Mahir Haneef's Blog: high court of kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

TUESDAY, THE 27TH DAY OF FEBRUARY 2018 / 8TH PHALGUNA, 1939

WP(C).No. 30561 of 2017

PETITIONERS:

1 RAKHI P.V., AGED 36 YEARS,
D/O.VIJAYAN, PALLATHUPADY HOUSE,
P.O. NAYARAMBALAM, ERNAKULAM DISTRICT,
KERALA- 682509.

2 NISHA K.S., AGED 31 YEARS,
W/O.SUSANNAN, MEENAMBIKA HOUSE,
KARUTHEDATH KALAM, THEKKE DESAM,
P.O. NALLEPPILLY, PALAKKAD DISTRICT- 678 553.

3 REEJAMOL SCARIA, AGED 31 YEARS,
W/O.SINTO SABU, CHARUVULAYIL HOUSE,
P.O. THARIODE NORTH, PADINJARATHARA,
WAYANAD- 673 575.

4 JAYAPRABHA J., AGED 34 YEARS,
W/O.SANTHOSH.K.S,
C/O. NAGRAJ K., TELECOM SECTION,
KDHP CO. (P) LTD, MUNNAR WORKSHOP,
P.O. MUNNAR, IDUKKI - 685 612

5 BITHAMOL K.T., AGED 32 YEARS,
W/O. MANJITH C., GREESHMAM (H),
CALICUT, VELLIPARAMBA P.O.,
KOZHIKODE- 673008.

BY ADVS.SRI.M.R.VENUGOPAL
SMT.DHANYA P.ASHOKAN

RESPONDENTS:

1. THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
EDUCATION DEPARTMENT,THIRUVANANTHAPURAM, PIN- 695 001.

2. THE STATE PROJECT DIRECTOR,
RASHTRIYA MADHYAMIK SHIKSHA ABHIYAN,
SEVENTH FLOOR, TRANS TOWER BUILDING,
VAZHUTHACAUD, THIRUVANANTHAPURAM- 695 014.

BY SR. GOVERNMENT PLEADER SRI.B.UNNIKRISHNA KAIMAL

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27-02-2018,
ALONG WITH WPC.39828/2017 AND WPC.40564/2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

EL
WP(C).No. 30561 of 2017 (U)

APPENDIX

PETITIONER(S)' EXHIBITS

EXHIBIT P1 TRUE COPY OF THE DISCHARGE SUMMARY ISSUED IN
THE NAME OF 1ST PETITIONER

EXHIBIT P2 TRUE COPY OF THE DISCHARGE SUMMARY ISSUED IN
THE NAME OF 2ND PETITIONER

EXHIBIT P3 TRUE COPY OF THE DISCHARGE SUMMARY ISSUED IN
THE NAME OF 3RD PETITIONER

EXHIBIT P4 TRUE COPY OF THE DISCHARGE SUMMARY ISSUED IN
THE NAME OF 4TH PETITIONER

EXHIBIT P5 TRUE COPY OF THE DISCHARGE SUMMARY ISSUED IN
THE NAME OF 5TH PETITIONER

EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 22.8.2017
SUBMITTED BY THE 1ST PETITIONER

EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED 12.4.2017
ISSUED BY THE MINISTRY OF LABOUR & EMPLOYMENT

EXHIBIT P8 TRUE COPY OF THE CLARIFICATION ISSUED BY
MINISTRY OF LABOUR & EMPLOYMENT

EXHIBIT P9 TRUE COPY OF THE CIRCULAR NO.760/P4/2017-18/
R.M.S.A DATED 16.8.2017 ISSUED BY 2ND RESPONDENT

EXHIBIT P10 TRUE COPY OF THE ORDER NO.110/2014/G.E.D DATED
7.9.2017

RESPONDENT(S)' EXHIBITS

EXHIBIT R2(A) TRUE COPY OF THE LETTER NO.214/2017/G.EDN
DATED 22.12.2017

TRUE COPY

P.S. TO JUDGE

EL

13.3.2018

ANU SIVARAMAN, J.
= = = = = = = = = = = = = = =
W.P.(C).Nos.30561,39828
and 40564 of 2017
= = = = = = = = = = = = = = =
Dated this the 27th day of February, 2018

JUDGMENT

1. These writ petitions are filed seeking directions to the

respondents to grant six months Maternity leave to the

petitioners as is being granted to the State Government

employees.

2. Petitioner in W.P.(C).No.39828/17 is a Programme Manager in

Additional Skill Acquisition Programme under the Higher

Education Department of the Government of Kerala. She was

initially appointed on contract basis for a period of one year from

21.9.2014. The period of contract has been extended twice and

the petitioner is still continuing in service. The petitioners in

W.P.(C).Nos. 30561/2017 and 40564/2017 are Resource teachers

working in Government Schools in the State of Kerala on

contract basis. It is stated that they are working under the

Inclusive Education for Disabled Secondary Stage under the

Rashtriya Madhyamic Siksha Abhiyan of the MHRD. It is
W.P.(C).No.30561/17 & con.cases

2

contended that the petitioners, who are women employees, had

applied for maternity leave during the period of their

employment. In W.P.(C).No.39828/2017, the petitioner was

granted maternity leave of 135 days and was required to return

duty on the expiry of the said period of 135 days. The petitioner

contended that going by the provisions of the Kerala Service

Rules (KSR) as well as the provisions of the Maternity Benefit

Act, 1961, every woman employee working in any establishment

is entitled to maternity leave of 180 days. It is contended that

the petitioner is entitled to the said period of leave. The

petitioner had been permitted to continue on leave in terms of

judgment in W.A.No.2594/2017 dated 18.12.2017. In the other

two writ petitions, the petitioners had sought maternity leave

for 180 days, but they have been told that they are entitled

maternity leave only for 12 weeks and the extension of leave

cannot be considered on the basis of the orders in force.

3. Heard learned counsel for the petitioners and the learned

Government Pleader.
W.P.(C).No.30561/17 & con.cases

3

4. It is submitted by the learned counsel for the petitioners that

the provisions of the Kerala Service Rules as well as the

Maternity Benefit Act, 1961 and the service rules applicable to

Government servants of the Central Government, provide for

grant of maternity leave extending to 26 weeks. It is

contended that the grant of maternity leave being in the

nature of welfare legislation, the contention of the respondents

that the benefit of 26 weeks of maternity leave is not to be

granted to employees of the Central Government funded

projects under the Education Department of the Government

of Kerala because the projects are not notified establishments

going by the provisions of the Maternity Benefit Act cannot be

countenanced.

5. Relying on a decision of this Court in Mini v. Life Insurance

Corporation of India [2018 (1) KLT 530], the learned counsel

for the petitioners contends that the grant of leave to fulfill

essential maternal obligations involves an essential human

rights issue and that the State is duty bound to address the
W.P.(C).No.30561/17 & con.cases

4

special needs of women employees working in the organised

and unorganised sectors. The State has a responsibility to see

that a restricted meaning is not given to welfare legislation so

that rights of women employees to avail leave is restricted. It

is stated that the right to maternity leave is an essential

element of the fundamental right to life as far as a woman

employee is concerned and the issue has to be seen in the

context of Articles 14, 15 and 16 of the Constitution of India.

It is stated that a woman employee cannot be discriminated on

account of compelling family responsibilities and that the said

aspects of the matter are also to be taken into account while

considering the issue of grant of maternity leave.

6. A detailed counter affidavit has been placed on record by the

learned Government Pleader in W.P.(C).No.39828/2017

contending that the petitioners' engagement is under the

Additional Skill Acquisition Programme (ASAP), which is a

joint initiative of General Education and Higher Education

Departments and the administrative powers are vested on the
W.P.(C).No.30561/17 & con.cases

5

Empowered Committee chaired by the Chief Secretary. It is

stated that the Government Order which provides for the

service conditions of employees of ASAP permitted the grant of

135 days of maternity leave to contract employees. It is stated

that the Government has implemented the Project

Management Pool in the ASAP by Government Order dated

11.4.2017 and going by the said Government Order only 90

days is provided as maternity leave to female employees of the

project. It is stated that the petitioner had been granted 135

days leave, since her application for leave was before Ext.R1(b)

amendment was brought into effect. It is contended that the

petitioner would not be entitled to 26 weeks of maternity leave

as provided in the Maternity Benefit Act or the 180 days of leave

as provided in the Kerala Service Rules, since the petitioner was

a contract employee under a project and that she would not be

entitled to the benefits of either of the provisions.

7. In W.P.(C).No.30651/2017 also, a counter affidavit has been filed

on behalf of the 2nd respondent stating that the petitioners are

contract employees under the the Centrally sponsored Scheme
W.P.(C).No.30561/17 & con.cases

6

of Inclusive Education for Disabled Secondary Stage implemented

through the Rashtriya Madhyamic Siksha Abhiyan of the MHRD.

The provisions of the Scheme provided only 90 days of maternity

leave to Special Educators appointed on contract basis. It is

stated that teachers under the Scheme as well as under the

Sarva Shiksha Abhiyan are entitled only to 3 months of maternity

leave, going by the Government Orders in force. The learned

Government Pleader also relies on a decision of a Division Bench

of this Court in Jisha P. Jayan v. Sree Sankaracharya

University of Sanskrit, Kalady and others [2013 (3) KLT 533]

wherein it has been held that Sree Sankaracharya University, not

being an establishment notified under the Maternity Benefits

Act, an employee of the University could not claim maternity

leave as provided in the Act.

8. I have considered the contentions advanced on either side. It is

not in dispute that women employees directly employed by the

Government would be entitled to 180 days of maternity leave,

going by the provisions of the KSR. Employees in any

establishment as provided in Maternity Benefit Act, 1961, ie.,
W.P.(C).No.30561/17 & con.cases

7

employees of mines, factories or plantations and establishments

where persons are employed for execution of acrobatic and other

performances and employees of other establishments within the

meaning of any law for the time being in force in relation to

shops and establishments in the State would be entitled to

maternity leave in terms of the statutes and the orders in force.

9. The petitioners are also admittedly women employees working

on a contract basis under state funded projects. The benefits of

enhanced maternity leave to woman employees is undoubtedly a

piece of welfare legislation which is intended to give women

equal opportunities in public employment. In the above view of

the matter, the contention raised to the effect that the contract

employees under the projects are entitled only to 90 days of

maternity leave, according to me, cannot be countenanced, since

it would amount to discrimination against woman employees only

for the reason that they are engaged in projects in contractual

capacities. The inalienable obligations of maternity should not

and cannot be a reason to deny equal opportunities to woman

employees. This precisely would be the result of limiting
W.P.(C).No.30561/17 & con.cases

8

maternity leave to women employees, irrespective of the nature

of their employment. The further contention to the effect that the

contractual appointment of the petitioners have a duration of

only one year and the grant of six months paid leave would

obliterate the benefit to the project of the engagement is also not

tenable because the petitioners are persons who are continuing

in service on the basis of successive extension of contract. The

contention therefore can have no application in the instant cases.

10.In the above view of the matter, I am of the opinion that in the

light of the principles laid down by this Court in Mini's case

(supra) the contention raised that the petitioners herein are

entitled only to 90 days of maternity leave cannot be

countenanced. The petitioners herein will also be entitled to

maternity leave as is due to women employees under the Service

Rules applicable to State and Central Government servants and

to women employees under the Maternity Benefit Act, 1961. In

the above view of the matter, the impugned orders are set aside.

There will be a direction to the respondents to grant 26 weeks of

maternity leave to the petitioners. Orders shall be passed within
W.P.(C).No.30561/17 & con.cases

9

a period of two weeks from the date of receipt of a copy of this

judgment.

These writ petitions are ordered accordingly.

Sd/-

Anu Sivaraman, Judge

sj

Monday, July 24, 2017

HC Declines Bail to Actor Dileep [READ ORDER]

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE SUNIL THOMAS

MONDAY, THE 24TH DAYOF JULY2017/2ND SRAVANA, 1939

Bail Appl..No. 5098 of 2017 ()
-------------------------------
CRIME NO. 297/2017 OF NEDUMBASSERY POLICE STATION, ERNAKULAM DIST.
.......

PETITIONER/ACCUSED:
------------------------------------

P.GOPALAKRISHNAN @ DILEEP,
AGED 49 YEARS, S/O.G. PADMANABHA PILLAI,
PADMASAROVARAM HOUSE, KOTTARAKADAVU ROAD,
ALUVA, ERNAKULAM DISTRICT.

BY SRI.K.RAMAKUMAR, SENIOR ADVOCATE.
ADVS. SRI.T.RAMPRASAD UNNI,
SRI.S.M.PRASANTH,
SRI.M.MANOJKUMAR (CHELAKKADAN),
SMT.R.S.ASWINI SANKAR.

RESPONDENTS/STATE & COMPLAINANT:
------------------------------------------------------------

1. STATE OF KERALA,
REPRESENTED BY THE PUBIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.

2. THE STATION HOUSE OFFICER,
NEDUMBASSERY POLICE STATION,
ERNAKULAM DISTRICT.

BY SRI.C. SREEDHARAN NAIR, DIRECTOR GENERAL OF PROSECUTION.

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 20-07-2017, THE COURT ON 24/07/2017 PASSED THE
FOLLOWING:
rs.

SUNIL THOMAS,J
------------------------
B.A.No..5098 of 2017
--------------------------
Dated this the 24th day of July 2017

O R D E R

The 11th accused in Crime No.297/2017 of Nedumbassery

Police station for offences punishable under sections 120(B),

342,366,376(D),411,506(1),201,212 & 34 IPC and sections 66

(E) & 67(A) of the Information Technology Act,2008,is the

petitioner herein.

2. The crux of the prosecution case, as is discernible

from the available records, is as follows:

3. The petitioner herein is a prominent Malayalam cine

artist, having acted in several films in the main role. The

victim is an unmarried, well known cine actress, who has

several films to her credit. The petitioner herein had married

a leading actress and a child was born in the matrimonial

relationship. Subsequently, matrimonial disputes arose in

their family, ultimately leading to a judicial separation. The

petitioner herein suspected that, the victim herein, who was a

close friend of his erstwhile wife, was instrumental in the

disruption of his matrimonial life. To wreak vengeance, he

allegedly conspired with the first accused, to abduct the

victim and to take her nude photographs, on an offer that, the

BA No.5098/2017 2

first accused would be paid Rupees One and Half Crores. The

first accused was a driver, who used to get associated with

film production units, and had a criminal track record.

4. On 17/2/2017, at about 7 p.m., the victim started from

her house at Thrissur to proceed to Cochin, in a Mahendra

XUV.vehicle, sent to her by the film production unit, to join

the work in a film. The vehicle proceeded along the National

Highway. The second accused was the driver of that

vehicle,who was a stranger to the victim. It is alleged that,

the first accused and his co-accused waited in a van near the

Airport Junction and when the vehicle of the victim reached

the spot, the first accused stage managed a fake accident, by

hitting the van on the rear side of the XUV. Thereafter, third,

fourth and sixth accused forcefully entered into the vehicle

and wrongfully confined the victim to the rear seat. They

drove the vehicle towards the Kochi city, followed by the van

driven by the first accused. Thereafter, the first accused

entered the vehicle and sexually molested her in the moving

vehicle. While she was being sexually abused, first accused

simultaneously video graphed with his mobile phone the entire

incident, with close shots of the body of the helpless victim.

In the course of the sexual act, he had directed her to co-

BA No.5098/2017 3

operate with him and divulged that, it was done by him on a

quotation entrusted to him, by another person. The ordeal of

the victim continued upto 11 p.m., in spite of her persistent

plea for release. She was thereafter left off by the main

accused. The second accused driver took the mentally

shattered victim to the house of a film director, to whom she

revealed the entire episode. Immediately, the matter was

informed to the police.

5. FIS of the victim was recorded on 18/2/2017 at 3

a.m.and she underwent medical examination. Investigation

commenced. Her statement under section 164 Cr.P.C.was

also recorded before the Magistrate. It emerges that, in the

course of the incident, the victim had identified the first

accused, who had earlier driven her car while she was on a

film shooting at Goa. In the course of investigation, the driver

was arrested, which ultimately led to the arrest of seven

persons. Arraying them as accused, final report was laid on

17/4/2017. Accused 1 to 6 were the persons who were

involved in the main crime and seventh accused was charged

with offence of harbouring the accused.

6. In the final report, it was clarified that, an advocate

was also involved in the crime, against whom a separate

BA No.5098/2017 4

charge sheet was proposed to be filed. The right of the

investigating agency to investigate into the larger conspiracy

was also reserved. The matter is now pending as CP

No.17/2017 of Judicial First Class Magistrate Court,

Angamaly. The investigation into the conspiracy, however,

continued. The involvement of the petitioner herein was not

revealed at that time.

7. In the meanwhile, on 22/4/2017, the petitioner herein

submitted a written complaint dated 20/4/2017, to the

Director General of Police, alleging that, few social media

groups and unknown sources were trying to defame him and

harass him in connection with the above incident involving

the film actress. It was stated that, his friend Nadirshah had

received a telephone call from one Vishnu, claimed to be on

behalf of the first accused, seeking financial help, with a

threat that in case of failure, to connect the petitioner herein

with the above case. Further, on 18/4/2017, his driver

Appunni had received a letter by Whats up, allegedly written

by the first accused addressed to the petitioner, demanding

two crores of Rupees from him and in case of failure, to spoil

the career of the petitioner.

8. In the course of investigation, the petitioner herein,

BA No.5098/2017 5

Nadirshah and Appunni were questioned in detail. Thereafter,

the petitioner was arrested on 10/7/2017 on an allegation that,

the petitioner had engaged the first accused to take nude

photographs of the victim on an offer to pay Rupees One and

Half Crores. A sum of Rs.10,000/- was allegedly paid by the

petitioner as advance in December,2015. Petitioner is in

custody since the date of arrest. The petitioner, contending

that he is absolutely innocent and is sought to be roped in the

crime consequent to a deep rooted conspiracy, seeks bail.

9. It was contended by the learned senior counsel for the

petitioner that, none of the 19 circumstances mentioned in

the remand report was connected with the petitioner. There

was not even an iota of evidence to connect him with the

incident, much less, with any part of the conspiracy. It was

further contended that, even assuming that the first accused

was available at places where the petitioner, himself being a

popular artist, was present, that by itself is not sufficient to

establish conspiracy. It was further contented that, the

petitioner was questioned initially for 13 hours and

subsequently for ten hours, prior to his arrest. Thereafter, he

was given the police custody for three days. Hence, the

petitioner is not required any further, for the purpose of

BA No.5098/2017 6

investigation and consequently his further custody is not

justified, contented the learned senior counsel.

10. Per contra, learned Director General of Prosecution

contended that, the petitioner is the king pin of the crime. He

had given quotation to the first accused, a known criminal, to

commit the nefarious crime. It was contended that,

engaging criminals on quotation for committing sexual abuse

on a victim to wreak vengeance was unheard of. It was

further contended that, there were cogent,clinging, direct,

indirect, circumstantial and scientific evidence to establish

that the petitioner had conspired with the first accused .

11.No doubt, conspiracy is hatched in secrecy and direct

evidence is rarely available. The prosecution is trying to allege

the conspiracy and to connect the petitioner herein with the

case, on the basis of circumstantial evidence. It emerges

that, investigating agency is proceeding on a premise that, the

petitioner herein had a definite stand that he did not know the

first accused and never had occasion to meet him. Another

premise on which the investigation proceeded was that, the

complaint dated 20/4/2017 submitted by the petitioner to the

Director General of Police was a clever move to preempt a

possible revelation of the involvement of the petitioner in the

BA No.5098/2017 7

crime, by the first accused. The learned Director General of

Prosecution relied on the materials available on record to

contend that investigation has gathered sufficient materials to

establish the role of the petitioner in the conspiracy. They fall

into two categories. Those materials prior to the actual

commission of offence and the conduct of the accused

subsequent to the commission of offence.

12. Definitely, the incident that happened on 17/2/2017

is very serious. A young actress was abducted in the busiest

National Highway, taken through the city for about two and

half hours, subjected to the shocking ordeal of sexual assault

and video graphed, inside a moving car. The victim had

identified the first accused in the car itself. At the initial

stage itself, matter was reported to the police and the second

accused driver whose conduct appeared to be doubtful was

arrested, immediately after the incident. The commission of

crime is so cruel and diabolic and liable to shake the

conscience of the society.

13. The investigation agency alleges that, the petitioner

herein had a definite motive to commit crime. It was alleged

that, the petitioner herein suspected that the victim was

instrumental for the disruption of his matrimonial

BA No.5098/2017 8

relationship. The petitioner believed that, the victim had

spoiled his family life by conveying information about the

petitioner to the former wife. There are enough materials

available on record to show that, the relationship of petitioner

with victim was strained. There are versions of few persons

that, the victim lost few opportunities to act in films

thereafter, which affected her professional career also.

14. The conspiracy angle is sought to be established by

alleging that the petitioner herein had met the first accused at

five different specified places, where the conspiracy was

hatched. One was in a hotel wherein the petitioner allegedly

instructed the first accused to commit the act and offered to

pay the huge amount. Hotel records are relied on by the

prosecution to establish that room was booked in the name of

the petitioner herein. The presence of both the petitioner and

the accused at all the five places at the same time is sought to

be established by call record details, tower location of mobiles

or by direct oral evidence, gathered by the investigation. The

disclosure made by the first accused about the conspiracy

hatched with the petitioner, in the investigation and those

made to others have led to discovery of several crucial

materials and facts.

BA No.5098/2017 9

15. The prosecution has a case that, the tenor and tone

of the letter allegedly sent by the first accused did not

evidence that it was in the form of a threatening letter or

intended to blackmail the petitioner. Versions of some

persons, to whom first accused allegedly disclosed the

conspiracy, are available. It is on record that, after the arrest

of the first accused, a mobile phone was stealthily taken inside

the jail by first accused and he had contacted several persons.

Call details both of the above mobile phone and that from the

coin box land line provided in the jail show the continuous

phone calls made by the first accused to few doubtful

persons,some persons connected with the petitioner and inter

se calls among them. Details of several inter connected phone

calls are also unearthed by the investigating agency, with the

tower location of each person. Details of attempts made by

Vishnu to contact petitioner through few sources are also on

record. Records indicate that the first accused had written

the letter from the jail itself. Materials to indicate that,

immediately after the commission of crime, the accused along

with a co-accused had attempted to hand over the mobile and

memory card to the associates of petitioner.

16. The above facts, show that prima facie there are

BA No.5098/2017 10

materials to suspect the involvement of the petitioner in the

crime. Investigation is still progressing. It is still at a crucial

stage. It was submitted by the learned Director General of

Prosecution that, the manager Appunni is absconding and the

lawyer involved has to be effectively questioned. The

possibility of implicating other persons in the crime has also

not been ruled out by the learned DGP. Investigation seems to

be progressing.

17. The case is unique, considering its seriousness,

meticulous planning, cruel nature of execution and being a

crime executed to wreak vengeance on a woman by engaging

criminals, to sexually abuse her. Courts have to be

circumspect in granting bail in such cases.

18.There is yet another major reason which prompts

rejection of bail application. The crucial material object

which is the mobile phone used for recording the sexual

assault and the memory card in which the video graphed

materials are stored have not been recovered. The memory

card is a potential threat to the life of the victim and there is

every possibility of any of the accused attempting to interfere

in the investigation and the prosecution with the memory

card.

BA No.5098/2017 11

18. The petitioner, being a noted film actor, is also

involved in the distribution and production of films and is

also owner of a theater. Definitely, he must be wielding

considerable command on the industry. Hence, the possibility

of the petitioner influencing or threatening the several

witnesses, who are also from the same industry, cannot be

ruled out.

Having considered the above facts, I feel that it is too

early at this stage to grant bail to the petitioner. Accordingly,

bail application fails and is dismissed.

Sd/-

SUNIL THOMAS
Judge.
Dpk /True copy/ PS to Judge.

Thursday, July 20, 2017

Women Employees Can Avail 2-yr Child Care Leave at a Stretch: Kerala HC [READ JUDGMENT]

Central government institutions cannot insist that its female employees cannot avail the 730-day child care leave (CCL) at a stretch, the Kerala High Court has held. It is up to the female employee to decide whether CCL should be availed in a single stretch or not, the court said.

The ruling by a single bench of the court was after considering a petition (WP-C No. 18830/2017) filed by Beena S, who is a constable with Central Reserve Police Force’s Pallipuram unit. She is the mother of two children, aged 7 and 4 years and had sought CCL as there was nobody else to take care of the kids. Introduced as part of the 7^th Pay Commission recommendations, a female employee of a central government institution can avail CCL up to 730 days (2 years) during the entire service period for taking care of minor children.

Link to judgment: https://drive.google.com/open?id=0B917iCHIrxbtc2UzNXpxOFhxTUE

Beena S Vs Union of India and Ors

Wednesday, January 25, 2017

Statutory Rape Case for Sex Before Marriage: HC Allows Settlement; Says SC Judgment Against Settlement in Rape Case Not Applicable [Read Judgment]

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

---------------------------

APPENDIX

PETITIONER(S)' EXHIBITS
-----------------------

ANNEXURE 1: TRUE COPY OF THE FIR OF
VARKALA POLICE STATION.

ANNEXURE 2: TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUED
FROM GRAMA PANCHAYATH

ANNEXURE 3: TRUE COPY OF THE ORDER IN BAIL APPLICATION

RESPONDENT(S)' EXHIBITS : NIL.

//TRUE COPY//

P.S. TO JUDGE

bp

RAJA VIJAYARAGHAVAN.V, J
----------------------------------------

O R D E R

1.This petition is filed under section 482 of the Code of

Criminal Procedure (hereinafter referred to as 'the Code'

for brevity). The petitioner is the accused in a crime registered at Varkala Police Station.

2.The sum and substance of the allegations in the FIR,

which is produced as Annexure-1 are as follows:-

The petitioner and the 3rd respondent were school mates

and were deeply in love. While so the 3rd respondent went

missing from the house of her friend, one Asha. The

mother of the 3rd respondent approached the Petta Police

Station and filed a complaint based on which Crime No

1272 of 2014 was registered under section 57 of the

Kerala Police Act. The 3rd respondent was traced out. She

was produced before the Magistrate who permitted her to

go with her mother. Investigation revealed that they had

engaged in sexual intercourse and hence Crime No 2084

of 2014 was registered under section 376 of the IPC and

under section 3 (a) and 4 of the Protection of Children

from Sexual Offences Act, 2012. The petitioner was aged

20 at the time of the incident and the 3rd respondent was

17 years of age. In the course of the proceedings, when

both the parties attained the age of consent, their

marriage was solemnized on 13.11.2015. The said marriage

has also been registered. The petitioner as well as the 3rd

respondent are living under the same roof as husband and

wife with the blessings and support of their families.

3.It is in this backdrop that this petition is filed to quash the

proceedings upon the contention that the continuance of

proceedings is an abuse of process of law.

4.Heard the learned counsel appearing for the petitioner,

the respondent 3 and also the learned public prosecutor.

5.The counsel appearing for the petitioner asserted that the

petitioner and the 3rd respondent were school mates and

they were in love. The mother of the 3rd respondent

objected to this relationship. The 3rd respondent stealthily

went to her friends house and from there eloped with the

petitioner. According to the learned Counsel, the

allegation of Rape and is clearly unfounded. They have

married on 13.11.2015 and are endeavoring to carry on

with their life . According to the learned Counsel, the

continuance of the proceedings is an abuse of process.

6.The respondent No 3 has appeared through counsel and

have an affidavits. In the affidavit she has stated that she

has married the petitioner and they are living as husband

and wife in the home of the petitioner. According to the

learned counsel, this is not a case wherein the petitioner

had violated the 3rd respondent. On the other hand they

were in love and in view of the solemnization of marriage ,

it is only just and proper that the criminal proceedings

against her husband is terminated.

7.The learned Public Prosecutor on instructions submits that

the investigating officer has reported that the parties have

married and are living together. The authenticity of

Annexure 2 certificate was ascertained and it is submitted

that the same is genuine.

8.The legal position with regard to quashing of proceedings

on the basis of compromise between the parties is by now

well settled. It has been held that the power of the High

Court in quashing a criminal proceeding or FIR or

complaint in exercise of its inherent jurisdiction is distinct

and different from the power given to a criminal Court for

compounding the offences under S.320 of the Code. In

what cases power to quash the criminal proceeding or

complaint or FIR may be exercised where the offender and

victim have settled their dispute would depend on the

facts and circumstances of each case and no category can

be prescribed. However, before exercise of such power,

the Court will have to have due regard to the nature and

gravity of the crime. It is also settled that heinous and

serious offences of mental depravity or offences like

murder, rape, dacoity, etc., cannot quashed even though

the victim or victim's family and the offender have settled

the dispute. Such offenses are not private in nature and

have serious impact on society. The directions of the

Apex Court in Gian singh v. State of Punjab [(2012) 10

SCC 303] and in Narinder singh v. State of Punjab

[(2014) 6 SCC 466 ] are the guiding lights.

9.In so far as the offence of rape is concerned, there cannot

be any doubt that the same cannot be settled on the

strength of a compromise arrived at between the victim

and the accused. The Apex Court in State of M.P. V

Madan Lal (2015 (7) SCC 681), relying on the decision in

Shimbhu and Another v. State of Haryana (2014 (13)

SCC 318) has clearly reminded the Courts that Rape is a

non-compoundable offence and it is an offence against the

society and is not a matter to be left for the parties to

compromise and settle. This was because of the fact that

the Court cannot always be assured that the consent given

by the victim in compromising the case is a genuine

consent. There is every chance that she might have been

pressurised by the convicts or the trauma undergone by

her all the years might have compelled her to opt for a

compromise. In such cases the accused may use all his

influence to pressurise the victim for a compromise. It

was taking note of this aspect that it was held that it

would not be safe in considering the compromise arrived

at between the parties in rape cases. In Madan Lal

(supra) the Apex Court was hearing an appeal filed by the

State against the Judgement of the High Court by which

the conviction arrived at by the Trial Court was set aside

on the basis of a compromise arrived at between the

victim and the accused.

10.However the facts in the instant case is entirely different.

The victim was admittedly in love with the petitioner and

she had eloped to join the petitioner. The 3rd respondent

has married the petitioner and they are living happily as

husband and wife. There is no case for anyone that the

dignity of the 3rd respondent was violated by a wanton act

of the petitioner. On the other hand what is revealed is

only the elopment of a girl with her lover against the

wishes of her family members. This is not one of those

cases wherein the allegations reek of extreme depravity,

perversity or cruelty. It cannot be said that the offence in

the instant case would fall in the category of offences that

have a serious impact on society. The facts of the instant

case when looked at dispassionately would reveal a long

term love affair between two young people which

weathered all storms and ended up in the altar of

marriage. In the peculiar facts of the instant case, grave

hardship and inconvenience will be caused to the 3rd

respondent if the prosecution is permitted to continue.

When the respondent No 3 has asserted that she is not

desirous of prosecuting her husband any further,the

prospects of an ultimate conviction is remote and bleak.

Further more, the 3rd respondent can continue with her

life with dignity and respect . Having considered all the

relevant circumstances, I am of the considered view that

this is a fit case in which this Court will be well justified in

invoking its extra ordinary powers under Section 482 of

the Code to quash the proceedings.

In the result this petition will stand allowed. Annexure-1

FIR of Varkala Police Station and all proceedings pursuant thereto against the

petitioner are quashed.

Sd/-
RAJA VIJAYARAGHAVAN.V.
JUDGE

vps

Note: Details regarding the identity of the parties in this case have been deleted from the judgment to protect their privacy.

Saturday, January 21, 2017

[Read Judgment] Post Graduate Diploma in Management (PGDM) and Post Graduate Diploma in Business Management (PGDBM) Are One and Same: Kerala HC

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

WEDNESDAY, THE 11TH DAY OF JANUARY 2017/21ST POUSHA, 19382017

WA.No. 46 of 2017 () IN WP(C).28538/2016
------------------------------------------
AGAINST THE JUDGMENT IN WP(C) 28538/2016 DATED 24-11-2016
----------

APPELLANT(S)/1ST RESPONDENT IN THE WPC :-
--------------------------------------

THE ASSISTANT GENERAL MANAGER, CANARA BANK,
RECRUITMENT CELL, HUMAN RESOURCE WING,
HEAD OFFICE, JEEWAN PRAKASH BUILDING,
113/1 JC ROAD, BANGALORE - 560 002.

BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.GOPINATH MENON
SRI.K.JOHN MATHAI
SRI.JOSON MANAVALAN
SRI.KURYAN THOMAS

RESPONDENT(S)/PETITIONER, 2ND AND 3RD RESPONDETNS, ADDL.4TH
RESPONDENTS IN THE WPC :-
------------------------------------------------------------

1. HARIDEV.S, S/O.SAHADEVAN, VALIYAKULANGARA,
CMC - 20, CHERTHALA, POST CHERTHALA,
PIN : 688 524, ALAPPUZHA DISTRICT.

2. CHAIRMAN,
INSTITUTE OF BANKING PERSONNEL SELECTION,
IBPS HOUSE, NEAR THAKUR POLYTECHNIC, 90 FEET,
DP ROAD, OFF. WESTERN EXPRESS HIGHWAY, P.B.NO.8587,
KANDIVALI (E), MUMBAI - 400 101, INDIA.

3. UNION OF INDIA
REPRESENTED BY SECRETARY TO GOVERNMENT,
MINISTRY OF FINANCE, NORTH BLOCK,
CENTRAL SECRETARIAT, NEW DELHI - 110 011.

4. RAJAGIRI BUSINESS SCHOOL
RAJAGIRIVALLEY P.O., KAKKANAD, KOCHI.

BY SRI.T.ASAFALI
BY SRI.K.R.RAJKUMAR, ADDL.CGSC
BY SRI.TONY GEORGE KANNANTHANAM

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11-01-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MOHAN M. SHANTANAGOUDAR, CJ
&
ANIL K. NARENDRAN, J.
---------------------------------------------------
W.A. No.46 of 2017
----------------------------------
Dated this the 11th day of January 2017

J U D G M E N T

Mohan M. Shantanagoudar, CJ

The judgment dated 24.11.2016 passed in W.P.(C) No.28538

of 2016 is the subject matter of this appeal.

The only question to be decided in this appeal is as to

whether the Post Graduate Diploma in Business Management

(PGDBM) is equivalent to Post Graduate Diploma in Management

(PGDM).

2. The 2nd respondent published Ext.P6 notification for the

online examination for the Common Recruitment Process for

Recruitment of Specialist Officers in Participating Organisations

for various posts including I.T.Officer, Agricultural Field Officer,

Rajbhasha Adhikari, Law Officer, Marketing Officer etc. The

Participating Organisations are nationalised Banks, including

Canara Bank, Syndicate Bank, Bank of Baroda, Bank of India,

Andhra Bank etc. The qualifications prescribed for the post of

Marketing Officer (Scale-I) is Graduation plus Full Time 2 years

PGDBA/PGDBM with specialisation in Marketing, etc.

W.A. No.46 of 2017

-: 2 :-

The 1st respondent has obtained PGDM from the 4th

respondent, Rajagiri Business School and the same is approved by

the All India Council for Technical Education (AICTE), Government

of India, as is clear from Ext.P2 certificate produced in the writ

petition. Armed with the said certificate, he has applied for the

post of Marketing Officer in Canara Bank. Though his candidature

was provisionally allowed for the post of Marketing Officer (Scale-

I) in Canara Bank, the same came to be cancelled subsequently as

per Ext.P10 dated 29.6.2016. The said order was questioned by

the 1st respondent before this Court in the aforesaid writ petition,

which was allowed by the impugned judgment.

3. Learned counsel appearing for the appellant Bank

submits that 'PGDBM' is different from 'PGDM' obtained by the 1st

respondent and therefore, since there is no declaration of

equivalence between the two Post Graduate Degrees, it is not open

for the 1st respondent to apply for the said post. Hence, the

Canara Bank is justified in passing Ext.P10 order cancelling the

provisional allotment.

4. The said submission is opposed by the learned counsel

for the 1st respondent, who draws attention of this Court to

Ext.P16 issued by the AICTE. He argued in support of the

W.A. No.46 of 2017

-: 3 :-

judgment of the learned Single Judge. It is also submitted that

since the other Banks, which are also parties to the common

recruitment process, including Syndicate Bank, Bank of Baroda,

etc. have accepted 'PGDM' degree for the concerned post, there is

no reason as to why the Canara Bank made excuses in not

accepting the candidates having 'PGDM' qualification.

Ext.P16 resolves the dispute fully. Ext.P16 dated

10.8.2016 is a certificate issued by the AICTE, which clarifies that

the 'PGDBM' approved by the AICTE till 2006-'07 was renamed as

'PGDM' in 2007-'08, on the basis of recommendations of All India

Board of Management Studies. Thus, it is clear that the very

course, 'PGDBM' is renamed as 'PGDM' in 2007-'08. Since the 1st

respondent has obtained the said degree after 2008, the

nomenclature of his degree is 'PGDM', that is; Post Graduate

Degree in Management.

5. Since Ext.P16 makes it amply clear that 'PGDBM' is

nothing but 'PGDM' from 2007 onwards, the learned Single Judge

is justified in setting aside Ext.P10 order passed by the appellant

Bank, cancelling the allotment given to the 1st respondent.

W.A. No.46 of 2017

-: 4 :-

Hence, no interference is called for. The appeal fails

and the same stands dismissed. The appellant Bank shall comply

with the judgment of the learned Single Judge within one month

from the date of receipt of a copy of this judgment.

Sd/-
MOHAN M. SHANTANAGOUDAR
CHIEF JUSTICE

Sd/-
ANIL K. NARENDRAN
JUDGE

//TRUE COPY//

P.A. TO JUDGE

Jvt/11.1.2017

Monday, January 09, 2017

Customers Have No Right to Drink Liquor Near Retails Outlets, Says Kerala HC [Read Judgment]

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR

&

THE HONOURABLE MR. JUSTICE SATHISH NINAN

FRIDAY, THE 2ND DAY OF DECEMBER 2016/11TH AGRAHAYANA, 1938

WP(C).No. 28136 of 2016 (S)

----------------------------

PETITIONER(S) :-

-------------

1. M.I.VARGHESE, AGED 62 YEARS, S/O.IYPE

MALIKUDY HOUSE, IRINGOLE P.O.

2. K.A.SUNNY, AGE3D 58 YEARS, S/O.K.P.ABRAHAM

KARIPRA, KURUPPAMPADY.

3. MATHEW VARGHESE, AGED 63 YEARS, S/O.P.VARKEY

MANNAKKATTUKUDY, KURUPPAMPADY P.O.

4. PAUL THOMAS, AGED 57 YEARS, S/O.THOMAS

PABRIKKARAN, IRINGOLE P.O.

5. M.C.VARUGHESE, AGED 68 YEARS, S/O.CHACKO,

MALIKKUDY, IRINGOLE P.O.

6. C.M.DOBY, AGED 56 YEARS, S/O.VARGHESE

OORAHAMKUDY HOUSE, RAYAMANGALAM P.O.

PERUMBAVOOR.

7. M.P.VARGHESE, AGED 72 YEARS, S/O.PAULOSE

MALIKKUDY, IRINGOLE P.O.

BY ADVS.SRI.G.D.PANICKER

SMT.JEENA JOSEPH

RESPONDENT(S) :-

-----------------

1. KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING)

CORPORATION LTD., P.B.NO.2266,

SASTHAKRIPA OFFICE COMPLEX, SASTHAMANGALAM P.O.,

TRIVANDRUM - 695 010 REPRESENTED BY

ITS REGIONAL MANAGER C-2, MR.G.MOHANAN.

2. RAYAMANGALAM GRAMA PANCHAYAT

REPRESENTED BY ITS SECRETARY

RAYAMANGALAM P.O., KURUPPAMPADY

ERNAKULAM DISTRICT, PIN - 683 545.

WP(C).No. 28136 of 2016

ADDL.3. THE COMMISSIONER OF EXCISE,

KERALA STATE, THIRUVANANTHAPURAM - 695 001.

IS IMPLEADED AS ADDITIONAL RESPONDENT No.3 VIDE ORDER

DATED 28.9.2016 IN I.A.13905/16.

ADDL.4. SMT.LETHA RAJAN, W/O.RAJAN N.K.,

NJALUPADY, IRINGOL, KURUPPAMPADY,

PERUMBAVUR, ERNAKULAM DIST.

ADDL.5. RAJAN N.K., NJALUPADY, IRINGOL,

KURUPPAMPADY, PERUMBAVUR, ERNAKULAM DIST.

ARE IMPLEADED AS ADDITIONAL RESPONDENT Nos.4 AND 5

VIDE ORDER DATED 31.10.2016 IN I.A.No.14808/16.

ADDL.6. REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA.

IS IMPLEADED SUO MOTU AS ADDITIONAL RESPONDENT No.6

VIDE ORDER DATED 2.11.16 IN WP(C).

R1 BY SRI.NAVEEN.T., SC

R2 BY SRI.N.RAJESH

SRI.GEORGE VARGHESE KIZHAKKAMBALAM

ADDL.R4 & R5 BY SRI.N.SUKUMARAN (SR.)

SRI.N.K.KARNIS

ADDL.R6 BY SR.GOVERNMENT PLEADER SRI.M.A.ASIF

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON

02-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No. 28136 of 2016 (S)

----------------------------

APPENDIX

PETITIONER(S)' EXHIBITS :-

-----------------------

EXT.P1 : TRUE COPY OF THE PHOTOS TAKEN AT THE SITE REGARDING THE

PROTEST OF THE PETITIONERS.

EXT.P2 : TRUE COPY OF THE COMPLAINT PREFERRED BY THE LOCAL

RESIDENTS INCLUDING THE PETITIONERS.

EXT.P2(A) : TRUE COPY OF THE ENGLISH TRANSLATIONS OF EXT.P2.

EXT.P3 : TRUE COPY OF THE PHOTOGRAPH SHOWING THE PRESENT LOCATION

AS WELL AS THE FUNCTIONING OF THE OUTLET.

EXT.P4 : TRUE COPY OF THE LETTER OF THE RAYAMANGALAM PANCHAYATH

DT.26-2-2016 TO THE BUILDING OWNERS.

EXT.P4(A) : TRUE COPY OF THE ENGLISH TRANSLATIONS OF THE EXT.P4

EXT.P5 : TRUE COPY OF THE RESOLUTION DT.2-3-2016 OF THE

RAYAMANGALAM GRAMA PANCHAYATH.

EXT.P5(A) : TRUE COPY OF THE ENGLISH TRANSLATIONS OF THE EXT.P5.

EXT.P6 : TRUE COPY OF THE LETTER ADDRESSED TO THE EXCISE

COMMISSISSIONER.

EXT.P6(A) : TRUE COPY OF THE ENGLISH TRANSLATION OF THE EXT.P6.

EXT.P7 : TRUE COPY OF THE ORDER DATED 26.8.2016.

EXT.P7 IS ADDED AS PER ORDER DATED 20.9.2016 IN I.A.14590/16.

RESPONDENT(S)' EXHIBITS :-

---------------------------

EXT.R1(a) : TRUE COPY OF THE ORDER DATED 24.2.2016 ISSUED BY THE

DEPUTY EXCISE COMMISSIONER, ERNAKULAM.

EXT.R1(b) : TRUE COPY OF THE lICENCE ISSUED BY THE EXCISE

DEPARTMENT TO THE 1ST RESPONDENT CORPORATION TO CONDUCT THE FL1

SHOP DT.11.4.2016.

EXT.R1(c) : TRUE COPY OF THE INTERIM ORDER DATED 21.3.2016 IN WPC

No.10796/2016 ISSUED THIS HON'BLE COURT.

EXT.R1(d) : TRUE COPY OF THE ORDER DATED 6.9.2016 ISSUED BY THIS

HON'BLE COURT IN I.A.No.14000/2016 IN WPC No.10796/2016.

WP(C).No. 28136 of 2016 (S)

----------------------------

EXT.R4(a) : TRUE COPY OF THE PERMIT ISSUED BY THE 2ND RESPONDENT

DATED 9.10.2015.

EXT.R4(b) : TRUE COPY OF THE REPLY TO EXT.P4 SUBMITTED BY

RESPONDENTS 4 AND 5 DT.29.2.2016.

EXT.R4(c) : TRUE COPY OF THE REPLY TO EXT.P7 SUBMITTED BY

RESPONDENTS 4 AND 5 DT.29.8.2016.

EXT.R4(d) : TRUE COPY OF THE PERMIT ISSUED BY THE 2ND RESPONDENT

DATED 17.9.2016.

//TRUE COPY//

P.A. TO JUDGE

MOHAN M. SHANTANAGOUDAR, C.J

&

SATHISH NINAN, J.

-------------------------------------------------------

W.P.(C) No.28136 of 2016

----------------------------------------

Dated this the 2nd day of December 2016

J U D G M E N T

Mohan M. Shantanagoudar, C.J

This public interest litigation is filed by the residents of

Kuruppampady within the area of Rayamangalam Grama

Panchayat, Ernakulam District.

According to the petitioners, the area in question is

purely a residential area and contiguous to the main road. The

people therein are industrious and most of the workers are

employed in and around Kuruppampady. Most of them are peace

loving and are co-operative for public cause.

There was an outlet of the Beverages Corporation (for

short, 'the Corporation') at Kuruppampady Junction in a rented

building owned by one Mrs.Mini Varghese. It seems that the rent

was not paid and hence, the landlord demanded the Corporation to

shift the outlet from the building in question. Consequently, the

Corporation shifted the outlet to a temporary shed owned by

Sri.Rajan and Smt.Rajan, Njalupadi veedu at Theater Canal

W.P.(C) No.28136 of 2016

-: 2 :-

Kavala. According to the petitioners, the shed is in the midst of

the residential area, wherein the petitioners and a number of

others are living peacefully. It is a common sight that a few

trouble mongers, after purchasing liquor, consume it at the road

and throw the bottles helter-skelter at the road to the dismay and

discomfort of the tourists and people walking through the road.

The serenity and the beauty of nature is lost because of the said

foreign liquor shop. There are two schools working in this area

with a number of students and the students going to the school

and coming back are using the road wherein the shop is situated.

Despite a number of dharnas and protest, the Corporation has not

chosen to shift the shop to any other unobjectionable place.

The sum and substance of the case of the petitioners is

that the said shop is against the best interests of the public at

large. They made a number of representations, but the same are

not acceded to and hence, the writ petition is filed.

2. Smt.Jeena Joseph, learned counsel appearing on behalf

of the writ petitioners submits that a direction may be issued to

the Corporation to shift the liquor shop to some other

unobjectionable place, inasmuch as the shop which is being run in

W.P.(C) No.28136 of 2016

-: 3 :-

the present location is causing nuisance to the people in that

locality. A lot of dirt is generated because of the drunkards

usually throwing empty bottles and other waste materials to the

nearby properties. Virtually, the hooligans are preventing the

people in the locality to enjoy life with their family members in

their home. They cannot even walk on the street in question. For

all these grounds, the learned counsel prays for allowing the writ

petition.

3. Learned counsel for the Panchayat, supporting the case

of the writ petitioners, contends that the Panchayat has not issued

licence in favour of the Corporation and hence, it is not open for

the Corporation to run the said outlet.

4. Per contra, Sri.T.Naveen, learned Standing Counsel for

the Corporation, taking us to the provisions of the Kerala Abkari

Shops Disposal Rules, 2002 and Foreign Liquor Rules, submits

that the shop in question is situated in an unobjectionable place

and it is after obtaining due permission from the concerned

authorities to run the shop, the same is established. He submits

that though an application was filed by the Corporation for

establishing the liquor shop, the same was not considered

W.P.(C) No.28136 of 2016

-: 4 :-

deliberately. He further submits that the matter is pending

consideration in that regard before this Court in W.P.(C) No.10796

of 2016, wherein, an order of status quo is granted in favour of the

Corporation. Based on the said order, the Corporation is running

the shop in the premises in question. However, he denies the

submission made by the petitioners about the conduct of the

customers of the shop. It is also submitted that it is open for the

police to initiate action against such persons, who take law into

their own hands.

5. We have gone through the materials on record and are

satisfied that the liquor shop does not violate any of the rules

mentioned above. The only contention of the petitioners is that

the public at large are highly aggrieved by the establishment of

the shop in the premises in question, inasmuch as the behaviour of

the customers visiting the liquor shop cannot be tolerated by any

human being.

If any person misbehaves in the locality in whatsoever

manner, it is open for the residents of the Village or the affected

person to complaint to the police and the police will take action in

accordance with law.

W.P.(C) No.28136 of 2016

-: 5 :-

Since prima facie we are satisfied that the distance rule

etc. are complied with by the Corporation while establishing the

shop, no comment can be made at this stage, more particularly,

when the question regarding granting licence is pending

consideration in W.P.(C) No.10796 of 2016. However, it is

needless to observe that every person in the society should behave

properly and the customers of the Corporation have got no right to

create any law and order situation in the area in question. It is

the responsibility of the Corporation also to control its customers

if any problem is created by them. If the customers create

problems by throwing bottles etc. to the road, it is open for the

people in the locality to lodge complaint before the police, which

shall be seriously taken note of by the jurisdictional police and

necessary action shall be taken by them.

With these observations, this writ petition stands

disposed of. We clarify that any of the observations made during

the course of this judgment are deemed to have been made only

for the disposal of this writ petition. The said observations do not

influence the learned Single Judge while disposing of W.P.(C)

No.10796 of 2016 on merits, in accordance with law. All questions

W.P.(C) No.28136 of 2016

-: 6 :-

raised in the said writ petition are left open to be decided. It is

open for the petitioners to get themselves impleaded in W.P.(C)

No.10796 of 2016. In the mean while, it is open for the concerned

authorities to consider the request of the petitioners for shifting

the shop to any other unobjectionable place, keeping in mind the

interest of the public at large.

Sd/-

MOHAN M. SHANTANAGOUDAR

CHIEF JUSTICE

Sd/-

SATHISH NINAN

JUDGE

Jvt/5.12.2016