SUPREME COURT

• Labour Laws

Industrial Disputes Act, 1947

Cable Corporation of India Ltd. v. Additional Commissioner of Labour and Ors.(Decided On: 16.05.2008)

Whether disposal of review application under Section 25-N(6) of Industrial Disputes Act, 1947 will be a bar to make a reference under same Section

As per Section 25-N(6) power is conferred on the appropriate Government to either on its own motion or on an application made, review its Order or refer the matter to the Tribunal. Plain reading of provision suggests that two courses are open. Whether one or the other of the courses could be adopted depends on the fact of each case, the surrounding circumstances and several other relevant factors. Hence, it is open to the appropriate Government or the Specified Authority to review its Order granting or refusing to grant permission under Sub-section (3) or refer matter to Tribunal. Word "or" which is used in the Section has to be read disjunctive and not conjunctive. If legislature had intended that reference could be made after the Government or the Specified Authority deals with the review power, it would have said so specifically by specific words. Further, parameters of review are different from a reference. Since nothing has been specifically stated in the statute, once the review application in terms of Section 25-N(6) is rejected, there is no scope for further making a reference under same Section.

• CRIMINAL LAWS

Benny Thomas Vs. Food Inspector, Kochi and Anr. (Decided on 07.07.2008)

Conviction for offence punishable under Sections 16(1)(a)(i) r/w S. 7(1) and S. 2(ia)(m) of the Prevention of Food Adulteration Act, 1954 and also under Rule 5 read with Appendix B, Item A.07.08 and Rule 50 of the Prevention of Food Adulteration Rules, 1955 questioned - Accused contended that the article purchased by the Food Inspector was not for sale and there was no enquiry made by the Food Inspector as to whether the articles were for sale - Appellant pleaded acquittal on the ground of violation of mandatory provisions of Rules 17 & 18.

As clear from the evidence at one point of time the sample was handed over to the public analyst on the succeeding day of taking the sample from the shop of the accused. Other two parts of the sample alongwith Form No. VII Memorandum and the specimen impression of the seal used to seal the sample bottles were handed over to the Local Health Authority and copy of the information was given to the Local Health Authority. Therefore High Court rightly held that there was no violation of Rules 17 and 18 of the Rules. Accused in his examination under Section 313 of the Code of Criminal Procedure, 1973 admitted that he had sold the articles in question and hence the plea that the articles were not intended for sale has no substance. The sentence as imposed was held to be minimum and Appeal accordingly was dismissed.

• INSURANCE LAWS

Marine Insurance

New India Assurance Co. Ltd. v. Hira Lal Ramesh Chand and Ors.( Decided On: 13.06.2008)

Scope of the policies of marine insurance issued by the Insurer to the insured -- Whether the loss of consignments falling within the risks covered by the Marine insurance policies has to be proved by the complainant

In view of the insurance cover extending `warehouse to warehouse', the policy of insurance would cover the loss not only while goods or navigating the sea but also any loss or damage during transit from the time it leaves the consignor's warehouse till it reaches the consignee's warehouse. Basic and fundamental averment and proof required is that the consignments had been lost or damaged in transit or that when the holder of the documents applied for delivery, the goods were not delivered on account of the same being irretrievably lost that is having been pilfered, stolen, lost or misdelivered. Further, a claimant insured in a marine insurance claim has to plead and prove that (i) his position; (ii) his insurable interest; (iii) the type or kind of the insurance policy and its relevant terms; (iv) the duration of the cover; (v) the nature of risk/loss; and (vi) the risk/loss is covered by the policy. In the absence of necessary averments and evidence to establish a marine insurance claim, a claim against the insurer is liable to be rejected.

HIGH COURTS

• LABOUR AND INDUSTRIAL LAWS

Gratuity Act

CHHATTISGARH HIGH COURT

Chhattisgarh Housing Board Vs. Appellate Authority Under the Payment of Gratuity Act and Controlling Authority Under the Payment of Gratuity Act (Decided on 06.05.2008) - MANU/CG/0036/2008

Payment of Gratuity - Chuna factory - Seasonal Employment - Continuity of Service - Determination thereof

Under Section 2A(3) of the Gratuity Act, in order to claim continuity in service in case of seasonal establishment, it is necessary that the employee should work for not less than 75 percent of the number of days on which the establishment was in operation during such period.

Gratuity for workers is no longer a gift but a right. The right flows from the provisions of the Gratuity Act. Bare perusal of the definition of continuous service as enshrined in Section 2A of the Gratuity Act, it is clear that the actual work is not necessary but for calculation of continuous service in seasonal establishment, the employee ought to have worked not less than 75 percent of the number of days during the period seasonal establishment was in operation. Chuna factory, in the instant case, is admittedly a seasonal establishment and the respondent No. 3 in his return has admitted that he had never worked even for fifty percent of the total days during which the seasonal establishment i.e. Chuna factory was in operation.

• FAMILY

KARNATAKA HIGH COURT

Smt. Lingamma dead by L.Rs. and Ors. Vs. Gangadharaiah S/o late Siddalingegowda, Kamalamma D/o late Siddalingegowda and Shivalingamma D/o late Siddalingegowda (Decided On: 22.02.2008) MANU/KA/0089/2008

Whether a Child Born out of a void marriage is entitled to the ancestral property of the father?

According to decision of the division bench of present court in smt. Sarojamma v. Smt. Neelamma,the position in law is that an illegitimate son can be equated with natural sons and can be treated as coparcener in respect of the properties held by the father, whether the properties are originally joint family properties or not and the only limitation is that, during the life time of the father, an illegitimate son of a void marriage, is not entitled to seek for partition and he can seek partition only alter the death of his father.

Review-Whether the review can be granted in the present matter

Since the lower court had not taken account of the above-mentioned ruling, therefore there was an error apparent on the face record. As far as an error apparent on the face of the record is concerned, Mulla on C.P.C. (13th Edition) mentions that a review may be granted whether on any ground urged at the original healing of the suit or not, whenever the court considers that it is necessary to correct an evident error omission and it is immaterial how the error or omission occurred. The same work also mentions that overlooking a proposition of law well settled in Supreme Court amounts to an error apparent on the face of the record and likewise, where an error on a point of law was apparent on the face of the judgment, review can be granted.

• RIGHT TO INFORMATION

Right to Information Act 2005

KARNATAKA HIGH COURT

S.S. Angadi, Retd. Joint Director of Horticulture of State Government Vs. The State Chief Information Commissioner, Karnataka Information Commission and The President, Basava Samithi (A Society Registered under Karnataka Societies Registration Act, 1961) (Decided On 29.02.2008) MANU/KA/0105/2008

Whether the provisions of the Right to Information Act 2005 apply to a Society registered under the provisions of the Karnataka Societies Registration Act 1960

The provision of the Right to Information Act 2005 does not apply to the respondent society because respondent society is not created by any other law made by the State Legislature and is not a body owned or controlled, or substantially financed by the Government and also not a non-Government organization substantially financed directly or indirectly by funds provided by the appropriate Government as required under the definition of Public authority under Section 2(h) of the Right to Information Act,2005.The provisions of the Societies Registration Act, 1960 is applicable to all societies and are under the control of the Government only to regulate its activities and to stop the misuse of funds of the member. Therefore, such Association cannot be treated as a Public Authority. Therefore the respondent is not liable under the right to information act, 2005.

• ELECTION

JHARKHAND HIGH COURT

Uday Shankar Ojha and Ors. Vs. Jharkhand State Election Commission and Anr (Decided On: 29.02.2008) MANU/JH/0125/2008

Whether The Decision Of The State Govt. And The State Election Commission to Reserve Some Of The Posts Of Mayor, Chairman, And Vice Chairman Of The Municipal Corp. Municipalities For Sc. And St. Obc And Women Was Constitutionally Valid?

The seats reserved in the municipalities are in accordance with provisions of sec.13 (3) of the Jharkand Municipal Act, 2000. Reservation of the post of Ward Commissioners has been made on the basis of the population of SC/ST and OBC of the particular municipality. The reservations have been made to the extent of 50%, which is in accordance with the constitutional mandate. The post of chairperson and Mayor of the municipalities and corp. are not solitary posts and the same are clubbed together for the purpose of reservation. Also, since times immemorial women have been treated as the weaker section of the society and the SC/ST as the shameful sections. Thus reservation in favor of such societies would not only alleviate these sections but also open avenues for overall national development. Therefore, the reservations are held to be constitutionally valid.

• PROPERTY

ALLAHABAD HIGH COURT

Kanchhi Lal S/o Param Sukh (Since Deceased), Kalyan, Rajendra and Ashok All sons of Kanchhi Lal Vs. Smt. Bhagwan Dei wife of Charan Singh and Ors. (Decided On: 29.02.2008) MANU/UP/0311/2008

Evidentiary value of the Statement of the attesting witness on his death-whether the statement of attesting witnesses recorded in the mutation proceedings are admissible in regular suit in the circumstances when the attesting witnesses had died

The statement of attesting witnesses in the earlier proceeding is admissible in regular suit or the subsequent proceeding even if the attesting witness died. Section 33 of the Evidence act provides that the Evidence which states the truth of the facts given by a witness in a judicial proceedings, or before any person authorised by law to take it, is relevant in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding which even if the witness is dead or cannot be found or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense but both the proceedings should be between the same same parties or their representatives in interest and the questions in issue were substantially the same in the first and the second proceeding.

• SERVICE

ALLAHABAD HIGH COURT

Anil Kumar Verma son of Sri J.R. Verma Vs. State of U.P. through Principal Secretary, Appointment Anubhag-4, U.P. Public Service Commission through its Secretary and High Court of Judicature at Allahabad through its Registrar General (Decided On: 01.02.2008) MANU/UP/0290/2008

Right of the candidate to be considered for appointment on the available vacancies after going through the process of selection-Whether the state is under any legal duty to fill up all or any of the vacancies

In All India SC & ST Employees' Association and Anr. v. A. Arthur Jeen and Ors. it has been held that that merely because the names of the candidates were included in the panel indicating their provisional selection, they did not acquire any indefeasible right for appointment even against the existing vacancies and the State is under no legal duty to fill up all or any of the vacancies

Apex court's three judges bench in Jai Singh Dalai and Ors. v. State of Haryana and Anr held that even if the candidates is selected for appointment, he have no right to be appointment and it is open to the State Government at a subsequent date not to fill up the posts or to resort to fresh selection according to revised criteria.