Himachal High Court Digest 1-15 August, 2023

Himachal High Court Digest 1-15 August, 2023

Nominal Index

Arun Kumar Vs. State Of H.P.
2023 STPL(Web) 65 HP : Service Law – Transfer

Asha Devi Vs. State Of Himachal Pradesh
2023 STPL(Web) 74 HP : Murder – Entire investigation is shrouded with suspicion

Balwinder Singh & Another Vs. State Of Himachal Pradesh
2023 STPL(Web) 83 HP : NDPS – Conviction Upheld

Dev Raj & Others Vs. Ram Kishan (Deceased) Through Lrs.
2023 STPL(Web) 87 HP : Usufructuary Mortgage – No time limit to redeem

Ghindro Ram Vs. State Of Himachal Pradesh And Ors.
2023 STPL(Web) 86 HP: Service Law – Pension and other retiral a benefit

M/S Gujarat Co-Operative Milk Marketing Federation Ltd. Vs. Additional Excise & Taxation Commissioner And Another
2023 STPL(Web) 75 HP : Value Added Tax – Milk Cream

Jagat Singh Vs. State Of Himachal Pradesh
2023 STPL(Web) 84 HP : NDPS – Criminal Conspiracy

Jaswant Singh And Others Vs. Himachal Road Transport Corporation
2023 STPL(Web) 78 HP : Service Law – Seniority

M/S Kartik Food Vs. State Of H.P.
2023 STPL(Web) 59 HP :  SARFAESI – Writ not maintainable

Kuldeep Vs. Narcotics Control Bureau
2023 STPL(Web) 80 HP : Bail – NDPS

Sh. Mohammad Aadil Vs. State Of H.P.
2023 STPL(Web) 61 HP : Bail – Murder

Meera Devi Vs. Sh. Hem Singh And Anr.
2023 STPL(Web) 88 HP : MACT – Appeal against dismissal of claim

Nignoo Alias Niknoo (Since Deceased) Through His Lrs. & Others Vs. State Of Himachal Pradesh
2023 STPL(Web) 64 HP : Civil Procedure – Decree against a dead person

M/S Neelkanth Yarn Vs. Punjab National Bank & Ors.
2023 STPL(Web) 60 HP : SARFAESI – Maintainability of Writ

Oriental Insurance Co. Ltd. Vs. Kumli Devi And Ors.
2023 STPL(Web) 71 HP : Employee State Insurance – Liability of insurer to pay penalty

Pevinder Kumar Vs. Manoj Joshi
2023 STPL(Web) 67 HP : Quashing of Sumoning – Defamation against newspaper etc

Rajan Kumar Vs. State Of H.P.
2023 STPL(Web) 63 HP: Service Law – Family Pension

Rakesh Kaplex Vs. State Of H.P.
2023 STPL(Web) 68 HP : Service Law – Retrospective Promotion

Rakesh Kumar Vs. State Of Himachal Pradesh
2023 STPL(Web) 76 HP : Withdrawal of Petition – Liberty to file afresh at appropriate stage

Rishabh Sharma Vs. State Of H.P
2023 STPL(Web) 69 HP : Service Law – Qualification

Shriram General Insurance Company Ltd. Vs. Kuldeep Singh
2023 STPL(Web) 85 HP : MACT – Injury Case

Surjeet Singh Matharu Vs. Praveen Kumar
2023 STPL(Web) 62 HP : MACT – Liability of Driver

Superintending Engineer & Another Vs. Rakesh Kumar & Another
2023 STPL(Web) 66 HP: Labour Law – Regularization

Sanju Vs. State Of H.P.
2023 STPL(Web) 72 HP : NDPS – Sample not representative

Sunita Sangroli Vs. State Of H.P.
2023 STPL(Web) 73 HP : Service Law – Earned leaves

Usha Thakur And Others Vs. Vikram Thakur
2023 STPL(Web) 79 HP : MACT – Compensation enhanced

United India Insurance Company Ltd. Vs. Priya & Others
2023 STPL(Web) 81 HP : MACT – Compensation enhanced

Vipin Saini Vs. Himachal Pradesh Private Educational Institutions Regulatory Commission
2023 STPL(Web) 70 HP : Service Law – Regulation coming in force after appointment not applicable

Vicky Rana And Another Vs. State Of Himachal Pradesh
2023 STPL(Web) 77 HP : Murder – Major inconsistencies and contradictions

Zahida Bano Vs. State Of H.P & Ors.
2023 STPL(Web) 82 HP : Service Law – Non consideration of Candidature

Subject Index

Civil

Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 – Section 13(2) ,13(4) – SARFAESI – Writ not maintainable – Taking symbolic possession of the property of defaulter – Petitioner required to approach appropriate authority and not this Court by invoking the extra ordinary jurisdiction of this Court. Writ petition assailing the action of the Bank under Section 13(4) of the Act is not maintainable and the aggrieved party has a remedy of an appeal under Section 17 to approach the Debt Recovery Tribunal. Petition Dismissed. (Para 17) M/S Kartik Food Vs. State Of H.P. : 2023 STPL(Web) 59 HP

Constitution of India – Article 226 – Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 – Section 17 – SARFAESI – Maintainability of Writ – Held: From the statutory scheme and decisions noted here-inabove, it is clear that this Court, in exercise of its jurisdiction, cannot go into the decision of respondent-bank in classifying the petitioner’s account as NPA. If the respondent-bank proceeds further and reaches Section 13(4) of the SARFAESI Act stage, the petitioner-firm can file application under Section 17 of the SARFAESI Act. The DRT can go into the aspect of classifying the account as NPA and also whether RBI guidelines have been violated on any aspect leading to declaring the account as NPA and taking recourse under the SARFAESI Act. Instant petition is not maintainable and is accordingly dismissed leaving open to the petitioner-firm to avail remedy under Section 17 of the SARFAESI Act as and when Section 13(4) thereof is invoked by the respondent-Bank. (Para 27, 29) M/S Neelkanth Yarn Vs. Punjab National Bank & Ors. : 2023 STPL(Web) 60 HP

Civil Procedure – Decree against a dead person – Is Nullity – Set aside – Lower Court to determine the question of bringing on record the legal representatives/abatement. (Para 6) Nignoo Alias Niknoo (Since Deceased) Through His Lrs. & Others Vs. State Of Himachal Pradesh : 2023 STPL(Web) 64 HP

Transfer of Property Act, 1882 – Section 61, 62, 92 – Usufructuary Mortgage – No time limit to redeem – Property had been redeemed by some of the co mortgagors but the jural relationship of mortgagor and mortgagee had not come to an end – Mortgagee do not become owner – Suit for declaration and injunction was legally maintainable. (Para 8, 11, 12)

We need not multiply reference to other judgments. Reference to above judgments clearly spell out the reasons for conflicting views. In cases where distinction in usufructuary mortgagor’s right under Section 62 of the T.P. Act has been noted, right to redeem has been held to continue till the mortgage money is paid for which there is no time limit while in other cases right to redeem has been held to accrue on the date of mortgage resulting in extinguishment of right of redemption after 30 years. (Para 11) Dev Raj & Others Vs. Ram Kishan (Deceased) Through Lrs. : 2023 STPL(Web) 87 HP

Limitation Act, 1963 – Article 61 – Limitation – Redemption of Usufructuary Mortgage – Whether the plaintiff as holder of usufructuary mortgage could defeat the title of mortgagors by implication of Article 61 of the schedule to Limitation Act – Held: No. (Para 12, 13) Dev Raj & Others Vs. Ram Kishan (Deceased) Through Lrs. : 2023 STPL(Web) 87 HP

Criminal

Indian Penal Code, 1860 – Section 34, 201, 302 – Code of Criminal Procedure, 1973 – Section 439 – Bail – Murder – Petitioner 22 years old – Behind bar for more than 2 years and 5 months – Delay in trial not attributed to petitioner – Held: The further pre-trial incarceration of the petitioner will not be justified. Bail granted with stringent condition. (Para 11 to 16)  Sh. Mohammad Aadil Vs. State Of H.P. : 2023 STPL(Web) 61 HP

Indian Penal Code, 1860 – Section 500, 501, 120B – Quashing of Sumoning – Defamation against newspaper etc – Held: At this stage, only consideration for the Magistrate would be that whether on the basis of material placed before him, it can be suspected by the Magistrate that accused persons named in the complaint or Charge sheet can be suspected to have committed an offence or not, and in case material is sufficient to suspect commission of offence by the person named as an accused in the Charge sheet or private complaint, Magistrate has no option except to summon the accused.

Whether such material shall be sufficient for framing of Charge or putting Notice of Accusation or not is a different matter, which has to be considered by the Magistrate at appropriate stage and at that stage, accused persons shall have right to contest the case by raising all issues being raised in present petition alongwith other issues, if any, in addition or independent thereto because at that stage required degree of evidence should be so as to arrive at a conclusion that prima facie case has been made out. Petition dismissed. (Para 17) Pevinder Kumar Vs. Manoj Joshi : 2023 STPL(Web) 67 HP

Narcotic-Drugs and Psychotropic Substances Act 1985 – Section 20(b)(ii)(A), 29, 52A – NDPS – Sample not representative – Sample not from homogenous seized material – Sample is of small quantity which is proved to Charas – Case against petitioners proved – Looking that sample not of representative and shows only small quantity – Conviction modified for small quantity under NDPS – Sentence modified to already undergone. (Para 29, 37) Sanju Vs. State Of H.P. : 2023 STPL(Web) 72 HP

Evidence Act, 1872 – Section – 27, Narcotic-Drugs and Psychotropic Substances Act 1985 – Section 29 – NDPS – Abetment and Criminal Conspiracy – Appellant charge sheeted and convicted mainly on the statement of other accused who was apprehended with Charas – Statement of co accused not beyond the shadow of doubt – Contradictions in witness regarding time etc – No independent witness joined – Police version highly doubtful. Held: The discovery of the fact must relate to the commission of some offence. Hence the only fact said to have been proved is the recovery of Rs. 40,000/- and the statement made by the appellant Sanju to that effect. However, in order to prove the guilt of appellant Sanju, such evidence was not sufficient. There was no evidence to prove that the amount recovered at the instance of appellant Sanju was proceed of crime for which he was charged. Conviction set aside. (Para 33, 34) Sanju Vs. State Of H.P. : 2023 STPL(Web) 72 HP

Murder – Entire investigation is shrouded with suspicion – Appeal against Conviction – Circumstantial Evidence – All grounds relied by Trial Court fails in appeal before High Court – Held: What can be gathered from the discussion thus so far is that the prosecution has miserably failed to connect the linkages in the chain of circumstantial evidence. It is firstly relied upon inadmissible evidence and then on account of its overzealousness has tried to affect the alleged recoveries that too without associating any independent witnesses. The prosecution has even failed to establish the motive and the entire case hinges around grave suspicion, however, so strong, cannot be allowed to take place of legal proof. Conviction set aside (Para 97, 98) Asha Devi Vs. State Of Himachal Pradesh : 2023 STPL(Web) 74 HP

Withdrawal of Petition – Liberty to file afresh at appropriate stage – Allowed Rakesh Kumar Vs. State Of Himachal Pradesh : 2023 STPL(Web) 76 HP

Indian Penal Code, 1860 – Section 302 – Murder – Major inconsistencies and contradictions – Doubt Appeal against conviction – Major inconsistencies and contradictions in the statement of each of the witnesses regarding the date and time of recording of the disclosure statement. there are serious doubts regarding the story of the prosecution about the time and place of the interception of the truck. The identification, discoveries and recoveries of incriminating articles, sealing of such articles and collecting of samples have not been proved by the prosecution by leading cogent, clinching and clear evidence much less unerringly pointing to the guilt of the appellants. If that was not enough, it would be noticed that there is no independent disclosure statement and only a joint disclosure statement is available on record and that too has not been duly proved on record. Contradictions in material particulars and go to the root of the case materially affecting the trial or the core of the prosecution’s case and render the testimonies of the witness liable to be discredited. Conviction set aside. (Para 41, 60, 68) Vicky Rana And Another Vs. State Of Himachal Pradesh : 2023 STPL(Web) 77 HP

Evidence – Discrepancies – No doubt, in all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock or horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses, who also make material improvements while deposing in the court, it cannot be safe to rely upon such evidence. (Para 68) Vicky Rana And Another Vs. State Of Himachal Pradesh : 2023 STPL(Web) 77 HP

Code of Criminal Procedures, 1973 – Section 439 – Bail – NDPS – Delay in trial – Whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act. Bail granted. (Para 20) Kuldeep Vs. Narcotics Control Bureau : 2023 STPL(Web) 80 HP

Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 20, 29 – NDPS – Conviction Upheld – Case proved – Held: Present is a case where the prosecution has proved the recovery of the alleged contraband/charas from the possession of accused persons. The so called material contradictions in the statements of prosecution witnesses, as pointed by learned defence counsel, are actually of trivial in nature, which do not affect the prosecution case at all. The statements of the prosecution witnesses are consistent and corroborate each and every facet of search, recovery, seizure, preparation of documents and arrest of the accused. Nothing has been brought to our notice, which can lead to even a semblance of an inference that the statements of prosecution witnesses, are either not trustworthy or do not inspire confidence. The statements of official witnesses, are coherent and natural. Recovery of contraband from accused persons, stands proved on record. The contradictions so pointed out by learned defence counsel in the statements of prosecution witnesses, are actually minor discrepancies, which in the facts and circumstances of instant case, do not affect the prosecution case, in any manner. (Para 4(iii)) Balwinder Singh & Another Vs. State Of Himachal Pradesh : 2023 STPL(Web) 83 HP

Narcotic Drugs and Psychotropic Substances Act, 1985- Section 29 – NDPS – Criminal Conspiracy – Appeal against conviction – Owner of truck from where contraband recovered – Going with truck in another vehicle – Held: The presence of both the accused at the same place, the same by itself cannot be taken to be an evidence to suggest that there was any criminal conspiracy between the two – There was no attempt on the part of this appellant to flee from the vehicle – Positive evidence required – No offence of criminal conspiracy made out – Conviction set aside. (Para 51, 55, 56) Jagat Singh Vs. State Of Himachal Pradesh : 2023 STPL(Web) 84 HP

Narcotic Drugs and Psychotropic Substances Act, 1985- Section 15, 54 – NDPS – Presumption – Conviction Upheld – Minor discrepancies not material – Presumption under section 54 of NDPS Act when possession found – All legal requirements / procedures fulfilled – Conviction valid. (Para 72 to 75) Jagat Singh Vs. State Of Himachal Pradesh : 2023 STPL(Web) 84 HP

Compensation

Motor Vehicles Act, 1988 – Section 163A – MACT – Liability of Driver – MACT burdened driver to pay compensation – Challenged –  Held: It has been clearly provided in section 163A of Motor Vehicles Acts, 1988, that owner of the vehicle shall be liable to pay in case of death or permanent disablement due to accident arising out of the use of motor vehicle. Driver not liable – Order against driver set aside. (Para 8, 9) Surjeet Singh Matharu Vs. Praveen Kumar : 2023 STPL(Web) 62 HP

Motor Vehicle Act, 1988 – Section 166 – MACT – Compensation enhanced – Looking to number of dependents, deduction changed from 1/3 to ¼ – Loss of dependency, Loss of Estate, Funeral expenses added – Compensation enhanced from Rs.26,65,060/- to Rs.38,95,045/-, along-with interest @9% per annum.(Para 42, 44, 46) Usha Thakur And Others Vs. Vikram Thakur : 2023 STPL(Web) 79 HP

Motor Vehicles Act, 1988 – Section 166 – MACT – Compensation enhanced – Four dependents – Personnel deduction changed from 1/3 to ¼ –  Future Prospects taken as 30% – Multiplier enhanced from 10 to 13 – Compensation is enhanced from Rs.26,45,957/- to Rs.40,77, 234/-, along with interest @ 9% per annum. (Para 68, 72, 75) United India Insurance Company Ltd. Vs. Priya & Others: 2023 STPL(Web) 81 HP

Motor Vehicles Act, 1988 – Section 149, 166 – MACT – Injury Case – Appeal by insurer – Plea that injured was gratuitous passenger – Admission by respondents that injured hired there vehicles for goods – Plea rejected – The assured proved that the accident is covered by the compulsory insurance clause – Now it is for the insurer to prove that it comes within an exception – No such evidence led by insurer – Award valid (Para 16, 17) Shriram General Insurance Company Ltd. Vs. Kuldeep Singh : 2023 STPL(Web) 85 HP

Motor Vehicles Act, 1988 – Section 166 – MACT – Appeal against dismissal of claim – Defence story seems to be afterthought – Statement of witness that some goats had abruptly jumped on the road, the driver had to steer the vehicle in order to save the goats and consequently the vehicle went off the road. Based on this statement Tribunal dismiss the claim – Held: When the driver had not taken any such defence in his reply, the propounded story appear to be an afterthought and further the conduct of PW-3 concurring with the said story becomes doubtful. The principle of res ipsa loquitur will apply in the facts of the case and in absence of any material for rebuttal of presumption, there is no escape from holding that the accident in question was caused by rash and negligent driving of the driver. Dismissal of claim set aside. (Para 10, 12, 13) Meera Devi Vs. Sh. Hem Singh And Anr. : 2023 STPL(Web) 88 HP

Motor Vehicles Act, 1988 – Section 166 – MACT – Compensation – Diseased a labourer aged about 36 years – Minimum wages at relevant time taken as Rs 3000/- per month. Future prospect 40% – Five dependents so deduction 1/5, Multiplier 15 applied. Loss of Estate, Loss of Consortium and funeral expenses added – Total compensation of Rs. 8,34,800/- awarded. Apportionment- Wife and four children @ 22.5% each and 10% to mother. (Para 19, 20, 21) Meera Devi Vs. Sh. Hem Singh And Anr. : 2023 STPL(Web) 88 HP

Labour Law

Labour Law – Regularization – Petitioner plea that he was working as surveyor but department plea that he was working as beldar – Claim rejected by Labour Court but allowed by Single Judge of High Court with direction to regularize services of the petitioner-respondent No.1 as Surveyor with all consequential benefits with entitlement of wages of Surveyor for the period in reference. – LPA – Witness Evidence – Department Record – Department record summoned by Single Judge of High Court showing that petitioner has been working as a Surveyor since the date of his engagement – No challenge to this finding of Single Judge – No merit in petition – Dismissed. (Para 7, 9) Superintending Engineer & Another Vs. Rakesh Kumar & Another : 2023 STPL(Web) 66 HP

Employees Compensation Act, 1923 – Section 4A(2) – Employee State Insurance – Liability of insurer to pay penalty – Appeal against ESI Commissioner order against insurer, to pay penalty with interest – Held: If any penalty on account of delay in depositing the amount of compensation in terms of Section 4 A(2) shall be imposed – It shall be upon the employer not upon insurer. Award against insurer set aside to the extent of payment of penalty with interest. (Para 13, 16) Oriental Insurance Co. Ltd. Vs. Kumli Devi And Ors. : 2023 STPL(Web) 71 HP

Service Law

Service Law – Family Pension – Date from which entitled – Dispute that legal heir of deceased workman is entitled to family pension from the date it fell due, i.e. the date of death, and not prospectively as has been sanctioned – Held: It is not understandable as to on what basis, the respondents issued office communication approving the grant of family pension to the petitioner “subject to the condition that family pension shall be paid prospectively”. The petitioner became entitled to family pension on the date of death of his wife. Family pension became due to the petitioner on the date of death of his wife. It is not even the case of the respondents that there was any delay on part of the petitioner. Petition allowed (Para 3, 4(ii), 5) Rajan Kumar Vs. State Of H.P. : 2023 STPL(Web) 63 HP

Service Law – Transfer – Transfer in about eight months – Plea that he is being harassed to accommodate respondent No. 3. He also says that assuming, respondent No. 3 is to be adjusted, then also, it cannot be at his cost. Held: The petitioner might have brought his family to Solan. All of them might be adjusting to the new environment at Solan. All of a sudden, the petitioner has now been transferred to yet another place. In the given facts and circumstances, this cannot be permitted. There is neither any public interest or administrative exigency requiring petitioner’s transfer from Solan. Transfer order of petitioner  is unsustainable as the petitioner has not completed his normal tenure there. Respondent No. 3 deserves to be adjusted at this difficult phase of her life. It is for employer to see where and how respondent No. 3 can be adjusted, but it cannot be at the cost of the petitioner. Transfer order set aside. (Para 5(i), 6) Arun Kumar Vs. State Of H.P. : 2023 STPL(Web) 65 HP

Service Law – Retrospective Promotion – Promoted due in 2021, promoted on but not communicated – Fresh communication of promotion in 2023 – Petitioner not to suffer for fault of respondent – Petitioner is entitled for actual benefits of his retrospective promotion from 06.03.2021 and not notional. Financial benefits allowed from 2021 promotion. (Para 5) Rakesh Kaplex Vs. State Of H.P. : 2023 STPL(Web) 68 HP

Service Law – Qualification – Petition against rejection of candidature on ground of lack of qualification – Qualification prescribed is essential qualification for appointment – Qualification possessed by petitioner altogether different what is required – No equivalence has been placed on record so as to construe that the qualification of petitioner equal to qualification required. Held: Petitioner does not possess essential qualification for appointment – Petition dismissed. (Para 4, 5) Rishabh Sharma Vs. State Of H.P : 2023 STPL(Web) 69 HP

Service Law – Regulation coming in force after appointment not applicable – Vice Chancellor – Petitioner declared ineligible to be appointed as Vice Chancellor on ground that he had acquired Doctor of Philosophy degree in the year 2010, which was an essential qualification for appointment as Vice Chancellor as per UGC Regulations, 2018. Petitioner appointed as Vice chancellor in 2016, when as per UGC Regulation it was not an essential condition. Held: Petitioner was appointed as a Vice Chancellor in the year 2016 and as such, his appointment otherwise could only be tested as per UGC Regulations 2010 which were in vogue at that time, but definitely not in terms of UGC Regulations 2018,  As per UGC Regulations 1998, person aspiring to be Professor was otherwise not required to have Ph.D. degree as has been clarified in earlier part of order, meaning thereby appointment of the petitioner as a Professor in the year 2006, was valid and if it so, it is factually incorrect on the part of the respondent to observe in Annexure P-13 that the petitioner was found to be ineligible at the time of appointment as Vice Chancellor in the year 2016. (Para 16, 19) Vipin Saini Vs. Himachal Pradesh Private Educational Institutions Regulatory Commission : 2023 STPL(Web) 70 HP

Service Law – Earned leaves – Refusal to grant of Benefit – Held: Once petitioner had rendered the services from such date and had been ordered to be conferred with all the service benefits from such date, denial of the benefit of earned leave to the petitioner from such retrospective date is bad in law for the reason that it is discriminatory and arbitrary and hence against the Articles 14 and 16 of the Constitution of India. Respondents are directed to grant benefit of earned leave to the petitioner from the initial date of regularization (Para 11, 13) Sunita Sangroli Vs. State Of H.P. : 2023 STPL(Web) 73 HP

Service Law – Seniority – Rejection of representation – Petition against – Seniority from date of appointment – Held: In the case at hand, admittedly, the petitioners joined ahead of the private respondents and as such, they became regular employees ahead of the private respondents. If it is so, petitioners are required to be placed above private respondents in the seniority list. Further held that In the case at hand, admittedly, seniority list came to be laid challenge by the petitioners after a delay of two years and six months, which can be said to be a ‘reasonable period’, for approaching court of law. Petition allowed. (Para 16, 23) Jaswant Singh And Others Vs. Himachal Road Transport Corporation : 2023 STPL(Web) 78 HP

Service Law – Non consideration of Candidature – Not eligible on last date of application – Become eligible after last date of application – No case made out in favour of petitioner – Dismissed. (Para 4) Zahida Bano Vs. State Of H.P & Ors. : 2023 STPL(Web) 82 HP

Service Law – Pension and other retiral a benefit – The petitioner was conferred work charge status on 01.02.2003 and was followed by his regularization on 16.08.2007. Thus, the service of petitioner as work charge employee, followed by regular appointment is liable to be counted for the purpose of pension and other retiral benefits, hence the distinction drawn by the respondents on the ground that petitioner was regularized after the cutoff date i.e. 15.5.2003, cannot be sustained. The petitioner had earned the status of work charge employee as a matter of right under the policy of the State Government.

Once the work charge employment of the petitioner is held liable to be counted for the grant of pensionary benefits to him, as a natural corollary, he will be governed under CCS Pension Rules, 1972 and the Contributory Pension Scheme will not be applicable to him. Petition allowed. (Para 9, 11) Ghindro Ram Vs. State Of Himachal Pradesh And Ors. : 2023 STPL(Web) 86 HP

Taxation

Himachal Pradesh Value Added Tax Act, 2005 – Section 46(1), 48(1) – Value Added Tax – Milk Cream – Levy of VAT – Milk is exempted from VAT – Milk Cream is not milk – Milk and milk cream are totally different products and nobody, who intends to buy milk cream, would ask for milk – Held: We are of the opinion that in the instant case also, a scientific or technical meaning of the term ‘milk cream’, as is sought to be projected by the assessee, should not be adopted and the popular meaning of milk cream as is commonly understood, should be taken note of, i.e. that it is a product which is different from milk. This is because a person who wishes to buy milk cream would not go to the market and ask for milk. He would only ask for milk cream because it is a separate product though also a milk product. Tribunal order levying VAT on Milk Cream upheld. (Para 35, 37) M/S Gujarat Co-Operative Milk Marketing Federation Ltd. Vs. Additional Excise & Taxation Commissioner And Another : 2023 STPL(Web) 75 HP

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