SUPREME COURT

• LABOUR AND INDUSTRIAL LAWS

Hotel New Nalanda vs. Regional Director, E.S.I. Corporation (Decided on 15.07.2009) - MANU/SC/1200/2009

Establishment whether a factory within the meaning of Section 2(12) of the Employees' State Insurance Act, 1948 - Determination thereof

For holding an establishment to be a `factory' within the meaning of Section 2(12) of the Act it must first be established that some work or process is carried on in any part of the establishment that amounts to `manufacturing process' as defined under Section 2(k) of the Factories Act, 1948. In case the number of persons employed in the establishment is less than twenty but more than ten then it must further be established that the manufacturing process in the establishment is being carried on with the aid of power. Further, the use of power in the manufacturing process should be direct and proximate. The expression `manufacturing process being carried on with the aid of power' in Section 2(12) of the Act does not mean a very indirect application of power such as use of electric bulbs for providing light in the work-area. Unless the links are established, that is to say, it is shown that some process or work is carried on in the establishment which qualifies as `manufacturing process' within the meaning of Section 2(k) of the Factories Act and the manufacturing process is carried on with the aid of power, the mere presence of a refrigerator and a grinder there, even though connected to the main power line may not necessary lead to the inference that the establishment is a factory as defined under Section 2(12) of the Act.

In the instant case the finding arrived at by the Insurance Court held to be reasonable, against which neither any appeal was maintainable under Section 82(2) of the Act nor was the High Court justified in interfering with it.

• SERVICE LAWS

Prakash Ratan Sinha vs. State of Bihar and Ors. (Decided on 14.07.2009) - MANU/SC/1195/2009

Doctrine of equality and fair play - Affording an opportunity of hearing before passing the impugned order whether merely an empty formality - Appellant appointed as a daily wager, was asked to discharge the work of Accounts Clerk in view of his qualification and experience - Pursuant to application filed by him recommendation for change of his nomenclature from daily wager to Accounts Clerk was approved - Subsequently, the order passed was treated as contrary to the Rules and order of promotion was cancelled

The decision complained against in the instant case was an administrative decision, adversely affecting Appellants right to continue in the promotional post. Therefore, the decision concerning the promotion makes itself available for scrutiny by the Courts on the touchstone of well-established principles of natural justice. The administrative decision taken was within the realm of public law and therefore, the decision ought to have been taken in a fair and reasonable manner. This was more necessary because the action canceling the promotion of the Appellant had civil consequences in the sense that it not only puts an end to the right of the appellant and also his further career prospectus. In the instant, there was no dispute between the parties that the personal or oral hearing was not granted to the Appellant before passing the impugned order and therefore, the impugned order in violation of principles of natural justice. There are disputed facts and the Respondents without affording an opportunity of hearing, could not have taken any administrative decision unilaterally. Therefore, the Division Bench of the High Court was not justified in concluding "unless formality theory" need not have been followed by the Respondents. Appeals allowed.

• CRIMINAL LAWS

Rajiv Modi vs. Sanjay Jain and Ors. (Decided on 14.07.2009) - MANU/SC/1196/2009

Cognizance of the offence alleged under Sections 406, 420 and 120B of the Indian Penal Code - Dismissal of private complaint filed under section 200 of the Code of Criminal Procedure for want of territorial jurisdiction - High Court in Petition under Section 482 of the Cr.P.C. quashed proceeding on the ground of territorial jurisdiction

To constitute the territorial jurisdiction, the whole or a part of "cause of action" must have arisen within the territorial jurisdiction of the Court and the same must be decided on the basis of the averments made in the complaint without embarking upon an enquiry as to the correctness or otherwise of the said facts. Court on basis of the averments made in the complaint, if it is prima facie of the opinion that the whole or a part of cause of action has arisen in its jurisdiction, it can certainly take cognizance of the complaint. There is no need to ascertain that the allegations made are true in fact. High Court in the instant case erred by going into merits of the case and deciding doubtful or complicated questions of law and fact while invoking its powers under Section 482 of Cr.P.C. This is not the fit case where the High Court could have exercised its inherent powers under Section 482 of the Code. Exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR/charge- sheet/complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. Appeal allowed and impugned order passed by the High Court set aside.

Jugesh Sehgal vs. Shamsher Singh Gogi (Decided On: 10.07.2009) MANU/SC/1198/2009

Quashing of complaint under section 138 of the Negotiable Instruments Act, 1881 - Appellant submitted that the High Court gravely erred in declining to exercise its jurisdiction under Section 482 of the Code in a case where the complaint ex facie lacked the basic ingredients of the offence under Section 138 - It was contended that the cheque in question, purportedly issued by the Appellant was from an account not maintained by him but by 'X' and therefore, the basic ingredient of Section 138 of the Act was missing - Whether High Court can act in exercise of powers under section 482

In the instant case on receipt of the return memo from the bank, the complainant realized that the dishonoured cheque was issued from an account not maintained by Appellant, but by 'X' - Complainant thereafter filed an FIR against all the accused for offences under Sections 420, 467, 468, 471, 406 of the Indian Penal Code, thus there was hardly any dispute that the cheque, subject matter of the complaint under Section 138 of the Act, had not been drawn by the Appellant on an account maintained by him - This being so, there was little doubt that the very first ingredient of Section 138 of the Act was not satisfied and consequently the case against the Appellant for having committed an offence under Section 138 of the Act cannot be proved -Powers possessed by the High Courts under the said provision though very wide should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist - Inherent powers does not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice - Instant was the fit case where the High Court, in exercise of its jurisdiction under Section 482 of the Code, should have quashed the complaint under Section 138 of the Act - There was a clear averment in the complaint that the cheque in question was issued from an account which was non-existent on the day it was issued or that the account from where the cheque was issued "pertained to someone else" - As per complainant's own pleadings, the bank account from where the cheque was issued, was not held in the name of the Appellant and therefore, one of the requisite ingredients of Section 138 of the Act was not satisfied - Decision of the High Court not sustainable - Appeal allowed and complaint quashed

HIGH COURTS

• ENVIRONMENT LAWS

DELHI HIGH COURT

All India Plastic Industries Association through its Secretary Shri Ajay Gupta S/o Shri R.N. Gupta, v. Government of NCT of Delhi Department of Forests and Wildlife (Decided on 14.07.2009) - MANU/DE/0954/2009

Ban on use of Plastic Bags - Whether on merits, the impugned notification dated 7th January, 2009 issued by Department of Environment and Forest and Wild Life invalid in law

The Notification does not prohibit the manufacture of plastic bags, which apparently is the primary activity of the Petitioners - All that it seeks to achieve is a prohibition on the use, sale and storage of plastic bags in certain categorized locations within Delhi - Again, it is not as if there is a blanket ban on the use, sale or storage of all kinds of plastic bags all over Delhi - Initially only non-degradable plastic bags were prohibited in 4/5 star hotels, hospitals having a bed strength of 100 beds or more and restaurants having a seating capacity of more than 100 seats - Now it has been extended to include degradable plastic bags as well and to prohibit their use (along with non-degradable plastic bags) in restaurants having a seating capacity of more than 50 seats - A ban on the use of degradable plastic bags has been extended to four other categorized areas, such as fruit and vegetable outlets of Mother Dairy, liquor vends, shopping malls and all shops in main markets and shopping centres - It was held as important to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern, of reasonableness can be laid down as applicable to all cases - Nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict - Limitation on the sale, use and storage of plastic bags in certain areas in Delhi has been laid down keeping in view the problem of solid waste management, particularly of plastic bags, which choke drains and enter the food chain thereby potentially causing health risks -Limitations imposed are in public interest and have, apparently, been enforced in several other parts of India also - Merely because some commercial interests of the Petitioners are diluted does not mean that there is no public interest in issuing the impugned notification - Impugned Notification correct

• TENANCY LAWS

DELHI HIGH COURT

Tagore Education Society Regd. v. Kamla Tandon and Anr. (Decided on 10.07.2009) MANU/DE/0901/2009

Section 14(1)(e) of the Delhi Rent Control Act - Where premises are let out for commercial purposes, then whether on a bona fide need of the owner for only residential purpose, an eviction order in respect of the premises let out for commercial purpose could be passed

The ambit of Section 14(1)(e) of DRC Act has been enlarged and a landlord is entitled to an eviction order even with regard to commercial tenancy, if landlord is able to show that he/she requires the premises bona fide for his own or for his family members need irrespective of the fact as to whether the need is for commercial or residential purpose.

• LAW OF EVIDENCE

BOMBAY HIGH COURT

Santosh Bhau Humane v. The State of Maharashtra (Decided On: 09.07.2009) – MANU/MH/0512/2009

Medical Evidence - Whether Medical evidence to be discarded if does not indicative of the fact that injury sufficient in the ordinary course of nature to cause death

The injuries in the instant case were on the vital part of the body - A suggestion that the medical evidence does not indicate that the injuries were sufficient in the ordinary course of nature to cause death does not mean that the case will not fall under Section 302 of the Indian Penal Code - Merely because such a sentence does not appear does not mean that the medical evidence must be discarded completely - Injuries were proved and their nature had been spoken off by the Doctors concerned, who stated that they were inflicted on vital parts of the body and can cause death - Hence, merely because a particular sentence was not appearing in their deposition would be of no assistance

MADHYA PRADESH HIGH COURT

Ram Milan and two Ors. v. State of Madhya Pradesh (Decided on 07.07.2009) MANU/MP/0106/2009

Conviction under Section 498-A of the Indian Penal Code, 1860 - Testimony based on oral complaints made by deceased - Admissibility thereof questioned

As apparent from the evidence lead by witnesses, entire testimony was based on the oral complaints allegedly made by deceased to them and none of them witnessed actual physical or mental cruelty allegedly meted out to the deceased by the Appellants - There was also no such cogent or dependable evidence that Appellants putforth any unlawful demand for cash or vehicle directly from the parents, brother or sister of the deceased -Apex Court in Gananath Pattnaik v. State of Orissa (MANU/SC/0082/2002) has held that such evidence, although admissible in respect of the offence under Section 304-B by virtue of the Section 32 of the Evidence Act as it related to the cause of death, not admissible for the offence punishable under Section 498-A of Indian Penal Code and has to be termed as being only hearsay evidence - Further there was no state appeal against acquittal of the Appellants under Section 306 of IPC and no charge under Section 304-B of IPC was framed against them - There was no other legal, cogent or direct evidence on substantiate allegations of ill-treatment of the deceased - Conviction set aside

• CRIMINAL LAWS

ALLAHABAD HIGH COURT

Pappu (in Jail) v. State of U.P. (Decided on 01.07.2009) MANU/UP/0183/2009

Granting Bail - Conditions permissible to be imposed

The Hon'ble Apex Court in Munish Bhasin and Ors. v. State (Govt. of NCT Delhi) and Anr. MANU/SC/0319/2009, held that only such conditions can be imposed at the time of granting bail, which are permissible under the Code of Criminal Procedure - As further held, while exercising discretion to release an accused under Section 438 of the Code neither the High Court nor the Sessions Court would be justified in imposing freakish conditions. Normally, conditions can be imposed (i) to secure the presence of the accused before the investigating officer or before the court, (ii) to prevent him from fleeing the course of justice, (iii) to prevent him from tampering with the evidence or to prevent him from inducing or intimidating the witnesses so as to dissuade them from disclosing the facts before the police or court, or (iv) restricting the movements of the accused in a particular area or locality or to maintain law and order, etc. To subject an accused to any other condition would be beyond jurisdiction of the power conferred on court under Section 438 of the Code. While imposing conditions on an accused who approaches the court under Section 438 of the Code, the court should be extremely chary in imposing conditions and should not transgress its jurisdiction or power by imposing the conditions which are not called for at all.

• INTELLECTUAL PROPERTY RIGHTS

DELHI HIGH COURT

Microfibres Inc. v. Girdhar and Co. and Anr.(Decided on 28.05.2009) MANU/DE/0647/2009

Designs and Copyright - Artistic work - Registration - If designs in question was capable of being registered under the Designs Act, 2000 and has not been so registered whether the Appellant was entitled to seek protection under the copyright law as the designs had not been registered under the Design's Act

If the design is registered under the Designs Act, the Design would lose its copyright protection under the Copyright Act. If it is a design registrable under the Designs Act but has not so been registered, the Design would continue to enjoy copyright protection under the Act so long as the threshold limit of its application on an article by an industrial process for more than 50 times is reached. But once that limit is crossed, it would lose its copyright protection under the Copyright Act. Hence, Appellant not entitled to protection under Section 2 (c) of Copyright Act.

• SERVICE LAWS

BOMBAY HIGH COURT

The State of Maharashtra and Ors. v. Balaji Raosaheb Shinde and Anr. (Decided on 18.06.2009) MANU/MH/0442/2009

Retrenchment - Section 2(oo)(bb), 25-F of the Industrial Disputes Act, 1947 - Whether a delinquent employee, who has completed 240 days in calendar year will be entitled to retrenchment compensation as a matter of right under Section 25 F of the ID Act, 1947

Merely completion of 240 days by each of theretrenched employee in Calendar year preceding to their termination will not give any right to them, and it is not incumbent upon theemployer to comply with the provisions of Section 25-F of the Industrial Disputes Act, 1947 prior to their termination when the services of respective employees were on temporary and daily rated basis on the unsanctioned posts and for the particular and specific project. Further, if a case is not covered under Section 2(oo)(bb) of the Industrial Disputes Act, 1947, compliance of provisions of Section 25-F will not be attracted.