High Court Round UpLegal RoundUp

Allahabad High Court

SC and ST Act, 1989

Section 3 (2) (v) of SC and ST Act, 1989 only attracts by way of documentary evidence to prove that the injured belongs to SC or ST; Conviction and sentence, modified

The Division Bench of Kaushal Jayendra Thaker and Ajai Tyagi, JJ. while deciding an appeal which was filed challenging the judgment and order of convicting accused-appellant under Sections 326 of Penal Code, 1860 (‘IPC’) and Section 3 (2) (v) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘SC/ST Act’) observed that to prosecute a person for an offence committed under Section 3(2)(v) of the SC/ST Act, there must be evidence to show that the accused committed the crime knowing that such person/victim is a member of a Scheduled Caste or a Scheduled Tribe.

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Bail

Irony and tragedy of the Indian republic that criminals like Mukhtar Ansari are the law-makers; Former UP MLA denied bail

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Allahabad High Court pained to see minors getting involved in age- inappropriate relations; Grants bail in the interest of infant and minor wife

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High Court can grant transit anticipatory bail in a case registered outside its jurisdiction

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Steps must be taken to break unholy nexus between criminal politicians and bureaucrats; Bail denied to BSP MP

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Parity can only be persuasive in nature and cannot be binding; Bail orders not to be given without assigning any reasons

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Protection of life and liberty

Constitution of India does not permit to issue mandamus when there is no threat perception alleged or transpired; Petition dismissed for filing with a purpose of obtaining seal of this Court on illegal relationship

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Manual Scavenging

No protective gears provided to the sanitation workers; DM and Nagar Ayukt, summoned

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Stray Dog Menace

Allahabad High Court issues notice to Nagar Nigam on compensation to family after stray dog menace leaves one child dead and other seriously injured

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Quashing of FIR

Sections 4 & 5 CrPC only applicable to proceedings under Special Acts; not when criminal jurisdiction is invoked

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Bombay High Court

Doctrine of Proportionality

When assessing the doctrine of proportionality, one looks not only at the immediate cause inviting punishment but also at the entire context; Appeal dismissed

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Trademark

Registrar entitled to determine the registered proprietor of the Trademark [ISKCON v. ISKCON]

The Division Bench of G.S. Patel and Gauri Godse, JJ. disposed of an appeal which was preferred by ISKCON (International Society for Krishna Consciousness) Bengaluru aggrieved by the observations that this well-known trademark (ISKCON) is exclusively associated with the original Plaintiff (“Mumbai ISKCON”) and, by necessary implication, that Mumbai ISKCON is sole and exclusive registered proprietor of the mark in International Society for Krishna Consciousness v. Iskcon Appaeral Pvt. Ltd., 2020 SCC OnLine Bom 729.

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Maintenance

Courts cannot be hyper technical in their approach when it comes to petitions under S. 125, CrPC; son liable to maintain father

Vibha Kankanwadi, J. partly allowed a writ petition setting aside the judgment and order of Additional Sessions Judge and confirming the findings of Judicial Magistrate First Class further modifying the maintenance amount to Rs 3000/- per month.

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Corporate Law

Independent Non-Executive Director not liable for acts of company when not involved in day-to-day business

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Women Rights

Woman cannot be made to choose between career and child; Bombay High Court allows mother to relocate to another country with the child

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Contracts

Yes Bank-Dish TV Case: Beneficial Owner of pledged shares, contractually entitled to all rights, including voting rights in Annual General Meeting

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Right to reproductive choice

Minor sexual assault victim lodged in observation home for murder allowed to terminate pregnancy

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POCSO Act

Slow pace of trial defeating the very purpose of POCSO Act; Court of Sessions to submit report of pending cases, number of Special Courts

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Employee’s State Insurance Act

Nature of activities conducted by BCCI are commercial in nature, liable to pay employees contribution under ESI Act, 1948

Bharati Dangre, J. dismissed an appeal which was filed by Board of Control for Cricket of India (‘BCCI’), being aggrieved by the impugned judgment and order passed by the Employees Insurance Court at Bombay (ESI Court) dated 09-09-2021 where BCCI was held to be under the ambit of Employees’ State Insurance Act, 1948.

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Calcutta High Court

Driving license

ACP, Traffic Department does not have the power to suspend the licence; directions issued to release driving licence

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Transfer of suit

Calcutta High Court transfers Matrimonial suit showing leniency towards wife

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Fundamental Duty

Fundamental duty to protect animals from cruelty; Directions issued to SP for finding out stolen pig from Court premises

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Noise Pollution

Vigil to be maintained to prevent noise pollution in general; Sound levels to be within permissible limits

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Chhattisgarh High Court

Maintenance

Chhattisgarh High Court entitles father-in-law to pay maintenance; “Estate of the husband can be preferred to claim over the estate of father or mother of daughter in law”

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Delhi High Court

Default in payment

Delhi High Court upholds Trial Court ruling in application filed under O. XIII A CPC for default in payment of rent by tenant due to COVID

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Trademark

Gems or James Bond; Delhi High Court directs compensation to Cadbury against trademark infringement by Neeraj Food Products

Prathiba Singh, J. permanently injuncts Neeraj Food Products (‘defendants’) for trading JAMES BOND a chocolate product in pillow packs which is deceptively similar with Mondelez India Foods Private Limited (formerly Cadbury India Ltd.) (‘plaintiff’) GEMS, the name of which has derived inspiration from a copyrighted artistic character GEMS BOND. The Court thus directed the compensation upto 15 lakhs to Cadbury India finding deceptive similarity in the product under challenge.

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Delhi High Court refuses blanket injunction against GODADDY from registering SNAPDEAL trademark; Every infringement must be petitioned separately

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Delhi High Court grants permanent injunction against Facebake or Facecake from using the well known trademark Facebook

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Commercial Courts (Amendment) Act, 2018

‘Thin line between adjudication and legislation’; Delhi High Court rules out retrospective application of Commercial Courts (Amendment) Act, 2018

A Division Bench of Satish Chandra Sharma, CJ and Subramonium Prasad, J. refused to transfer the civil suits pending before the Additional District Judge, Patiala House Courts, New Delhi, to the designated Commercial Court as the Commercial Courts (Amendment) Act, 2018 (‘Amending Act’) shall not apply retrospectively and thus, the advantage provided under Section 19 of the Amending Act cannot be taken, as dispute relates before to the date of commencement of the Act, i.e., 03-05-2018.

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Marriage

Once two adults’ consent to live together as husband and wife, no third-party interference including family is warranted; Directs SHO to provide mobile number

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Bail

Defense of consensual sexual intercourse immaterial if victim is minor; Bail rejected

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Delhi High Court grants Bail to a rape accused in view of the prosecutrix’s deposition as per the requisites of S. 164 CrPC

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Service Charge

Delhi High Court stays CCPA ruling on levying service charges in hotels and restaurants as an unfair trade practice

Yashwant Varma, J. stayed the ruling passed in the form of guidelines by the Central Consumer Protection Authority (‘CCPA’) vide order dated 04-07-2022 holding that the issue of whether the levy of service charge would amount to a restricted and unfair trade practice under Consumer Protection Act, 2019 requires consideration in view of precedents and incidental facts of the subject matter.

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Abortion

Delhi High Court’s ruling that led to Supreme Court recognizing unmarried women’s right to a safe abortion

A Division Bench of Sathish Chandra Sharma, CJ and Subramonium Prasad, J refused termination of pregnancy to an unmarried woman whose pregnancy arose out of a consensual relationship after holding that her case was clearly not covered by any of the categories mentioned under Rule 3B of the Medical Termination of Pregnancy Rules, 2003 as on the date of the judgment.

This order, however, stands modified by the Supreme Court vide order dated 21-07-2022 wherein it has been held that woman cannot be denied right to safe abortion only on the ground of her being unmarried.

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Prevention of Money Laundering Act, 2002

Mere allocation of coal does not amount to ‘proceeds of crime’ u/S 2(1) (u) of PMLA, 2002; Proof of monetary gains wrongfully obtained from such allocation is mandatory

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Maintenance

Delhi High Court emphasizes on the importance of husband’s/father’s obligation towards estranged wife/child; Upholds maintenance decree granted by Family Court

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Copyright

Delhi High Court directs Telegram and Mega to immediately take down any illegal content uploaded on their platform relating to DocTutorials

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Misleading advertisement

Delhi High Court grants ad interim injunction against Dabur India for openly disparaging Nihar Naturals Shanti Amla Oil by WhatsApp message

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Examination

Can examination authorities deny permission for appearance in a competitive exam for violating clothing guidelines? Delhi High Court answers

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Patent

Non-consideration of the grounds raised in a pre-grant opposition while granting patent per se constitutes violation of principles of natural justice

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Central Civil Services (Pension) Rules, 1972

Delhi High Court allows mercy petition filed by widow of a deceased/dismissed employee seeking ‘compassionate allowance’ in view of R. 41 of CCS (Pension) Rules, 1972

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Broadcasting rights

Delhi High Court restrains infringement of broadcasting rights of ‘Sony Ten Network’; Interim directions issued

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Gujarat High Court

Bail

Gujarat High Court denies bail to a 66 year old over recovery of poppy straw in commercial quantity from his property

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Appointment

Delay in appointment of presiding officer of DRT leading to deprivation of legitimate right to speedy justice; Directions issued

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Retirement

Municipality has power to retire a municipal servant at any time on or after he attains the age of 55 years on giving him three months notice

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Gauhati High Court

Bail

Facebook post “only an expression of her feelings”, does not mention ULFA-I; College Student gets bail

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Preferential Appointment

‘Cousin’ not a family member; cannot be considered for Preferential Appointment under Assam Public Services (Preferential Appointment) Rules, 1999

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Retirement

State cannot force subordinate officers to retire prematurely on low physical fitness without following procedure under Assam Rifle Rues, 2010

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Representation of People Act

‘High-time to revisit S.126 of Representation of People Act’ ; Gauhati High Court dismisses proceedings against Assam CM for violating Model Code of Conduct

Rumi Kumari Phookan J. dismissed the criminal proceedings against Chief Minister of Assam, Dr. Himanta Biswa Sarma for violating the provision of the Model Code of Conduct during 2019 General Assembly Elections. The Court was further of the view that the provision mentioned under Section 126 of the Representation of the People Act, 1951 (RP Act) should be reexamined in the light of multi-phased elections and the expansion of digital and electronic media.

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Jammu and Kashmir and Ladakh High Court

S. 80 Civil Procedure Code, 1908

When can Courts dispense off with the requirement of notice u/s. 80, CPC? J&K and Ladakh HC elucidate

While deciding the instant appeal wherein substantial questions of law were raised vis-a-vis SectionS 80CPC; the Single Judge Bench of Vinod Chatterji Koul, J., held that the language of Section 80 is very clear in stating that at the time of filing a suit, if the plaintiff can establish that there is an urgency to seek relief, then the Court on its satisfaction, may dispense off with the requirement of notice before filing a suit under Section 80.

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Article 14 and 16, Constitution of India

Classification on the basis of educational qualification for the purposes of promotion, is permissible in law and does not offend the Constitution

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Double Jeopardy

Whether concurrent prosecutions under S. 138, NI Act and S. 420, IPC, will amount to double jeopardy? J&K and Ladakh HC analyses

While deciding the instant petitions, the question that came up before that Court was whether a person can be prosecuted for offence under Section 420 of IPC as also for offence under Section 138 of NI Act, on the same set of facts and whether or not it would amount to double jeopardy. The single Judge Bench of Sanjay Dhar, J., observed that the offences under Section 138NI act and Section 420IPC, are two distinct offences, therefore the principle of double jeopardy or rule of estoppel does not come into play.

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Administration of justice

For proper administration of justice, Judges should not make derogatory remarks against persons, unless such censuring is necessary for the case

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Hyderpora Encounter Case

J&K and Ladakh HC allows the family of deceased Amir Magrey to perform Fatiha Khawani; upholds compensation awarded by the Single Judge Bench

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Vacancy and appointment

Can waitlist candidates be considered for filling up vacancies caused by resignation of the selected/appointed candidates? J&K and Ladakh HC answers

On the issue of whether wait list candidates can be considered for filling up vacancies caused due to resignation of appointed candidates, the Division Bench of Pankaj Mithal, CJ., and Moksha Khajuria Kazmi, J., observed that “a select/waiting list prepared may remain operative and valid for a period of one year, but that would only be for a limited purpose of appointing the selected/wait list candidates on the vacancies which remains unfilled due to non-joining of the selected candidate for one reason or the other.”

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Jharkhand High Court

Compensation

Date of application or Date of death — From when is the monetary compensation on account of death of an employee to be paid?

S.N. Pathak, J., allowed the writ petition directing Central Coalfields Limited (‘CCL’) to modify the monetary compensation in case of death or an employee who died in harness, calculating it from date of death of the husband of the petitioner.

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Dowry death

Upheld the decision of trial court; Accused convicted for dowry death

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Corporate law

Criminal proceedings against Directors cannot continue when the Company has not been arrayed as a party

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Karnataka High Court

Corruption

‘S.I.R cannot be generated at the drop of a hat’; Karnataka High Court quashes corruption proceedings initiated by ACB under Prevention of Corruption Act, 1988

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Bail matter highlights “corruption” in Anti-Corruption Bureau; Karnataka HC judge alleges transfer threat for his observations against ACB and ADGP

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Alimony

Able bodied person having the ability to earn is not entitled to seek permanent alimony from wife; Karnataka High Court dismisses appeal

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Foreign Exchange Management Act, 1999

Writ petition by XIAOMI India premature when alternate remedy available under S. 37 FEMA, 1999 left unattended

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CENVAT Credit

No suppression of material facts if show cause notice issued is based on balance sheet; Appeal denied

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Handcuffs

Karnataka High Court grants compensation to a law student who was arrested and handcuffed

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Kerala High Court

Citizenship and Marriage

Diplomatic officers empowered to apostille affidavits and do notarial acts; Indo-Canadian couple allowed to get married “online”

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Sexual Assault

Kerala High Court upholds conviction of a father for sexually assaulting his minor daughter

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Bail

Can pre-arrest bail be granted to accused sitting abroad? Co-equal bench doubts order in Vijay Babu’s case; Larger Bench to decide

While adjudicating a question of law as to whether pre-arrest bail can be granted to an accused while he is sitting abroad, P.V. Kunhikrishnan, J., doubted the findings of Single Judge in Vijay Babu v. State of Kerala, 2022 SCC OnLine Ker 3158. Answering the question of law in negative the Court stated,

“If an accused in a case leaves India after knowing that a case with grievous offences is registered against him and files a bail application before the High Court while sitting abroad, he is not entitled to an order not to arrest especially when there is no such power under Section 438 CrPC.”

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Birth certificate

Can Court direct to retrospectively amend birth certificate to expunge father’s name by replacing mother’s name as an only parent? Kerala HC decides

In a significant decision P. V. Kunhikrishnan, J., directed the Registrar of Births and Deaths to expunge the father’s name of the petitioner 1 from his birth certificate and issue a new certificate showing the name of his mother only as a single parent.

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e-Commerce

Received a wrong product while shopping online? Read how Kerala HC addresses grievance of person who received wrong laptop from Flipkart

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Madhya Prdaesh High Court

DNA Test

‘Violation of individual privacy’; Request for DNA test denied in property dispute

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Will

When does a Will becomes a suspicious document? Madhya Pradesh High Court answers

Dwarka Dhish Bansal, J., while dismissing a second appeal held that in presence of prior execution of agreement of Gift, the Will becomes a suspicious document.

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Highway guidelines

Major District Road (MDR) not subjected to 300 metres guidelines, since it is not a National or a State Highway; NOC for petrol pump granted

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Compassionate appointment

Substitution of an appointment on compassionate grounds through contractual appointment held illegal; directions issued

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Police carelessness

Madhya Pradesh High Court lambasts police force for blatant callousness and failure in tracing an 11-year-old missing minor girl

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Compulsory retirement

Irregular grant of bail may reflect upon competency of the Judge but does not mean that he is corrupt; Compulsory retirement set aside

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Madras High Court

Advertisement

Madras High Court directs State Government to include photographs of PM and President in print/electronic media for International Chess Olympiad

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Deception

Madras High Court directs State Police to alter FIR and add Ss. 417 and 420 IPC on alleged concealment of impotency by husband pre-marriage

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Pension

Freedom fighters’ pension cannot be taken as ‘income’ to deny family pension; Objective of Freedom Fighter Pension Scheme is to honour the sacrifices of the fighters

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Termination of pregnancy

Madras High Court allows termination of 27+weeks pregnancy of minor child victim of 13 years; Foetus to be preserved for criminal case under POCSO

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GST

Proper reasons to be given for rejecting GST Registration Applications; Just writing ‘rejected’ would not suffice

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Education

High Court cannot be an expert body for the purpose of forming an opinion on equivalence of degrees; Madras High Court upheld the Government Order

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Divorce

Suspecting the character of spouse and making false allegations of extra marital affair in presence of colleagues/ students amount to mental cruelty; Madras High Court grants divorce

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Professional misconduct

Madras High Court deprecates the practice of implicating Advocates as accused along with their clients for offences allegedly committed by clients

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Admission

Can plea of poor internet connectivity be entertained if it deprives a student of his entitlement to take admission? Madras High Court directs State to compensate

G R Swaminathan J. directed the State to pay compensation of Rs 1 Lakh to a student who could not take admission in the medical course in the academic year 2021-2022 as he was unable to register his name on the portal for NEET counseling even after obtaining marks beyond cut off limit, due to poor internet connectivity.

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Old age homes

Madras High Court exercises parens patriae jurisdiction to deal with the issue of senior citizen welfare and old age homes; Guidelines issued

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Transgender rights

Madras High Court remarks transgenders are already part of most backward classes; Dismisses plea seeking separate reservations for them in government jobs

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Marriage of inter-faiths

Self-respect marriages can be performed only between two Hindus; Madras High Court upholds denial of marriage registration of an inter faith couple

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Patna High Court

Sexual Assault

Sexual assault on minors traumatic, destroys personality: Patna High Courts upholds father’s conviction for raping his minor daughters for 6 years

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Right to chose a life partner

Women have right to marry anyone of choice; Family/Societal Recognition not required under law

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Punjab and Haryana High Court

Property

Co-owners of the joint property cannot prevent each other from using the property; appeal dismissed

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Motor accident

Motor Accident claims must be proved on the touchstone of preponderance of probabilities

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Juvenile

Punjab and Haryana High Court dismisses the order of the Magistrate; Only Juvenile Justice Board to pass orders where there is ‘Juvenile in conflict with law’

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Parole

‘Parole a part of reformative process’; Punjab and Haryana High Court grants parole to murder convict

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Non-compoundable offences

Proceedings in non-compoundable offences can be quashed on the basis of compromise between accused and victim

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Defamation

Relief to actress Kangna Ranaut in ‘Shaheen Bagh Dadi’ defamation case; Trial Court directed to adjourn the matter

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Mental cruelty

Does incessantly filing complaints for tarnishing one’s reputation amount to mental cruelty? Punjab & Haryana High Court answers

While deciding an appeal arising from a divorce petition, the bench of Ritu Bahri, J. and Meenakshi I. Mehta, J. observed that “the facts and circumstances unequivocally speak volumes of the fact that the respondent has incessantly been filing the complaints against the petitioner as well as his family members and the petitioner even had to go behind the bars in connection with one of those complaints, resulting in harm/damage to his image and reputation in the eyes of their relatives and the society at large”.

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Rajasthan High Court

Illegal termination

Alleged illegal termination from Kotak Mahindra Bank pending for relief due to vacancy of competent authority; State appoints Deputy Labour Commissioner

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Order XVI R 1 and 2 Civil Procedure Code, 1908

Trial Court required to prima-facie ascertain the relevancy of the proposed witnesses while deciding application under Order XVI R 1 and 2 CPC

Dinesh Mehta, J. considered the stamp vendor and Sub Registrar as relevant witnesses in a case where registration of relinquishment deed was challenged, and it was pleaded to summon them as witnesses for ascertaining the claim. The Court stated that ascertaining the relevancy of the proposed witnesses while deciding application under Order XVI Rules 1 and 2Civil Procedure Code (‘CPC’) is to be prima facie established by the Trial Court.

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Arbitration

No award can be remitted to the arbitrator where there are no findings in the contentious issues of the award

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Telangana High Court

Employees Compensation Act, 1923

Whether the workwoman employed in Beedi manufacturing process is covered under the purview of Employees’ Compensation Act? Telangana High Court answers

M Laxman, J. allowed the appeal and remanded the matter for adjudication on merits and held that the deceased beedi worker falls under the definition of ‘workman’ as per Section 2(n)(ii) and Clause 2 of Schedule II of Employees’ Compensation Act, 1923 as well as Section 2(k) of Factories Act, 1948.

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Tripura High Court

Appointment

It is not within the domain of the Court to direct the State- Government to create any post; Petition dismissed

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Uttaranchal High Court

Article 21, Constitution of India

Whether writ petition on cancellation of GST Registration affecting the Right to Livelihood is maintainable? Uttaranchal High Court answers

The division bench of Sanjaya Kumar Mishra, acting C.J., Ramesh Chandra Khulbe, J., held in the writ petition is maintainable, as the cancellation of GST registration affects the rights of livelihood enshrined under Article 21 of the Constitution of India.

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Animal slaughter

Uttaranchal High Court allows stay on Government order banning animal slaughter on the occasion of Bakra Eid in Manglaur

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*Suchita Shukla, has put this report together.

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of P.R. Ramchandra Menon and Parth Prateem Sahu JJ., dismissed the appeal being devoid of merits.

The facts of the case are such that one Rajendra Sharma was employed as Driver in the truck owned by non-applicant 1 and insured by non-applicant 2 who while driving from Bilaspur to Raigarh carrying dolomite was attacked and assaulted by some unknown persons with the intention to cause robbery and thereby eventually succumbed to death. FIR was lodged and an application under Section 10 of the Employees Compensation Act 1923 was filed before the Commissioner seeking compensation by the wife and children of the deceased which was thereby granted on grounds that the death happened during the course of employment and fastened the liability to pay on the employer.  Assailing the said order, employer appellant filed an appeal before High Court on grounds that the penalty was imposed without issuing show-cause notice and without affording opportunity of hearing to the employer as envisaged under Section 4A (3) (b) of the Employees’ Compensation Act 1923 wherein appeal was allowed and impugned order was set aside in part relating to the amount of penalty and remitted the matter back to pass award afresh after affording reasonable opportunity of hearing to the employer. The Commissioner had fresh proceedings and issued notice to the parties and awarded 50% of the awarded amount of compensation as penalty and held the employer liable to pay amount of penalty.

Counsel for the appellants-employer submitted that there was again non-compliance of the provisions of Section 4A (3) (b) of Employees Compensation Act 1923. He contended that unless and until there is specific notice in this regard, as directed in MA No.148/2003, the impugned order awarding penalty to the extent of 50% and fastening liability upon appellant is bad in law and liable to be set aside.

Counsel for the respondents submitted that the Commissioner after receipt of the case back on remand, drawn fresh proceeding, granted opportunity of hearing and producing evidence, but appellant employer failed to produce any evidence on the issue. He submitted that the Commissioner is well within four corners of law in awarding penalty of 50% as provided under Section 4A (3) (b) of the Employees’ Compensation Act 1923.

The Court observed that the only ground relevant to the facts is that whether without issuance of notice the entire proceeding drawn by the Commissioner would be considered vitiated or not. The Court further observed that the Appellant was well aware of the fact that the case has been remanded back to the Commissioner with a specific direction for appearance of the parties before the Commissioner and to decide the issue of penalty afresh. It was further observed that the issuance of notice as provided under Section 4A (3) (b) of the Act of 1923 to be mandatory is only to bring it to the knowledge of the employer that the penalty is to be imposed, so that the employer may submit explanation and evidence for the delay occurred in depositing amount of compensation and satisfy the Commissioner on the said issue.

The Court thus held that “In the case at hand, earlier appeal was filed by appellant challenging the order of award of penalty by the Commissioner on the ground of non-issuance of show-cause notice as envisaged under Section 4A(3)(b) of the Act of 1923, which was allowed and the case was remitted back to the Commissioner. Appellant was well aware as to why the case has been remanded back to the Commissioner and also about the proceeding drawn by the Commissioner, but even then appellant has not submitted any explanation nor produced any evidence in this regard. When once the case is remitted back to the Commissioner for limited purpose of considering award of penalty; the appellant appeared before the Commissioner and participated in the proceeding but failed to submit any explanation or bring on record any evidence on issue, then he cannot be permitted to again raise the same ground that specific notice in terms of Section 4A (3) (b) of the Act of 1923 has not been issued.”

 The Court thus dismissed the appeal as the appeal did not involve any question of law which is a prerequisite for entertaining appeal under Section 30 of Employees’ Compensation Act 1923.[Ramjilal Jagannath Partnership Firm v. Kusumdevi, 2020 SCC OnLine Chh 2051, decided on 17-11-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., held the employer and the insurance company liable to pay interest on the amount which was awarded by the Labour Commissioner to the claimants under the Employees’ Compensation Act, 1923, but which was not paid by the employer and the insurance company within one month from the date when it felt due.

The High Court admitted the appeal on the limited question of law framed as follows:

Whether the Commissioner has committed an error of law in not granting any interest despite the fact that the claimants were held entitled to compensation?

The appeal

The present appeal was filed by the claimants challenging the judgment and award dated 16-3-2020 passed by the Commissioner, Employees Compensation Act and the Assistant Labour Commissioner, Muzaffarnagar, in an Employees Compensation Case, awarding a sum of Rs 8,47,160. Since the facts, quantum and liability have attained finality, the appeal was heard and decided only on the question of law mentioned above.

The claimants were represented by Satya Deo Ojha, Advocate; while Pawan Kumar Singh, Advocate, appeared for the respondent-insurer.

Analysis and decision

At the outset, it was noted by the High Court that the employer and the insurance company had not deposited the amount nor it paid the amount within one month from when it feel due. The Court stated:

The Tribunal could have exonerated them for penalty but should the insurance company and the owner be not made liable for payment of interest on the amount accrued after one month of payment is the question posed to decision for not granting interest.

After noting the submission of claimants that no reasons were assigned by the Comissioner for not awarding the interest, the High Court answered that in Section 4-A (“compensation to be paid when due and penalty for default”) of the Employees’ Compensation Act, 1923, the word used is “shall” and therefore amount awarded shall carry 12% interest as per the statute. It was directed that the amount be deposited on or before 20-2-2021.

The Commissioner too was directed to be more vigilant in future and if they feel, interest is not to be granted, they shall record reasons for the same and if they come to the conclusion that amount has been paid on the date of award, the same shall carry interest as per statute. The present order is directed to be circulated to all the Commissioners in State of Uttar Pradesh. [Miskina v. HDFC Ergo General Insurance Co. Ltd., First Appeal from Order No. 1538 of 2020, decided on 26-11-2020]

Op EdsOP. ED.

Employees’ Compensation Act, 1923 (ECA) stipulates that an employer is required to compensate an employee (other than one covered under Employees’ State Insurance Act, 1948) if such employee (i) suffers personal injury due to an accident arising out of and in the course of employment; or (ii) contracts any disease peculiar to the employment.

One of the ingredients for ascertaining amount of compensation payable to such an employee is “monthly wages”. Section 5 of ECA defines term “monthly wages” to mean an amount of wages deemed to be payable for a month’s service. Section 4 provides for manner in which compensation amount is discovered as under:

Injury resulting in Compensation basis monthly wages
Death Higher of —

50% of deceased employee’s “monthly wages” multiplied by relevant factor;

OR

INR 1,20,000 i.e. rate of compensation.

Permanent total disablement Higher of —

60% of such employee’s “monthly wages” multiplied by relevant factor;

OR

INR 1,40,000 i.e. rate of compensation.

Total or partial temporary disablement  Half-monthly payment of the sum equivalent to 25% of “monthly wages”.

Thus, it is apparent that the amount of compensation payable to an employee is directly influenced by the quantum of monthly wages paid to an employee.

The Central Government by 2020 Notification[1] almost doubled the “monthly wages” to INR 15,000 from INR 8000 that was notified under 2010 Notification[2] but did not resolve the conundrum that is troubling employers, which is — 

Whether the notified monthly wage should be treated as “base amount” or “ceiling amount” for determining compensation under ECA?

Unfortunately, even the courts across India are divided on this question. The excerpts of differing judgments are reproduced below:

In New India Assurance Co. Ltd. v. Govindi Devi,[3] injury resulted in death of the employee. The claimants claimed that the employee was earning INR 5000 per month but failed to prove so. High Court of Himachal Pradesh at Shimla held:

19. … It is pertinent to mention here that prior to aforesaid amendment, the said wages were fixed at a sum of Rs 4000 and Explanation II specifically restricted the amount to be Rs 4000 only even if it exceeds. However, by virtue of Act 45 of 2009, the restriction as referred above came to be omitted and in its place, a sum of Rs 8000 has been substituted by way of notification taken note hereinabove. It is not in dispute that while amending the said clause, no restriction has been attached or specified that if the monthly wages of the deceased employee exceeds Rs 8000 whether it should be considered at Rs 8000 only and, as such, there appears to be considerable force in the arguments of learned counsel appearing for the claimants that since no restriction is imposed in case the monthly wages of the deceased employee exceeds to Rs 8000 liberal interpretation has to be made especially when the Act itself is a beneficial legislation.

***

26. It is quiet apparent from the aforesaid exposition of law that where the “language” is clear, the intention of the legislature is to be gathered from the language used. What is to be borne in mind is as to what has been said in the statute as also what has not been said. Having regard to the above, this Court is unable to accept the contention of Shri Praneet Gupta, learned counsel appearing for the Insurance Company, that the Court below ought not to have taken into consideration a sum of Rs 8000, which has otherwise been prescribed as minimum wages for the purpose of determining the compensation, especially when claimants themselves claimed that monthly wages of deceased were Rs 5000 per month including diet money. Accordingly, this Court is of the view that the monthly wages specified by the statute by way of amendment at Rs 8000 is appropriate for consideration for the purpose of computing the compensation and as such, the learned court below has rightly calculated the compensation by considering the wages of the deceased workman at Rs 8000, which in no manner requires any interference.                                                                                                                                                                (emphasis supplied)

High Court of Himachal Pradesh at Shimla once again toed on similar lines while adjudicating upon a compensation claim in Rajender Kumar v. Shyam Lal[4] by holding that the notified monthly wages is the base amount i.e. minimum wage amount for ascertaining compensation. In this case, the claimant claimed that he was earning INR 7500 per month but failed to prove income as claimed by him. High Court placed reliance on 2010 Notification and held:

23. Bare perusal of aforesaid “Statement of Objects and Reasons” suggests that the amendment came into force while empowering the Central Government to enhance the minimum rates of the said compensation from time to time as well as to specify the monthly wages in relation to an employee for the purpose of the aforesaid compensation, meaning thereby fixing the minimum wages by way of amendment at Rs 8000 is only for the purpose of determining the compensation under the Workmen’s Compensation Act and there is scope of further enhancement from time to time … (emphasis supplied)

In United India Insurance Co. Ltd. v. Kakali Sarkar Guha [5], injury resulted in death of the employee and the claimants claimed that the deceased employee was earning INR 13,765 per month. While adjudicating over the matter, High Court of Sikkim at Gangtok relied on the Supreme Court’s judgment and considered entire monthly wages for ascertaining the compensation. The High Court held:

16. … A similar situation arose before the Supreme Court in Jaya Biswal v. Iffco Tokio General Insurance Co. Ltd. [6] In the said case the learned Commissioner had taken Rs 8000 as the limited wage to calculate the compensation. Since neither of the parties produced any document on record to prove the exact amount of wages being earned by the deceased the wage of the deceased was accepted as Rs 4000 per month  + daily bhatta of Rs 6000 per month, which amounts to a total of Rs 10,000 at the time of the accident. In the present case, it has been proved that the monthly wages of the deceased was Rs 13,765. The learned Commissioner was thus required to calculate the employer’s liability for compensation in the following manner: 

Rs 13,765 (monthly wages) x 50% x 194.64 (the relevant factor) = Rs 13,39,609.8.  (emphasis supplied)

Unlike the High Court of Himachal Pradesh and Sikkim, in United India Insurance Co. Ltd. v. Seethammal, [7] the High Court of Madras held:

15. Therefore, according to the learned counsel for the petitioner, since the statute is a beneficial legislation, it has to be construed by interpreting liberally and in view of omission of Explanation II and the notification issued by the Central Government (Ministry of Labour and Employment) dated 31-5-2010, though a sum Rs 8000 has been mentioned as monthly wages, it should be construed as minimum and not as maximum and therefore, when evidence establishes that the workman was earning Rs 12,000 per month, the same has to be considered for arriving at just compensation.

***

21. … Therefore, in this context, the learned counsel appearing for the claimants would vehemently contend that since no restriction is imposed in case the monthly wages of the deceased employee exceeds Rs 8000 since the Act itself is a beneficial legislation, liberal interpretation has to be made which would be beneficial to the claimants.

22. Though the contention of the learned counsel for the claimants is logically sound and acceptable, but I am unable to countenance the same.

***

24. …  In my considered view, when the intent of the legislature is clear while amending the Act to enhance the minimum rates of the compensation from time to time as well as to specify the monthly wages in relation to an employee for the purpose of the said compensation, liberal interpretation beyond the prescription made in the Act, is not at all required. Further, it is pertinent to note that while amending the Act, the legislature has consciously in its wisdom, omitted the Explanation II of Section 4-A of the Act only in order to enhance the minimum rates of compensation….

***

26. … Having regard to the above, I am unable to give accept the contention of the learned counsel for the claimants. Accordingly, I am of the view that the monthly wages specified by the statute by way of amendment at Rs 8000 is appropriate for consideration for the purpose of computing the compensation and hence, the Deputy Commissioner has rightly calculated the compensation by considering the wages of the deceased workman at Rs 8000, which, in my opinion, requires no interference. (emphasis supplied)

Conclusion

It is stated with due respect, both the judgments of High Court of Himachal Pradesh in advancing the principle of “beneficial legislation” have ignored the fact that the quantum of compensation increases manifold as the “monthly wages” is multiplied by relevant factor set out in ECA. This not only overburdens the employer but also has a cascading effect on the earnings of other employees who are working for the employer.

Furthermore, High Court of Himachal Pradesh’s reading of “minimum rates of compensation” in the Statement of Objects and Reasons of Workmen’s Compensation Act, 1923 to mean “monthly wages” of INR 8000 stated in 2010 Notification as “minimum monthly wages” is against the cannons of construction especially the literal rule of interpretation. 

With due respect, High Court of Sikkim mechanically interpreted Supreme Court’s judgment in Jaya Biswal v. Iffco Tokio General Insurance Co. Ltd.[8] to determine compensation on full monthly wages of INR 13,765 in supersession of average monthly wage of INR 8000 as deduced by the Commissioner. In doing so, High Court failed to notice that even Supreme Court stopped short of considering entire monthly wages paid to the employee in the said judgment for deducing the compensation amount.

High Court of Madras, on the other hand, has endeavoured to balance conflicting interests of both the employer and employee. It has effectively deployed the tools of interpretation of statutes to gather intention of legislature by keeping in mind both what has been said in statute as well as what is not said. Thus the order, in our view, is a reasoned order and should be able to withstand the test of time. 

Other takeaways for employers: Aside the conundrum, the impact of 2020 Notification is that going forward, employers will have to pay higher compensation under ECA. Likewise, employers availing Workmen’s Compensation Policy from an Insurance Company may have to budget for premium hikes.


† Principal Associate, Vaish Associates Advocates

†† Associate, Vaish Associates Advocates

[1]Notification No. S.O. 71(E) dated 3-1-2020, source: <http://egazette.nic.in/WriteReadData/2020/215147.pdf>.

[2]Notification No. S.O. 1258(E) dated 31-5-2010, source: <http://egazette.nic.in/> (Notification available using the “search function” of the website).

[3] 2019 SCC OnLine HP 2529

[4] 2019 SCC OnLine HP 1709

[5] 2019 SCC OnLine Sikk 156

[6] (2016) 11 SCC 201

Case BriefsHigh Courts

Karnataka High Court: The Division Bench of Alok Aradhe and P.G.M. Patil, JJ. while allowing the appeal set aside the award of the Commissioner as he committed an error of law in applying the provisions of the Act, which was already repealed.

In the instant case, the appeal under Section 30 of the Workmen’s Compensation Act, 2009 was filed to assail the validity of the award of the Commissioner for Workmen’s Compensation. The commissioner had allowed the claim in part and awarded compensation to the tune of Rs 8,61,120.

Prashant (deceased) was working as an Assistant Manager in a factory when at on 02.08.2011 he fell inside the water pit and sustained injuries and thereafter died of it in the hospital. The deceased was 26 and was drawing a salary of Rs 41,062 per month.

Counsel for the appellant, Sangram S. Kulkarni submitted that the Commissioner erred in assessing the compensation as per the provisions of Workmen’s Compensation Act, which was already repealed.

The substantial question of law before the Court was that whether Commissioner committed an error of law in deciding the claim of the appellant in view of the fact that the provisions of Employee’s Compensation Act, 1923, came into force with effect from 18.01.2010 and the accident took place on 02.08.2011.

The Court after considering the facts and circumstances of the case observed that provisions of Employees Compensation Act, 1923, came into force with effect from 18.01.2010 and the accident took place on 02.08.2011. Therefore, the computation of compensation has to be made under the Employee’s Compensation Act, 1923 not under Workmen’s Compensation Act, which was already repealed.

Taking half of the net salary payable to the deceased which comes to Rs 16, 463 and after applying the factor of 215.28, the amount of compensation comes to Rs 35,44,154. The enhanced amount shall carry interest at the rate of 12% per annum from the date of death, till its realization. [B. Basappa v. J.S.W. Steel Ltd., 2019 SCC OnLine Kar 2185, decided on 06-11-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: Tarlok Singh Chauhan, J. partly allowed the appeal of filed by an employer challenging the compensation granted to a deceased employee’s wife under the Employees Compensation Act, 1923 on the ground that before passing a penalty order against the employer, a reasonable opportunity must have been given to him to justify himself.

Appellant herein was the employer of the respondent’s husband (deceased employee) who was employed as a driver by the appellant and died in an accident. Respondent’s wife filed a petition against the appellant seeking payment of compensation along with interest and penalty against the appellant and other respondents towards their joint and severe liability under the Employees Compensation Act, 1923. The appellant in his reply denied the salary as claimed and requested the recovery of the insurance amount. However, the Employee’s Compensation Commissioner-II awarded the respondent with compensation and interest along with a penalty. Aggrieved by this award, the appellant filed the present appeal.

Navlesh Verma learned counsel for the appellant, contended that there was no employer-employee relationship between the appellant and the deceased employee; and secondly that no show-cause notice was issued on the appellant-employer before passing an adverse award against him.

The Court held that the records proved that there was a relationship of employer and employee between the appellant and the deceased.

With respect to the second contention, it was held that as per the judgment in Ved Prakash Garg v. Premi Devi, (1997) 8 SCC 1 penalty under Section 4-A(3)(b) of the Act can only be imposed when the employer is given a prior notice and an opportunity to defend himself against the same which was certainly not given to the appellant herein.

Hence, the court allowed the appeal and set aside the penalty imposed on the appellant. [Amandeep Singh v. Shaheena Parveen, 2019 SCC OnLine HP 1416, decided on 30-08-2019]

Patna High Court
Case BriefsHigh Courts

Patna High Court: The Bench of Shivaji Pandey, J. dismissed a writ petition filed by an employer, challenging the amount of compensation directed to be paid to its employee by the Labour Court, on the ground that the petitioner had not exhausted the alternative statutory remedy.

The instant petition was filed is challenging the order passed by the Presiding Officer of Bhagalpur Labour Court whereby and whereunder petitioner’s employee was awarded a compensation of around Rs 4.72 lakhs. Additionally, it was also ordered that if the said amount was not paid to the concerned employee within a period of thirty days, it would carry a simple interest of 12 percent on the principal amount of around Rs 2,03,771.

The Court noted that Section 30 of the Employee’s Compensation Act, 1923 has a provision of appeal. But instead of exhausting the alternative remedy of appeal, the present petition was filed directly before this Court. In view thereof, the petition was held to be not maintainable.

Accordingly, the petition was dismissed with a liberty to the petitioner to file an appeal as provided under Section 30 of the Employee’s Compensation Act.[Frontline (NCR) Business Solutions (P) Ltd. v. Anita Devi, 2019 SCC OnLine Pat 564, Order dated 19-04-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Vivek Singh Thakur, J. upheld the decision of the Commissioner directing the petitioner-insurer to pay the balance amount to the respondents-claimants, which was deducted as TDS from the compensation paid to the respondents.

The claimants claimed compensation under Section 3 of Employees’ Compensation Act for the death of the deceased who died in an accident while working as a conductor. The Commissioner allowed the claim of the respondents and awarded Rs 3,79,592.50 as compensation to the claimants along with interest. The insurance company deposited the amount as awarded; however, only after deducting 20% of the amount as Tax Deducted at Source (TDS). Subsequently, in the execution proceedings, the Commissioner ordered the attachment of properties of the insurer for the realization of the balance of amount not paid (amount deducted) by the insurer. Aggrieved by the same, the insurer approached the High Court.

The High Court perused the record and while referring to Section 194-A Income Tax Act 1961, noted that compensation awarded under Motor Vehicles Act or Employees’ Compensation Act in lieu of death of a person or bodily injury suffered in a vehicular accident, is a damage and not an income and cannot be treated as taxable income. Further, the interest paid on the amount of compensation is also a part of the compensation. The Court held that TDS deducted by the insurer on the compensation awarded to the claimants was illegal. Accordingly, Respondent 6, Income Tax Officer, was directed to return the TDS amount to the petitioner-insurer which was further directed to be passed on to the claimants. [National Insurance Company Ltd. v. Dil Kumari, 2018 SCC OnLine HP 665, dated 01-06-2018]

Case BriefsHigh Courts

Karnataka High Court: While delivering the judgment in a Miscellaneous First Appeal under Section 173(1) of the MV Act, against the judgment passed by the Ist Additional District Judge, Mangaluru, a Single Judge Bench comprising of B. Manohar, J. held that reading Section 167 of the Motor Vehicles Act, 1988 makes it very clear that option has been given to the claimants to seek compensation either under the Employees Compensation Act, 1923 or the MV Act. They cannot file a claim petition under the provisions of both the Acts.

Respondents herein were family members of the deceased who died in a road accident while he was proceeding on a motorcycle. They claimed compensation under Section 163-A of the Motor Vehicles Act. However, the records clearly disclosed that immediately after the death of the deceased, the respondents had filed a compensation petition under the Employees Compensation Act, and the compensation was awarded.

Learned counsel appearing for the appellant contended that the wife and children of the deceased had already filed a claim petition before the Commissioner of Employees Compensation. The Tribunal awarded the compensation. However, the claimants again filed one more set of claim petition seeking compensation under the MV Act. According to the learned counsel, there is a clear bar to that in light of Section 167 of the MV Act.

The learned Judge gave careful consideration to the arguments addressed by both the parties, and held that the claimants are not allowed to avail dual benefit under the above said two enactments. The Court also relied on the decision of the Apex Court in National Insurance Company v. Mastan, (2006) 2 SCC 641 which held that Section 167 contains a non-obstante clause providing for such an option notwithstanding anything contained in the 1923 Act. Accordingly the appeal was allowed and the judgment and award passed by the Motor Accident Claims Tribunal, Mangalore was set aside. [United India Insurance Co. Ltd. v. Lalitha Rathan, 2017 SCC OnLine Kar 1554, order dated 15.03.2017]