SUPREME COURT

• CONSTITUTIONAL LAWS

Amarinder Singh v. Special Committee, Punjab Vidhan Sabha and Ors. (Decided on 26.04.2010) MANU/SC/0298/2010

Scope of legislative privileges - Interpretation of Article 194(3) of the Constitution of India, 1950 - Whether, in the instant Petition, alleged misconduct on part of the Appellant and the Petitioners warranted exercise of legislative privileges under Article 194(3) of the Constitution of India?

Held, Article 194 conferred powers, privileges and immunities on the state legislature. Powers under Article 194(3) are not independent but 'necessary' for the conduct of the business of the House. In the present case, the allegations against the Appellant were regarding improper exemption of a particular plot of land from an acquisition scheme. Such misconduct is not termed as a obstruction to the conduct of legislative business. Proper course is to pursue criminal investigation and prosecution before the appropriate judicial forum. Expelling of Appellant's from Vidhan Sabha cannot be justified as a proper exercise of 'powers, privileges and immunities' conferred by Article 194(3). Appellant's expulsion in the present case is beyond the legitimate exercise of the privilege power of the House and constitutionally invalid. Appellant's membership in the Punjab Vidhan Sabha restored.

Breach of Privilege - Whether in the present case, breach of privilege can be attributed to the Appellant and whether it was proper for the Punjab Vidhan Sabha to consider the alleged misconduct as a breach of privilege in spite of the fact that it took place during the Vidhan Sabha's previous term?

Held, breach of privilege by a member of the legislature can only be established when a member's act is directly connected with or bears a proximity to his duties, role or functions as a legislator but in the present case no such breach has been occurred. Ordinarily legislative business does not survive the dissolution of the House except in the case of the 'Doctrine of lapse' wherein the successor House can choose to take up a pending motion or any order of business after the re-constitution of the House. In the present case, the exception not available. Exercise of legislative privileges to punish past executive acts especially when there was no pending motion, report or any other order of business that was relatable to the said executive acts at the time of the re-constitution of the House is bad in law it was improper for the 13th Punjab Vidhan Sabha to claim a breach of privileges on account of the alleged misconduct which actually took place during the 12th term of the Vidhan Sabha.

Subject Matter Sub judice before Judicial Forum - Whether the impugned acts of the Punjab Vidhan Sabha in inquiring into subject-matter which was already in question before a judicial forum violated the norms?

Held, ordinarily the content of legislative proceedings should not touch on sub judice matters but the rationale of this norm is that legislative debate or scrutiny over matters pending for adjudication could unduly prejudice the rights of the litigants. In the present case, the allegedly improper exemption of land by the Appellant had already been questioned before the High Court. Thus, the Punjab Vidhan Sabha ought not to have constituted a committee to inquire into the same.

• ARBITRATION LAWS

Indowind Energy Ltd. v. Wescare (I) Ltd. and Anr. (Decided on 27.04.2010) MANU/SC/0300/2010

Binding effect of Arbitration clause present in the Agreement - Whether an arbitration clause found in an agreement between two parties, could be considered as binding on a person who is not a signatory to the agreement?

Held, a provision for arbitration to constitute an arbitration agreement for the purpose of Section 7 should satisfy two conditions (i) it should be between the parties to the dispute; and (ii) it should relate to or be applicable to the dispute. In the present case, the impugned agreement containing an arbitration agreement was signed by Respondent No. 1 and Respondent No. 2 and not by Appellant. No Agreement entered by Respondent No. 1 with Appellant. In the absence of any document signed by the parties as contemplated under Section 7(4) (a), and in the absence of existence of an arbitration agreement as contemplated in Section 7(4) (b) and Section 7(4)(c) and in the absence of a contract which incorporates the arbitration agreement by reference as contemplated Section 7(5), the inescapable conclusion is that the Appellant in the present case was not a party to the arbitration agreement. In the present case, as per Section 7 of the Act, in the absence of an arbitration agreement between Respondent No. 1 and Appellant, no claim against Appellant or no dispute with Appellant can be the subject matter of reference to an Arbitrator. Appeal allowed.

Party to Contract - Determination thereof - Whether a company could be said to be a party to a contract containing an arbitration agreement, even though it did not sign the agreement containing an arbitration clause, with reference to its subsequent conduct?

Held, in the absence of a ratification, approval, adoption or confirmation of the agreement, a company could not be said to be a party to a contract containing an arbitration agreement, when it did not sign the agreement containing an arbitration clause, with reference to its subsequent conduct. In the present case, Respondent No. 2 and Appellant are two independent companies incorporated under the Companies Act, 1956 having separate and distinct legal entity. Mere fact that Respondent No. 2 described Appellant as its nominee or as a company promoted by it, will not make Appellant a party in the absence of a ratification, approval, adoption or confirmation of the agreement by the Appellant.

Scope of power of Courts - Section 11(6) of Arbitration and Conciliation Act, 1996

Held, Power of Courts under Section 11(6) restricted to the determination of question whether there is an arbitration agreement between the parties or not. It cannot be extended to examination of the agreement to ascertain the rights and obligations regarding performance of such contract between the parties.

• LABOUR AND INDUSTRIAL LAWS LAWS

The Managing Director, Hassan Co-operative Milk Producer's Society Union Limited v. The Assistant Regional Director Employees State Insurance Corporation (Decided on 26.04.2010) MANU/SC/0293/2010

Workers employed by Contractors - Determination of their status - Whether such workers as employed by the contractors in performance of the contract awarded to them covered under Section 2(9)(i) of the Employees State Insurance Act, 1948?

Held, Section 2(9)(i) covers the workers who are directly employed by the principal employer. Expression "on the premises of the factory or establishment" comprehends presence of the persons on the premises of the factory or establishment for execution of the principal activity of the industrial establishment and not casual or occasional presence. In the present case, for the purposes of loading and unloading the milk cans, the truck driver and loaders appointed by contractors enter the premises of the Appellants but mere entry for such purpose cannot be treated as an employment of those persons on the premises of the factory or establishment as the said expression does not comprehend every person who enters the factory for whatever purpose. Appeal allowed.

Liability of Employer to pay ESI contribution - Section 2(9)(ii) of Employees' State Insurance Act, 1948 - Whether Appellants liable to pay ESI contribution in respect of the workers employed by the contractors in performance of the contract awarded to them for transportation of milk?

Held, the Appellant had awarded the contract for transportation of milk for specified period to contractors. Contractor neither the agent of the principal employer under Section 2(9)(ii) nor his employees worked under the supervision of Appellant. Contractors separately engaged workers for the work and workers were neither directly nor indirectly employees of the Appellant. Wages or salary of such workers were not paid by the appellant but by the contractor. Thus, in the present case and the persons employed by the contractor for loading and unloading of milk cans are not the persons employed on the premises of the Appellants' establishment. Appellants not liable to pay ESI contribution in respect of the workers employed by the contractors.

HIGH COURT

• SERVICE LAWS

MADRAS HIGH COURT

D. Pothumallee v. The District Collector, The Project Officer for Children Development (Decided on 19.04.2010) MANU/TN/0421/2010

Discrimination - Dalit Children in Health Care Access - Section 5 of the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act, 1993 - Whether the State, while filling up the posts of Anganwadi workers and noon meal organisers coming under ICDS Scheme as well as under Nutritious Meal Scheme respectively, should follow rules of reservation?

Held, the post of noon meal organizer, Cook and Assistant Cook as well as Helper in the Anganwadi centres are not created by any rule framed under Article 309 of the Constitution. It is not a constituted service. But, nevertheless since the Government took over to maintain the scheme and had created a separate Ministry for administering the scheme and bearing the entire cost of the scheme, including provisions, utensils and overhead expenditures, salaries of all employees, it is none the less a public employment. Any appointment to such posts must be subjected to the touchstone of Articles 14 and 16 of the Constitution. In case of any public employment, equality doctrine with exception for rule of reservation are available subjected to qualification prescribed therein. Appointment in services under the State has been widely defined under the explanation provided in the said section and certainly, appointments made to Noon Meal centres and Anganwadi Centres will attract the provisions of Tamil Nadu Act 45 of 1994. Court directed the State to provide for Reservation in terms of Tamil Nadu Act 45/1994.

• CRIMINAL LAWS

MADRAS HIGH COURT

Prabavathy v. The State of Tamil Nadu (Decided on 23.04.2010) MANU/TN/0425/2010

Illegal detention and arrest by police - Death of person arrested in Hospital due to torture by police officers - Compensation for death caused by police - Whether the petitioner's request for payment of compensation can be countenanced by the High Court?

Held, that the petitioner is eligible for compensation on account of the torture meted out to her husband and the subsequent death of her husband. This Court is of the view that the petitioner has made out a strong case regarding the illegal arrest of her husband and the subsequent torture in the police lock-up before the admission to Central Prison. Moreover, the petitioner's husband was arrested without following the guidelines laid down in D.K.Basu case. The accident register and the history sheet in the hospital also show that there was an allegation that the petitioner's husband was assaulted by the police and was injured by some stick. A cumulative effect of these factors would show that the petitioner's husband has suffered injuries and though the final post mortem certificate shows that it was a natural death, but even for the illegal detention and torture in the lock-up, the petitioner is entitled to compensation. Writ petition stands allowed and the first respondent is directed to pay Rs. 5 Lakhs to the petitioner.

BOMBAY HIGH COURT

Sandeep Parab v. State of Goa (Decided on 07.04.2010) MANU/MH/0321/2010

Plea of Bail - Conflicting Jurisdiction - Applicants involved in offences punishable under three different enactments namely Indian Penal Code, 1860, the Prevention of Corruption Act, 1988, and the Narcotic Drugs and Psychotropic Substances Act, 1985 - Scope of Section 167(2) of the Code of Criminal Procedure, 1973

Held, section 439 of the Code confers concurrent jurisdiction on the High Court and the Court of Sessions. When the jurisdiction to grant bail is concurrent, the choice is of the superior Court to entertain it or not. The practice is to approach Lower Court, first. Any accused in order to obtain bail, must show that his case is either covered by proviso to Sub-section (2) of Section 167 of the Code or that he was entitled to be released on bail under the provisions of Chapter XXXIII of the Code, and in cases under the Act (N.D.P.S. Act, 1985) under Section 36A or Section 37 of the Act and the accused cannot get bail beyond those provisions. The Applicants were booked for offences under three different enactments. Courts always avoid whilst construing two provisions, capable of more than one construction, to give a construction, which will result in hardship, serious inconvenience, injustice and friction. The Applicants were remanded by a Court of competent jurisdiction, and their remand is valid and legal, and, therefore the Applicants not entitled to bail. Bail can be granted to the Applicants only in terms of the proviso to Sub-section(2) of Section 167 of Chapter XXXIII of the Code of Criminal Procedure, 1973 and in cases under the N.D.P.S. Act if the case is covered by Sub-section (4) of Section 36A or Section 37 of the Act. Applications dismissed.

• LABOUR AND INDUSTRIAL LAWS

MADRAS HIGH COURT

The Management of Arasoor Primary Agrl. Co-operative Bank Ltd. v. The Appellate Authority Tamil Nadu shops and Establishment/Deputy Commissioner of Labour (Decided on 23.04.2010) MANU/TN/0426/2010

Dismissal - Claim Petition under Section 33C(2) of the Industrial Disputes Act - Labour Court dismissed the claim petition based upon the order of the Shops Act authority, being not maintainable - Whether order passed by the Labour Court is legally valid?

Held, that the Labour Court was wrong in stating that in the absence of any positive direction for reinstatement like the Labour Court Award, the workman cannot enforce his right under the Shops Act and that the Shops Act only provides for a penalty cannot be accepted. Writ Petition dismissed.

• TRUST AND SOCIETIES

KARNATAKA HIGH COURT

Sri Chokka Basavanna Gowda v. State of Karnataka (Decided on 29.04.2010)

Election of President of State Co-operative Bank - Disqualification Proceedings - Grant of Interim injunction Whether disqualification proceedings were justified and the interim order on disqualification of candidate liable to be quashed?

Held, the liberty to appellant to seek modification of the interim order does not take away the right of appellant to challenge the interim order before division bench. Interim order issued would come in the way of the process of election to the post of President. When once election process is set into motion, it cannot be stalled and all the disputes concerning the said election have to be decided by filing an election petition - a post election litigation as envisaged under section 70 of the Act. Appeal allowed setting aside order restraining respondent to participate in the proposed election.

• INTELLECTUAL PROPERTY RIGHTS

DELHI HIGH COURT

Marico Limited v. Agro Tech Foods Ltd. (Decided on 23.04.2010) MANU/DE/0866/2010

Infringement of Trade Mark - Alleged false representation - Exclusivity of Rights claimed over the use of the mark "LOW ABSORB" - Whether the use of word "LOW ABSORB TECHNOLOGY" by the Respondent amounts to infringement of trade mark?

Held, "LOW ABSORB" in its various forms including the marks, which are registered by the plaintiff, or otherwise as used by the defendant is in reality only descriptive of the characteristic of the product, that is, it absorbs 'less oil' during the process of frying of foodstuffs. Prima facie the registration of the mark is suspect. Therefore, in my opinion the rights that the plaintiff claims should inhere in it by virtue of a registration of mark "LOSORB" and "LO-SORB" under the provisions of Section 29 of the Trade Marks Act are prima facie not available to the plaintiff in the instant case.

• SALES TAX

BOMBAY HIGH COURT

Gopalanand Rasayan v. The State of Maharashtra and Ors. (Decided on 08.04.2010) MANU/MH/0323/2010

Assessment - Reference Application to understand classification of product 'STEAM' whether to be within the meaning of Chemical for the purpose of Assessment of Sales Tax?

Held, It is to be noted that the Sales Tax enactment is one which touches the common man and his everyday life. Therefore, the terms in the said enactment must be understood in the manner in which a common man will understand them. Generally, the steam includes all liquid and frozen surface water, groundwater held in soil and rock and atmospheric water vapour. In common sense, the steam is treated as by-product of water and for preparation of the steam the process is just to boil water. Therefore, for the purpose of taxing under the Sales Tax laws it is not possible to hold that the steam is chemical.

• CUSTOMS LAWS

BOMBAY HIGH COURT

Rajmal Lakhichand and Ishwarlal Shankarlal Lalwani v. The Commissioner of and Customs, Aurangabad (Decided on 20.04.2010) MANU/MH/0357/2010

Order of confiscation - Justification of Order without invoking the provisions in the Show Cause Notice and without providing opportunity of being heard

Held, it is fundamental of fair procedure that before action is taken, the affected party should be given a notice to show cause about the proposed action and to seek his explanation. Any Order passed without giving notice is against the principles of natural justice. The notice must be clear, specific and unambiguous and the changes should not be vague and uncertain. The object of notice is to give an opportunity to the person concerned, to present his case. Natural justice requires that the person directly affected by the proposed acts, decisions or proceedings be given adequate notice of what is proposed, so that he may be in a position to make representation on his own behalf, or to appear at the hearing or inquiry (if any), and effectively represent his own case and answer the case he has to meet. In the result, question referred is answered in favour of the Applicants and against the Revenue.

• CONSTITUTIONAL LAWS

BOMBAY HIGH COURT

Dr. Sahil Deepak Rasane v. The State of Maharashtra (Decided on 23.04.2010) MANU/MH/0401/2010

Admission Procedure - whether the clauses in the brochure for Admission in PGM CET 2009, making petitioners holding MBBS degree from Deemed Universities ineligible to appear, Challenged on ground to be discriminatory and ultra vires to Article 14 of the Constitution of India?

Held, Admission to Post Graduate course both graduate and diploma has to be on merit subject to the reservations which were explained by the Supreme Court in Dr. Pradeep Jain. In light of the matter, the impugned clauses of the prospectus apart from being discriminatory are also unreasonable and liable to be quashed on that ground also.