Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., examines whether an application under Section 12 of the Domestic Violence Act on behalf of relatives of deceased seeking monetary relief, possession of ‘stridhan’ and compensation was maintainable or not.

Question for Consideration:

Whether an application presented by the petitioners under Section 12 of the D.V. Act on behalf of deceased, Suchita Sapre, seeking:

(i) monetary relief under Section 20(b) i.e. reimbursement of medical expenses incurred by petitioner 2 for the treatment of deceased, Suchita;

(ii) possession of “Streedhan” of late, Suchita under Section 19(8) of the D.V. Act; and

(iii) compensation under Section 22 from the respondents, was maintainable?”

Trajectory of the Case  

Petitioner 1 was the minor daughter of the deceased. Respondent 1 was the father of the petitioner and respondents 2 and 3 were the grandfather and grandmother of petitioner 1, whereas petitioner 2 was the mother of the deceased.

It was stated that the deceased was neglected by her husband and in0laws and was subjected to physical, verbal and economic abuses by the respondent due to which she suffered serious sickness and later passed away.

Petitioners alleged the respondents did not bother to look after Suchita in her lifetime and even during her illness. Petitioner 2 (mother of Suchita) would claim that, she had spent Rs 60,00,000 for Suchita’s treatment and would also claim that, she had gifted gold ornaments in Suchita’s marriage, which are in the custody of mother-in-law, respondent 3.

In view of the above background, petitioner had presented an application under Section 12 of the DV Act.

Respondents questioned the locus of the petitioners and maintainability of the present application under Section 12 of the DV Act stated that the reliefs under the said Act could not have been sought on behalf of the deceased.

Later, petitioners’ application was rejected and in appeal, the order of Additional Sessions Judge was confirmed, and the said orders have been assailed in the instant petition.

Significant Point: Suchita died in the year 2013, whereas the petitioner presented the application for various reliefs in 2015.

Analysis, Law and Decision

High Court noted that petitioners did not claim themselves to be “aggrieved person” but asserted their right to present an application under Section 12 of the DV Act on behalf of the deceased who as per them was an aggrieved person. Therefore, the petitioners sought enforcement of the personal rights of the deceased.

The Bench held that the rights sought to be enforced by the petitioner by presenting an application under Section 12 of the DV Act was clearly not maintainable for the following reasons:

  • the right to claim monetary reliefs, protection order and compensation under the D.V. Act, are personal-statutory and inalienable rights of the “aggrieved person”. These rights extinguish on the death of “aggrieved person”. For that reason, such rights were not enforceable by legal representatives of “aggrieved person”.
  • expression “aggrieved person” has to be understood and given restrictive meaning, in view of the Statement of Object and Reasons of the Act. Defined expression “aggrieved person” is not inclusive and thus by process of interpretative explanation, its scope cannot be expanded like suggested by the petitioners, as it would counter the Scheme and Object of the Act and would defeat the intention of the legislation.
  • although “any other person” can present an application under Section 12 of the D.V. Act, on behalf of “aggrieved person”, nevertheless, such “other person” cannot maintain an application independently of an “aggrieved person”. Infact, Section 12 of the D.V. Act, simply enables, the “aggrieved person” to present an application under the Act through “any other person”. That being the Scheme of the Act, “aggrieved person” must be living (alive) while presenting the application.

Hence, petitioners’ application was rightly rejected by Trial Court and Appellate Court.

In view of the above discussion, petition was disposed of. [Kanaka Kedar Sapre v. Kedar Narhar Sapre, 2022 SCC OnLine Bom 1, decided on 4-1-2022]


Advocates before the Court:

Mr. Abhijeet Sarwate, Advocate for the petitioner.

Mr. Tapan Thatte a/w. Mr. Amar Patil i/by. Mr. Shantanu Adkar, Advocate for respondents 1 to 3.

Mr. A.R. Patil, APP for State.

Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., emphasizing the principle of res ipsa loquitur and placing a detailed explanation on the same granted just and fair compensation to a person who was 100% disabled due to an accident at his place of work.

Factual Backdrop

Petitioner’s son (Bharat) who was 28 years of age was the victim of an accident at the age of about 21 years which had left him 100% disabled. Instant petition was filed by petitioner’s father since petitioner was stated to be virtually bed ridden and not in a position to file to pursue his claim against the respondents.

Petitioner had made claims against the respondents BSES Rajdhani Power Limited and Bryn Construction Company.

Further, it was submitted that petitioner had suffered an accident due to certain work performed by Bryn for BRPL, which led to the filing of the present petition.

Cause of Permanent Disability

 Bharat, who was then about 21 years of age, while working as an electrician with Bryn, was tasked with rectifying a fault in an electricity pole that was causing fluctuation in the electricity supply at a farmhouse and suffered a fall while performing the task since the electricity pole that he had climbed on, snapped and fell.

Bharat’s dismal physical state apart, it was also evident to this court that Bharat was a psychological wreck, not least because in the course of interaction with this court, he broke- down on several occasions.

Depression and Anxiety

 As per medical opinion in regard to Bharat’s psychological state, his level of mental depression and anxiety fall in the “abnormal range”.

Questions for Consideration

  • Given his medical condition, what course of action should be adopted for Bharat’s further rehabilitation, continuing care and welfare?
  • Is Bharat entitled to receive any monetary compensation for the injury suffered by him as a result of the accident; if so, from which of the respondent or respondents?
  • If the answer to (ii) above is in the affirmative, in what manner should the compensation be calculated?

Analysis, Law and Decision

While analyzing and penning down this interesting decision, Court addressed a very fundamental issue, whether Bharat was an ‘employee’ of Bryn or was engaged by Bryn to perform the task that led to the accident.

It was noted that Bryn did not expressly admit that Bharat was their employee; nor that he had been engaged by them to perform the task in question.

However, there was also no denial of any kind, whether express or implied, that Bharat was working for Bryn. The thrust of Bryn’s counter-affidavit is that BRPL is responsible to compensate Bharat for the injury, since at the relevant time Bharat was working under BRPL’s supervision and performing BRPL’s tasks.

Court took note of the fact that while BRPL and Bryn both contended that all requisite safety equipment and precaution were made available by them, neither BRPL nor Bryn explained why such equipment, if available, failed to protect Bharat from the serious injury he suffered. 

Opinion of the Court

Bench opined that Bharat was working for Bryn and was tasked with certain maintenance work to be performed on an electricity pole owned by BRPL; which pole, it turned-out, was not strong enough to take Bharat’s weight or was not rooted securely in the ground, and thereby fell, as a result of which Bharat sustained serious injuries. It is also evident that Bharat was not provided any safety gear before he was directed to climb the pole to undertake the task.

 Principle of res ipsa loquitur

High Court added to its analysis that the instant matter would be squarely covered by the principle of res ipsa loquitur, whereby no detailed evidence, much less a trial, is required to establish ex-facie negligence on the part of BRPL and Bryn.

The said maxim was lucidly explained in the leading Supreme Court decision of Shyam Sundar v. State of Rajasthan, (1974) 1 SCC 690,

 The maxim res ipsa loquitur is resorted to when an accident is shown to have occurred and the cause of the accident is primarily within the knowledge of the defendant. The mere fact that the cause of the accident is unknown does not prevent the plaintiff from recovering the damages, if the proper inference to be drawn from the circumstances which are known is that it was caused by the negligence of the defendant. 

Elaborating further, the Court stated that the accident could not have occurred had Bryn and/or BRPL not been negligent in taking reasonable precautions to avoid it; which gave rise to their strict liability for the injuries sustained by Bharat.

The undated declaration with no proof of payment made to Bharat, though the declaration signed by Bryn accepting payment of a small sum of compensation in full and final settlement from Bryn and absolving them of any further liability.

In Court’s view, the above-mentioned declaration, deserved no credence or value since it smacked of being a document procured by Bryn precisely for the purpose of absolving itself of any further claim or liability vis-à-vis Bharat, by suborning a hapless and resourceless victim with a small amount of monetary bait, knowing full well that their actual liability would be much more.

Bench further expressed that merely because there were more than one respondent attempting to foist blame or liability on each other, that would not defeat the just claim of the petitioner’s son.

Hence, both respondents would be held jointly and severally liable, giving them liberty to recover the whole or any part of compensation paid, from one another.

High Court’s Inference

  • Without delving into the technical semantics of whether Bharat was an ‘employee’ of Bryn within the meaning of the Employee’s Compensation Act, suffice it to say that Bharat was performing the task in question for Bryn and at their instance
  • Bharat is unable to perform even the most basic, personal, daily chores himself and is all but 100% dependent on others; and as a result, though Bharat is living, he is barely alive;
  • On the principle of ‘strict liability’, both Bryn and BRPL are, jointly and severally, liable to compensate Bharat for putting him in his current state;
  • Section 4(2)(a) of the Employee’s Compensation Act mandates that apart from the liability to pay compensation, the employer is also under obligation to reimburse all actual medical expenses incurred by an employee for treatment of injuries. Furthermore, section 4-A provides that failure of an employer to pay compensation in a timely manner would attract payment of both interest and penalty for the delayed payment of compensation;
  • Reading the Bryn-BRPL Agreement and section 12 of the Employee’s Compensation Act together, it is seen that section 12 also fixes liability upon the “principal” for payment of compensation to an injured employee, with a right in the principal to recover the same from the contractor, if work was being carried-out by a contractor. In the present case the principal would therefore be BRPL and the contractor would be Bryn
  • Allowing the petition, Court awarded Bharat relief in two broad categories:
  1. Monetary Relief
  2. Non-Monetary Relief by way of directions.

Details of the relief can be referred to in the Judgment.

In view of the above discussion, petition was disposed of. [Kehar Sigh v. GNCTD, 2021 SCC OnLine Del 4198, decided on 25-08-2021]


Advocates before the Court:

For the Petitioner: Prabhsahay Kaur, Amicus Curiae.

Saraswati Thakur, Advocate.

For the Respondents: Satyakam, Additional Standing Counsel for GNCTD/R1

Ravi Gupta, Senior Counsel with Sunil Fernandes, Standing Counsel for BRPL-RPL with Anju Thomas, Shubham Sharma and Sachin Jain, Advocates for R2.

A.K. Sharma, Advocate for R3. Saurabh Sharma, Advocate for Indian Spinal Injuries Centre.

Sayli Petiwale, Advocate for Anil Mittal, Advocate for State of U.P.

Case BriefsHigh Courts

Bombay High Court: S.C. Gupte, J., addressed a group of petitions that challenged four sets of identical awards passed by Labour Courts under the Industrial Disputes Act, 1947.

What led to Industrial Disputes and Complaints of Unfair Labour Practice?

Workmen’s case was that though the work in the factory was of perennial nature, it was performed through temporaries from a pool of workers by a rotational system, seeing it that throughout the relevant period none could complete 240 days of continuous service and thus keeping them away from secure permanent jobs.

700 workmen approached the Industrial Court with complaints of unfair labour practice invoking items 5, 6 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.

A group of 300 workmen chose to initiate conciliation proceedings under the Industrial Disputes Act, 1947 upon failure of which, the State Government referred the matters to Labour Courts for adjudication.

Issues for Consideration:

Precise issues, which arise for the consideration of this Court are as follows:

(I) Whether the termination of services of temporary workmen in the present case could be termed as termination as a result of non-renewal of the contract of employment on its expiry or under a stipulation in that behalf contained in the contract and thus, amounting to an exception to the definition of ‘retrenchment’ contained in Clause (oo) of Section 2 of the ID Act? Or whether the rotational arrangement, such as the one in the present case, where there are continuous temporary engagements of the same workmen over long periods of time (adopted as a strategy to deny benefits of permanency to the concerned workmen), does not amount to an engagement on a fixed period contract so as to form an exception under sub-clause (bb) of Clause (oo) of Section 2 of the ID Act?

(II) Whether,

(a) Sundays and holidays during the period of service could be counted within 240 days as per the applicable Standing Orders so as to make up aggregate service of 240 days in a year within the meaning of the Standing Orders and

(b) such 240 days should be reckoned as forming part of the calendar year of 12 months immediately preceding the dates of termination?

(III) Should a Labour Court dealing with terminations of workmen in a reference under the ID Act refuse to consider their claim of permanency?

The two factual aspects here are as follows:

  • Whether for inquiry Court can simply focus on the last termination of each of these workmen and disregard their earlier engagements and terminations?
  • Rotational Pattern said to have been adopted for engagement of these workmen – whether such pattern exists, for if it does, the legal question as to whether the terminations, including the last, come within the definition of retrenchment under Section 2(oo) and not within the excepting clause, namely, clause (bb) thereof

Analysis, Law and Decision

Clause (bb) as referred above applies to two situations:

  • where the termination is a result of non-renewal of the contract of employment between the employer and the concerned workman upon its expiry; and
  • where such termination is the result of a contractual stipulation contained in the contract of employment.

In the present case, the company’s is with regard to the contract made for a specific period and its non-renewal upon expiry.

The respondent company employed a rotational scheme for more than 13 years.

A pool of temporaries is maintained and anywhere between four to eight thousand temporaries from out of this pool are employed in rotation, some of them on 8 to 14 times, each time for a duration not exceeding seven months.

The classical idea behind retrenchment has been surplusage. A fixed period contract, on the other hand, implies either that for some particular work or project or due to a spurt in the demand and the resultant need for increased activity, there is a special need for a certain employee or number of employees and accordingly, need for a contract of employment for the particular work or project, or for the particular fixed period.

Court notes in the present case to be perennial work, work which is no different from what is performed by the permanent workmen of the company, for which temporaries were engaged. The said engagement was found to be over 13 years.

Bench found that the employment of the workmen in the present case was neither for any particular work or project nor was brought to an end after a fixed period due to wanting of work upon expiry of the period of contract.

The engagements were brought to an end purportedly at the expiry of the stipulated period of contract only to see that they get an artificial break (during which others from the waiting list were employed) only to be re-employed and this went on – again and again.

High Court in view of the above discussion stated that the above pattern appeared to have been designed with a view to avoiding any legitimate claim of permanency of tenure on the part of workmen concerned. 

Deprivation of Status and Privileges of Permanent Employees

Clear recipe of an unfair labour practice, notorious in the industry, of employing ‘badlis’, casuals or temporaries and continuing them as such for years, with the object of depriving them of the status and privileges of permanent employees.

Nature of Engagement of Workmen

Whether on a fixed tenure contract or colourable engagement on a fixed term, the real engagement being on a long term basis by adopting a rotational pattern, so as to avoid any claim of permanency.

Bench in view of the evidence recorded, held that the conclusions of the Labour Court, simply rendered as tag-lines, that there was no rotational pattern, or that it could not be said that service of anyone temporary workman was terminated and in his place and category another was employed offended the Wednesbury Principles and could not stand the scrutiny under Articles 226 or 227 of the Constitution of India.

Whether the workmen were illegally retrenched; whether, by reason of their employment (i.e. the last employment) being for a fixed tenure, their retrenchment formed an exception to the main part of Section 2(oo) of the ID Act, by falling within clause (bb) thereof.

High Court expressed that it cannot be gainsaid that both parties, being fully aware of the terms of reference and its scope, made their cases in extenso on the aspects of past engagements of the concerned workman in a rotational pattern and artificial breaks given to them so as to avoid completion of 240 days of continuous service and these were very much part of the trial before the Labour Court. It was thus clearly within the remit of the reference court to decide the issue.

Adding to its observations Court held that neither on principle nor on authority, these workmen were liable to be made permanent under Standing Order 4C by reason of completion of 240 days of continuous service in twelve preceding calendar months within the meaning of Standing Order 4C, therefore, issue no. (II) was decided against the petitioners.

Issues (I) and (III) were decided in favour of the petitioners, in light of which the impugned labour court awards were to be quashed and set aside.

Further, the Bench added that considering that the terminations challenged took place in the year 1997/98, more than twenty long years back, it would not be in the interest of justice to remit the references to the Labour Courts for consideration of monetary relief in lieu of reinstatement.

Therefore, the Court proposed to consider monetary relief in lieu of the reinstatement based on the material produced before the Court.

Bench relied upon the case of  Bajaj Auto Ltd. v. Bhojane Gopinath D, (2004) 9 SCC 488 as a model for determining compensation.[Sunil Pralhad Khomane v. Bajaj Auto Ltd., 2021 SCC OnLine Bom 129, decided on 01-02-2021]

Case BriefsHigh Courts

Calcutta High Court: Madhumati Mitra, J., dismissed an application filed against the order of the Sessions Judge whereby he upheld the order passed by the Magistrate who had directed the petitioner to pay monthly monetary relief to his mother and also her medical expenses.

The respondent, the mother of the petitioner, had filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (“DV Act”), claiming various reliefs. Allowing the said application, the Magistrate passed the impugned order as stated above under Section 18 of the DV Act. Challenging the said order, the petitioner filed the instant application.

Abdulla Rahamani and K. Basar Bulbul, Advocates for the petitioner, submitted that there was an ongoing land dispute between the petitioner on one side and his mother along with his two brothers on the other side. Denying all the allegations, the petitioner contended that the Section 12 application was filed by his mother on the instigation of his brothers. It was further contended that the dispute was purely of civil nature between the mother and her two sons and the mother could not be regarded as an “aggrieved person” within the meaning of the DV Act.

The High Court considered that the mother, in her application under Section 12, described that she was subjected to physical and mental torture by the present petitioner. On the point of law, the Court restated: “Section 2(a) of the Act of 2005 has defined the term ‘aggrieved person’. ‘Aggrieved Person’ means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.”

It was further observed: “Section 2(f) of the Act of 2005 defines ‘domestic relationship’. Domestic relationship means a relationship between two persons who live or have at any point of time, lived together in a shared household, when they are related by consanguinity, marriage,or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.”

The court noted that in the present case, the parties were related to each other, i.e., the relationship between son and mother. They have been in a relationship where both parties lived together in a residence. the Court below elaborately analysed the evidence o record, the relationship between the parties, their economic condition and the income of the other two sons of the respondent; and, thereafter, came to the conclusion that the mother was entitled to get the reliefs under the DV Act.

In such circumstances, the High Court found no grounds to interfere with the impugned order. Resultantly, the interim application was dismissed. [Goutam Chanda v. Gouri Ram Chandan, 2019 SCC OnLine Cal 3832, decided on 02-12-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J., reiterated that proceedings under the Protection of Women from Domestic Violence Act, 2005 and under Section 125 CrPC are independent of each other and have different scope.

The parties, though married, were living separately. The wife had filed an application under Section 125 CrPC wherein she was granted interim maintenance of Rs 1.20 lakhs per month. Subsequently, she filed an application under Section 23 of the DV Act seeking, inter alia, monetary relief under Section 20. However, her application was rejected by the trial court on the ground that she had already been granted maintenance under Section 125 CrPC and all her claims were considered by the family court while granting the same. The wife filed an appeal against the order of the trial court, which was allowed and the Appellate Court remanded the matter back to the trial court for fresh consideration. Aggrieved thereby, the husband filed the present petition.

Senior Advocate Geeta Luthra, appearing for the husband, submitted that the Appellate Court erred in passing the impugned order as maintenance was already granted to the wife. Per contra, it was submitted on behalf of the wife that she suffered domestic violence and was thus entitled to monetary relief. The wife was represented by Madhav Khurana and Trisha Mitta, Advocates.

Noting that the scope of Section 20 of the DV was much wider than that of Section 125 CrPC, the High Court observed: “While Section 125 CrPC talks only of maintenance, Section 20 DV Act stipulates payment of monetary relief to meet the expenses incurred and losses suffered as a result of the domestic violence including but not limited to loss of earning, medical expenses, loss caused due to destruction, damage or removal of any property from the control of aggrieved person.”

It was categorically stated: “an order under Section 20 DV Act is not restricted by an order under Section 125 CrPC.” As such, the trial court was held to have erred in not appreciating the distinction between the two provisions. In such view of the matter, the High Court did not find infirmity in the order of the Appellate Court. Resultantly, the petition was dismissed. [Shome Nikhil Danani v. Tanya Banon Danani, 2019 SCC OnLine Del 8016, decided on 11-04-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Human Rights Commission: On the recommendations of the National Human Rights Commission, 15 students of the State run Eklavya Model Residential School, Khumulwng, Tripura have been paid monetary relief of Rs. 2 lakh each totaling Rs. 30 lakh, besides the free coaching for the 2018 National Eligibility and Entrance Test, NEET, which they could not write in 2017 due to the negligence of the school authorities.

The Commission observed that it was not sufficient that the Government of Tripura had initiated punitive action against the negligent Principal and the teacher of the school and that the students will be provided free coaching for 2018 also. It recommended that the State government needed to pay monetary relief also to the victim students for the loss of one academic year in addition to the free coaching. Subsequent to this, the government of Tripura, paid the monetary relief and sent a compliance report, which was taken on record by the Commission today on the 16th February, 2018 with the directions to the State government to inform about the outcome of the disciplinary proceedings initiated against the guilty Principal and the teacher.

Earlier, during the course of enquiry, the Commission found that the Principal and a teacher of the school had filled the online application form of the students belonging to the tribal communities but failed to remit the requisite fee within the stipulated time hence, the students could not appear in the NEET. When the issue came to the knowledge of the Tribal Welfare Department, it approached the CBSE but it was too late for them to accept their request. Action against the negligent Principal and the Teacher had been taken and disciplinary proceedings were initiated against them.

The Commission observed that the State Government had accepted the negligence of the school authorities. The rights to education and equal opportunity of the 15 students had been grossly violated, as they have lost an entire precious year of their academic career. Therefore, the Commission recommended to the Government of Tripura to pay Rs. 2 lakh each to all the 15 students along with proof of payments. The Commission had taken cognizance of the issue on the basis of a complaint received on the 5th May, 2017.

National Human Rights Commission