as a contract,.
It is clear, then, that Islam discourages divorce in principle, and permits it only
when it has become altogether impossible for the parties, to live together in peace
and harmony. It avoids, therefore, greater evil by choosing the lesser one, and opens
a way for the parties to seek agreeable companions and, thus, to accommodate
themselves more comfortably in their new homes.
Dr. Galwash, as observed by this Court, concluded that divorce is permissible in
Islam in cases of extreme emergency..

60. The Gauhati High Court in a case of Jiauddin Ahmed v. Mrs. Anwara
Begum, reported as (1981) 1 Gauhati Law Reports 358, authored by Bahorul Islam,
J (the then), following A. Yusuf Rawthers case (Supra), categorically held that a
talaq could not be exercised at a caprice and whim of the husband and an attempt of
reconciliation was a condition precedent to divorce.

61. The ratio of Jiauddin Ahmeds case (supra) approved by Division Bench of
Gauhati High Court in (1) Rukia Khatun v. Abdul Khalique Laskar, reported in
(1981) 1 GLR 375; (2) Zeenat Fatima v. Mohd Iqbal Anwar, reported in 1993 GLR
Supp 256.

62. The Supreme Court in Shamim Aras case (supra) following A. Yusuf
Rawther case (supra) , Jiauddin Ahmed v. Anwara Begum (supra), Rukia Khatuns
case (supra), and relying to observations made in Bai Tahira v. Ali Hussian (AIR
1979 SC 362) wherein the right of maintenance of a Muslim divorcee was dealt,
was in full agreement with the observations made on this judicial proceedings to the
effect that:

Talak must be of reasonable cause ; and
That must be proceeded by an attempt of reconciliation between the husband and
the wife by two arbiters, one chosen by the wife from her family and the other by
the husband from his family.

In paragraph 14, at page 3556 of Shamim Ara (Supra), the Apex Court observed:
We are in respectful agreement with the above said observations made by the
learned Judges of High Court. We must note that the observations were made 20-30
years before and out country has in recent times marched steps ahead in all walks of
life including progressive interpretation of laws which cannot be lost sight of except
by compromising with regressive tends. What this Court observed in Bia Tahira v.
Ali Hussain, AIR
1979 SC 362 dealing with right to maintenance of a Muslim
divorcee is noteworthy. To quote:

The meaning of meanings is derived from values in a given society and its legal
system. Article 15(3) has compelling compassionate relevance in the context of S.
125 and the benefit of doubt, if any, in statutory interpretation belongs to the ill-
used wife and the derelict divorcee. This social perspective granted, the resolution
of all the disputes projected is easy. Surely, Parliament, in keeping with Art. 15(3)
and deliberate by design, made a special provision to help women in distress cast
away by divorce. Protection against moral and material abandonment manifest in
Art.39 is part of social and economic justice, specificated in Art.38, fulfilment of
which is fundamental to the governance of the county (Art.37). From this coign of
vantage we must view the printed text of the particular Code.
Law is dynamic and its meaning cannot be pedantic but purposeful.

63. This Court in Manzoor Ahmed Khans (supra) and Mst. Amina Banoos
case (supra) took the same view, as indicated above. It will be apt to quote relevant
portions of the reasons and findings recorded in Manzoor Ahmed Khans (supra).
Relevant Paragraph i.e; 11 is quoted herein below:

The law on Talaq as ordained by Holy Quran is (i) that talaq must be for a
reasonable cause and (ii) that must be preceded by an attempt of reconciliation
between her husband and the wife by two arbiters, one chosen by the wife from her
family and the other by the husband from his. The issue has been subject matter of
judicial scrutiny since long. IN Shamim Ara v. State of U.P. (supra), the Apex
Court has relied upon and quoted the passages from various judgments of various
High Courts which are eye openers for those who think that a Muslim man can
divorce his wife merely at whim or on caprice. One of those illuminating judgments
was recorded by Justice V. R. Krishna Iyer as Judge of the High Court of Kerala (as
his lordship then was) in A. Yousuf Rawther v. Sowramma, AIR 1971 Ker 261. The
Supreme Court, while relying on this judgment, has observed that it is virtually a
research document. While commenting on the above judgment in A. Yousuf
Rawther v. Sowramma, Tahir Mahmood in his book The Muslim Law of India
(third edition 2002 New Version), in Chapter 6 on Divorce has stated as under:

1. Policy of Islamic Divorce Law:

Noting the view of some Muslim scholars that the Indo-Anglican judicial exposition
of the Islamic law of divorce has not been just to its original tests, a learned Judge
of India has observed that indeed a deeper study of the subject discloses a
surprisingly rational, realistic and modern law of divorce.

This observation presents a correct, unbiased and authentic
view of the Islamic law of divorce.

(I) Reasons and Findings:

64. At the very outset it should be noted that the question of talak to be
pronounced by the husband in case of oral divorce does not involve here in this
case. It is no bodys case that the petitioner was divorced by pronouncement of
spoken word by the husband against her. The basic case made out by the
respondent-husband against the petitioner herein is that he divorced his wife by a
written divorce on 18.5.1992 and, that too, prior to the institution of the
maintenance proceedings by the wife on 4.11.1992. According to him, there was an
another agreement executed on 4.1.1993. The case of the respondent is that written
divorce deed dated 18.5.1992 was also sent to the petitioner through registered post.
That apart, the petitioner voluntarily admitted before the Tehsildar, Ramnagar on
28.7.1995, before whom, she filed an application seeking for Resident of Backward
Area certificate, stating therein that she was a divorcee. It was also the case of the
respondent that the factum of divorce was published in daily newspaper Kashmir
Times on 9.11.1992.

65. So the entire matter revolves around as to whether the divorce has been
duly effected by the above written divorce deeds or by her admission before the
Tehsildar, Ramnagar or by publication in the newspaper Kashmir Times.

66. In support of their respective claims, both parties adduced evidence
examining the witnesses.

67. The petitioner has strongly objected and refuted both the agreement of
divorce as well as the written divorce deed. According to her, she has never
executed any agreement of divorce on 4.1.1993, as claimed by the respondent nor
had she received any written divorce deed dated 18.5.1992 by registered post.

68. Records placed before this Court do not reveal any document to show that
the written divorce deed dated 18.5.1992 was ever sent by registered post. In fact, in
the instant case, the respondent/ husband, as it appears, did not make any attempt to
prove those documents relied upon by him.

69. Amazingly, from a close perusal of the record, it transpires that the
respondent did not appear before the proceedings initiated by the petitioner against
him for granting maintenance on 4.11.1992 in her favour and in favour of her
daughter nor had he preferred any written statement. By filing written statement
before the Court, he would have brought on record the written divorce deed dated
18.5.1992. In that case, a written statement stating of divorce filed by the husband
would have been amounted to divorce.

70. It is on the record and also appears from the submissions and contentions
that instead of filing written statement, he having taken this plea or that plea ,
moved the higher forum either for transfer of the case or for cancellation of the
maintenance allowance having been granted by the Magistrate.

71. This Court has also considered the submissions put forward on behalf of the
parties as regards the paper publication, as noted above, by which the respondent
has declared that he has divorced the petitioner. Carefully perused the paper cutting,
in question, published in daily newspaper Kashmir Times which has been placed
as Exhibit before the Court. The said paper cutting itself would indicate that the
same lacks adequate and prominent exhibition in the space of the newspaper which
can easily be skipped from the sight of an ordinary reader. Besides, the nature of
publication, as noticed, would not help the husband/respondent to prove that the
divorce was effectively executed.

72. The plea of admission made before the Tehsildar, Ramnagar has also been
given due consideration. The admission, as claimed on behalf of the respondent, is
not an admission made in a proceeding. In this regard, the judicial authority
reported in Thiru Johns case (Supra) relied upon to support the contention of
admission by the petitioner as she is a divorcee, in our opinion is not applicable in
the case in hand. Reason is that in the cited case, at paragraph 15 at page 1726 the
Supreme Court observed that it was well settled that a partys admission as defined
in Sections 17 to 21 of the Evidence Act, fulfilling the requirements of Section 21
of the Evidence Act. In the instant case, the so called admission, ex-facie does not
fulfil the provisions of Section 21 of the said Act. In this connection, it would be
proper and necessary to quote Section 21 of the said Act.

21. Proof of admissions against persons making them, and by or on their
behalf-admissions are relevant and may be proved as against the persons who
makes them, or his representative in interest; but they cannot be proved by or on
behalf of the persons who makes them or by his representative in interest, except in
the following cases:-

An admission may be proved by or on behalf of the persons making it, when it is of
such a nature that, if the person making it were dead, it would be relevant as
between third persons under section 32.

An admission may be proved by or on behalf of a person making it, when it consists
of statement of the existence of any state of mind or body, relevant or in issue,
made at or about the time when such state of mind or body existed, as is
accompanied by conduct rendering its falsehood improbable.
An admission may be proved by or on behalf of the person making it, if it is
relevant otherwise than as an admission.

The Supreme Court in a case of Biswanath Prasad and others v. Dwarka Prasad &
Ors. reported in AIR 1974 SC 117, at para 8 ruled that:

There is no merit even in the contention that because these three statements Exs.
G, G2 and H- had not been put to the first plaintiff when he was in the witness box
or to the eighth defendant although he had discreetly kept away from giving
evidence, they cannot be used agasint him. counsel drew out attention to S.145 of
the Indian Evidence Act. There is a cardinal distinction between a party who is the
author of a prior statement and a witness who is examined and is sought to be
discredited by use of his prior statement. In the former case an admission by a party
is substantive evidence, if it fulfils the requirements of S.21 of the Evidence Act: in
the latter case a prior statement is used to discredit the credibility of the witness and
does not become substantive evidence. In the former, there is no necessary
requirement of the statement containing the admission having to be put to the party
because it is evidence proprio vigore: in the latter case the Court cannot be invited
to disbelieve a witness on the strength of prior contradictory statement unless it has
been put to him, as required by S.145 of the Evidence Act, this distinction has been
clearly brought out in the ruling in Bharat Singhs case (1966) 1 SCR 606; 615-
16=(AIR 1966 SC 405). This Court dispose of a similar argument with the
following observations:

Admissions are substantive evidence by themselves, in view of Sections 17
& 21 of the Indian Evidence Act, though they are not conclusive proof of the
matters admitted. We are of the opinion that the admissions duly proved are
admissible evidence irrespective of whether the party making them appeared in the
witness box or not and whether that party when appearing as witness was
confronted with those statements in case it made a statement contrary to those
admissions. The purpose of contradicting the witness under S.145 of the Evidence
Act is very much different from the purpose of proving the admission. Admission is
substantive evidence of the fact admitted while a previous statement used to
contradict a witness does not become substantive evidence and merely serves the
purpose of throwing doubt on the veracity of the witness. What weight is to be
attached to an admission made by a party is a matter different from its use as
admissible evidence.

74. In the light of above precedent, the present admission cannot be said to be
the admission for the purpose of making it substantial evidence. Proof is
establishment of fact by evidence or matters before the Court or legal Tribunal.
Such admission made before an officer seeking certain certificate does not
constitute evidence. Since the admission was not be made in any proceeding
having scope of cross-examination, the same cannot be relied upon by the
respondent in support of a case raising the issue as to whether the respondent has
duly divorced the petitioner.

75. The most important point which has also taken note by the leaned
Magistrate is the question of reconciliation between the parties. Learned Magistrate
has categorically observed in his finding that the mediation and reconciliation
meeting between the parties were also proved by the statement of one witness
namely Ghulam Rasool, who was examined as PW-3 on petitioners side but
surprisingly on going through the statement of PW-3 Ghulam Rasool, which has
been quoted in the impugned judgment itself, it is seen that there is even no whisper
as regards having such reconciliation. For the sake of convenience the statement
recorded in the judgment itself may be reproduced herein below:
PW-3 Ghulam Rasool; has deposed that the parties to the petition are husband and
wife. The petitioner had divorced by the respondent. He has heard about the divorce
but does not possess personal knowledge. In his presence, the dowry articles were
returned to the petitioner. At the time of handing over the dowry articles, he had
stood a witness to that document. He has identified his signatures. The dowry
articles were brought from Latti, the house of the respondent and the same were
delivered to the petitioner. He had acted on the mutual consent of the parties.

On cross-examination he has deposed that parties were not divorced in his
presence. Now the parties are living separately and the respondent has contracted
second marriage. There is a custom in our community that divorce may be
pronounced either orally or written and in the Court. The original list of property
produced by the respondent has been admitted by him as true but denied its
contents.

76. Be that as it may, having closely scrutinized the basic concept of divorce,
mandate of Holy Quran and commentaries of the jurists as legal authorities, it is
seen that the action taken and procedure adopted by the respondent to divorce his
wife, is not permissible under the law. No reasonable cause has been shown for
divorcing the petitioner and, such divorce was not preceded by nor has any attempt
on reconciliation ever been made between them by the two arbiters, as required
under the law.

77. In terms of the above discussion, this Court is of the view that all those basic
questions taken up for consideration have been appropriately answered and it can
unhesitatingly be held that :

the divorce was not properly effected;

ii. the divorce was not validly proved.

78. The basic concept of law on divorce in the modern trend of thinking is to put
restrictions on the caprice and whim of the husband to give talak to his wife at any
time without giving any reason whatsoever. It must be exclusively dealt with in
accordance with the Quranic injunction. If the relationship between the husband and
wife becomes strained, there should be two persons, one from each of the parties,
chosen as arbiters, who shall endeavour to cause reconciliation between the
husband and wife and, if the same is not possible, then the divorce or talak may be
effected. In other words, an attempt for reconciliation by the two relations, one
each of the parties is an essential condition precedent to divorce. {see also Jiauddin
Ahmeds case (supra) at para 4}.

79. Having regard to the Quranic mandate, commentaries of the eminent jurists
of Mohammedan law as well as the judicial authorities pronounced by the highest
and higher Courts, this Court held that divorce is allowed only for a reasonable
cause and, secondly, it must be preceded by an attempt to reconciliation between
the husband and the wife by two arbiters, one chosen by the wife from her family
and the other by the husband from his family. If such reconciliation fails only then
there can be a valid divorce.

(J) The concept of Reconciliation:

80. Blacks Law Dictionary (7th Edition) defines reconciliation as follows:
1. Restoration of harmony between persons or things that had been in conflict 2. Family law. Voluntary resumption after a separation of full
marital relations between spouses 3…………………….

81. The concept of reconciliation, the meaning of which has been noticed
hereinabove and as has been emanated from the basic source of Muslim law, as
discussed above, has got its acceptability in the modern litigations specially
pertaining to the matrimonial disputes. The reconciliation has become an effective
and important tool and mechanism for resolution of disputes particularly in
dissolution of marriages.

82. In Hindu Marriage Act, which is enacted in 1995 has already contained such
provisions of reconciliation in Section 23 (2) wherein a duty has been cast on the
Court to make an endeavour for reconciliation between the parties at the very initial
stage. Provision of Section 23(2) is quoted as follows:

23. (2) Before proceeding to grant any relief under this Act, it shall be the
duty of the Court in the first instance, in every case where it is possible so to do
consistently with the nature and circumstances of the case, to make every endeavour
to bring about a reconciliation between the parties;

83. Similarly, in The Family Courts Act, 1984, Section 9 provides that it is the
duty of the Family Court to make efforts for settlement and the same reads as under:

9. Duty of Family Court to make efforts for settlement._(1)
in every suit or proceeding, endeavour shall be made by the Family Court in the
first instance, where it is possible to do so consistent with the nature and
circumstances of the case, to assist and persuade the parties in arriving at a
settlement in respect of the subject-matter of the suit or proceeding and for this
purpose a Family Court may, subject to any Rules made by the High Court follow
such procedure as it may deem fit.

84. In 2002 by amendment of the Code of Civil Procedure, 1908, Section 89 has
been incorporated providing for settlement of the disputes, outside the Court by
adopting primarily four methods, namely, (a) arbitration; (b) conciliation; (c)
judicial settlement including settlement through Lok Adalat, or (d) mediation,
which are popularly coined as alternative dispute resolution(ADR) mechanism. So
it is evident that the process of reconciliation has to be given priority as well as
importance in the present days. In view of above, it is essential that a dissolution of
Muslim marriage by way of divorce or talaq must be based on reconciliation as
mandated by Quranic text followed by commentaries on the topic by the various
eminent legal personalities.

(K) Conclusion:

85. In consideration of what has been stated, observed and discussed, the
impugned judgment and order being not in consonance with law explained and
highlighted above, deserves interference and the same is, accordingly, set aside
and quashed.

86. It is, consequently, held that the petitioner is not a Muslim divorcee of the
husband/respondent and she is entitled to get her maintenance in terms of Section
488 Cr. P. C and this Court does, accordingly, uphold the maintenance granted to
the petitioner by the learned Magistrate by its initial order dated 24.6.1995.

87. It is further provided that order dated 10.12.2002 passed by this Court as
regards granting interim maintenance to respondent no. 2, daughter of the parties, is
hereby made absolute.

88. Liberty is also granted to petitioner no. 1 to approach the appropriate
Forum/Authority, if she desires further increase in her maintenance allowance, if so
advised.

89. In the result, the revision petition is, accordingly, allowed.

(L) Remarks:

90. Before parting with the judgment, it is necessary to put on record certain
observations.

91. The learned Judicial Officers while quoting cited judgments and judicial
authorities, shall extract the relevant paragraphs of the judgment referred to with
clear mention of the said paragraph/paragraphs therein instead of quoting the Head
notes of a particular judgment. In the instant case, on perusal of the impugned
judgment and order, it appears that the learned Magistrate has quoted the Head
Notes only of the judgment referred to or relied upon. Be it noted that Head Notes
are not the ratio or operative part of the judgment. It is simply an editorial comment
and, accordingly, attempt should be made to avoid quoting the Head Notes only.

Sd/-

(Dr. Aftab H. Saikia)
Chief Justice
Jammu:

14 .10.2010
Tilak, Secy.

State Of J&K & Ors vs Shashi Bala Sharma on 12 October, 2010

Jammu High Court
State Of J&K & Ors vs Shashi Bala Sharma on 12 October, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
LPASW No. 76 OF 2009    
State of J&K & ors
Petitioners
Shashi Bala Sharma.  
Respondent  
!Mrs. Shaista Hakim, Dy. AG. 
^NONE  

Honble Mr. Justice Dr. Aftab H. Saikia, Chief Justice
Honble Mr. Justice Sunil Hali, Judge.
Date: 12.10.2010 
:J U D G M E N T :

Dr. Saikia, CJ:

Heard Mrs. Shaista Hakim, learned Deputy Advocate General for the
appellants.

2. Since delay in preferring the instant appeal has been condoned vide order
dated October 12, 2010 (today) passed in CDLSW no. 35/2009 and keeping in
view the importance of the issue raised in this appeal as well as upon hearing the
learned counsel for the appellants, we propose to dispose of this Letters Patent
Appeal today itself at the admission stage.

3. The basic issue involved in this appeal, which witnesses a challenge to
the order dated April 9, 2008 passed by Writ Court in SWP no. 902/2004 is that as
to whether the appointment on compassionate ground can be made on adhoc basis.

4. Learned Single Judge while allowing the writ petition filed by respondent,
having taken into account SRO 43 of 1994, came to a definite and clear finding that
compassionate appointment must be of permanent in nature. Writ Court has
observed as under:

Perusal of the aforesaid SROs makes it clear that there is no provision in the said
SROs to appoint a person on compassionate ground on daily wage, temporary or
adhoc basis. Once the authorities have taken a decision to appoint a person on
compassionate ground under the aforesaid SROs then that appointment is to be
made on permanent basis. If appointment on compassionate ground is made on
temporary, adhoc or daily wage basis then the purpose of aforesaid SROs will be
frustrated. Purpose of such appointment under these SROs is to give immediate
relief to the bereaved family whose bread earner died in harness.

5. Records also reveal that appointment of respondent was made by the
authority concerned on adhoc basis but under the Subject head it was shown as
compassionate appointment of Smt. Shashi Bala. This is reflected from
communication issued by Director Health Services Jammu on August 22, 1998
addressed to Commissioner /Secretary to Government, Health, Family Welfare and
Medical Education Deptt, Jammu and Kashmir Government, Srinagar, as well as
order dated January 14, 1991, issued by Commissioner/Secretary to Government,
Health and Medical Education Department, which are annexed as Annexures A
and C to this appeal.

6. The documentation would clearly indicates that though the respondents
case was considered on compassionate ground, she got her appointment on adhoc
basis, which is not permissible under law, as already recorded in the impugned
judgment.

7. We have carefully perused the SRO 43 of 1994 as well as the impugned
judgment. Having considered the facts and circumstances in its entirety, we are of
the firm view that a compassionate appointment needs to be treated as permanent
appointment because such appointment is always intended to tide over the financial
stress faced by the family members on the sudden death of the sole bread earner.

8. That being the position, we find that there is no plausible or cogent ground
to dislodge the impugned judgment and, accordingly, we do agree with the
observations recorded and the views expressed in the impugned judgment.

9. In the result, this appeal stands dismissed.

                         (Sunil Hali)                        (Dr. Aftab H. Saikia)                              
Judge                                    Chief Justice
Jammu:  
12.10.2010 
Tilak, Secy.

Shamma Bhat vs Parvinder Kumar Leharia & Ors on 11 October, 2010

Jammu High Court
Shamma Bhat vs Parvinder Kumar Leharia & Ors on 11 October, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
LPASW No. 64 OF 2007 AND LPASW No. 61 OF 2007         
1.Shamma Bhat   
2.Nirmala Devi & ors
Petitioners
Parvinder Kumar Leharia & ors.
Respondent  
!Mr. Sunil Sethi, Sr. Advocate with Ms. Veenu Gupta, Advocate
^M/s. Tashi Rabstan & D. S. Thakur, Advocates 

Honble Mr. Justice Dr. Aftab H. Saikia, Chief Justice
Honble Mr. Justice Sunil Hali, Judge.
Date: 11.10.2010 
:J U D G M E N T :

Dr. Saikia, CJ:

Heard Mr. Sunil Sethi, learned Senior counsel assisted by Ms. Veenu Gupta,
the learned counsel for the appellants as well as Mr. Rajneesh Oswal, learned
counsel representing the respondents.

2. By consent of the parties, both these appeals are taken up for final disposal,
as the issue raised in both the appeals is common, based on almost similar facts
situation.

3. Judgment and order dated April 10, 2007, rendered by the Writ Court in
SWP no. 1520/2004 is under challenge in both these Letters Patent Appeals.

The appellants herein were engaged by the Board of School Education vide its
order no. 483-B of 2004 dated June 23, 2004 to do Desk Job for a transitory period
of 60 (sixty days) on consolidated salary of Rs. 1900/- per month providing that the
initial engagement should be extended from time to time depending on the need
and satisfactory accomplishment of the Job.

These engagements were challenged by the writ petitioners-respondents herein on
the ground that appointments were bad, illegal and in total violation of established
norms of service jurisprudence. The Writ Court by the impugned judgment and
order accepted the writ petition and quashed the engagements of all the appellants
holding that engagements of appellants were unjustified and unwarranted inasmuch
as no administrative fairness was displayed in making such engagements.

Being aggrieved by findings recorded by the learned Single Judge so as to cause
disengagement of the appellants, these appeals have been preferred.

We have heard learned counsel for the parties at length. The entire records so placed
before us by the learned counsel appearing for the official respondents have also
been closely scrutinised.

On thorough examination of the records, it is found that no norms as required and
necessary under the law have been followed for such selection. Even the
recommendation of the Interview Committee, as has been recorded in its order
dated 483-B of 2004 dated June 23, 2004, have also not been found in the record.
Moreso, the recommendation made by the Committee also did not reflect any marks
given by the Committee against those candidates. Besides, we find no other records
to demonstrate that appellants were adjudged better in merit to the other
candidates.

Mr. Sethi, learned Senior counsel has forcefully submitted that all the appellants had
duly appeared in the interview and they got selection in the due process in
accordance of law. As regards non-marking to show the merit of the appellants, it is
further submitted that if no marks were being given, it is not the fault of the
appellants, who have been duly engaged on their proper interview.

On careful examination of the records, we are disinclined to approve the
submissions of the learned Senior counsel.

Having considered the impugned judgment, we fully agree with the findings
recorded by the learned Single Judge in arriving at the impugned decision. For
better appreciation of the reasons assigned in the impugned judgment, we feel it
necessary to reproduce the relevant portions of the same which are as under:
Perusal of the selection record of the Board of School Education indicates that
interview for engagement of persons for Desk and Menial Jobs had been conducted
by a Committee constituted of M/s. H. K. Gupta, Joint Secretary Administration, I.
K. Kotwal, Accounts Officer and Chand Rani, Joint Secretary Administration, on
26th /28th of February, 2004 when out of 103 candidates applying for the Desk Job
and 300 candidates applying for the Menial Jobs, only 87 had appeared for the
Desk Job and 230 for the Menial Jobs. The selection records contain a copy of order
No. 483-B of 2004 dated 23rd of June, 2004, a note sheet shown to have been
singed on 10th June, 2004 and an unsigned list of candidates who had applied for
the Desk/Menial Jobs in the Board of School Education with some notings on the
list of 24th of February, 2004.

There is nothing in the records to indicate as to how the Committee
had assessed the merit of the candidates who had appeared before the Committee
on 26th and 28th of February, 2004. The Board of School Education does not appear
to have prepared any criteria for selection of candidates for the Desk and Menial
Jobs. It is not discernable from the records as to how the selection would recollect
the individual rating of the candidates who had appeared in the interview on 26th
and 28th of February, 2004, on 10th of June, 2004, i.e. after a period of more than
three months when they had prepared a note for its onward transmission to the
retiring Chairman of the Board of School Education.

The records of the Boards Education depict a dismal picture
indicating an unfair approach of the Board and its Selection Committee in playing
with the aspiration of those who had competed for the Desk Job and Menial Jobs
pursuant to issuance of Notification dated 17.2.2004. The records of the Board of
School Education further demonstrate that the Board has exceeded the quota of
posts which were required to be filled up from the candidates belonging to Jammu
District. Only one candidates Ms. Shamma Bhat, respondent No. 10, a resident of
Poonch had been selected whereas the candidates who had appeared form other
Districts had been ignored consideration for selection. I am thus constrained to hold
that the selection of private respondent Nos. 4 to 10 was unjustified for there is no
records to indicate their having been adjudged better in merit to the others who had
competed in the interview. Approval accorded by respondent No.3, the then
Chairman of the Board of School Education, who was at the verge of retirement too
demonstrates that the selection had been unfair.

Unfairness in any form whatsoever breads discontent, spreading
outrageous and, at times, rebellious ripples thereby polluting individual minds and
ultimately affecting the society adversely. Administrative heads and Selection
Authorities owe a duty to the public to act fairly. Their actions are thus required to
be transparent, fair and objective. Decisions taken by the authorities at the verge of
retirement, are seen with suspicion by the public. The authorities are, therefore,
required to act in such a manner that the confidence of public is not shaken in the
Institutions which have to decide about the recruitment of millions of unemployed
youth in the Country.

Yet another thing which come up for discussion at the time of
hearing of this petition was that the respondent-Board of School of Education had
been continuing the engagements meant only for a transitory period of 60 days and
it was admitted by the learned counsel for the parties that the engagement of the
private respondents was still continuing.

This appears to be device employed by the Board of School
Education to continue causal/temporary, engagements thereby sacrificing the Rules,
Guidelines and Instructions governing engagement of permanent, temporary or
causal employees. Casual, adhoc or temporary engagements cannot be a substitute
for regular employment de hors the Rule sin force governing such recruitment and
appointments. Causal, ad hoc or temporary engagements are permissible only for a
short period. These engagements, cannot be continued beyond the prescribed period
lest these engagements may deprive all those who may be entitled to seek
permanent employment to these positions in accordance with the Rules.
Engagement of private respondents beyond a period 60 days too is thus unjustified.
Appointment order of private respondents incorporating a clause that their
engagements would be extendable on the basis of their satisfactory performance,
was contrary to what was contained in the Notification of the Board of School
Education. This clause in the impugned Notification is, therefore, un-warranted.

The Administrative Authorities in a selection process are duty bound to demonstrate
administrative fair play. Transparency, fairness and objectivity must reflect in every
action in the selection process, so that the confidence of the public in those
Institutions is not eroded.

Given facts and circumstances, it may be well said that the present action in the
selection to the post of Desk Job lacks such transparency, fairness and
reasonableness. That being so, we can unhesitatingly opine that there is no plausible
or cogent ground to dislodge the impugned judgment.

Accordingly, both the appeals stand dismissed.

However, in our considered view, the directions given by the learned Single Judge
as regards time frame for holding fresh selection for engagement of the persons for
Desk Job needs to be extended in the interest of justice. Accordingly, we direct
that the entire process of fresh selection, as directed by the learned Writ Court, shall
be undertaken and completed within three months from today and till such fresh
selection is made, the appellants herein shall not be disengaged.

It is made clear that the authority/authorities concerned shall consider the relaxation
of age of all the parties appearing and contesting in these appeal proceedings in case
of their selection and appointment.

                         (Sunil Hali)                        (Dr. Aftab H. Saikia)                              
Judge                                    Chief Justice
Jammu:  
11.10.2010 
Tilak, Secy.

Union Of India vs Unknown on 8 October, 2010

Jammu High Court
Union Of India vs Unknown on 8 October, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
AA No. 27 OF 2008  
Union of India
Petitioners
M/S Sunny Builders 
Respondent  
!Mr. Sachin Gupta, Advocate 
^Mr. R. K. Gupta, Advocate

HONBLE MR. JUSTICE SUNIL HALI-JUDGE       
Date: 08.10.2010 
:J U D G M E N T :

For manufacture and supply of Furniture at Nagrota, a
contract was entered between the Commander Works
Engineers 138 and the respondent-claimant by contract
agreement CA no. CWE/JP-83A/05-06 on 09.02.2006. The
value of the contract agreement was Rs. 11,85,025.00. The
contract was to commence from 09.01.2006 and 31.01.2006
and the completion date was fixed as 30.07.2006, which,
subsequently was extended to 07.12.2006. It seems that the
first consignment is stated that have been supplied by the
claimant, for which an amount of Rs. 2,35,920/- was released in
his favour. On completion of second set of supplies a bill to the
tune of Rs. 3.35 lacs and odd was raised. This bill is stated to
have not been cleared by the petitioner, as a result of which
clause 37 of the agreement was invoked by the claimant for
2
referring the matter to the arbitrator. On reference being made
to the arbitrator, he is stated to have entered into the reference
on 17.12.2007. As many as ten claims were laid by the
claimant. Except claim nos. 3 and 5, all other claims were
allowed by the arbitrator. The counter-claims raised by Union of
India were rejected. Feeling aggrieved of this award, the
objector has filed this petition under Section 34 of the J&K
Arbitration and Conciliation Act of 1997 for setting aside the
arbitral award dated 22.05.2008.

The grounds for setting aside the award relates to the fact
that arbitrator has passed the award ignoring the stipulations in
the contract and, without referring to the stipulations of the
contract, the arbitrator has accepted the claims of the claimant.
It is contended that articles supplied by the claimant were to be
accepted strictly in consonance with the contract specifications.
The arbitrator by traveling beyond the scope of the contract has
allowed the claims. The second ground is that while accepting
the plea of the claimant in accepting the supplies made by him
in violation of the specifications provided in the contract,
misconduct of the arbitrator is apparent. What is being
contended is that, as the supplies were not found in
consonance with the contract specifications, claimant was
informed by letter dated 28.10.2006. In this behalf reference
was also made to General Condition of IAFW-1815Z (General
Condition of contracts for the supply of stores and material to
3
the MES) which stipulated that Engineer-In-charge shall have
the full power to reject the material brought to site by the
claimant, which are not in accordance with the contract
specifications and accordingly the material supplied by the
claimant was rejected by Engineer-In-Charge. It is further
contended that as per the condition of the contract, GE is the
final authority in deciding whether the supplies are of quality
inferior to that contracted for or otherwise under Condition 20 of
IAFW-1815Z and the decision of the GE in this regard shall be
the final. It is also contended that recommendations of the
Board of Officers has not been concurred by the accepting
officers. In nut shell the objection raised is that the supplies
which are not in conformity with the specifications of the
contract, as such, cannot be accepted and the arbitrator has no
authority to allow the claims in this behalf.
The stand of the claimant is that reliance placed by the
petitioner on general conditions of the agreement stands
superseded by clause/ note 8 of the contract executed with the
claimant, which provides as under:-

Board of Officers will be convened by the Accepting
Officer immediately after acceptance of samples by
G.E. The G.E shall intimate to the Accepting Officer
for convening of the Board for approval of the
supplies.
Elaborating the manner in which the claim has been
rejected by the objector, it is stated by the claimant that it
submitted furniture items on 29.07.2006. A request was made
4
by the G.E to the Accepting Officer to convene the Board of
Officers for inspection and approval. The Board of Officers, after
inspecting the supplied items, found the same to be in order
and as per the contract specifications. The claimant submitted
his first RAR on 18.09.2006 and payment of Rs. 2,35,920/- was
made to him. The second set of samples to the G.E Nagrota
was submitted on 09.11.2006 and after approval of the same by
the G.E, the supplies were made on 10.11.2006. Same
procedure, as envisaged vide Note 8 of the Contract
Agreement, was followed. The Board of Officers assembled and
found the furniture items as per the specifications of the
Contract Agreement. No defects were pointed out by the Board
of Officers. The claimant submitted the second RAR on
05.02.2007 which has been denied to it.

It is further contended that no communication dated
28.10.2006 was received by the claimant, intimating him that
quality of wood used in the manufacture of furniture was not in
accordance with the specifications. The general condition of
the contract, as indicated in para no. 4 and 5 of the petition,
stood superseded by specific condition/ note in the agreement
executed with the claimant by the petitioner. The other
contention raised is that when the first RAR was submitted,
same procedure was followed by placing reliance on note 8 of
the contract agreement while releasing the first payment. What
is contended is that on the recommendations of the Board of
5
Officers, who inspected the material supplied by the claimant,
payment was released but here in this case different stand was
taken by taking recourse to general conditions of the contract.
This, in nut shell, is the stand of the claimant.
I have heard the learned counsel for the parties.
An award of the arbitrator can be set aside only on the
following conditions:-

An arbitral award may be set aside by the Court
only if:-

(a) the party making the application furnishes
proof that:-

(i) a party was under some incapacity; or

(ii) the arbitration agreement is not valid under
the law to which the parties have subjected it
or, failing any indication thereon, under the law
for the time being in force; or

(iii) the party making the application was not given
proper notice of the appointment of an
arbitrator or of the arbitral proceedings or was
otherwise unable to present his case; or

(iv) the arbitral award deals with a dispute not
contemplated by or not falling within the terms
of the submission to arbitration or it contains
decisions on matters beyond the scope of the
submission to arbitration:

..
Analyzing the import of the controversy raised, what is
being insisted by the petitioner is that Claus 2(iv) of the Act is
sought to be invoked which contemplates following conditions:-
(iv) the arbitral award deals with a dispute
not contemplated by or not falling within the
terms of the submission to arbitration or it
contains decisions on matters beyond the
scope of the submission to arbitration.
The specific case of the petitioner is that the arbitrator has
allowed the claims of the claimant on the issue which it had no
6
jurisdiction to adjudicate. The claimant was supposed to supply
the furniture strictly in consonance with the stipulations
provided in the contract and it is only after it is testified that
same has been done in accordance with the specifications, that
he would be entitled to receive payment for the same. The
arbitrator could not have directed the petitioner to make
payment by accepting the supplies, which were not in
conformity with the specifications of the contract. This was a
matter beyond the scope of submission to the arbitration.
As already stated herein supra, the claim of the claimant
was rejected on the ground that supplies were not made in
conformity with the specifications provided, as such the claim
was rejected. There is no dispute with this proposition of law
that arbitrator cannot decide a matter which is beyond the
scope of submission to the arbitration. The arbitrator was called
upon to resolve the dispute, strictly in consonance with the
terms of the contract. The decision of the arbitrator would be
illegal in case it is found that the arbitrator has allowed the
claim which was beyond the scope of the contract. He could not
have, as in the instant case, directed the petitioner to accept the
supplies in violation of the specifications provided by the
contract. This was beyond the scope of the submission to the
arbitration.

Having said so, the only question is as to whether the
supplies have been accepted in violation of the specifications
7
provided by the contract. The plea of petitioner is that, general
conditions of the contract provide that, supplies have to be
accepted by the G.E and in case there is no such acceptance,
claims cannot be allowed. However, it be seen that note 8
attached to the agreement executed by the claimant, clearly
provides that if the samples are accepted by the G.E, the matter
is referred to the Board of Officers to accept the supplies made
by the claimant, and thereafter the amount is required to be
paid. The specific condition in the contract would over ride the
general provisions of the contract. It is contended by the
claimant that it was not a case where supplies were accepted
which were not in conformity with the specifications, but a case
where the G.E had, in violation of the contract, refused to make
the payment to the claimant. The supplies were accepted and
the arbitrator, who is the master of facts and law, has rightly
interpreted the terms of the contract by allowing the claim.
The other aspect of the matter is with respect to bar in
contract against admissibility of claim. This prohibits the
department but not the arbitrator from entering such a claim.
It be seen that Regulation 439 of the MES Regulations,
1968, fixes the pecuniary jurisdiction of the Chief Works
Engineer at Rs. 20,000/- only. He cannot accept any claim
above 20,000/-.The matter can be decided by the arbitrator. I
am supported in taking this view by a judgment of Supreme
Court delivered in Asain Techs Limited vs. UOI and Ors, reported as
8
(2009) 10 SCC, 354, where it has been held as under:-
The stipulation in the contract regarding finality of
the decision of CWE ( the competent authority
specified in the contract) for fixation of rates for any
work order which was incapable of being calculated
by the methods specified read with the stipulation
saving the rights of the parties to correct any
mistake in rate fixation even after receipt of the last
payment make it clear that the finality provided by
the former stipulation applied only to cases of
deviation and not in a case when there was a
material alteration and addition in the work done.
Moreover, Regulation 439 of the MES Regulations,
1968 fixes the pecuniary jurisdiction of the CWE at
Rs. 20,000 only. The CWE has no jurisdiction to
decide the dispute where the valuation is above Rs.
20,000, as in the present case. The finality of the
decision of the CWE applies only where the dispute
is not exceeding Rs. 20,000. Hence the arbitrator
was within his jurisdiction to decide the matter ion
question.
Regarding the other claim, it be seen that damages have
been awarded on the basis of with-holding of the amount of the
claimant. In this aspect, be noted that, where in a works
contract, the party entrusted the work commits breach of the
contract, the contractor would be entitled to claim damages for
loss of profit which he expected to earn by undertaking the
works contract. I am fortified in this view by a judgment of Apex
Court delivered in case M/S A. T. Brij Paul Singh and Bros. vs. State of
Gujarat, reported as AIR 1984 SC, 1703, where their lordships
have held as under:-

where in a works contract, the party entrusted
the work commits breach of the contract, the
contractor would be entitled to claim damages
for loss of profit which he expected to earn by
undertaking the works contract. What must be
the measure of profit and what proof should be
9
tendered to sustain the claim are different
matters. But the claim under this head is
certainly admissible.
Therefore the contention raised by the petitioner is not
sustainable as such is rejected.

What is concluded is that:-

(a) Supplies made by the claimant were referred
to the Board of Officers constituted by the G.E,
who inspected the same and his rejection was
not proper;

(b) It is further found that it is not a case where
the arbitrator had permitted a claim regarding
supplies of the material in violation of the
specifications provided under the contract but
a case where the material was accepted in
conformity with the specifications of the
contract, as the same were accepted by the
Board of Officers.

(c) Regarding other claims it be seen that about
the jurisdiction of the arbitrator to award
damages/ compensation for loss of profit,
profit turn over, loss due to blockage of capital
as also interest, nothing has been spelled out
by the petitioner on this count that it violates
any one of the conditions stipulated by Section
34 of the Act.

1

For all what has been said above, this application is
rejected. The award of the arbitrator is directed to be enforced
as a decree.

(SUNIL HALI)
Judge
JAMMU:

08. 10. 2010
Anil Raina, Secy.

1

Pritam Singh vs Unknown on 18 September, 2010

Jammu High Court
Pritam Singh vs Unknown on 18 September, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
SWP No. 1373 OF 2001    
Pritam Singh 
Petitioners
Secretary to Govt. of Indian Union and others
Respondent  
!Mr. P.S. Bhardwaj, Advocate
^Mrs. K.K. Pangotra, ASGI 

Honble Mr. Justice Hasnain MassodI, Judge 
Date: 18.09.2010 
:J U D G M E N T :

The petitioner was appointed as Extra Departmental Runner (EDR) on 6th of
October 1982 and promoted as Extra Departmental Branch Post Master (EDBPM)
on 07.12.1984 for Post Office Jigni Coal Mines, Kalakote. The Post Office was
inspected by Shri T.R. Anand, Assistant Superintendent of Post Office on 17th
December 1991. Shri Anand, on inspection, found the petitioner to have failed to
make certain entries in the Post Office Book in respect of money transactions and to
have withheld certain amounts, received from the customers. The petitioner was
put off the duties by Shri T.R. Anand with effect from 17.12.1991 and the action
was confirmed by Senior Superintendent of Post Offices, Jammu Division vide
Memo No.ED-613 dated 13th March 1992. The petitioner was relieved from the
charge of EDBPM and the charge handed over to one Shri Raj Kumar, EDR. The
respondents, after lull of a few years, served a formal charge sheet on the petitioner
on 27th of January 1997. The articles of charge were communicated to the petitioner
and an Inquiry Officer appointed to conduct disciplinary proceedings against
petitioner. The Inquiry Officer, after recording statement of as many as 12
witnesses as also witnesses examined by the petitioner in his defence, found the
charges to have been established against the petitioner. The Senior Superintendent
of Post Office Jammu Division recorded agreement with the findings of the Inquiry
Officer and vide Memo No.F6/52/91 dated 14.5.1998, imposed penalty of removal
from service on the petitioner. The petitioner, as provided under Extra
Departmental Agents (Conduct & Service) Rules 1974, preferred an appeal against
order dated 14.5.1998 before Chief Post Master General, J&K. The appeal received
on 18th February 2000 appears to have not been entertained and dealt with on the
ground that it was not filed within three months i.e., period prescribed under Extra
Department Agents (Conduct & Service) Rules 1974.

The petitioner, through medium of present writ petition, seeks quashment of
order memo No.F6/52/91 dated 14.5.1998. The petitioner, not aware of outcome
of appeal, preferred against the aforementioned order, has expressed his inability to
take a stand in respect thereof. The petitioner in alternative seeks any other writ
order or direction as the Court may deem fit in the circumstances of the case.

The petitioners case is that the petitioner was taken ill in 1991 and duly
applied for grant of medical leave; that the respondents did not sanction leave in
favour of the petitioner, coercing the petitioner to render his duties as Extra
Departmental Branch Post Manager while suffering from disease diagnosed by
Doctors as maniac depression psychosis and behavioral disorder. It is pleaded
that the lapses committed by the petitioner during the period May to December
1991, were attributable to the mental disorder suffered by the petitioner. The
petitioner, to establish his bonafides, claims to have deposited the amount withheld,
immediately after it was detected on inspection by Assistant Superintendent of Post
Office on 17th December 1991. The petitioner assails the order dated 14th May
1998 on the ground that no inquiry was conducted with effect from 17th December
1991 i.e., the date the petitioner was put off the duty till charge sheet was served
on the petitioner on 27.01.1997. The charge sheet, according to the petitioner, is
liable to be quashed on this ground alone. It is next pleaded that the petitioner was
not allowed assistance of an Advocate during departmental inquiry and thus denied
a reasonable opportunity to contest the charge sheet. The petitioner also disputes
authority and competence of T.R. Anand, Assistant Superintendent, Police Office,
Jammu, to put off the duty/suspend the petitioner. The petitioner complains that
the petitioner was neither supplied the documents relied upon nor allowed to inspect
the records, so as to enable the petitioner to organize his defence. It is next urged
that the order, impugned in the petition, is not based on the evidence adduced
before the Inquiry Officer. The petitioner has taken pains to give a detailed account
of the evidence adduced in support of the charges and the evidence adduced by the
petitioner in defence, to substantiate his stand that the Inquiry Officer did not make
proper appreciation of the evidence produced before him. The next grievance of the
petitioner, as stated earlier, is that the appeal preferred by the petitioner on 25th of
August 1998 against impugned order dated 14.5.1998, has not been decided by the
Appellate Authority and the repeated reminders made by the petitioner, referred to
in Para XI of the petition, have had no effect on the Appellate Authority.

The respondents, in their objection reply, have questioned maintainability
of the petition on the ground that the questions of fact were intended to be raised in
the petition. The respondents, admitting that the charge was served a few years
after the occurrence, have referred to the evidence recorded by the Inquiry Officer,
to substantiate that all the articles of charge were proved against the petitioner. The
respondents insist that the inquiry was conducted strictly in accordance with rules
and adequate opportunity was given to the petitioner to disprove the charges leveled
against him. It is pleaded that the petitioner participated in the inquiry with the
assistance of his Defence Assistant and that the petitioner was furnished copy of
inquiry report and the petitioner submitted his reply on 24th of March 2002,
whereafter order imposing penalty of removal from service on the petitioner was
passed.

Heard and considered.

The order dated 14th May 1998 is appealable under Extra Departmental
Agents (Conduct & Service) Rules 1964. The Rules provide for an appeal against
order like subject matter of the present writ petition. In terms of Rule 11 of the
Rules, such appeal is to be filed before Chief Post Master General. The petitioner,
as mentioned above, filed appeal against order dated 14th May 1998 on 25.8.1998
i.e., a few days after time prescribed under Rule 11 elapsed/came to end.
Respondents, in their reply, have admitted that appeal was filed against order dated
14th May 1998 by the petitioner. The respondents, however, plead that the appeal
was received in the office of Chief Post Master General, J&K, on 18th February
2000. The reply objections as a matter of fact refer to a reminder received by
respondent No.2 and not the original appeal preferred on 25th of August 1998. The
reply does not make mention of the appeal dated 25th of August 1998, forwarded
vide Speed Post Parcel No.AD 2/41 dated 26th August 1998. The respondents have
merely stated that the appeal was not filed within three months as required in terms
of Rule 11. The respondents neither in para vii nor in para xi of the reply, plead
that the appeal was dealt with by the Appellate Authority. The Appellate Authority
even where appeal is preferred, after prescribed period is over, is required to pass
formal order dismissing appeal as time barred. The Appellate Authority may on
consideration of the grounds taken in the appeal and the issues sought to be raised,
entertain an appeal even after the period of appeal is over. The Appellate Authority
in the circumstances has to look into appeal and not to refuse to even touch the
appeal, let alone go through grounds urged in the appeal, to assess whether any
important issues are raised. In the present case the Appellate Authority has not even
looked at the appeal and failed to pass an order, dismissing the appeal as time
barred or otherwise. In such a situation, appellant is not in a position to know the
reasons, for which appeal was dismissed or to know how grounds set out in the
appeal, were dealt with by the Appellate Authority. In absence of such information
the appellant is deprived of right to question the order of Appellate Authority
through appropriate proceedings. In the present case as pointed out earlier, no order
has been passed by the Appellate Authority on the appeal admittedly received from
the appellant. Though Rule 11 provided an equally efficacious remedy to the
petitioner to question order, forming subject matter of the present petition, yet the
respondents have practically denied the petitioner such right.

It is the Appellate Authority that in the event the appeal was entertained,
would have been in a better position to deal with the grounds set up in the petition
and earlier in memo of appeal. It is for the Appellate Authority to hold opine
whether the petitioner was entitled to service of legal assistance as laid down in
Mohan Chandran and others Vs. Union of India & others (1986 (1) SLR 84 (MP) or
whether because of delay in service of charge sheet, disciplinary proceedings were
vitiated as held in Subhash Chand Basu Vs. Bank of Baroda, (1991 (SLR)
38(Calcutta); State of MP Vs Bani Singh and another (1990 (2) SLR 798).

Again it is for the Appellate Authority to return finding on the plea that due
to non-supply of copy of documents relied upon and non-inspection of records,
prejudice was caused to the petitioner as held in Nathu Singh Vs Rajasthan SRTC
and others (1988 (6) SLR 754 (Rajasthan), or whether the suspension order was
ineffective because of it not having been confirmed within 15 days from the date it
was made, as held in Shambu Nath Panda Vs Union of India and others (1987(1)
SLR 741).

For the reasons discussed, the Appellate Authority Chief Post Master
General, J&K, is directed to deal with and pass orders warranted under law on the
appeal, preferred by the appellant on 25th of August 1998. Having regard to the fact
that the grievance of the petitioner has gone unaddressed for last ten years, the
Appellate Authority shall as far as possible, decide the appeal within two weeks
from the date, copy of the order is made available to the Appellate Authority.

Writ petition is disposed of, accordingly.

( Hasnain Massodi )
Judge
Jammu
18/09/2010
Ajaz Ahmad

M/S Jay Kay Electronics Pvt. Ltd vs Shekhar Dutt & Ors on 31 August, 2010

Jammu High Court
M/S Jay Kay Electronics Pvt. Ltd vs Shekhar Dutt & Ors on 31 August, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
Contempt (OWP) No. 80 OF 2007    
M/s Jay Kay Electronics Pvt. Ltd
Petitioners
Shekhar Dutt & ors 
Respondent  
!Mr. B. S. Salathia, Advocate
^Mr. P. S. Chandel, CGSC. 

Hon'ble Mr. Justice J. P. Singh, Judge
Date: 31.08.2010 
:J U D G M E N T :

Petitioner has moved this Motion seeking initiation of
proceedings in Contempt against the respondents for
disobedience of the interim directions issued on 28.02.2007
whereby until the filing of Objections by the respondents, they
were directed to issue Tender/Quotations to the petitioner as
per the norms/rules.

The petitioners Complaint is that the respondents have
violated the directions of the Court by issuing it only two
Tender documents whereas the respondents had invited 500
Quotations and 80 Tender documents.

The respondents Response to the Complaint indicates
that total 67 number of Tenders and 1061 Quotations had
been asked for the period commencing from May 2007 to
December 2007 and, the petitioner was afforded opportunity
to compete for 6 Tenders with 100 Quotations against which it
had responded only to 2 Tenders although its entitlement
2
under rules was 4.7 Tenders and they had thus not disobeyed
the directions of the Court in any manner whatsoever.
I have considered the submissions of the learned
counsel for the parties in the light of the material placed on
records.

It is true that the respondents had initially taken a wrong
stand to have issued 6 Tenders to the petitioner by registered
post. Their subsequent clarifications, however, indicate that
the Tenders had been issued only under Certificate of Posting
which course was adopted by the respondents in case of all
other Approved Contractors as well.

The respondents have produced the records indicating
dispatch of documents to the petitioner after having obtained
requisite Certificates regarding posting of the documents.
In view of the material placed on the records, I do not
find any evidence to sustain the petitioners Complaint that
the respondents had avoided despatch of documents to it in
terms of the interim directions of the Court.
Thus, finding no merit in the Petition, it is dismissed.
(J.P.Singh)
Judge
JAMMU:

31.08.2010
Pawan Chopra

M/S Jay Kay Electronics Pvt. Ltd vs Shekhar Dutt & Ors on 31 August, 2010

Jammu High Court
M/S Jay Kay Electronics Pvt. Ltd vs Shekhar Dutt & Ors on 31 August, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
Contempt (OWP) No. 80 OF 2007    
M/s Jay Kay Electronics Pvt. Ltd
Petitioners
Shekhar Dutt & ors 
Respondent  
!Mr. B. S. Salathia, Advocate
^Mr. P. S. Chandel, CGSC. 

Hon'ble Mr. Justice J. P. Singh, Judge
Date: 31.08.2010 
:J U D G M E N T :

Petitioner has moved this Motion seeking initiation of
proceedings in Contempt against the respondents for
disobedience of the interim directions issued on 28.02.2007
whereby until the filing of Objections by the respondents, they
were directed to issue Tender/Quotations to the petitioner as
per the norms/rules.

The petitioners Complaint is that the respondents have
violated the directions of the Court by issuing it only two
Tender documents whereas the respondents had invited 500
Quotations and 80 Tender documents.

The respondents Response to the Complaint indicates
that total 67 number of Tenders and 1061 Quotations had
been asked for the period commencing from May 2007 to
December 2007 and, the petitioner was afforded opportunity
to compete for 6 Tenders with 100 Quotations against which it
had responded only to 2 Tenders although its entitlement
2
under rules was 4.7 Tenders and they had thus not disobeyed
the directions of the Court in any manner whatsoever.
I have considered the submissions of the learned
counsel for the parties in the light of the material placed on
records.

It is true that the respondents had initially taken a wrong
stand to have issued 6 Tenders to the petitioner by registered
post. Their subsequent clarifications, however, indicate that
the Tenders had been issued only under Certificate of Posting
which course was adopted by the respondents in case of all
other Approved Contractors as well.

The respondents have produced the records indicating
dispatch of documents to the petitioner after having obtained
requisite Certificates regarding posting of the documents.
In view of the material placed on the records, I do not
find any evidence to sustain the petitioners Complaint that
the respondents had avoided despatch of documents to it in
terms of the interim directions of the Court.
Thus, finding no merit in the Petition, it is dismissed.
(J.P.Singh)
Judge
JAMMU:

31.08.2010
Pawan Chopra