SUPREME COURT

• SERVICE

Santosh Kumar Tripathi and Ors. Vs. U.P. Power Corporation and Ors. (Decided on 15.06.2009) MANU/SC/1090/2009

Apprentices Act, 1961 - Uttar Pradesh State Electricity Board (Limitation of Functions) Regulations, 1978 - Appellants had undergone apprenticeship eleven years ago in different trades with the Uttar Pradesh State Electricity Board under the provisions of the Apprentices Act, 1961 - On completion of apprenticeship they claimed absorption as Junior Engineers and on different posts of Operating Staff on the basis of their apprentice training in the respective trades suitable for the posts - The Board did not accede to their claim and instead issued an advertisement on October 17, 1998 inviting applications for filling-up the vacancies of Junior Engineers and similar other posts - Appellants moved the Allahabad High Court seeking a direction in their favour asking the Board to consider them for appointment on the respective posts relating to the different trades in which they had received training as apprentices, ignoring the age bar and giving them preference over candidates who were not trained apprentices - Aggrieved by the High Court judgment, appellants file this appeal.

Held, that while considering the cases of the trainees for giving employment in suitable posts, what has been laid down in the Service Regulations of the Corporation shall be followed, except that the trainees would not be required to appear in any written examination, if any provided by the Regulations. The court did not want to interfere and was in full agreement with the view taken by the Allahabad High Court that the recruitment Regulations provided for a written examination and hence, it was a condition precedent for all candidates, apprentices not excluded, to appear in the examination and to qualify for appointment. Appeal dismissed.

• CUSTOMS

Dr. B.N. Hospital and N. Hospital Res. Centre v. Commissioner of Customs, Mumbai (Decided on 08.04.2009) MANU/SC/1030/2009

Customs - Import of hospital equipements - Exemption - Notification No. 64 of 1988 - Public Charitable Trust running hospital sought import exemption under the notification on the ground that they fell within the Category 1 of the table annexed to the Notification - Director General of Health Services (DGHS) while granting Customs Duty Exemption Certificate (CDEC) wrongly categorised the appellant - hospital in Category 2 instead of Category 1 - On appeal to High Court relying on judgment of Supreme Court in Jaslok Hospital and Research Centre v. Union of India dismissed the appeal - Whether case of the Appellant stands covered by the judgment in the case of Jaslok Hospital

Held, even though Appellant had applied for categorisation as Category 1 hospital DGHS while granting CDEC erroneously categorised the Appellant as category 2 instead of category 1. Further, DGHS cancelled CDEC ex parte without giving any notice or hearing to the Appellant stating that the conditions of Category 2 stood violated. Said cancellation of CDEC has been quashed by the High Court .Hence, the present case is not covered by the judgment in the case of Jaslok Hospital (supra). Impugned Order of High Court set aside. Matter remitted for fresh consideration. Appeal allowed

• CRIMINAL

Union of India v Shah Alam and Anr. (Decided on 11.06.2009) MANU/SC/1065/2009

Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8 read with Section 21 - Both respondents were held guilty of illegally possessing heroin - Sentenced to undergo rigorous 10years imprisonment and to pay a fine of Rs. 1 lakh each and in default to undergo rigorous imprisonment for a further period of six months. They were acquitted of the other charge under Section 8 read with Section 29 of the Act - In appeal, the Allahabad High Court, Lucknow Bench, set aside the judgment and order passed by the trial court and acquitted the respondents of the charge under Section 8/21 of the Act - Appellant ( Union of India) has come in appeal by special leave against the judgment and order of acquittal passed by the Allahabad High Court.

On the facts of the case it was found that the alleged recovery of heroin from the respondents was made in complete violation of the provisions of Section 50 of the Act. Apart from this the non-examination of the two independent witnesses of the search and recovery was another grave omission by the prosecution. It is significant to note here that a formal petition for discharge of the two witnesses was filed by the prosecution before the trial court and it is not that they were simply not produced before the court. We are, therefore, satisfied that the High Court took the correct view of the matter and the judgment coming under appeal does not suffer from any infirmity. We find no merit in these appeals and those are accordingly dismissed. The respondents are discharged from their bail bonds.

HIGH COURT

• INTELLECTUAL PROPERTY RIGHTS

MADRAS HIGH COURT

TVS Motor Company Limited v. Bajaj Auto Limited (Decided on 18.05.2009) MANU/TN/0976/2009

Intellectual Property Rights - Patent Infringement - Technological differences - Validity of patent - Both the Appellant and the Respondent are in the automobile field and are manufacturing two wheelers of their own brands- The dispute pertains to the patent right of the Respondent bearing Patent No. 195904 of 16th July, 2002, granted by the Patent Office with its sealing dated, 7th July, 2005 - Under the said patent, the Respondent got the exclusive right to prevent third parties from making, using, offering for sale, selling or importing for those purposes "An improved internal combustion engine working on four stroke principle" - The said patent also places restriction for grant of such patent to any one else for a period of 20 years from 16th July, 2002 - Appellants files for revocation on the grounds viz. anticipated patent, obviousness in the patent and the invention in the patent is not patentable.

Held, the Respondent's patent having been granted is to be accepted prima facie as a valid one, and also held, that merely because such a valid patent is existing in favour of the Respondent, that by itself, it cannot be held, that the Respondent has made out a strong prima facie case of infringement as against the Appellant. A distinctive feature of a different operation in the Appellant's technology with three valve provision with twin plugs operation and the said three valves operation of the engine produce distinctively different result in its operation. Reason being that while the twin plug operation in the Respondent's internal combustion engine may have resulted in improved internal combustion, the three valve technology of the Appellant also with twin plug provision produce a distinctive product of its own, different from the claimed invention of the Respondent.

• SERVICE

       MADRAS HIGH COURT

R. Thangasamy Vs. The State of Tamil Nadu (Decided on 09.06.2009) MANU/TN/1187/2009

Writ of certiorarified mandamus- Petioner seeks the Court order to call for the records on the file of the first respondent in connection with the order passed by him in his proceedings Lr.No.63755/CMPC/97-1, dated 14.8.97 and to quash the same and to direct the respondents to pay the scale of pay of Rs.950-1500 with effect from 1.6.1988 with 18% interest and fix the pension and retirement benefits on that basis - Petitioner claims to have higher qualification than the one prescribed for the post of Turner in the Port Department - Petitioner earlier moved the Tribunal seeking for a direction to dispose of his representation, dated 11.3.1997 - Tribunal directed the respondents to dispose of his representation in accordance with law - Respondent, by the impugned order, dated 14.8.97, rejected his request - Hence this petition.

Held, pay is fixed by the Government on the basis of the relevant service rules prescribed for the said post by the rules framed under Article 309 of the Constitution. The Supreme Court also has held that based upon the qualification prescribed for a post, the pay scales can vary. The court referred to the judgment of the Supreme Court in Mewa Ram Kanojia v. A.I.I.M.S. reported in (1989) 2 SCC 235 that, "While considering the question of application of principle of 'Equal pay for equal work' it has to be borne in mind that it is open to the State to classify employees on the basis of qualifications, duties and responsibilities of the posts concerned. If the classification has reasonable nexus with the objective sought to be achieved, efficiency in the administration, the State would be justified in prescribing different pay scale but if the classification does not stand the test of reasonable nexus and the classification is founded on unreal, and unreasonable basis it would be violative of Articles 14 and 16 of the Constitution. Equality must be among the equals. Unequal cannot claim equality." Petition dismissed.

• CUSTOMS

DELHI HIGH COURT

Saint-Gobain Glass India Ltd. and Anr. v. Union of India (UOI) and Ors. (Decided on 27.05.2009) MANU/DE/0646/2009

Customs - Imposition of provisional duty - Import of soda ash falling under sub-heading 283620 of the first Schedule to the Customs Act, 1962 from China - Notification No. 37/2009-Customs dated, 20th April, 2009 - Rule 6 and 9 of the Customs Tariff (Transitional Product Specific Safeguard Duty) Rules - Government of India, without awaiting the return of findings by the Director General has decided to impose provisional duty based on recommendations made by Director General - Petitioners, being aggrieved have instituted the instant Writ Petitions - Respondent contended that in view of the imminence of irreparable damage to the domestic industry by virtue of increased quantities of imports, the procedure prescribed under Rule 6(4) was not applicable to the inquiry conducted under Rule 9 - Further contended that, no fault could be found with the actions of the Director General, in not awaiting the expiry of the period notified under the Initiation Notification - Whether an order for imposition of provisional duty is justifiable in cases where hearing with respect to final determination had not been completed

Held, as per evidence available, a clear and imminent threat of market disruption warranting imposition of provisional duty exists and any delay would result in damage. Decision of the Central Government to impose provisional duty cannot be found fault with. Whether a provisional duty is to be imposed till the final finding is arrived at by the Director General is entirely within the domain of the Director General. Not a case which would call for interference by a Writ Court. Court cannot re-appreciate the primary or perceptive facts found by an authority acting under a statute. No scope for interference in matters which have huge economic impact. Writ Petitions in such cases ought to be entertained when there is either a complete lack of jurisdiction or a palpable error requiring imminent interference. Petition Dismissed.