HIGH COURT

• SERVICE LAWS

DELHI HIGH COURT

Lt. Governor of Delhi and Ors. Vs. Shri J.P. Gupta, Decided on 09.12.2009 (MANU/DE/3290/2009)

Promotion - Claim made on ad hoc basis on an ex cadre post - Claim denied on the ground of suspension and pending disciplinary proceeding - Disciplinary proceedings subsequently exonerated and the promotion was given before the retirement - Suspension was revoked, however, retrospective promotion was denied on the ground that it would not apply in case of a retiree

The normal rule of "no work no pay" not applicable to cases such as the present one where the employee although willing to work is kept away from work by the authorities for no fault of his - Instant case not such where the employee remains away from work for his own reasons, although the work is offered to him - When an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/ criminal proceedings - However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. - In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it - Tribunal not correct to hold that to deny the salary to an employee would in all circumstances be illegal - Petitioner was unable to show as to how these principles will not be applicable even in case of ad hoc promotion in the facts and circumstances - Complete exoneration of any of the consequences of disciplinary proceedings and had the disciplinary proceedings been not there, the claimant would have been entitled for ad hoc promotion in ex cadre post.

• CIVIL LAWS

DELHI HIGH COURT

The Indian Performing Right Society Ltd. Vs. Anil Mehra and Anr. Decided on 14.12.2009 (MANU/DE/3301/2009)

Stay of Suit - Section 10 of the Code of Civil Procedure, 1908 - Stay of suit on the ground that since the subject matter of the present suit was substantially the same as the subject matter of a suit pending before another High Court filed before the present suit - Plaintiff in the instant suit stated scope of present suit was larger than the scope of the other suit at other High Court and in the present suit the Plaintiff has assailed infringement of its copyright and had sought injunction against the Defendant and damages from the Defendant

Merely because Plaintiff has made an additional prayer of damages would not change the scope of the suit - Law as well settled, a matter in issue does not mean that the entire subject matter of the earlier suit has to be the subject matter of the latter suit - It is sufficient if the decision in the earlier suit operates as res judicata between the parties in respect of the latter suit - In case the other High Court gives a decision that the Plaintiff was not liable to charge any license fee and no copyright existed in favour of the plaintiff in respect of the sound tracks being used by Defendant and Defendant had liberty to play the sound tracks without license fee, the decision of other High Court would operate res judicata in the present case - Plaintiff would not then be even entitled to recover any damages - However, if the decision goes against the Defendant the Plaintiff would have right to charge license fee from the Defendant and the present suit if stayed under Section 10, can be got revived for that purpose - Present suit held liable to be stayed under Section 10 CPC.

• ARBITRATION LAWS

BOMBAY HIGH COURT

Hindalco Industries Ltd. Vs. Ess Dee Aluminium Limited Decided on 10.12.2009 (MANU/MH/1509/2009)

Invocation of Arbitration Clause - No signed and agreed written Arbitration Agreement/clause - Petition under Section 9 of the Arbitration Act was challenged for want of written agreement as contemplated under Section - Petitioner relying on Shakti Bhog Foods Limited v. Kola Shipping Limited MANU/SC/4185/2008 submitted that the correspondence exchanged and read with the Standard format/Agreement constituted written agreement between the parties, as contemplated under Section 7

Chain of events in the instant case shows that there was no written contract or agreement signed or executed between the parties and specially any arbitration clause of any kind - Mere offer/quotation, itself is not sufficient, unless the contract is signed and/or existence of the same is not denied by the other parties or admitted by the other party through the correspondences/communications - Emails exchanged also nowhere referred the acceptance of the contract/agreement or Arbitration agreement as relied - There was nothing on record to show that there was any understanding which was agreed between the parties without finalizing and or settlement of the terms and conditions - There was clear denial at all the stages about the existence of any such agreement and/or arbitration clauses - Existence of Arbitration was not proved, therefore no question of granting any relief under Section 9 of the Arbitration Act in absence of any Arbitration Agreement between the parties - Petition dismissed.