SUPREME COURT

• CIVIL LAWS

Raja Khan Vs. U.P. Sunni Central Waqf Board and Anr. (Decided on 26.11.2010) MANU/SC/0989/2010

Ex-parte orders whether passed on extraneous consideration - Determination thereof - Dargah managed by the Committee of Management of Waqf - Allotment of relevant plots to proprietor of circuses during Mela for a period of 40 days since last several years - Refusal to allotment in 2010 by the Waqf - Circus proprietor filed the suit wherein pursuant to objection being raised in regard to territorial jurisdiction, writ was filed before the Single Judge, High Court wherein ex-parte orders were passed directing for allotment and compliance thereof

Held, the two relevant ex-parte interim orders of the Single Judge of the Allahabad High Court were clearly passed on extraneous considerations on account of following reasons :

(1) The property in question is in the district of Bahraich which is within the territorial jurisdiction of the Lucknow Bench of the Allahabad High Court. Hence, the writ petition could not have been validly filed or entertained in the Allahabad Bench of the High Court.

(2) The writ petition was not maintainable because ordinarily no writ petition lies against a private body.

(3) By the ex-parte order dated 11.6.2010 the writ petition has been practically allowed since by that ex-parte order the Respondents (U.P. Sunni Central Waqf Board, District Magistrate, Bahraich and Committee of Management, Waqf No. 19, Dargah Sharif, Bahraich) were directed to allot the land for the purpose of running circus, Jhoola, Merry-go-round etc., and possession of the allocated land was directed to be handed over within three days. Subsequently, the same single Judge also passed an order directing the district Magistrate and SP, Bahraich to take appropriate action for compliance of the earlier order.

As well settled, by an interim order the final relief should not be granted.

(4) The petitioner had earlier filed a writ petition being writ petition before the Lucknow Bench, which was dismissed with liberty to approach the district Magistrate by making a representation. The representation was made and a direction was passed to the Committee of Management of the Waqf to reconsider the claim for allotment of land. Thereafter Proprietor had applied to the Committee for grant of a lease and simultaneously filed another writ petition before the Lucknow Bench challenging the order of the District Magistrate. This writ petition was dismissed on the ground of maintainability.

The Division Bench of the High Court has rightly set aside the interim orders of the Single Judge as these interim orders were clearly passed on extraneous considerations.

Board of Wakf, West Bengal Vs. Anis Fatma Begum and Anr. (Decided on 23.11.2010) MANU/SC/0970/2010

Constitution and Jurisdiction of Wakf Tribunal – Whether matters relating to Wakfs should be entertained by Civil Court or High Court -

Held, dispute in the present case relates to a Wakf, all matters pertaining to Wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the Civil Court or by the High Court straightaway under Article 226 of the Constitution of India. The obvious purpose of constituting such a Tribunal was that a lot of cases relating to Wakfs were being filed in the courts in India, which resulted in increase in pendency of cases in the Courts. Hence, a special Tribunal has been constituted for deciding such matters. The word 'Wakf' has been defined in Section 3(r) of the Wakf Act, 1995 and hence once the property is found to be a Wakf property as defined in Section 3(r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal.

• COMMERCIAL LAWS

B.S.N.L. Vs. Reliance Communication Ltd. (Decided on 29.11.2010) MANU/SC/1000/2010

Interconnect Agreement between Bharat Sanchar Nigam Limited (BSNL) and M/s. Reliance Infocomm Limited - Whether the contents therein penal or a pre-estimate of damages - Determination thereof

Held, TDSAT by the impugned judgment has held that the impugned demand of BSNL under relevant Clause of the Interconnect Agreement was penal in nature; that under the said clause unauthorized calls had to be detected by BSNL and that in case of such detection charges were to be levied on such calls at the highest applicable IUC; that BSNL was under an obligation to draw distinction between unauthorized calls and calls without/ modified CLI in the impugned demand which in the present case has not been done; that no opportunity of hearing was given to Reliance and, lastly, the amount of penalty was not commensurate with actual damage suffered by BSNL.

The question whether a clause is penal or pre-estimate of damages depends on its construction and on the surrounding circumstances at the time of entering into the contract. The fact that a sum of money is payable on breach of contract is described by the contract as "penalty" or "liquidated damages" is relevant but not decisive as to categorization.

The instant case the concerned service relates to telecom. Under the Interconnect Agreement, the UASL is obliged to maintain the integrity of its exchange/POI. It is important to note that each service provider, including BSNL, is a market player/stakeholder. Each UASL is entitled to a level playing field. The nature of the call be it local or national or international, as indicated by corresponding CLI, is the basis for the levy of IUC (including ADC). If by wrong routing of calls or by masking the cost of providing services is reduced, the concerned operator gets an undue advantage not only in the Indian market over other competing operators but also in the international market. Billing is one of the most vital aspects of this case. With technology, an international call could fall on the local POI but then the concerned operator is responsible for the identity of the call. In the case of calls, which are correctly routed, the display screen with the subscriber clearly indicates whether the call bears international or local/national CLI. Similarly, when the Gateway Bypass Scam takes place and the international call(s) lands on the local POI which is not forwarded to the specified trunk group/POI, there is not only bypassing of International Gateway/ POI and National POI but also evasion of duty to maintain billing records in detail at each POIs.

This results in payment of IUC at a lower rate leading to reduced cost for the defaulting UASL which provides not only increase in its profit but also gives it an advantage in international market vis-a-vis other competitors (including BSNL) because the defaulting UASL can easily price its product in the international market at a lower rate and in that sense loss is caused to BSNL. An international call coming from the masked number alone cannot be taken into account. Thus, the relevant clauses provide for pre-estimate of damages restricting the higher IUC rate made applicable for calls only for last two preceding months and not for last three years or the longer period. While categorizing damages as "penal" or "liquidated damages", one must keep in mind the concept of pricing of these contracts and the level playing field provided to the operators because it is on costing and pricing that the loss to BSNL is measured and, therefore, all calls during the relevant period have to be seen.

Thus the relevant Clause i.e. 6.4.6 represents pre-estimate of reasonable compensation for the loss suffered by BSNL. Impugned judgment thus set aside and matter remitted to TDSAT to decide the matter de novo in accordance with the law laid down.

• CRIMINAL LAWS

Chirra Shivraj Vs. State of Andhra Pradesh (Decided on 26.11.2010) MANU/SC/0992/2010

Conviction based on dying declaration under the provisions of Section 304 Part II of the Indian Penal Code, 1860 - Whether conviction solely on the basis of a dying declaration just and legal

Held, the Trial Court duly considered the fact that the dying declaration was trustworthy and reliable and it was supported by the complaint and as a result thereof, the order of conviction was also confirmed by the High Court in the appeal.

If dying declaration is trustworthy and if it can be shown that the person making the statement was not influenced by any exterior factor and made the statement, which was duly recorded, it can be made basis for conviction. In the instant case, immediately after the incident, the deceased was taken to the Government Hospital and upon getting information with regard to the offence, the ASI had rushed to the Hospital and the deceased had made her statement before him and thereafter she had made her dying declaration before a judicial officer around 8 p.m. The said statement was scrupulously recorded by the Judicial Officer who had found the deceased to be conscious and fit to make statement. Appeal dismissed.

C.M. Sharma Vs. State of A.P. Th. I.P. (Decided on 25.11.2010) MANU/SC/0981/2010

Proving commission of offence under Prevention of Corruption Act, 1988 - Conviction in the instant case for committing offence under Section 7 and 13 (1) (d) read with Section 13(2) of the 1988 Act - Meaning and role of 'Accomplice' while appreciating evidence - Necessity of corroboration

Held, the word accomplice has not been defined under the Evidence Act and therefore presumed to have been used in the ordinary sense. A person concerned in the commission of crime, a partner in crime and associate in guilt is an accomplice. He takes part in the crime and is privy to the criminal intent. A witness forced to pay on promise of doing or forbearing to do any official act by a public servant, is not a partner in crime and associate in guilt and therefore can not be said to be accomplice. It has long been rule of practice, which has become equivalent to rule of law, that the evidence of an accomplice is admissible but to be acted upon, ordinarily requires corroboration. Contractor who gave bribe, therefore, cannot be said to an accomplice as the same was extorted from him.

Further corroboration of evidence of a witness is required when his evidence is not wholly reliable. On appreciation of evidence, witnesses can be broadly categorized in three categories viz., unreliable, partly reliable and wholly reliable. In case of a partly reliable witness, the court seeks corroboration in material particulars from other evidence. However in a case in which a witness is wholly reliable, no corroboration is necessary. Seeking corroboration in all circumstance of the evidence of a witness forced to give bribe may lead to absurd result. Bribe is not taken in public view and, therefore, there may not be any person who could see the giving and taking of bribe.

As in the present case, a shadow witness did accompany the contractor but the appellant did not allow him to be present in the chamber. Acceptance of this submission in abstract will encourage the bribe taker to receive illegal gratification in privacy and then insist for corroboration in case of prosecution. Law cannot countenance such situation. It is not necessary that the evidence of a reliable witness is necessarily to be corroborated by another witness.

The demand of illegal gratification is sine qua non to constitute the offence under the Act. Further mere recovery of currency notes itself does not constitute the offence under the Act, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe. In the facts of the present case, from the evidence led on behalf of the prosecution it is evident that there was a demand of the. Appeal dismissed.

Manoj Yadav Vs. Pushpa @ Kiran Yadav (Decided on 23.11.2010) MANU/SC/0971/2010

State Amendments in Section 125 of the Code of Criminal Procedure, 1973 enhancing maximum maintenance from Rs. 500 per month to higher figure - Original Code prescribed that maximum maintenance which could be granted under Section 125 as Rs. 500/- per month - Subsequently by 2001 amendment words "not exceeding five hundred rupees in the whole" in Section 125 were deleted w.e.f. 24.9.2001 - Validity of State Amendments

Held, prior to the 2001 amendment of the Code Criminal Procedure by Parliament many State Legislatures had passed State Amendments of Section 125 enhancing the maximum maintenance, which could be granted from Rs. 500/- per month to a higher figure. These State Amendments were made for the benefit of the women because at that time the 2001 Amendment was not enacted by Parliament. The amendments were made by the States of Madhya Pradesh, Maharashtra, Rajasthan, Tripura and Uttar Pradesh.

Now, in view of the 2001 Amendment to the Code of Criminal Procedure by Parliament, the maximum maintenance prescribed by the above mentioned State Legislatures are no longer valid in view of Article 254(1) of the Constitution, apart from being unconstitutional now as being violative of Articles 14 and 21 of the Constitution.

Notice directed to be issued to respective State Governments and matter to be renotified on 11.01.2010.

• CUSTOMS LAW

Xerox India Ltd. Vs. Commissioner of Customs, Mumbai (Decided on 22.11.2010) MANU/SC/0968/2010

Import of Multi-Functional Machines - Whether the same fall under Chapter Heading 8479.89 (Residual Heading) or under Chapter Heading 8471.60 Customs Tariff Act

Held, it is not in dispute that the Multi-Functional Machines in question has about 85% of its total parts and components along with manufacturing cost allocated to printing. This clearly shows that the printing function emerges as the principal function and gives the Multi-Functional Machines its essential character. Having such a nature, it also clearly meets the three-fold requirement of chapter note 5(B), as it is to be used principally in ADPM, it is connectable to the Central Processing Unit, and it is able to accept data in a form (codes or signals) which can be used by the system. Further, there would be no application of chapter note 5(E) as the Multi-Functional Machines are presented independently. Moreover, since predominant components are relating to printing function, chapter note 5(D) also becomes relevant which includes printers under heading 84.71 and based on the nature of the functions they perform, the Multi- Functional Machines would serve as input and output devices of an ADPM (computer) and thus serve as unit of an ADPM, which on a reading of chapter note 5(C), clearly classifies them as falling under heading 84.71.60 of the Act.

Thus the correct classification for the imported Multi-Functional Machines involved in this case, namely models Xerox Regal 5799, Xerox Work centre XD 100 and Xerox Work centre XD 155df should be under Customs Tariff Chapter heading 84.71.60. Accordingly, the appeal was allowed.

• EXCISE LAWS

Nicholas Piramal India Ltd. Vs. Commnr. of Central Excise, Mumbai (Decided on 29.11.2010) MANU/SC/1001/2010

Whether "Vitamin A Acetate Crude" and "Vitamin A Palmitate" or "Crude Vitamin A" excisable to duty - Determination thereof - Question of levy where Intermediate products, even if captively consumed and not actually sold, if they satisfy the test of both manufacture and marketability

Held, the taxable event for the levy of excise duty is the manufacture of goods. The term "manufacture" is of wide import and may include various activities and processes, which may not be termed as 'manufacture' in the common parlance. But manufacture of goods alone is not enough. In order to attract the levy of excise duty, the goods should not only be manufactured, i.e., come into existence, but also should be articles or products that are known to the market and must be capable of being brought and sold. Some emphasis has to be laid on the use of the word capable as actual sale of the product or article is not essential and required. Intermediate products, even if captively consumed and not actually sold, may be liable to levy of excise duty if they satisfy the test of both manufacture and marketability.

Therefore, the question of marketability, being a question of fact, has to be determined in the facts of each case and cannot be straitjacketed into pigeonholes. The orders passed by the Commissioner as also the Tribunal clearly demonstrates that the product in question is commercially known and is capable of being marketed. The facts that the appellants have chosen not to sell the product in question does not mean that the same is not capable of being marketed.

Further, Shelf life of a product would not be a relevant factor to test the marketability of a product unless it is shown that the product has absolutely no shelf- life or the shelf life of the product is such that it is not capable of being brought or sold during that shelf life.

Ratio of T.N. State Transport Corporation Ltd. v. Collector of Central Excise, Madurai MANU/SC/0414/2004 held to be applicable both in facts and law.

Commissioner, Central Excise, Chandigarh Vs. Kwality Ice Cream Co. (Decided on 26.11.2010) MANU/SC/0990/2010

Computation of Assessable value - Principle of 'related person' - Whether M/s. Kwality Ice Cream Company on the one hand and Brooke Bond Lipton India Limited -(BBLIL) on the other (which later merged with Hindustan Lever Limited -HLL) to be treated as related persons in the matter of computing assessable value of ice cream manufactured by M/s. Kwality Ice Cream and as to whether duty should be demanded from M/s. Kwality Ice Cream on the basis of the price at which BBLIL sold the said product from its depot

Held, the Tribunal in the impugned finding held that M/s. Kwality Ice Cream and M/s. BBLIL/HLL are not 'related persons' and the transaction between them is one on principal to principal basis and the price was the sole consideration for the sale of the goods and assessable value cannot be computed on the basis of the price at which BBLIL sold the products from its depot.

What is important is that each of the parties involved should have an interest, whether direct or indirect in the business of each other.

Furtherwhat is of importance is certain interdependence and reciprocity beyond the relationship of either a distributor or manufacturer so as to consider as to whether the parties are 'related persons'. In the instant case as noticed, essentially the relationship between M/s. Kwality Ice Cream and BBLIL/HLL was one sided and there was nothing to show that each one of them have interest direct or indirect, in the business of each other.

Having common stock of raw material and semi finished goods, having common use of machinery between the three units, having common marketing arrangements and free flow of finance between the three units cumulatively indicates interdependence of the three units with each other as also inter-relationship, cumulatively establishes the appellants inter relationships and interdependence with each other. No such interdependence held to be found in the instant case.

Accordingly M/s. Kwality Ice Cream and BBLIL are not 'related persons'. The transaction between them is of the nature of principal to principal and the price was the sole consideration for the sale of goods. Therefore, the assessable value cannot be computed on the basis of the price at which BBLIL sold the product from its depot.

• RIGHT TO INFORMATION

Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra Agrawal (Decided on 26.11.2010) MANU/SC/0991/2010

Information relating to appointment of Mr. Justice HL Dattu, Mr. Justice AK Ganguly and Mr. Justice RM Lodha superseding seniority of Mr. Justice P Shah, Mr. Justice AK Patnaik and Mr. Justice VK Gupta - Impugned order passed by the Central Information Commission directed the CPIO, Supreme Court of India to furnish information relating to arrangement of a copy of "complete file/s (only as available in Supreme Court) inclusive of copies of complete correspondence exchanged between concerned constitutional authorities with file notings as allegedly objected to Prime Minister's Office (PMO) also

Held, the issue contains substantial question of law involving interpretation of the Constitution and the same is required to be heard by a Constitution Bench. The case on hand raises important questions of constitutional importance relating to the position of Hon'ble the Chief Justice of India under the Constitution and the independence of the Judiciary in the scheme of the Constitution on the one hand and on the other, fundamental right to freedom of speech and expression.

Right to information is an integral part of the fundamental right to freedom of speech and expression guaranteed by the Constitution. Right to Information Act merely recognizes the constitutional right of citizens to freedom of speech and expression. Independence of Judiciary forms part of basic structure of the Constitution of India. The independence of Judiciary and the fundamental right to free speech and expression are of a great value and both of them are required to be balanced.

Accordingly, the following substantial questions of law as to the interpretation of the Constitution arise for consideration :

1. Whether the concept of independence of judiciary requires and demands the prohibition of furnishing of the information sought? Whether the information sought for amounts to interference in the functioning of the judiciary?

2. Whether the information sought for cannot be furnished to avoid any erosion in the credibility of the decisions and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision?

3. Whether the information sought for is exempt under Section 8(i)(j) of the Right to Information Act?

The above questions since involve the interpretation of the Constitution raising great and fundamental issues. Accordingly, the Registry was directed to place this matter before  the Hon'ble  Chief Justice of India for constitution of a Bench of appropriate strength.

• TENANCY LAWS

Shibani Basu Vs. Sandip Ray (Decided on 26.11.2010) MANU/SC/0993/2010

Suit for Eviction and recovery of possession and mesne profits - Tenancy was for a period of five years only and was determined in terms of a notice issued under Section 13(6) of the West Bengal Premises Tenancy Act and Section 106 of the Transfer of Property Act - Suit resisted on the ground of improper termination of tenancy

The Trial Court rightly examined the question of legality of the service of the notice on the basis of the available material and the pleadings on the subject and came to the conclusion that the notice in question received by wife of Tenant was duly. The Trial Court further held that the ejectment notice had one month's clear time to vacate the premises and to deliver the possession. That there was a specific averment made in the plaint to the effect that the rent for the premises was payable monthly according to the English Calendar. The tenant did not dispute this averment.

It is true that the non-registration of the rent note does not debar the use of a document that is compulsorily registerable for collateral purposes but that aspect would in the instant case pale into insignificance keeping in view the state of pleadings on the question of month of tenancy and the legal implications thereof. In the result the instant appeal was allowed.

HIGH COURTS

• SERVICE LAWS

Allahabad High Court

Ram Lakhan Nigam S/o Sri Khedu Ram Vs. State of Uttarakhand through Secretary, Technical Education, Govt. of Uttarakhand (Decided on 19.11.2010) MANU/UC/1125/2010

Order Of Dismissal - Principal of Natural justice - Whether Order of dismissal can be held valid when no opportunity was given to the Petitioner to defend himself -

Held, The Inquiry Officer, while concluding the inquiry proceeding, relied upon a preliminary inquiry report, which resulted in issuance of the charge sheet. Accepting the report of the Inquiry Officer, the disciplinary authority dismissed the Petitioner. The said order of dismissal is not sustainable, inasmuch as, Petitioner was not given an opportunity to defend the charges as were levelled against him. The order of dismissal is wrong and quashed. The disciplinary authority is directed to appoint an Inquiry Officer, who shall conduct inquiry in accordance with law and after observing the rules of natural justice

• CRIMINAL LAWS

Kerala High Court

A.M. Vasudevan, S/o. Pokken Vs. V.P. Haridasan, J/T (Decided on 12.11.2010) MANU/KE/1651/2010 

Acquittal of accused due to dismissal of complaint on ground of non-representation by the complainant - Section 256 (1) of Code of Criminal Procedure 1973 - Whether Trial Court was correct in acquitting the accused under Section 256 (1) of Cr.P.C -

Held, Section 256 Cr.P.C, three courses are open to the Magistrate where the complainant is absent on the date of hearing; (i) to acquit the accused or (ii) adjourn the case for a future date or (iii) to dispense with the attendance of the complainant and proceed with the case. An order under Section 256 of the Code of Criminal Procedure, which operates as a final order barring a fresh complaint should be passed after proper application of mind and sound exercise of judicial discretion. When the Magistrate dismisses a complaint for default, the Magistrate should record reasons as to why he does not deem it appropriate to adjourn the hearing. Since the case was received on transfer from the Chief Judicial Magistrate Court, the learned Magistrate ought not have dismissed the complaint and acquitted the accused without ascertaining whether the complainant had proper notice of the transfer of the case. Appeal allowed

Bombay High Court

Kishor Kamlakar Patil and Abhay Parshuram Bhagat Vs. The State of Maharashtra (Decided on 15.11.2010)  MANU/MH/1526/2010

Conviction for offence of attempt to commit murder - Benefit of Probation of Offenders Act - Infliction of lesser sentence - Whether Appellant-accused can be accorded benefit of Probation of Offenders Act and inflicted with lesser sentence

Held, incident has taken place 17 years ago in 1993 when the Appellants were 21 years of age. However, given the nature of assault and also the fact that Appellants have been in jail merely for three months, before or after conviction, reduction in sentence which would obviate their revisiting jail is ruled out. Appeal dismissed

Suresh Sadu Kamble Vs. The State of Maharashtra through Hupari Police Station, Kolhapur (Decided on 23.11.2010) MANU/MH/1530/2010

Conviction for offence punishable Section 302,the Indian Penal Code, 1860 - Conviction based on dying declaration - Reliability thereof

Held, if dying declaration is trustworthy, cogent and inspires confidence, in that case conviction can be based on the sole testimony of such dying declaration, even without corroboration. In the instant case, oral dying declaration made to witness by deceased is totally consistent with material particulars of prosecution case mentioned by deceased in dying declaration which was recorded by the Special Executive Magistrate. Criminal Appeal dismissed

Mohd. Asif Mohd. Hanif, Convict, Central Prison, Amravati [in Jail] Vs. State of Maharashtra, through Secretary, Home Department and Superintendent, Central Prison, Amravati (Decided on 16.11.2010) MANU/MH/1522/2010

Conviction under Section 302 of the Indian Penal Code, 1860 — Imposition of forfeiture or cut in remission of jail term by Competent Authority — Challenge against thereto by Petitioner-Prisoner

Held, challenge to the order of cut in remission, which was done in 1994 and 1999 is agitated in the year 2007, i.e., belatedly by almost fourteen and nine years respectively. Therefore, Court is not inclined to condone the illegality committed by the Executive and would refrain from interfering in the orders passed after a lapse of fourteen and nine years. Rule discharged

• COMPANY LAWS

Bombay High Court

Wartsila India Limited. Vs. Janak Mathuradas and Ors. (Decided on 15.11.2010) MANU/MH/1514/2010

Proposed scheme for reduction of share capital - Grant of approval by Court - Extent of jurisdiction of Court thereof

Held, Courts do not sit in judgment over the commercial wisdom of parties. The Court does not have the expertise or the jurisdiction to delve into deep commercial wisdom exercised by the creditors and members of the company who have ratified the scheme by the requisite majority. Consequently, the Company Court's jurisdiction to that extent is peripheral and supervisory and not appellate (ratio in Miheer H. Mafatlal v. Mafatlal Industries Ltd applied) Company petition allowed

• CIVIL LAWS

Kerala High Court

Renjith P. S. Vs. Kavery S. Thampi (09.11.2010 - KERHC) (Decided on 09.11.2010) MANU/KE/1673/2010

Non-adherence of prescribed procedure under relevant rules - Invocation of extra ordinary jurisdiction under Article 227 of the Constitution of India, 1950 - Validity questioned thereof -

Held, mere fact that the court below has taken steps in interim application and passed Orders to that respect cannot persuade this Court to jump to the conclusion that the Family Court is not following the requisite steps to refer the parties for counselling in accordance with the rules. Appellate Court, in these circumstances, cannot invoke extraordinary constitutional jurisdiction under Article 227 of the Constitution. However this does not means that the procedure for counseling cannot or need not be followed by the court below. It shall be open to the Petitioners to bring to the notice of the court below that such procedure has to be followed. On such application if filed, appropriate orders will have to be passed by the court below

• LABOUR AND INDUSTRIAL LAWS

Bombay High Court

Executive Engineer (O & M), Maharashtra State Electricity Board Vs. Hajarabi (Decided on 23.11.2010) MANU/MH/1527/2010

Complaint of unfair labour practice - Maintainability of complaint thereof - Items 5, 6, and 9 of Schedule IV of Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practice Act, 1971

Held, In order to entertain a complaint under the Maharashtra Act, it has to be established that the claimant was an employee of the employer against whom complaint is made, under the I.D. Act. When the basic claim is disputed, the issue has to be adjudicated by the forum competent to adjudicate (ratio in Sarva Shramik Sangh v. Indian Smelting and Refining Co. Ltd. and Ors applied). In the instant case, Industrial Court ignored the preliminary objection of the Petitioner about maintainability of the complaint. Therefore, matter remanded back to Industrial Court for fresh consideration and adjudication.

Delhi High Court

ESIC Vs. Vijay Grover (Decided on 25.11.2010) MANU/DE/3210/2010

Applicability of ESI Act - Section 82 of the Employees State Insurance Act - Whether employees employed by the Respondents in its manufacturing unit and in the sales office pertains to the same management under ESI Act -

Held, the stand of the Respondent that the employees working in the sales office cannot be taken into consideration for the purpose of arriving at a finding that the establishment of the Respondent was covered under the ESI Act or not is not sustainable. The Respondent factory and sales office are to be treated as one and the same though they are at different premises. It was further stated that the persons working at the factory and the sales office are to be treated collectively for the implication of the ESI Act and, as such, the decision to cover both the units collectively w.e.f. 1st September, 1984 is proper and is in accordance with the law.