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Nov 28 2013

State of West Bengal & Ors Vs. Sankar Ghosh

  • Decided on : 28-Nov-2013

Court : Supreme Court of India

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.10729 OF2013(@ Special Leave Petition (Civil) No.29808 of 2010) State of West Bengal & Ors. Appellants Versus Sankar Ghosh Respondent JUDGMENT K.S. Radhakrishnan, J.1. Leave granted.2. We are, in this case, concerned with the question whether the respondent, who was dismissed from service following disciplinary proceedings, is liable to be reinstated on acquittal by a criminal court on the ground of identity of charges in the departmental as well as criminal proceedings.3. The respondent was working as a Sepoy in the 2nd Battalion of the Kolkata Armed Police. At the time of the incident, he was working as a Sepoy on deputation in the Traffic Department of Kolkata Police. He was arrested by the police in connection with Khardah P.S. Case No.383 dated 12.11.2013 and charged for the offences under Sections 392, 395 and 412 of the Indian Penal Code read with Sections 25 and 27 of the Arms Act for his complicity in the commission of a dacoity using a motor cycle bearing Registration No.WB-24/F-3050. On his arrest, he was produced before the Sub-Divisional Magistrate, Barrackpore, and he was remanded to police custody till 28.11.2003 and then to judicial custody till 30.3.2004. Later, he was released on 1.4.2004. The department placed the respondent under suspension w.e.f. 26.11.2003 and was later served with a charge sheet on 1.6.2004. The operative portion of the charge sheet reads as follows ...

Nov 28 2013

S.K.Rattan Vs. Union of India & Ors.

  • Decided on : 28-Nov-2013

Court : Supreme Court of India

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 1921-1922 OF2010S.K. RATTAN Appellant(s) :VERSUS: UNION OF INDIA & ORS. Respondent(s) JUDGMENT H.L. GOKHALE, J.: Leave granted.2. These appeals by special leave seeks to challenge the judgment and order dated 21st May, 2009 rendered by a Division Bench of the Delhi High Court in Writ Petition (Civil) No.2080 of 2003 and subsequent order dated 31.7.2009 passed by that Court in Review Petition No.277 of 2009 dismissing both of them. The aforesaid Writ Petition (Civil) No.2080 of 2003 sought to challenge the judgment and order rendered by the Central Administrative Tribunal on 1st October, 2001 in O.A. No.1436 of 2000 by which the Original Application filed by the appellant herein was dismissed.3. The short facts leading to these appeals are this wise. The appellant joined his services as Sub Inspector of Police in the Central Bureau of Investigation (CBI) in 1964 and was subsequently promoted to the post of Inspector of Police in 1966. He was eventually promoted to the post of Deputy Superintendent of Police in CBI with effect from 18th April, 1984.4. It so transpired that Government of India constituted an Organization, namely, National Crime Records Bureau (NCRB) by merging four units of Central Police Organizations, including the Data Section of the Co-ordination Division of CBI. Consequent upon this decision, 10 posts of this Data Section, including one post of Deputy Superintendent of ...

Nov 28 2013

A.M. Noon and Another Vs. University Grants Commission and Others

  • Decided on : 28-Nov-2013

Court : Sri Lanka Supreme Court

K. Sripavan, J. The Petitioners filed this application seeking admission to the First Petitioner in a University in Sri Lanka for the Academic year 2008/2009 under and in terms of the special quota allocated by the University Grants Commission for students with foreign qualifications. Leave to proceed was granted on 29.06.2010 for the alleged violation of Article 12(1) of the Constitution. The provision relating to the special quota in respect of the Academic year 2008/2009 appears in the Manual issued by the University Grants Commission titled "Admission to Undergraduates Courses of the Universities in Sri Lanka" marked P2. Clause 18(d) of the said Manual provides, inter alia, as follows:- "Up to 0.5 percent of the places from the proposed intake in each course study have been allocated to Sri Lankan students who have obtained qualifications abroad and foreign students. Accordingly, candidates who have foreign qualifications equivalent to G.C.E. (A/L) Examination of Sri Lanka are eligible to apply. Selections are based on the following priority: (a) Children of Sri Lankan diplomatic personnel who are/have been stationed in other countries provided they have received education abroad for at least three years in the six-year period immediately preceding the qualifying examination. " (emphasis added) In addition, the University Grants Commission issued a separate handbook called "Admission of Students with the Foreign Qualifications to Undergraduate Courses of the Universities ...

Nov 28 2013

Lucky Mashudu Makhokha Vs. The State

  • Decided on : 28-Nov-2013

Court : South Africa - Supreme Court of Appeal

On appeal from Limpopo High Court, Thohoyandou (Lukoto AJ sitting as court of first instance): The appeal is upheld. The convictions of the appellant are set aside. JUDGMENT Lewis JA (Brand and Cachalia JJA concurring): [1]On 19 January 2005 the appellant was convicted by the Limpopo High Court (Thohoyandou) (Lukoto AJ) on one count of theft and one of robbery, and sentenced to imprisonment of six years and 15 years respectively, the sentences to run consecutively. That court (per Snyman AJ) refused the appellants application for leave to appeal. Some four years later this court granted leave to appeal against both conviction and sentence. The appellant has been imprisoned for the past eight years. [2] The sole basis for the conviction was a statement made by the appellant to an Inspector Ramovha. The statement was introduced by the State when Ramovha was giving evidence. He read it into the record. The appellant did not, during the course of the trial, contest the admissibility of the statement and no trial within a trial was held to determine the issue. The statement, argued the appellant on appeal, amounted to a confession. It was reduced to writing on the standard form headed Statement regarding interview with suspect. In it the appellant confessed to stealing a vehicle and to robbing (hijacking) another. The only argument raised by the State on appeal was that the statement did not amount to a confession since the appellant did not admit to all the elements of the ...

Nov 28 2013

Northern Estate and Trust Administrators (PTY) Ltd. Vs. Agricultural a ...

  • Decided on : 28-Nov-2013

Court : South Africa - Supreme Court of Appeal

On appeal from: Full Court of the North Gauteng High Court, Pretoria (Mavundla J with Ranchod and Tuchten JJ concurring): The appeal is dismissed with costs including those of two counsel. JUDGMENT MEYER AJA (LEWIS, MAYA AND LEACH JJA AND SWAIN AJA CONCURRING): [1] This appeal arises out of an agreement of sale concluded in May 2005 in terms of which the respondent, the Agricultural and Rural Development Corporation (the ARDC), sold shares it held in a company known as Outspan (Pty) Ltd to Mr Charles Andrew Boyes, trading at the time as Henley Farm (Boyes). Boyes paid the purchase price but the shares were not transferred to him. Subsequently the appellant (Northern Estate and Trust Administrators (Pty) Ltd) instituted action against the respondent alleging that Boyes had ceded his rights, title and interest in a claim against the respondent for transfer of the shares, and claiming an order directing the respondent to transfer such shares to it. [2] At first instance, the matter came to trial in the North Gauteng High Court before Phatudi J who found that the cession relied on by the appellant had indeed taken place, but dismissed the appellants claim, finding that Boyes and ARDC had agreed to cancel the sale of the shares. The appellant appealed unsuccessfully to a full bench, its appeal having been dismissed on 19 October 2012. The present appeal is with the leave of this court [3] By the time the matter went to trial it was common cause that a valid and binding sale ...

Nov 28 2013

Nkhumeleni David Mudau Vs. The State

  • Decided on : 28-Nov-2013

Court : South Africa - Supreme Court of Appeal

On appeal from: Limpopo High Court, Thohoyandou (Hetisani J sitting as court of first instance): The appeal is allowed and the convictions and sentences are set aside. JUDGMENT Shongwe JA (Cachalia and Majiedt JJA concurring) [1] On the morning of 10 November 2002 the appellant and one Avhashoni Rasilingwane (the deceased) were found lying side by side on the lawn of one Patrick Khwashaba, near Makwarela Location, in the district of Thohoyandou. The deceased was dead and the appellant was injured on his head and on his hand. The two had apparently met each other the night before at a beer-hall where they had been imbibing sorghum beer together. [2] The appellant was taken to the local Tshilidzini hospital but subsequently charged with murder and rape of the deceased. Upon a plea of guilty on both charges, the appellant was convicted as charged and sentenced to imprisonment for life on each of the counts. The sentences were ordered to run concurrently (Hetisani J). The appeal before us is against sentence only with the leave of the court below (Makhafola J), because Hetisani J has since retired. [3] While preparing for this appeal it appeared that the provisions of sll2 (l) (b), of the Criminal Procedure Act 51 of 1977 (the Act) were not complied with and also that the provisions of s 113 of the Act should have been applied. Both counsel for the State and the appellant were invited to provide supplementary heads of arguments to comment on the sufficiency and adequacy of the ...

Nov 28 2013

Boschpoort Ondernemings (PTY) Ltd. Vs. Absa Bank Limited

  • Decided on : 28-Nov-2013

Court : South Africa - Supreme Court of Appeal

On appeal from: North Gauteng High Court, Pretoria (Bertelsmann J sitting as court of first instance): The appeal is dismissed with costs, which costs are to include the costs of two counsel. JUDGMENT Willis JA (Cachalia and Petse JJA and Swain and Meyer AJJA concurring): [1] This case is concerned with an issue which has vexed the high court in various centres around the country since the coming into operation of the Companies Act 71 of 2008 (the new Act) on 11 May 2011: to what extent is it, in the words of counsel for the appellant, Mr Oosthuizen, business as usual where an application is made for the liquidation of a company that is commercially insolvent, even though its assets may exceed its liabilities? [2] The respondent (the bank) applied to the high court (Bertelsmann J) for an order to wind up the appellant in terms of s 344(f) read with s 345 of the Companies Act 61 of 1973 (the old Act), alternatively in terms of s 344(h) of the old Act, further alternatively in terms of s 81(1)(cJ(ii) of the new Act. The high court made an order winding up the appellant on 15 June 2012. The high court did so on the basis that it would be just and equitable to make such an order in terms of s 81(1)(cJ(ii) of the new Act. On 20 November 2012 the high court granted leave to appeal to this court. [3] It was not disputed that the appellant had, since 1 October 2010, been in arrears in respect of its obligations to pay the bank more than R29 million. At the time when the application ...

Nov 28 2013

City of Cape Town Municipality Vs. South African Local Authorities Pen ...

  • Decided on : 28-Nov-2013

Court : South Africa - Supreme Court of Appeal

On appeal from: Western Cape High Court, Cape Town (Griesel J sitting as court of first instance): The appeal is dismissed with costs JUDGMENT Mthiyane AP (Bosielo, Wallis, Pillay JJA and Zondi AJA concurring): [1] This is an appeal against a judgment and order of the Western Cape High Court (Griesel J) in which the court a quo dismissed an appeal in terms of s 30P of the Pension Funds Act 24 of 1956 (the Act) against a determination of the Acting Pension Funds Adjudicator (the Adjudicator). The appeal is with the leave of the court a quo. Section 30P of the Act provides that a party who is aggrieved by a determination of the Adjudicator may apply to the division of the high court which has jurisdiction, for relief, and the high court may then consider the merits of the complaint made to the Adjudicator under s 30A(3) and may make any order it deems fit. [2] The appellant (the City) lodged a complaint with the Adjudicator in terms of s 30A of the Act, against the conduct and administration of the first respondent (the fund).[1] The complaint arose from a dispute betweenthe City and the fund, concerning increased employer contributions from the City (at a rate of 20.78 per cent of members salaries) on an on-going, indefinite basis. The fund claimed that it was entitled to exact increased employer contributions from the City. The City contended that it was only obliged to pay the increased contributions for a 5 year period between July 2003 and July 2008, whereafter the ...

Nov 28 2013

Bothma-Batho Transport (EDMS) BPK Vs. S Bothma and Seun Transport (EDM ...

  • Decided on : 28-Nov-2013

Court : South Africa - Supreme Court of Appeal

On appeal from: Free State High Court (Hancke AJP sitting as court of first instance): The appeal is dismissed with costs. JUDGMENT WALLIS JA (concurring) Introduction [1] The respondent, S Bothma and Seun Transport (Edms) Bpk (Bothma and Seun), was originally a family company established by a father and handed on to his sons, Louis, Pelham and Tertius. Louis died, and in 2005 Pelham and Tertius went their separate ways. Pelham retained Bothma and Seun and Tertius established the appellant, Bothma-Batho Transport (Edms) Bpk (Bothma-Batho). In dividing the original business between them they had to deal with a tank farm situated in Standerton, which Bothma and Seun were hiring from Omnia Kunsmis Bpk (Omnia) under a contract executed in 1999, but pre-dating that date. In 2005 a new lease agreement was concluded with Omnia to which both Bothma and Seun and Bothma-Batho were parties. It provided for Bothma and Seun to have the use of three tanks, numbers 1, 2 and 3, with a total capacity of some 15 000 cubic metres and for Bothma-Batho to have the use of six tanks, numbers 4 to 9, having a total capacity of some 11 800 cubic metres. In return they became obliged to pay rental to Omnia on a monthly basis. [2] Although both Bothma and Seuns and Bothma-Batho were parties to the lease, Omnia only wished to deal with one of them. Accordingly the lease provided that Omnia would invoice Bothma-Batho for the entire rental due under the lease in respect of all nine tanks, and that Bothma ...

Nov 28 2013

Solidarity Obo Mrs R.M. Barnard Vs. South African Police Service and A ...

  • Decided on : 28-Nov-2013

Court : South Africa - Supreme Court of Appeal

On appeal from: The Labour Appeal Court, Johannesburg sitting as court of appeal (Mlambo JP (Davis and Jappie JJA, concurring). The following order is made: 1. The appeal is upheld with costs including the costs of two counsel. 2. The order of the Labour Appeal Court is set aside and substituted as follows: The appeal is dismissed with costs. JUDGMENT Navsa ADP, (Ponnan, Tshiqi and Theron JJA and Zondi AJA concurring): [1] This appeal, which deals with the application of the Employment Equity Act 55 of 1998 (EEA) and an Employment Equity Plan (EEP) devised in terms thereof, is a peculiarly South African tale. It demonstrates the difficulties we face in forging a future in which everyone ultimately will have a place in the sun. In our journey towards that end we have in juxtaposition those who were previously denied opportunities and those who had them. In redressing the skewed situation created by our racist past, and to recalibrate and achieve a balanced society, there has to be an accommodation and a scrupulous adherence to fairness. It is that exercise that has as a consequence difficult, awkward and even acrimonious moments for those who find themselves in contestation and for society as a whole. Sometimes we get it right and sometimes we get it wrong. We are, of course, dealing with the legacy of an institutionalised racially divisive past, the effect of which continues to haunt us as a nation recently come to democratic values. Put simply, we are experiencing ...

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