[No.209]

Supreme Court

• Morgina Begum v. Managing Director, Hanuman Plantation Ltd.

The deceased was an employee of the Respondent-company. After his death, a petition for claiming compensation under the Workmen's Compensation Act was filed by the father and mother of the deceased before the Commissioner. The Commissioner awarded compensation. The Respondent-company preferred an appeal before the High Court. The High Court held that the Commissioner had no jurisdiction to entertain the claim petition. Hence, the Claimants have preferred the present appeal. Whether the Commissioner had jurisdiction to entertain the claim petition? Held, a Claimant can apply before the Commissioner having jurisdiction over the area where the Claimant ordinarily resides, and it was not always necessary to prefer a claim petition where the accident has taken place. Appeal is allowed.

• Hyderabad Industries Ltd v. ESI Corporation

The employer failed to pay contribution as required under the ESI Act, 1948. The Division Bench of the Andhra Pradesh High Court dismissed all the appeals filed under Section 82(2) of the Employees State Insurance Act, 1948. The question involved in the appeals was whether the workmen engaged were encompassed by the definition of an "employee" under Section 2(9) of the Act. The High Court held that the Appellants were the principal employers so far as the concerned workers who are employed are concerned and, therefore, they are liable to pay contribution under the Act. Hence, the present appeal. Appeals contended to be dismissed by High Court in an abrupt manner without due analysis of factual position and formulation of issues. Held, High Court did not consider factual aspects. High Court in appeals under Section 82(2) of the Act is required to analyse the factual position. Therefore, matter remitted back to High Court for consideration of factual position.

High Courts

Gujarat

• Baba Ramdev Pasti Bhandar Thropartners v. Gabhabhai Amarabhai Parmar

Respondent-workman filed recovery application before Labour Court stating that that he was employed by the petitioner-employer and was then terminated from services without any compensation. Petitioner-employer submitted that the respondent-workman was never engaged by him and there was no employee -employer relation between them. Labour Court however, held that the petitioner could not rebut the documentary evidence produced by workman and therefore, directed the petitioner-employer to pay the respondent-workman. Hence, present petition. Held, Rebuttal evidence is required in a case where evidence produced by one party is reliable, has a binding effect and can persuade the Court to record a particular finding. If the evidence produced by a particular party does not bind the interest of the other party, then, such other party is not required to lead any rebuttal evidence, because, against the interest of such other party, evidence led by the first party would not be binding. In the present case, the Identity Card issued by some society to its member is taken to be documentary evidence and on basis of such documentary evidence, the Court below held that the relationship of employer and employee stands established, especially in view of the fact that no rebuttal evidence was produced by the employer. Therefore, findings by lower court are patently perverse and illegal. Petition allowed.

• Devinand K. Mishra v. Sayaji Iron and Engineering Company Pvt. and Anr.

Petitioner, an employee in supervisory post, was terminated from service for sleeping during work. Petitioner made a reference to Labour Court stating that dismissal was not the appropriate punishment to be awarded for such a conduct. Labour Court, holding that the petitioner was a supervisor held that the reference was not maintainable and also held that looking to the gravity of misconduct, the punishment of dismissal was just and proper. Hence, present petition. Held, it has been held by Supreme Court that where a supervisor was found sleeping, the punishment of dismissal would be shockingly disproportionate and would amount to cracking a nut by the sledgehammer. In welfare legislation, if a particular provision is capable of two constructions, one which furthers the policy and object of the Act and which is more beneficial to the employees, should be preferred. Therefore, reinstatement of employee is directed.

Press Information Bureau

• Parliamentary Committee Invites Suggestions On Trade Marks (Amendment) Bill, 2007

PIB Dated 11.10.2007: The Trade Marks (Amendment) Bill, 2007, introduced in the Lok Sabha on the 23rd August, 2007 and pending since then has been referred to the Department-related parliamentary Standing Committee on Commerce, with Dr. Murli Manohar Joshi, Member, Rajya Sabha, as its Chairman, for examination and report. Accordingly, it is notified that the committee has invited memoranda containing views of the individuals/organisations, etc. interested in the subject-matter of the Bill and also to hear oral evidence on the subject.

The Bill seeks to amend the Trade Marks Act, 1999 and bring about the following amendments (i) prescribe a period of 18 months for the registration of trade marks under Section 23 of the Trade Marks Act, in line with the provisions of the Madrid Protocol; (ii) incorporate a new Chapter IVA in the Trade Marks Act containing enabling provisions for accession to Madrid Protocol, including empowering the Registrar of Trade Marks to deal with international applications originating from India as well as those received from the International Bureau (single application with one fee and in one language) and maintain record of international registrations; (iii) reduce the time-period of filing a notice of opposition of published applications, from four months to three months, for speedy disposal of proceedings; (iv) simplify the law relating to transfer of ownership of trade marks by assignment or transmission and to bring the law generally in tune with international practice and modern business needs and omit chapter X of the Trade Marks Act, dealing with special provisions for textile goods, as it has become redundant.

Ministry of Labour and Emploment

• Constitution of National Industries Tribunal Under Section 7B of the ID Act, 1947

Order No. SO1495(E) Dated 05.09.2007: The Central Government has constituted a National Tribunal headquartered in Kolkata and presided by Justice C.P. Mishra to adjudicate upon an industrial dispute wherein M/s. Bata India Ltd had terminated the services of 220 Shop Managers of its retail shoe stores, without holding any domestic inquiry and whether the terminated employees are entitled to any relief. The Government is of the opinion that the dispute involves question of national importance and also is of such nature that the establishments of M/s. Bata India Ltd. are situated in more than one State are likely to be interested in, or affected by, such dispute.

Ministry of Home Affairs

• Constitution of unlawful Activities (Prevention) Tribunal Under Section 5 of the Unlawful Activities (Prevention) Act, 1967

Notification No. SO1597(E) Dated 25.09.2007: It is notified through the present notification that in exercise of powers conferred under the Unlawful Activities (Prevention) Act, 1967, the Central Government has constituted the "Unlawful Activities (Prevention) Tribunal" consisting of Mr. Justice Mukul Mudgal, Judge of the High Court of Delhi for the purpose of adjudicating whether or not there is sufficient cause for declaring the "Deendar Anjuman" as an unlawful association.

Insurance Regulatory and Development Authority (IRDA)

• Reduction in Agent training hours

Circular No. 42/IRDA/AGENCY/CIR/Oct 2007 Dated 15.10.2007: This is with reference to Gazette Notifications regarding IRDA (Licensing of Insurance Agents) (Amendment) Regulation, 2007 and IRDA (Licensing of Corporate Agents) (Amendment) Regulation, 2007, issued on 8 th October, 2007 notifying the reduction in training hours. It is notified hereby that as informed by Insurance Institute of India, Mumbai the first offline and online exam with the revised syllabus for 50 hours would be conducted from 18 th November and 12 th November 2007 respectively.

Cases

• GlaxoSmithKline UK Ltd v Department of Health [Queen's Bench Division (Commercial Court)]

A dispute arose between plaintiff GSK and the defendant Department of Health on whether products covered by the "PPRS" Pharmaceutical Price Regulation Scheme are all branded, licensed NHS medicines. The PPRS is an agreement between the Department of Health and the pharmaceutical industry that governs the sales of branded medicines to the NHS. Matter was referred to a panel appointed under the scheme. The question was whether branded medicines, reimbursed as generics, should be included when calculating the overall price reductions given by a particular pharmaceutical company. The panel found in favour of the Department of Health and decided that these medicines should not be included. GSK appealed the decision on a question of law as to whether, under the terms of the PPRS, sale of the medicines in question could be included in calculations of price reduction. At a late stage, the Department of Health raised an issue of jurisdiction; it contended that the PPRS constituted a purely non-binding and voluntary agreement under the Health Act 1999 and not a contract. It argued that since there was no intention to create legal relations which is a key requirement for a valid contract, there was no obligation on the part of either party to comply with any decision of the panel and therefore no determination of legal rights which could be appealed to the Court. The Court held that the scheme was voluntary in the sense that there was a choice whether or not to enter into it. However, there was no wording in the scheme, nor in the Health Act 1999, that suggested that this scheme was non-binding once entered into. The Court was therefore of the opinion that the PPRS did constitute a commercial contract and the Court did have jurisdiction to rule on any disputes arising under it. Therefore any finding by the Court as to the terms of the PPRS would be binding on the Department of Health and other contracting parties. Having determined that it had jurisdiction, the Court went on to find that GSK was not prohibited, under the terms of the PPRS, from including sales of branded products sold to fulfill generic prescriptions in any calculation of list price reductions.

• Akzo Nobel Chemicals Ltd and another v Commission of the European Communities (Court of First Instance of the EC)

The Court of First Instance of the European Communities in the present case considered Akzo Nobel and Akcros Chemicals' (the Applicants) claim that the Commission had infringed their legal professional privilege "LPP". The claim arose following the 'forced' disclosure of various documents during an on-the-spot investigation at the Applicants' premises. The Commission reviewed, copied and seized several documents including those which the Applicants claimed were protected by LPP. The documents over which claims of LPP were made fell into two categories: (i) Set A documents, comprised of two copies of a typewritten memorandum, one of which bore manuscript notes referring to contacts with a lawyer; and (ii) Set B documents, comprised of a handwritten note made by Akcros Chemicals' General Manager. Upon trial, the Court ruled that LPP applies under Community law to communications between a lawyer and client provided that: the communications are made for the purposes of the exercise of the client's rights of defence; and they emanate from independent lawyers. The Court, however, held that preparatory documents, even if they were not exchanged with a lawyer or not created for the purpose of being sent to a lawyer, may still be covered by LPP provided that they were prepared exclusively for the purpose of seeking legal advice from a lawyer in exercise of rights of defence. The Court held, on the facts, that the Set A documents did not constitute a written communication with an independent lawyer or an internal note reporting the content of a communication with such a lawyer. The Court also held that the Set A documents were not created 'exclusively' for the purpose of obtaining legal advice and as such could not be protected by LPP. The mere fact that the documents had then been discussed with a lawyer was not sufficient to give them LPP protection. The Court also held that the Set B documents failed to qualify for LPP. The Court ruled that the primary purpose of the handwritten note contained within Set B was as a preparatory note for the memorandum in Set A. Had the documents in Set A been protected by LPP, so too would the note. Since the Court had ruled that LPP did not extend to the Set A documents, it followed that the protection could not be extended to the handwritten note within Set B. The Court of First Instance of the EC thus maintained that the European Court of Justice's restrictive approach to legal professional privilege by confirming that legal professional privilege does not apply to in-house lawyers in relation to European Commission investigations under EC competition rules.

News

• Venezuela parliament debates constitutional amendments on presidential power

The Venezuelan National Assembly debated a set of proposed amendments to the constitution, including reforms that would eliminate presidential term limits and augment the president's emergency powers. In August, the proposed amendments passed a preliminary vote in the Assembly; after the current round of debates, the constitutional reforms will be subject to a national referendum on December 2. The Assembly has already passed 33 amendments, and Venezuelan President Hugo Chavez proposed 25 additional amendments on Tuesday. These include provisions allowing the president to declare an indefinite state of emergency, lowering the voting age from 18 to 16, reducing the working day to six hours, and prohibiting discrimination.

• US Supreme Court stays Virginia lethal injection execution

The Supreme Court of the United States issued an order staying the execution of Virginia death row inmate Christopher Scott Emmett who had been scheduled to be put to death. The Court stayed the execution "pending final disposition of the appeal by the United States Court of Appeals for the Fourth Circuit or further order of this Court. The inmate has been convicted of capital murder and robbery. The Supreme Court agreed to consider Baze v. Rees, a case challenging lethal injection as unconstitutional under the Eighth Amendment. Since the Court granted certiorari, several states have stayed executions pending the outcome of that case, including a Nevada court, which issued a stay of all executions in the state.

• Ukraine high court delays validating parliament election results

The High Administrative Court of Ukraine has delayed validating the results of the Sept. 30 parliamentary election pending the outcome of a legal challenge by the Communist Party of Ukraine. The Communist Party argues that the vote was invalid due to alleged violations surrounding voting abroad. The court's delay could create further tensions in the Ukraine, which was engulfed in political turmoil in recent months.

• Japan cabinet approves limited anti-terror bill

Japan's cabinet approved new anti-terror legislation which would grant a one-year extension to a Japanese refueling mission in the Indian Ocean. The bill, which restricts its application to allied ships on anti-terrorism patrols, is a compromise between the leading Liberal Democratic Party (LDP) and the opposition Democratic Party of Japan (DJP), which wishes to scrap the mission entirely. The changes to the anti-terrorism bill would prohibit Japanese support of US and other allied ships engaged in military, rescue, or humanitarian operations in Afghanistan. Critics of the bill say that it would effectively sideline Japan in the war on terror. The refuelling mission has also been criticized by those who say it violates the country's pacifist constitution by involving Japan in military operations in the Middle East.