Exception

Where the sole allegation in the departmental proceedings is that the civil servant has been involved in, or is facing, a criminal case, and no independent and probe-able act of misconduct is alleged, the acquittal of the civil servant in the criminal case removes the very substratum of the departmental charge

The disciplinary machinery cannot stand on its own in such circumstances because there exists no stand-alone allegation that the department can independently inquire into or establish through departmental evidence

The charge of “involvement in a criminal case” is, by its very nature, incapable of departmental proof, it belongs exclusively to the criminal forum

Once the criminal court has adjudged the civil servant not guilty on the same accusation, the departmental authority is left with nothing to determine; the entire charge falls to the ground.

The Court is not required to give detailed reasons for up-holding the office objection for the reason that office objections are decided on administrative side by the Court and not on judicial side unless of course subject to the exception that the Courts deem it appropriate to decide the same on judicial side.

Where suit was instituted more than a decade ago and it has undergone a full trial, a decision, and an appeal, and was subsequently remanded and throughout the entire first round of litigation, the petitioners never breathed a word about the specific facts they subsequently wished to plead, the profound silence at the most opportune moments would lead to the inference that the proposed amendment was an afterthought, designed to fill the lacunae and cure the defects exposed in the first round of the litigation.

Obviously, if it is a physical act, it would be a question of fact; however, in the event of mental cruelty, an inquiry is required to be conducted regarding the nature of the treatment to determine its impact or repercussions on the mind of the spouse

Mental cruelty may broadly be delineated as a course of conduct that inflicts mental pain with such severity and harshness as to render it impossible for the aggrieved party to continue the matrimonial bond or to cohabit

The matrimonial relationship is inherently based on mutual trust between the husband and wife, encompassing emotions, and it obliges reciprocal respect, love, and affection, aimed at ensuring a fair and balanced adjustment between spouses without generating a sense of anguish and disappointment

While deciding any lis for dissolution of marriage on the ground of cruelty, the Court must assess the intensity and severity of the acts alleged, and determine whether such conduct amounts to something more than mere trivial disputes, which are common in day-to-day married life

The conduct must be of such a nature that no reasonable person could be expected to endure it

The unbecoming attitude of the husband amounts to cruelty, as not only physical torture but also mental, moral, and psychological abuse by a partner constitutes cruelty

The grant of a decree of khula simpliciter is not justiciable when the incidents and the overall conduct of the husband reflect a cruel and oppressive demeanor, otherwise, wife would not approach the Court for dissolution of marriage

While dealing with such disputes the courts are not expected to act in an arbitrary, capricious, or whimsical manner

The most pertinent question for determination, therefore, would be, to what extent the right to dissolve marriage on the basis of khula is exercisable by the wife?

Where the claim for dissolution is based on cruelty, the court is duty bound to make a thorough inquiry into the matter, examine the complete body of evidence, and may even interview the spouses

If the conduct of the husband reaches a level demonstrated through the record that amounts to a cruel relationship, the court is obligated to grant a decree for dissolution of marriage on the basis of khula.

Appellate court would be duty bound to decide the said application one way or the other but in case if it fails to do so, in peculiar circumstances of a case, no fruitful purpose would be achieved by sending the case back to appellate court for decision of that application by setting aside all the judgments and decrees especially when a party has failed to prove any nexus with the suit property and justify its possession over it.

Right of review of any order/decision of Court or quasi-judicial tribunal is not available in absence of statutory provision but cases of fraud, mala fide and defect of jurisdiction stand on different footing.

A public information officer may refuse an application for access to information where disclosure of the information shall or is likely to cause harm to a legitimate privacy interest, unless the person concerned has consented to disclosure of the information

Such provision gives the power to public information officer to refuse the application for access to information where such disclosure of information is likely to harm the legitimate privacy or interest of individual unless the person concerned has consented to disclosure of information

Right to information under Art. 19-A of the Constitution and the Punjab Transparency and Right to Information Act, 2013 does not extend to any 'legitimate privacy interest' of an individual guaranteed under Arts. 9 & 14 of the Constitution and protected under S. 13(1)(b) of the Act ibid.

As per the proviso (b) to S.4(1) of the Act 1973, no appeal lies to the Service Tribunal against an order or decision of a departmental authority determining the fitness or otherwise for a person to be appointed to or hold a particular post or to be promoted to a higher grade

High Court lacks jurisdiction in matters falling within the exclusive domain of the Service Tribunal under Art. 212 of the Constitution, except where the order in question determines "fitness" under S. 4(1)(b) of the Service Tribunals Act, 1973.

Petitioner (widow of deceased employee) instituted the present Constitutional petition seeking release of benevolent grant, group insurance and pensionary benefits arising from the services of her deceased husband, who joined the respondent company in 1982 and retired in 2008 under the Voluntary Surrender of Service (VSS) Scheme, in pursuance of which he was paid under the VSS agreement, but monthly pension was denied on the ground that he fell short of the 20 years qualifying service requirement

He had served 19 years and 7 months in regular service

Respondent company later introduced a 'separation bonus scheme' for employees falling short of 20 years, which was credited to his account

After death of petitioner's husband in 2015, petitioner (widow) filed the present petition upon rejection of pensionary claims by respondent company by asserting that the shortfall of months should have been condoned and that she was entitled to benevolent grant and group insurance

Held: Case of the petitioner (widow) fell in the same category of case which had been decided by the Supreme Court in Civil Appeal No.2506 of 2016 whereby the Supreme Court held that the appellants had no valid grievance as they had voluntarily opted for the VSS (Voluntary Separation Scheme), accepted the separation bonus (which was only available to those with less than 20 years of qualifying service), and signed the waiver forms; they did not disclose the said facts in their petitions, which amounted to a non-disclosure of material facts; that if the appellants truly believed they had completed 20 years of service and were entitled to pension, they should not have accepted the separation bonus or should have refunded it before pursuing pension claims; that their conduct barred them from seeking pension under the doctrine of estoppel

Whereas, provisions of the Federal Employees Benevolent Fund and Group Insurance Act, 1969 (the "Act 1969") entitled the petitioner to receive benevolent grant for her life for a period starting from date of death of her husband as he died after retirement but before attaining the age of seventy years

Petitioner was also entitled to receive sum assured on account of premium contributed towards group insurance in terms of Ss. 13 & 19 of the Act, 1969

With respect to the objection regarding applicability of laches in the present petition allegedly being filed after 12 years of VSS agreement, same was without force for the reason that doctrine of laches could not applied in every case as a hard and fast rule without examining dictates of justice, equity and fair play

In the present case, respondent Nos.1 to 3 were required to act fairly and justly to discharge their duties by forwarding the application of petitioner for payment of benevolent grant and group insurance if found entitled and inaction on the part of respondents to act upon application filed by the petitioner created a recurring cause of action in her favour for which no limitation applied

In the present case there was a recurring cause of action for the petitioner to knock at the doors of justice and petitioner could not be dismissed on account of mere delay

Petitioner being widow of deceased employee was entitled to receive benevolent grant for life, she was also entitled for grant of group insurance for the sum assured against the life of her deceased husband

Petitioner failed to make out a case for grant of monthly pension

Constitutional petition was partly allowed, in circumstances.

Actual purpose of providing names of witnesses through list of witnesses to be filed under O.XVI of C.P.C. was to enable the other party to know what evidence had to be produced so that it may not be taken by surprise and evidence might not be fabricated later on

However, on 'good cause' being shown the Court in its discretion, if judicial conscious thereof was satisfied with justifiable reason could allow the party to produce witnesses whose names were not mentioned in the list of witnesses.

Petitioners contended that after supersession instead of waiting for full one year, another CSB meeting was held in which petitioners were again superseded through impugned orders; that in CSB meeting only one year PER was considered whereas other PERs in which petitioners were found to be excellent" were not considered; that no adverse material was there in PER, but the same was found from somewhere by CSB; that High Court had concurrent jurisdiction in the matter; that petitioners challenged the impugned orders being against Civil Servants Promotion (BPS-18 to BPS-21) Rules, 2019, hence constitutional petition was maintainable

Held, that meeting of CSB took place and impugned order/letter communicated in Federal Capital Territory, but the Federal Government was functioning all over the country, and petitioners being residents of the province could agitate their grievance within the territorial jurisdiction of High Court of said province in which the impugned orders had affected them

High Court had concurrent jurisdiction of adjudicating the matter

Matters being for determination of fitness of civil servants for promotion, Service Tribunal had no jurisdiction in the matter and bar of Art. 112 of the Constitution was not applicable

Under R. 10(5) of the Rules, 2019 civil servant once superseded for promotion under R. 8 of the Rules, 2019, would be eligible for reconsideration only after earning one more PER of full year

Once the petitioners were superseded by CSB in its meeting under R.8(a), their cases could only be reconsidered for promotion after they earn one more PER of full one year as required under R.10(5) of the Rules, 2019

Argument made by Law Officer that in decision of CSB , PERs of 2018 were considered, whereas in CSB meeting , 2021, the PERs of 2019 were considered

Such an argument had no legs to stand in view of said R.10(5)

Question of fitness/ suitability for promotion had always been considered to be exclusively within the jurisdiction of the competent authority not shared by Courts/ Tribunals, exercising supervisory jurisdiction in respect of eligibility/ qualification

However, said principle was not attracted to cases where question was not substitution of an opinion of the competent authority but the vires of orders passed by CSB and competent authority were in question being against R.10(5) of the Rules, 2019

All the instant Constitutional petitions were allowed and respondents/authorities were directed to reconsider cases of petitioner for promotion.

Petitioners contended that after supersession instead of waiting for full one year, another CSB meeting was held in which petitioners were again superseded through impugned orders; that in CSB meeting only one year PER was considered whereas other PERs in which petitioners were found to be excellent" were not considered; that no adverse material was there in PER, but the same was found from somewhere by CSB; that High Court had concurrent jurisdiction in the matter; that petitioners challenged the impugned orders being against Civil Servants Promotion (BPS-18 to BPS-21) Rules, 2019, hence constitutional petition was maintainable

Held, that meeting of CSB took place and impugned order/letter communicated in Federal Capital Territory, but the Federal Government was functioning all over the country, and petitioners being residents of the province could agitate their grievance within the territorial jurisdiction of High Court of said province in which the impugned orders had affected them

High Court had concurrent jurisdiction of adjudicating the matter

Matters being for determination of fitness of civil servants for promotion, Service Tribunal had no jurisdiction in the matter and bar of Art.112 of the Constitution was not applicable

Under R. 10(5) of the Rules, 2019 civil servant once superseded for promotion under R. 8 of the Rules, 2019, would be eligible for reconsideration only after earning one more PER of full year

Once the petitioners were superseded by CSB in its meeting under R.8(a), their cases could only be reconsidered for promotion after they earn one more PER of full one year as required under R.10(5) of the Rules, 2019

Argument made by Law Officer that in decision of CSB , PERs of 2018 were considered, whereas in CSB meeting the PERs of 2019 were considered

Such an argument had no legs to stand in view of said R.10(5)

Question of fitness/ suitability for promotion had always been considered to be exclusively within the jurisdiction of the competent authority not shared by Courts/ Tribunals, exercising supervisory jurisdiction in respect of eligibility/ qualification

However, said principle was not attracted to cases where question was not substitution of an opinion of the competent authority but the vires of orders passed by CSB and competent authority were in question being against R.10(5) of the Rules, 2019

All the instant Constitutional petitions were allowed and respondents/authorities were directed to reconsider cases of petitioner for promotion.

Where third person challenges the validity of registered document/transfer/transaction of property, the onus shifts upon the beneficiary only when such third person brings on record concrete, complete/solid/convincing evidence to prove his contention

If such third person fails to produce some considerable evidence, no question of shifting of onus to establish upon the beneficiary applies in that eventuality.

In cases where a child witness was also the victim of the crime and was unable to depose in the court room, and his evidence was "necessary" to find the truth, and the same had a ring of "circumstantial trustworthiness" attached therewith, the Courts may consider the out-of-court evidence thereof, as an exception to the "hearsay rule"

Supreme Court observed that great care was to be taken to ensure that child witnesses were able to depose their testimony at ease, by taking measures in the court room to lessen their stress and anxiety of court-room appearances in such a tender age; that such measures included child witness aid in testifying, screens in court rooms, closed courtrooms and counselor aid before and after recording of evidence; that it was expected that respective governments would appropriate legislative and administrative measures for ensuring the much needed protection and facilitation of child witnesses.

Forum of appeal is determined on the basis of valuation of the suit for the purpose of jurisdiction, as given in the plaint

Only exception to such rule is that if the court re-determine the value of the suit for the purpose of jurisdiction, during the proceedings.

Occurrence was witnessed by four persons out of whom two witnesses appeared during trial, whereas remaining two were given-up

Both given-up witnesses had received firearm injuries during the occurrence, whereas the other two witnesses had escaped unhurt

First injured witness was given up on account of being deaf and dumb

First witness was an adult, living active life and had so much maturity of understanding and conversing with others that he was picked up by the complainant to look after his cattle shed

Record of the case was silent regarding satisfaction of court in terms of Art. 3 of Qanun-e-Shahadat, 1984

Trial Court, under Art. 59 of Qanun-e-Shahadat, 1984,could have called for help of an expert having requisite expertise in specific field and through S. 543, Cr.P.C. could have recorded the evidence of deaf and dumb witness by using such expert as an interpreter

Services of an expert from some institute of deaf and dumb persons could conveniently have been procured but no effort was made in that regard

Court was otherwise competent to examine the said witness through some of his relative, well conversant with his signs and gestures after administering oath to him

Nothing was brought on record to the effect that said witness was an illiterate person, otherwise he could have been examined even in writing

Evidence of said witness could not have been discarded in the manner adopted by Trial Court

Second injured witness besides getting injured was also brother of deceased, therefore, his evidence was essentially required for just decision of the case; shortly after the occurrence he put forth his version of crime through an application to police and saddled the responsibility of committing the crime upon shoulders of other four persons, including the first injured witness

Second injured witness also filed a petition under S. 22-A, Cr.P.C. and it was even admitted by the Investigating Officer

Production or withholding a witness was said to be prerogative of prosecution yet such rule was not invariably applicable in all cases

Complainant, by depriving the second injured witness to appear in the witness box, had an absolute control over the case

Even though second injured witness was not cited as witness in the private complaint yet the Trial Court was required to examine him as a court witness under S. 540, Cr.P.C.

High Court acquitted the appellants of the charge, in circumstances and set aside their convictions and sentences.

Art. 70 (4), Fourth Schedule, Federal Legislative List, entry 49 [as amended by S. 101 of Constitution (Eighteenth Amendment) Act (X of 2010)]

Exception

Scope

Exception added to entry No. 49 of Federal Legislative List is not a 'true' exception, as such it is an independent provision in its own right and has two primary effects

Exception recognizes expressly on the Constitutional plane that a taxing power in respect of taxing event of rendering or providing of services vests in the Provinces

Crucial question is whether or not such power is exclusive to the Provinces

Same taxing event cannot simultaneously vest in two legislatures, for that to happen would mean that the taxing power is also the same

Constitutional scheme does not envisage a sharing of a taxing power

Constitution recognizes a division of taxing power and that is all

Both of such principles are fully attracted and applicable and the real effect of the 'exception' is to 'shift' taxing power in relation to taxing event of rendering or providing of services from Federation to the Provinces.

To impute redundancy to even a statutory provision or to so interpret a statute that a part of it is rendered futile or nugatory is a strong thing

Such approach would be almost impossible in relation to the Constitution

Exception is ordinarily be regarded as limiting or restricting main enactment by, e.g. taking something out of it but for the exception, would be regarded as falling within the main enactment.

Where a party to the lis wanted the court to believe about the existence of certain facts and sought verdict in his favour then onus to prove would be on such litigant who had asserted the existence of facts

Initial onus to prove would be on the subsequent vendee that he acquired the property for consideration in good faith and he had no knowledge of original sale agreement

If subsequent vendee had taken due care and there were no indicators to put him to a notice of third party interest then he should be said to have acted in good faith

Once initial onus was discharged by the subsequent vendee then burden would be on the plaintiff to prove that subsequent purchaser had notice of his sale agreement and subsequent transaction was without consideration; colourable or a fraudulent transaction entered into with dishonesty of purpose by the vendor and subsequent vendee to prejudice his rights under sale agreement

Onus to prove a fact in civil disputes did not remain constant or stagnant

Once initial onus had been discharged by the side upon whom it was originally placed then it would shift over the other party for rebuttal thereof or for the proof otherwise

Principle of lis pendens had an exception by way of transferee who had purchased the property during pendency of suit for consideration without notice

Onus to prove the plea of bona fide purchaser was on subsequent vendee who had discharged the same

Plaintiff had not questioned the transaction in favour of subsequent vendee either in the pleadings or through evidence

Revision was dismissed in circumstances.

Dis-honouring of check in question, prima facie had established a fact that accused had committed offence under S.489-F, P.P.C.

Contention that the matter agitated by the complainant was of a civil nature, had no force, as no material was on the file which could suggest and indicate that the matter was out of the ambit of S.489-F, P.P.C. and was of a civil nature

Offence under S.489-F, P.P.C., was punishable upto a maximum period of three years, and same did not fall within the restrictive clause of S.497, Cr.P.C.

High Court, in the present case, refused bail to accused, on the ground that accused had not honoured his commitment, which he made with the complainant before the court to pay the complainant the amount in question, and accused deceived the court by issuing a cheque to the complainant, knowing well that amount in question was not in his account

Such attitude of accused was sufficient to bring his case within an exception justifying refusal of bail to accused

Case of accused though did not come within the restrictive clause of S.497, Cr.P.C., but conduct of accused showed disrespect to the commitment made before court of law, which had confirmed his bail before arrest on the strength of the cheque, which later on was dishonoured

Accused, in circumstances, had no right to be released on bail

Bail petition was dismissed, in circumstances.

Under said proviso, such companies which declared "gross loss" could be excused from levy of minimum tax provided such "gross loss" emerged before set off of depreciation and other inadmissible expenses; in other words, under these provisions, only such companies were not entitled to minimum tax where "cost of sales" exceeds the "sales" before and that too without accounting for depreciation and inadmissible expenses

For determination of entitlement to exception, one had to see that "cost of sales" even prior to accounting for depreciation charge and other inadmissible expenses exceed the "sales".

Object to deprive from filing of appeal against the decree regarding dissolution of marriage is to shorten the agony and to resolve the controversy expeditiously

Theme behind the proceedings of reconciliation proceedings before and after evidence and taking out of the right of appeal in case of dissolution of marriage by the Family Court is only to settle the matter regarding the marriage of the spouses as early as possible

No right of appeal is provided if marriage was dissolved by the Family Court; however, if marriage was dissolved under S.2(iii)(d) of the Dissolution of Muslim Marriages Act, 1939, then right of appeal had been awarded before the District Judge.

Rule 14 of Public Procurement Rules, 2004 commenced with a declaration that it was mandatory to advertise all procurement requirements exceeding a specified amount, where after an exception [Rule 14(a)] had been created permitting a deviation

Rule 14 of Public Procurement Rules, 2004 did not perceive of an exemption from the rules and the necessity of public advertisement but only a deviation

Like all exceptions, said rule must be construed strictly keeping in view the proportionality of the requirement for such deviation.

S. 300, Exception -Grave and sudden provocation-Accused, pretext that one of deceased looked into courtyard of their house, each seizing spears and dang and pursuing deceased to his house beating' him and his father to death-Accused's wall not so high as to prevent passer-by from seeing most of courtyard-Accused's objection and their further action to enforce it, held; acts of extreme high handedness-No case of pro­vocation made out-Special leave to appeal refused by Supreme Court.

S. 300, Exception -Murder- Grave and sudden provocation-Accused calling Panchayat to consider abduction of his wife by deceased-Deceased denying allegation-Accused quietly going home, during progress of deliberation bringing razor and suddenly cutting off deceased's neck, causing instantaneous death-Conduct of accused, held, completely belied plea of sudden and grave provocation.