advocatemmmohan
just another law knowledge bank
india pvt ltd
Industrial dispute = The Industrial Tribunal/ Labour Court constituted under the Industrial Disputes Act is a creature of that statute. It acquires jurisdiction on the basis of reference made to it. The Tribunal has to confine itself within the scope of the subject matter of reference and cannot travel beyond the same. This is the view taken by this Court in number of cases including in the case of National Engineering Industries Limited v. State of Rajasthan & Ors. 2000 (1) SCC 371. 19. It is for this reason that it becomes the bounden duty of the appropriate Government to make the reference appropriately which is reflective of the real/ exact nature of “dispute” between the parties. In the instant case, the bone of contention is as to whether the respondent workmen were simply transferred by the appellant to M/s. Lafarge or their services were taken over by M/s. Lafarge and they became the employees of the M/s. Lafarge. Second incidental question which would follow therefrom would be as to whether they have right to join back the services with the appellant in case their service conditions including salary etc. which they were enjoying with the appellant are not given or protected by M/s. Lafarge? If it is proved that their service conditions are violated, another question would be as to whether they can claim the service benefits/ protection from M/s. Lafarge or they have the right to go back to the appellant?= It follows from the above that the reference in the present form is clearly defective as it does not take care of the correct and precise nature of the dispute between the parties. On the contrary, the manner in which the reference is worded shows that it has already been decided that the respondent workmen continue to be the employees of the appellant and further that their services were simply transferred to M/s. Lafarge. This shall preclude the appellant to put forth and prove its case as it would deter the labour court to go into those issues. It also implies that by presuming so, the appropriate Government has itself decided those contentious issues and assumed the role of an adjudicator which is, otherwise, reserved for the Labour Court/ Industrial Tribunal. 21. As a consequence, this appeal is allowed and the impugned judgment of the High Court is set aside. Sequitur to that would be to quash the references made in the present form. However, at the same time, direction is given to the appropriate Government to make fresh reference, incorporating real essence of the dispute as discussed in this judgment, within a period of two months from the date of receipt of the copy of this judgment.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40776 [REPORTABLE] IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8246 OF 2013 (Arising out of Special Leave Petition (Civil) No. 20494 of 2011) M/s. Tata Iron & Steel Co. Ltd. …….Appellant(s) Versus State of Jharkhand & Ors. ……Respondent(s) WITH C.A. No. 8247/2013 (@ SLP(C) No. 21086 of 2011) … Continue reading
whether an authorised signatory of a company would be liable for prosecution under Section 138 of the Negotiable Instruments Act, 1881 (for brevity ‘the Act’) without the company being arraigned as an accused. -apex court held No = “141. Offences by companies. – (1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly; Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: Provided further that where a person is nominated as a Director of a Company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter. (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act, has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.” 16. On a reading of the said provision, it is plain as day that if a person who commits offence under Section 138 of the Act is a company, the company as well as every person in charge of and responsible to the company for the conduct of business of the company at the time of commission of offence is deemed to be guilty of the offence. The first proviso carves out under what circumstances the criminal liability would not be fastened. Sub-section (2) enlarges the criminal liability by incorporating the concepts of connivance, negligence and consent that engulfs many categories of officers. It is worth noting that in both the provisions, there is a ‘deemed’ concept of criminal liability.- Resultantly, the Criminal Appeal Nos. 838 of 2008 and 842 of 2008 are allowed and the proceedings initiated under Section 138 of the Act are quashed. 46. Presently, we shall advert to the other two appeals, i.e., Criminal Appeal Nos. 1483 of 2009 and 1484 of 2009 wherein the offence is under Section 67 read with Section 85 of the 2000 Act. In Criminal Appeal No. 1483 of 2009, the director of the company is the appellant and in Criminal Appeal No. 1484 of 2009, the company. Both of them have called in question the legal substantiality of the same order passed by the High Court. In the said case, the High Court followed the decision in Sheoratan Agarwal (supra) and, while dealing with the application under Section 482 of the Code of Criminal Procedure at the instance of Avnish Bajaj, the Managing Director of the company, quashed the charges under Sections 292 and 294 of the Indian Penal Code and directed the offences under Section 67 read with Section 85 of the 2000 Act to continue. It is apt to note that the learned single Judge has observed that a prima facie case for the offence under Sections 292(2)(a) and 292(2)(b) of the Indian Penal Code is also made out against the company. 47. Section 85 of the 2000 Act is as under: – “85. Offences by companies – (1) Where a person committing a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of business of the company as well as the company, shall be guilty of the contravention and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention. (2) Notwithstanding anything contained in sub-section (1), where a contravention of any of the provisions of this Act or of any rule, direction or order made there under has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly.” 48. Keeping in view the anatomy of the aforesaid provision, our analysis pertaining to Section 141 of the Act would squarely apply to the 2000 enactment. Thus adjudged, the director could not have been held liable for the offence under Section 85 of the 2000 Act. Resultantly, the Criminal Appeal No. 1483 of 2009 is allowed and the proceeding against the appellant is quashed. As far as the company is concerned, it was not arraigned as an accused. Ergo, the proceeding as initiated in the existing incarnation is not maintainable either against the company or against the director. As a logical sequeter, the appeals are allowed and the proceedings initiated against Avnish Bajaj as well as the company in the present form are quashed. 49. Before we part with the case, we must record our uninhibited and unreserved appreciation for the able assistance rendered by the learned counsel for the parties and the learned amicus curiae. 50. In the ultimate analysis, all the appeals are allowed.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=39265 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 838 OF 2008 Aneeta Hada …..……..Appellant Versus M/s. Godfather Travels & Tours Pvt. Ltd. ………Respondent WITH CRIMINAL APPEAL NO. 842 OF 2008 Anil Hada …………Appellant Versus M/s. Godfather Travels & Tours Pvt. Ltd. ………Respondent WITH CRIMINAL APPEAL NO. … Continue reading
Section 72 of the Mumbai Municipal Corporation Act, 1881= “Whether the work of quality audit of roads or work of similar nature involves “the execution of any work or supply of any materials or goods” within the meaning of Section 72 of the Mumbai Municipal Corporation Act, 1881 and can be awarded by the Commissioner only by inviting tenders, as contemplated by that provision?”= In the result, our answers to the question referred by the Division Bench is as under: “The work of quality audit of roads or work of similar nature to be done by a person who must enjoy trust and confidence of the public authority is not covered by the expression “the execution of any work or supply of any materials or goods” within the meaning of Subsection (1) of Section 72 of the Mumbai Municipal Corporation Act, Hence, it is not necessary for Municipal Commissioner to assign such work only by inviting tenders as contemplated by the proviso, i.e. sub-section (3) of Section 72 of the said Act.”
reported / published in http://bombayhighcourt.nic.in/judgements/2012/&fname=OSWP1312.pdf&smflag=N Bombay High Court kambli 1 PIL-9.12 dt.12-12-12 IN THE HIGH COURT OF JUDICATURE AT BOMBAY. ORDINARY ORIGINAL CIVIL JURISDICTION PUBLIC INTEREST LITIGATION NO.9 OF 2012 … Niyaz Ahmed Vanu …Petitioner v/s. 1.Municipal Corporation of Gr.Mumbai (M.C.G.M.) 2.The Municipal Commissioner, (M.C.G.M.) 3.The Chief Engineer (Roads Transport & Bridges) (M.C.G.M.) 4.M/s.SGS … Continue reading
whereby the writ petition preferred by Geomin Minerals & Marketing (P) Ltd. was allowed and the recommendation made by the State Government dated 9th January, 2009 in favour of POSCO India (P) Ltd. was set aside with a direction to the State Government to take a fresh decision in terms of order dated 27th September, 2007 passed by the Revisional Authority in Revision Application File No.22 (41)/2007RC1 by giving the Geomin Minerals & Marketing (P) Ltd. the preferential right of consideration. The Division Bench further observed that in the event the State Government decides to invoke the provisions of Section 11(5) of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as the “MM(D&R) Act”) , “special reasons” for the same in terms of guidelines dated 24th June, 2009 issued by the Ministry of Mines, Government of India be recorded in writing.= It is well settled that no applicant has statutory or fundamental right to obtain prospecting licence or a mining lease.- In view of the finding as recorded above, we are of the view that the High Court committed a grave error of law in deciding the case on merits and deciding the question of legality of the recommendation made by the State Government. In fact they should have left the matter to the Central Government to pass an appropriate order in accordance with law instead of entertaining a premature writ petition. The State Government by its recommendation having forwarded the tabulated chart showing inter se merit of each applicant, it was not for the High Court to sit in appeal to decide who amongst all is more meritorious and is entitled for preferential right. 36. We, accordingly, set aside the impugned judgment dated 14th July, 2010 passed by the Division Bench of the Orissa High Court and remit the matter to the Central Government to consider the question of approval under Section 5(1) taking into consideration the recommendations made by the State Government. While deciding the question it will keep in mind the objections raised by the parties as noticed in the preceding paragraphs. It is expected that the decision will be taken on an early date and shall be communicated to the State Government. The appeals are allowed with the aforesaid observation and direction, but there shall be no order as to costs.
Page 1REPORTABLEIN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTIONCIVIL APPEAL NO. 4561 OF 2013(ARISING OUT OF SLP(C) NO.31593 OF 2010)GEOMIN MINERALS & MARKETING (P) LTD. … APPELLANTVERUSSTATE OF ORISSA AND ORS. … RESPONDENTSWITHCIVIL APPEAL NO. 4562 OF 2013(ARISING OUT OF SLP(C) NO.31957 OF 2010)STATE OF ORISSA … APPELLANTVERUSGEOMIN MINERALS & MARKETING (P) LTD. … RESPONDENTSAND ORS.WITHCIVIL APPEAL NO. 4563 OF 2013(ARISING OUT OF SLP(C) NO.32040 OF 2010)POSCO INDIA PVT. LTD. … APPELLANTVERUSGEOMIN MINERALS & MARKETING (P) LTDAND ORS. … RESPONDENTSJ U D G M E N TSUDHANSU JYOTI MUKHOPADHAYA, J.Leave granted. 1Page 22. These appeals by special leave have beenpreferred against the order of Division Bench ofOrissa High Court, Cuttack dated 14th July, 2010 inW.P. (C) No.23 of 2009 whereby the writ petitionpreferred by Geomin … Continue reading
After completing the entire transaction of purchasing a car for 11 lakhas and add, the subsequent price decrease offer to the public is not amount unfair trade practice and it is not deficiency of service the price of the car is declared as Rs.9,99,999/- in the special offer. Despite that opponent No. 2 has recovered Rs.11,63,876/- from the complainant. The Opponent No.2 has usurped the benefit of special offer and has recovered excess amount of Rs.1,38,877/-. The complainant No.2 has usurped the same. Agreement is over on 3.9.08. Car is delivered to the complainant. Amount has been paid. Full and final payment has been made. Thereafter if any advertisement has been published between 6.9.08 to 9.9.08, the complainant is not entitled to get the benefit. Because the agreement was over and price was paid before that. No special offer was published in newspaper on the dates on which agreement of car was over. The complainant is therefore not entitled to get benefit of offer. It is the say of the complainant that had the Opponent No.2 informed about such offer, the complainant would not have purchased the car as is purchased. He would have purchased the car at a lesser price under the offer. So we do not agree with the contention of complainant that opponents have resorted to unfair trade practice. Because the seller is not bound to declare the secrets of his trade. Again the seller is not bound to inform the consumer about the date of advertisement of the scheme. There are no such rules. If the seller is kept in ban like this then seller cannot do business before the scheme. Under these circumstances, we do not agree with the contention of complainant that Opponent No.2 is bound to inform about future scheme and by not doing so, opponent No.2 has resorted to unfair trade practice.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 94 OF 2012 (From the order dated 22.09.2011 in Appeal No.491/2010 of Gujarat State Consumer Disputes Redressal Commission, Ahmedabad) Shri Shankerlal L. Sachdev, Advocate Meera, 36/C/A, Bhuj – Kachchh, Gujarat …….. Petitioner Vs. 1. The Managing Director, Skoda Auto India Pvt. Ltd. A/1/1, M.I.D.C., Five Star Industries Area, Shendra, Aurangabad – 431 201 2. The … Continue reading
Mandi fee = Glaxo India Ltd., set up an industrial unit at Aligarh for the manufacture of what is sold in the market under the brand names Glacto, Complan, Farex, Glucon D and other products generically called milk foods/weaning foods and energy beverages. It is not in dispute that the manufacturing process undertaken in the said unit produced ghee as a by- product of the said items. It is also not in dispute that with effect from 1st October, 1994, the Family Products Division of Glaxo India Ltd. was taken over by Heinz India Pvt. Ltd. who continued manufacturing the products mentioned above including ghee as a by-product of its manufacturing activity. 3. In terms of Section 17(iii) of the Act, sale of specified agricultural produce within the Mandi limits attracts levy of what is described as Mandi Fee from the person effecting the sale. The Mandi Samiti accordingly started demanding the said fee from Glaxo India Ltd., upto the year 1994 and from Heinz India Ltd., from 1994 onwards qua sales effected by the said two companies of its products including ghee. These demands were resisted by both the companies primarily on the ground that bulk of the ghee produced in their unit at Aligarh, if not the entire quantity, was sent out of the Mandi limits on stock transfer basis and that there was no sale involved in such transfers so as to attract the levy of the Mandi Fee on the same. As a matter of fact, orders passed by the Mandi Samiti and the Mandi Parishad show that sufficient opportunity was indeed afforded to the appellants and the matter had remained pending for a number of years before those authorities. 60. Mr. Chandra contended that the appellants had been requesting the authorities to indicate as to what kind of material would satisfy them but since the authorities had failed to respond to that query the appellant had not produced the bulk of the material which was relevant and available with them. We do not think that such a procedure was legally permissible or even called for in the facts and circumstances of the case. As to what material would be sufficient to prove the case of the party who goes to the Court for relief is a matter for the party or those in charge of its legal affairs to determine. No litigant can ask for guidelines from the Court or statutory body as to the evidence which the party should adduce to substantiate its claim. The query made by the appellants as to what material if adduced would satisfy the authorities was, therefore, misplaced and a red herring to say the least. This is particularly so when the appellants were in no way handicapped on account of lack of resources or capacity to get the best of legal advice. Companies with such tremendous resources as the appellants before us cannot find a shortcut to the discharge of their obligations under the law by asking the Court or the authority concerned to indicate as to what kind of evidence would be sufficient in its opinion to entitle them to the refund of the amount paid or payable towards market fee. 61. So also, no remand ought to be made only to enable a party to produce additional material. A remand is neither mechanical nor a routine affair. If there is nothing wrong in the orders under challenge, there is no question of interference with the same. There is no reason for this Court to set the clock back and start a process which would take the parties another decade or so to come to terms with the problem. 62. In the result these appeals as also W.P. (C) No.144/2005 fail and are hereby dismissed with cost assessed at Rs.15,000/- in each case.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1476 OF 2006 Heinz India Pvt. Ltd. & Anr. …Appellants Versus State of U.P. & Ors. …Respondents (With Civil Appeal No.1478/2006, Civil Appeal No.1477/2006 and W.P. (C) No.144/2005) J U D G M E N T T.S. THAKUR, J. … Continue reading
applicant is the proprietor of the trade mark CITI WEALTH ADVISORS/CITIGROUP WEALTH ADVISORS (Annexure ‘A’). The applicant came to know about the impugned trade mark through a search. They missed the advertisement of the impugned trade mark and therefore did not oppose the same. According to them “WEALTH ADVISORS” is descriptive and it would be against public interest to grant monopoly to a single trader to the word “WEALTH ADVISORS” involving services in Class 36 and it is also stated that the word “WEALTH ADVISORS” has become publici juris in respect of the services falling under Class 36. Therefore they sought for rectification. The evidence filed by them is at Annexure ‘A’. ‘A-16’ is an advertisement of the applicant which speaks of their online brokerage facility called “CITI WEALTH ADVISORS”. Exhibit ‘A-18’ is the dictionary meaning of wealth. Annexure ‘B-1” is “ASK Wealth Advisors”. Annexure ‘B-3’ is Wealth Advisors, Inc. Annexure ‘B-4’ is “Tamalpais Wealth Advisors” and so on.
INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018 ORA/7/2010/TM/CH FRIDAY, THIS THE 9th DAY OF MARCH, 2012 Hon’ble Smt. Justice Prabha Sridevan … Chairman Hon’ble Ms.S. Usha … Vice-Chairman Citibank, N.A./Citigroup Inc. 399, Park Avenue, New York, United States of America, 10043. … Continue reading
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION = In conclusion, this appeal has to be allowed and the order of the State Commission set aside. We order accordingly. It appears that the Insurance Company did not appoint any surveyor to assess the insurance claim of the petitioner/complainant and, given the lapse of time, it will not be useful or practicable to ask the Insurance Company to do so now. In such a situation, the only available course is to direct the Insurance Company to pay to the petitioner the insured value for the damaged 120 hoardings, the details of which were furnished by the petitioner (vide pages 85-87 of the paperbook of this appeal). This shall be subject to the “excess clause” and deduction of (i) salvage value of the 120 hoardings, in accordance with the terms of the policy and (ii) the sum of Rs.60,000/- already received by the petitioner/complainant (as token damages in terms of the order of the High Court in contempt petition). The amount so arrived at shall carry interest @ 9 per cent per annum from the date 90 days after the filing of the insurance claim till actual payment and the entire payment shall be made within 6 weeks of the date of this order. In the circumstances of the case, the parties shall bear their own costs.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 308 OF 2001 (From the order dated 08.08.2001 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad in Complaint Case no. 20 of 1984) M/s Haabia Advertising (India) Pvt. Ltd. Haabia House, Sethamapeta Visakhapatnam, Andhra Pradesh Appellant Through its Managing Director M. Venkata Ratnam versus 1. United India Insurance Company Ltd … Continue reading
whether penalty and interest can be levied and collected when the duty has been paid before the issue of Show Cause Notice under the provisions of the Central Excise Act, 1944 (`the Act’ for short).
1 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2012 (@ DY.NO.11065 OF 2006) COMMNR.OF CENTRAL EXCISE, KOLKATA … APPELLANT VERSUS M/S.PLAXAIR INDIA PVT. LTD. … RESPONDENT O R D E R 1. Delay condoned. 2. Learned counsel for the sole respondent appears and takes … Continue reading
the Customs Excise & Service Tax Appellate Tribunal, New Delhi (for short “the Tribunal”). By the impugned order the Tribunal has quashed the additional excise duty demand of `9,34,89,367/- under Section 11A of the Act; penalties of `1.5 crores each on respondent Nos.1 and 2 1 =whether the Assessee and Heinz are related persons. It based its decision solely on the observation made by the Adjudicating Authority “that the status of the Assessee was not better than that of a hired labour”. We are, therefore, of the opinion that in the light of the above discussion, it would be necessary for the Tribunal to examine in depth the agreement between the Assessee and Heinz as also any other additional material, the 16
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 6539-6540 OF 2010 COMMISSIONER OF CENTRAL EXCISE, — APPELLANT FARIDABAD VERSUS M/S. FOOD & HEALTHCARE — RESPONDENTS SPECIALITIES & ANR. JUDGMENT D.K. JAIN, J.: 1. These appeals under Section 35L(b) of the Central Excise Act, … Continue reading
advocatemmmohan 