Important Legal Propositions

Important Legal Propositions

Dilip Kr. Dey v. Alo Rani Nag [2018] GCtR 4677 (Gauhati) : "Law is well settled that a decree suffering from illegality or irregularity of procedure cannot be termed inexecutable by the executing Court and the remedy of a person aggrieved by such a decree is to have it set aside in duly constituted legal proceedings or by a superior Court failing which he must obey the command of decree. A decree passed by Court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in an incidental proceeding. All questions relating to fact or law which had been raised or could have been raised and decided during trial, appeal or revision cannot be reopened in an execution proceeding."

ASTC v. Ghosh Brothers [2018] GCtR 4678 (Gauhati) : Section 8(1) of the Arbitration and Conciliation Act, 1996 does not in terms speak about filing of an application, but the expression used therein is “if a party so applies....”. However, close on the heels of Section 8(1), a reference is made in Section 8(2) to “the application referred to in subsection (1)” providing that such an application shall not be entertained unless it is accompanied by original arbitration agreement or a duly certified copy thereof. Section 8(3) also reiterates the expression “an application”, when it provides that notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made."

Humanoid Laboratories v. State of Assam [2018] GCtR 4679 (Gauhati) : As per the provision of Section 4 of the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993 the buyer is liable to pay interest @5% above to floor rate for comparable lending. The scope of review jurisdiction is limited, the court is not permitted to re open the case on a submission by the other side while, such plea was never raised earlier.

Dr. Ganga Dhar Das v. State of Assam & Ors [2018] GCtR 4680 (Gauhati) : There is a substantial difference between the requirement of a teaching experience and that of a past service. Past service has its own connotation with specific reference to where the concerned person is serving and the implications thereof. On the other hand, for the purpose of a direct recruitment simpliciter when the requirement is of teaching experience, any service resulting in a teaching experience would be acceptable for the purpose of satisfying the requirement of a teaching experience. 

Dwarika Nath Rai v. State of Assam [2018] GCtR 4681 (Gauhati) : Question of not allowing the regular Headmaster of a school who is discharging public function to join his duties after availing medical leave would be within the realm of a public interest. Under the law when a person appointed on a regular basis goes on leave, it is incumbent upon the authorities to allow him to join upon completion of the leave.

Chenu Boro v. State Bank of India [2018] GCtR 4682 (Gauhati) : When a disciplinary proceeding is drawn up against an employee, the standard of proof is preponderance of probabilities and some relevant material to justify the conclusion reached by the Enquiry Officer and the writ Court is not expected to act as an appellate authority to judge the merit of the conclusion reached by the Enquiry Officer. Interference would be justified only when there is procedural error leading to manifest injustice.

Nagaon District Higher Secondary Principal's Council v. Union of India [2018] GCtR 4683 (Gauhati) : It was held that a bare reading of FR 49(c) of Fundamental Rules makes it clear that no additional pay of higher post is made admissible to a Government Servant who is directed to hold only current charge of that post. And this is because the Government servant is required to attend only the usual routine day to day work of non statutory nature attached to the higher post such as drawing and disbursal power so that no inconvenience is caused to other office staff and public on account of higher post falling vacant till the same is filled up by a regular appointment. In fact, this arrangement has been made for the purpose of good governance and to meet administrative exigencies.