29 July, 2007

No damages to late deposit of P.F. when P.F. deptt. committed delay in allowing P.F. code No. to employer.

Held. Levy of damages for late deposit of provident funds contribution by an employer will amount to high handedness and malafide since the employer has been persistently seeking allotment of code Number from the Commissioner for depositing contributions which has been delayed and as such the Provident fund Authorities could no levy damages for the lapses on their part.
Poona Shims Pvt. Ltd. vs B.P Ramaiah, Regional Provident Fund Commissioner and Anr. 2007 LLR 488 Bombay High Court.
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28 July, 2007

Doc's bad hair day, fine Rs 60K

The Times of India
27 Jul 2007, 0446 hrs IST,TNN
NEW DELHI: A hair transplant expert has been directed by a consumer court to pay a refund and compensation of Rs 60,000 to a patient whose baldness could not be cured to his satisfaction. The procedure could not be completed in one sitting, as promised, and left the complainant in extreme pain. State Consumer Commission president Justice J D Kapoor held doctor V S Malik guilty of deficiency in service for not delivering the kind of results which were promised to the complainant Avik Mukherjee and also for not completing the procedure in one sitting and subjecting the complainant to mental agony. "Even if a person is well qualified and an expert in the science, if the result of such a treatment is not as desired or worst than the remedy, the only inference to be drawn is either that of negligence in the procedure or lack of total perfection," Justice Kapoor said. "The consumer is concerned with the result and not how much effort was put in for yielding the desired and promised result," he observed. The treatment and procedure for beautifying the physique or looks of a person, like baldness cure or bleaching of skin, are such sensitive tasks that need total perfection. Any amount of inadequacy in the manner of performance causes immense mental agony, emotional suffering and physical discomfort to the consumer and therefore entitles the consumer to adequate compensation, said Justice Kapoor. The doctor, with clinics at South Extension and Rajouri Garden, claimed the complainant left the hair transplant procedure midway, as he was allegedly tired and did not want to continue with the mega sitting. He claimed that the patient himself was negligent as he himself requested for deferring the procedure to the next day. Justice Kapoor, however, rejected the doctor's plea and said that when the second step - of transplanting hair after collecting them from the back of head - failed, the question of performing the third step did not arise. Failure of second step was either due to negligence or lack of skill. Mukherjee had approached Malik's clinic for hair transplant and paid Rs 45,000. The procedure was to be completed in one mega sitting. But on getting dissatisfactory results, he dragged the doctor to a district forum in March 2007. The Forum ordered the clinic to refund Rs 45,000 received by him as fees and also pay a compensation of Rs 15,000 and Rs 3,000 as cost of litigation. Feeling aggrieved, the doctor filed and appeal before the Commission which dismissed and upheld the district Forum's order.
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Court pulls up TV journalist

Friday, Jul 27, 2007 The Hindu

“He interfered with cause of justice”

His consideration was to expose corruption: counsel
What public good was served by sting operation: judges


New Delhi: The Supreme Court on Thursday pulled up Vijay Shekhar, journalist of a television channel for conducting the “cash for warrant” sting operation, in which an Ahmedabad magistrate issued warrants against the then President, the then Chief Justice of India and two others.
Mr. Shekhar paid Rs. 40,000 to three Ahmedabad-based advocates, who, on the basis of a fictitious complaint, obtained bailable arrest warrants against A.P.J. Abdul Kalam, Justice V.N. Khare, the former Supreme Court judge B.P. Singh and senior lawyer R.K. Jain (who died subsequently).
The court already quashed the warrants issued by magistrate M.S. Brahm Bhatt, holding that the complaint was “ex-facie” fraud.
In February, the court issued notice to Mr. Shekhar asking why he should not be prosecuted for conducting the sting operation with a malicious intent to tarnish the image of the lower judiciary.
On Thursday, a Bench, comprising Chief Justice K.G. Balakrishnan and Justices R.V. Raveendran and Dalveer Bhandari, asked Arun Jaitley, counsel for the petitioner: “Can you point out any other instance where it is happening? By giving bribe and getting the warrants through fraudulent means, the petitioner interfered with the cause of justice.”
Mr. Jaitley said: “Though the petitioner offered a bribe, he had not committed any offence as his paramount consideration was to expose corruption in the lower judiciary and it was for a larger public good.”
The Bench retorted: “What public good? The whole world believed the petitioner. We all believed this. We are not doubting his bona fides. But this was not done with a sense of responsibility. We don’t think that such type of journalism should be encouraged. What did he expose? The magistrate [who issued the warrants] is proved not guilty, but he has to suffer for two years as he was suspended from service.”Wrong perception
The Bench said: “The criminal justice delivery system suffered because of the sting operation and brought a bad name to the judiciary. The effect of the operation was that you ridiculed the system as the petitioner’s perception of the judiciary is absolutely wrong.”
Mr. Jaitley said: “The petitioner’s intention was not to scandalise the judiciary. Even if it is one instance, if that helped the judiciary correct itself there is nothing wrong in that. In any sting operation done with a hidden camera, the intention of the bribe giver is only to expose the person who receives the bribe.” Tender apology
The Bench asked the petitioner to file an affidavit expressing unconditional apology and adjourned the proceedings.
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Judges inquiry Bill sparks a row

The Times of India
28 Jul 2007, 0000 hrs IST,Manoj Mitta,TNN
NEW DELHI: Much as it's desirable to find ever new ways of empowering citizens, law minister H R Bharadwaj seems to have gone overboard in introducing a Bill that equates a single citizen, however inadvertently, with 50 MPs from Rajya Sabha or 100 from Lok Sabha. A parliamentary standing committee vetting the politically-sensitive Judges (Inquiry) Bill is miffed with provisions discriminating against MPs when it comes to moving the proposed National Judicial Council (NJC) to probe charges of "misbehaviour" against any high court or Supreme Court judge. Though it provides that any citizen can single-handedly set the process in motion by lodging a "complaint" with NJC, the Bill allows Parliament to approach NJC if and only if a "reference" made by the presiding officer of either House is backed by at least 50 MPs from Rajya Sabha or 100 from Lok Sabha, respectively. Thus, in his anxiety to accommodate the concerns of judges, Bharadwaj has come up with a Bill that needlessly belittles Parliament by disabling an MP from doing what an ordinary citizen can do. The anomaly of raising such a barrier for MPs is reinforced by the fact that NJC can recommend the removal of a judge whether the probe has been at the instance of a citizen's complaint or Parliament's reference. The standing committee is evidently so exercised by the proposed discrimination against MPs that it has not been able to finalise its report even after holding three sittings of what is known as "clause by clause consideration of the Bill." The last sitting was on July 24 and the next one is on August 1. These are in addition to over 20 sittings the committee had, earlier, to hear experts and others on the proposed scheme of judicial accountability. Its chairman, Congress MP Sudarshan Nachiappan, told TOI that the committee is trying hard to "synchronise the complaint and reference procedures so that the Bill does not disturb the delicate balance between the three organs of state." Saying that this Bill has been "the toughest challenge" he has so far faced in the committee, Nachiappan is optimistic that it would be able to resolve the vexed issue before the forthcoming Monsoon session of Parliament. Besides the clauses discriminating against MPs, the standing committee has been intensely debating whether a new system of judicial accountability can be introduced through a law, as proposed by Bharadwaj, or the Constitution also needed to be amended, as contended by some jurists. Two other areas of discord facing the standing committee are: whether NJC's reports should be, as provided in the Bill, subjected to appeals before the SC, and whether the composition of NJC should include non-judicial members to make it more objective and detached. Given the nature of reservations, it seems unlikely that the Bill will be passed into law in its existing shape.
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24 July, 2007

Driver went home on feeling chest pain, thereafter admitted to hospital and died. Death could not be attributed to “ accident arising out of and in the course of employment.”

Held. When the death of a deceased did not take place in the course of his employment, no nexus between the employment and the death which took place following heart attack hence the impugned order fastening the liability on the insurance company will have to be set aside.

Branch Manager, United India Insurance Company Limited, Hunsur vs Srinivasa and others 2007 LLR 481 Karnataka High Court

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21 July, 2007

Judicial intervention in disciplinary matters must be exercised with restraint, caution and circumspection . Single act of driver causing fatal accident negligently sufficient for dismissal.

Held. Although wide powers are vested with the Labour Court / Tribunal to give appropriate relief in cases of dismissal and discharge of a workman but it could be exercised judicially and not arbitrarily which may be prejudicial to the interest of the Society.

Judicial intervention in disciplinary matters by the Labour Court must be exercised with restraint, caution and circumspection.

A driver, driving the public vehicle negligently, can endanger the lives of the public in general which is prejudicial to the interest of the Society and as such a drunken driver can be a grave hazard to the public safety.
Allowing reinstatement of a driver causing fatal accident, on the plea that the act of gross negligence was for the first time, is highly uncalled for since a transport undertaking is not required to wait until one of its drivers commits several fatal accidents before it takes the decision to impose penalty of dismissal.

Brihanmubai Muncipal Corporation vs Ashokkumar Hingu sing. 2007 LLR 472 Bombay High Court.
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15 July, 2007

In the absence of proof of unemployment by workman, back wages rightly declined. Onus to prove unemployment lies upon workman.

Held. Back-wages, on reinstatement , have been rightly declined by the Labour Court since the work-person has failed to plead and prove about her unemployment during interregnum hence writ petition as filed is liable to be rejected.
Initial onus of proof lies upon the employee that she remained unemployed after her termination from service.
Merely the work-person has stated in her cross-examination that she was not gainfully employed, will not be sufficient for grant of back-wages when she has not stated so in her statement.

Pratima Seth ( Miss) vs The Management of M/s Ansal Properties & Industries Ltd. & Ors 2007 LLR 466 Delhi High Court.
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09 July, 2007

Tribunal /Labour Court has no authority to set aside exparte award after 30 days either by consent or by settlement.
Held. An ex parte award can be set aside within 30 days of its publication since the Labour Court/Tribunal becomes functus officio thereafter.

A settlement for a meager amount of Rs 4000 each, as paid to the workmen against award of reinstatement with back-wages amounting to Rs. 37,500, will not be valid settlement and hence liable to be quashed.
The functionaries of a trade union should represent the interest of the workmen instead of trapping the workers for their own interest and polluting the industrial atmosphere and industrial peace.
Shanti Rani vs Presiding Offiver & Ors 2007 LLR 462 Delhi High Court
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06 July, 2007

Compensation proper for daily wager in case of illegal termination.

Held. Termination of a daily wager Mali who has worker for more than 240 days in preceding 12 months will be illegal when no retrenchment compensation or one month’s notice pay was given.
Reinstatement is not appropriate relief in every case of wrongful termination of service hence compensation will be proper relief to a daily wager mali.

State of U.P. through Executive Engineer Irrigation Divison, Jaunpur vs Presiding Officer, Labour Court, Varanasi, and another, 2007 LLR 458 Allahbad High Court
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05 July, 2007

Initiation of legal action for fraudulently depriving workers from P.F. benefits by dubiously splitting the establishment in 8 concerns, would be proper and legal.

Held. Imposition of Rupees one Lac cost besides directing Provident Fund Authorities to initiate legal action against the petitioner will be appropriate who, by adopting devious means and misrepresentations , have deprived the workers from the benefit of provident funds by splitting into eight establishments fraudulently and not disclosing their real ownership besides taking cover of legal proceedings to dissuade the Provident Fund Authorities to proceed with investigation about coverage of employees under the Employees’ Provident Funds & Miscellaneous Provisions Act.
An order by the court obtained fraudulently by the petitioner will be nullity and non est in eye of law.

Sewa International Fashions & Anr vs Employees’ Provident Fund Organization and Ors 2007 LLR 450 Delhi High Court

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04 July, 2007

While differing with the findings of enquiry officer, disciplinary authority should give notice to workman before inflicting punishment.

Held. No Notice at all was given before the disciplinary authority recorded its final conclusions differing with the finding of fact of the Enquiry Officer whereas the notice to show cause was merely a show cause against the proposed punishment, hence the decision of the High Court cannot be sustained.

Lav Nigam vs. Chairman and MD, ITI Ltd. and Another. 2007 LLR 558 Supreme Court of India
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03 July, 2007

Causal Contractors engaged for temporary repair work will not be covered under ESI Act.

Held. Coverage of employee under Employee’s State Insurance Act, engaged for changing of the electrical wiring on the premises of the employer, will not be required as held by the Emloyees’ Insurance Court and the High Court has upheld the order of the Emloyees’ Insurance court relying upon the Supreme Court Judgement that casual contractors like plumbers, electricity repaires , air conditioner repairers , computer repairers and TV repairers , etc., who are engaged for temporay repair work, would not be convertible under the ESI Act.

Employees’ State Insurance Corporation vs R.K. Furnances and Anr. 2007 LLR 14 Bombay High Court
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01 July, 2007

Resignation after acceptance can not be withdrawn even on the plea of having tendered in tension.

Held A employee , resigning from service with immediate effect on his transfer from one department to another, cannot withdraw the same when it has been accepted and the pleas of the employee that due tension in his mind he has taken the drastic step of tendering the resignation, will not tenable.

High Court will not interfere with the Award of the Industrial Tribunal that the tendering of resignation was voluntary and the same was accepted hence its withdrawal was not justified.

Shaikh Riyasat Ali vs Presiding Officer, Central Government Industrial Tribunal No. 2 , Mumbai and Anr. 2007 LLR 11 Bombay High Court.
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